Durr,
C.J.:—The
question,
the
answer
to
which,
in
my
view,
must
determine
this
appeal,
is
whether
or
not
the
respondents,
the
Halifax
Harbour
Commissioners,
fall
within
the
description
"‘occupier’’
within
the
meaning
of
sec.
357(1)
of
the
Halifax
charter.
The
conclusion
I
have
reached
is
that
this
question
must
be
answered
in
the
negative.
The
governing
principle
can,
perhaps,
for
the
purposes
of
this
case,
be
most
conveniently
stated
in
the
words
of
Lord
Blackburn
(Blackburn,
J.
as
he
then
was),
in
his
judgment
in
The
Queen
v.
McCann
(1868)
L.R.
3
Q.B.
141
at
145-6.
He
is
there
dealing
with
an
issue
raised
as
to
the
liability
of
the
Commissioners
of
Works
and
Buildings
to
be
rated
to
the
relief
of
the
poor
under
43
Eliz.,
c.
2,
see.
1,
in
respect
of
their
occupation
of
a
bridge
across
the
Thames
at
Chelsea.
He
says:
"‘Since
the
decision
relating
to
the
Mersey
Docks,
as
a
general
rule,
the
occupier
of
property
from
which
profit
is
derived,
is
to
be
rated,
without
regard
to
the
purpose
to
which
the
profits
are
ultimately
appropriated;
but
property
in
the
occupation
of
the
Crown—the
Crown
not
being
named
in
the
statute
of
Elizabeth—forms
an
exception
to
this
rule;
consequently
where
the
Crown
is
the
occupier
of
property
it
is
not
to
be
rated;
and
further,
where
property
is
occupied
for
the
Crown
it
is
not
to
be
rated.
It
is
on
this
principle
that
a
servant
of
the
Crown,
who
had
taken
a
lease
of
premises
to
be
used
as
barracks,
as
in
Lord
Amherst
v.
Lord
Sommers
(1788)
2
T.R.
372,
was
held
not
liable
to
be
rated;
and
this
principle
extends
to
the
case
of
a
person
in
occupation
of
premises,
whether
as
servant
or
trustee
for
the
Crown:
and
so
far
from
being
over-ruled
in
the
case
of
Mersey
Docks
(Jones
v.
Mersey
Docks
(1864)
11
H.L.C.
443
at
464),
this
principle
was
affirmed/’
The
courts
have
had
to
decide,
in
a
number
of
cases,
whether
property
occupied
for
public
purposes
was
occupied
"‘for
the
Crown’’,
or
in
trust
for
the
Crown,
within
this
principle.
I
think
the
principle
is
properly
applicable
to
the
construction
of
such
an
enactment
as
sec.
357.
The
rule
has
been
uniformly
followed
in
England
and
Scotland
in
the
application
of
rating
statutes,
and
one
may
fairly
assume
that
one
is
not
running
counter
to
the
intention
of
the
legislature
in
applying
it
to
a
Canadian
enactment
in
pari
materia
and
expressed
in
terms
not
substantially
differing
in
effect.
There
are,
moreover,
relevant
considerations
resting
upon
the
circumstances
that
the
respondents
are
a
public
body
charged
with
the
management
and
administration
of
property
of
the
Crown
in
the
right
of
the
Dominion,
and
that
their
revenues
are
derived
from
charges
collected
in
the
course
of
such
administra-
tion,
and
from
tolls
levied
under
the
authority
of
the
Parliament
of
Canada,
in
respect
of
the
use
of
the
public
harbour
of
Halifax
of
which
the
Crown,
in
the
right
of
the
Dominion,
is
proprietor,
to
which
it
will
be
necessary
to
advert.
Before
discussing
these
matters,
it
is
advisable
to
consider
the
powers
and
rights
of
the
respondents,
under
the
statute
of
1927,
by
which
they
were
incorporated,
and
subsequent
statutes
affecting
them,
and,
in
particular,
the
relation
in
which
they
stand,
in
the
exercise
of
these
powers,
to
His
Majesty
and
His
Majesty’s
Privy
Council
and
Ministers
of
State
for
Canada.
The
property
occupied
by
the
respondents
consists
of
property
belonging
to
the
harbour
of
Halifax,
and
is
the
property
of
the
Crown.
The
object
and
purposes
of
the
Legislature
in
vesting
the
occupation
of
this
property
in
the
respondents
are
disclosed
by
the
legislation
we
have
to
discuss.
Broadly
speaking,
the
duties
of
the
Commissioners
are,
in
general
terms,
of
two
descriptions.
First,
they
are
responsible
for
the
management
and
administration
of
the
harbour
and
of
property
belonging
to
the
harbour
and
of
facilities
connected
therewith
;
secondly,
they
are
charged
with
the
duty
of
regulating
the
exercise
of
public
rights
of
navigation
within
the
harbour,
including
the
mooring,
berthing,
discharging
or
loading
of
vessels,
and
everything
incidental
thereto.
In
the
exercise
of
all
their
powers,
they
are,
as
we
shall
see,
subject
to
the
control
of
the
Crown,
exercised
either
through
the
Governor
in
Council,
that
is
to
say,
the
Governor,
as
the
representative
of
His
Majesty,
acting
upon
the
advice
of
His
Majesty’s
Privy
Council
for
Canada,
or
through
the
Minister
of
Marine
and
Fisheries.
This
is
a
matter
of
no
little
importance
and
it
is
right,
therefore,
to
enter
into
particulars.
By
sec.
8,
the
statute
declares
that*
nothing
shall
be
deemed
4
to
give
the
Corporation
jurisdiction
or
control
respecting
private
properties
or
rights’’
within
the
limits
of
the
harbour
as
defined.
Then,
by
the
same
section,
it
is
enacted
that
the
respondents
shall
have
no
right
to
enter
upon,
or
to
deal
with,
any
property
of
the
Crown,
except
when
so
authorized
by
Order
in
Council.
The
respondents,
by
sec.
10,
are
given
wide
powers
for
the
acquisition
of
real
and
personal
property
for
the
purposes
of
the
harbour,
but
these
powers
can
only
be
executed
after
approval
by
the
Governor
in
Council.
There
is
also,
under
the
section,
a
power
to
sell
or
lease,
but
subject
to
the
same
condition.
The
section,
moreover,
enacts
that
real
property
acquired
under
these
powers
shall
"
"
be
acquired
in
the
name
of,
and
vested
in,
His
Majesty’’.
Where
the
respondents
proceed
(under
the
authority
of
the
Government,
of
course)
by
way
of
expropriation,
they
are
entitled
to
avail
themselves
of
the
provisions
of
the
Railway
Act,
but,
even
in
such
proceedings,
the
powers
vested
by
that
statute
in
the
Board
of
Railway
Commissioners
are
to
be
exercised
by
the
Governor
in
Council
(sec.
13).
Again
(sec.
14),
the
Governor
in
Council
is
authorized
to
transfer
elevators,
wharfs,
piers,
buildings,
structures,
machinery
and
equipment,
the
property
of
His
Majesty,
within
the
limits
of
the
harbour,
foreshores,
water
lots
and
other
real
property
‘‘to
the
jurisdiction
of’’
the
respondents,
to
be
‘‘subject
to
the
control
of
and
administration
by’’
the
respondents;
but
under
such
terms
and
conditions
as
may
be
prescribed
by
the
Governor
in
Council.
The
respondents
are
empowered
to
make
regulations
by
bylaw,
concerning
the
conduct
and
government
of
the
Corporation,
its
officers
and
servants;
the
compensation
or
salaries
to
be
paid
to
such
officers
or
servants;
the
management,
control
and
improvement
of
the
property,
real
and
personal,
under
its
jurisdiction;
the
use
of
harbour
facilities;
the
construction
and
maintenance
of
wharfs,
piers,
buildings
and
other
structures
within
the
harbour
limits;
the
imposition
and
collection
of
rates
and
tolls
on
vessels
and
their
cargoes,
on
goods
or
cargo
landed,
shipped
or
stored
in
the
harbour,
and
for
the
use
of
any
buildings,
plant
or
facilities
under
the
control
of
the
Corporation
;
but
no
such
by-law
can
have
any
force
or
effect
until
confirmed
by
the
Governor
in
Council.
The
same
observation
applies
to
bylaws
regulating
the
navigation
of
the
harbour
and
matters
incidental
thereto.
For
our
present
purposes,
perhaps
the
most
significant
provisions
of
the
statute
are
those
relating
to
the
sources
of
capital
funds
and
revenue
and
the
expenditure
thereof.
The
contemplated
sources
of
revenue
appear
to
be
the
rates
and
tolls
on
vessels
and
cargoes,
and
on
goods,
and
the
charges
for
the
use
of
buildings,
plant
and
harbour
facilities,
which,
as
already
mentioned,
the
respondents
are
empowered
to
impose
by
by-laws
confirmed
by
the
Governor
in
Council;
and
penalties
imposed
under
like
authority.
As
to
the
sources
of
capital
funds,
the
respondents
are,
by
the
statute
of
1927,
invested
with
borrowing
powers
(sec.
18).
These
borrowing
powers
are
given
for
the
purpose
of
enabling
the
respondents
to
"‘construct,
acquire,
repair
or
improve
wharves
and
other
works
and
structures
in
the
harbour
;”’
but
only
‘‘after
the
approval
by
the
Governor
in
Council,
on
the
recommendation
of
the
Minister,
of
the
plans,
specifications
and
estimates
in
detail
for
the
work
proposed,
and
the
amount
proposed
to
be
borrowed.”
Debentures
may
be
issued,
secured
upon
the
revenues
or
property
receivable
or
controlled.
by
the
Corporation,
and
may
be
sold
on
terms
approved
by
the
Governor
in
Council.
It
does
not
appear,
from
the
statute
of
1927
itself,
whether
or
not
is
was
supposed
that
the
capital
funds
provided
by
borrowing
should
be
obtained
from
or
through
the
Government,
or
from
other
sources.
However
that
may
be,
statutes
were
passed
in
substantially
identical
terms,
except
as
to
amounts,
in
the
years
1928,
1929
and
1931,
for
providing
the
respondents
with
capital
funds
by
loans
from
time
to
time
from
the
Government
of
Canada,
not
exceeding
a
maximum
named
in
each
case.
Under
the
statute
of
1928,
the
total
amount
to
be
advanced,
which,
the
statute
declares,
it
was
understood
would
meet
the
total
requirements
of
the
respondent
for
the
ensuing
year,
was
not
to
exceed
the
sum
of
$500,000.
The
statute
of
1929
authorized
the
advance
of
a
total
sum
not
exceeding
$5,000,000
in
addition
to
moneys
already
placed
at
the
disposition
of
the
respondents;
and
that
of
1931,
a
further
sum
of
$3,500,000.
It
is
material
to
refer
to
the
conditions
controlling
the
Governor
in
Council
in
making
these
advances.
The
purposes
of
the
advances,
the
statutes
declare
in
general
terms,
is
to
enable
the
respondents
to
construct
such
terminal
facilities
in
the
harbour
of
Halifax,
according
to
plans
approved
by
the
Governor
in
Council,
as
may
be
necessary
properly
to
equip
the
harbour.
No
loan,
it
is
enacted,
is
to
be
paid,
unless
detailed
plans,
specifications
and
estimates,
for
the
works
on
which
the
money
is
to
be
expended,
satisfactory
to
the
Minister
of
Marine,
have
been
approved
by
the
Governor
in
Council,
before
any
part
of
the
work
has
been
commenced.
The
respondents
are
required
to
"
submit
to
the
Minister
of
Marine
and
Fisheries,
for
approval,
monthly
applications
for
loans
on
account
of
the
different
items
of
construction
of
terminal
facilities,
accompanied
by
statements
showing
the
total
expenditure
on
these
different
items
in
detail,
for
the
month
which
the
loan
is
to
cover,
and
any
other
statements
required
in
such
form
as
the
Minister
shall
direct
;
and
upon
approval
of
the
application,
authority
for
the
payment
of
the
amount
so
applied
for
may
be
granted
by
the
Governor
in
Council.’’
Upon
any
loan
being
made,
debentures
equal
in
par
value
to
the
loan,
bearing
interest
at
five
per
cent,
payable
half-yearly,
are
to
be
deposited
with
the
Minister
of
Finance;
and
the
principal
and
interest
of
the
sums
loaned
are
to
be
payable
"
"
by
the’
Corporation
out
of
all
its
property
and
assets
and
out
of
all
its
tolls,
rates,
dues,
penalties
and
other
sources
of
revenue
and
income’’
and
charged
thereon
under
the
conditions
laid
down
by
see.
19
of
the
Act
of
1927.
The
legislation
provides
no
means
of
obtaining
capital
funds
other
than
such
borrowing,
except
the
sale
of
property;
and,
in
resorting
to
that,
as
well
as
in
exercising
their
borrowing
powers,
the
respondents
are
entirely
under
the
control
of
the
Governor
in
Council.
The
property
under
the
control
of
the
respondents,
other
than
its
revenues,
consists,
therefore,
of
properties
transferred
by
the
Crown
""to
the
jurisdiction
of’’
the
respondents,
or
‘‘entered
upon’’,
with
the
authority
of
the
Governor
in
Council;
properties
purchased
with
money
taken
from
revenue,
with
the
consent
of
the
Governor
in
Council
;
properties
acquired
and
constructed
through
the
expenditure
of
moneys
borrowed
(which,
in
fact,
seem
to
have
been
confined
to
moneys
advanced
by
the
Governor
in
Council
under
the
legislation
of
1928,
1929
and
1931)
;
and,
as
regards
this
last
mentioned
class,
the
respondents,
as
we
have
seen,
are,
at
every
step
in
the
course
of
the
acquisition
of
such
properties,
under
the
control
of
the
Minister
of
Marine
and
Fisheries
and
the
Governor
in
Council.
The
revenues,
as
already
indicated,
would
be
revenues
derived
from
charges
collected
for
the
use
of
the
property
and
facilities
under
the
‘‘jurisdiction’’
of
the
respondents,
and
tolls
payable
for
the
use
of
the
port,
and
from
penalties;
all
such
charges
and
tolls
and
penalties
being
fixed
by
by-laws
which
must
be
approved
by
the
Governor
in
Council.
The
control
over
the
expenditure
is
singularly
rigorous.
We
have
noticed
the
conditions
under
wihch
moneys
borrowed
are
disbursed.
By
sec.
19(1)
(a)
all
revenue
is
to
be
applied,
first
of
all,
in
payment
of
the
necessary
expenses
incurred
in
the
collection
of
it,
and
"‘in
the
management
and
operation
of
the
harbour
services,
and
in
the
maintenance
and
ordinary
repair
of
its
works
and
facilities
;’
and,
by
the
same
clause,
the
expenditure
of
all
revenue
is
subject
to
the
supervision
and
control
of
the
Minister.
The
compensation
and
salaries
of
all
officers,
assistants,
engineers,
clerks
and
servants
are
to
be
fixed
by
by-law,
which
must
receive
the
approval
of
the
Governor
in
Council.
By
sec.
21(a)
the
respondents
are
required
to
keep
separate
detailed
accounts
of
receipts
and
disbursements
on
capital
account,
as
well
as
on
revenue
account,
and
there
is
to
be
an
audit
by
the
Department
of
Marine
and
Fisheries.
Then,
by
sec.
20,
the
Minister
may,
when
the
gross
revenue
exceeds
$50,000
per
annum,
require
the
respondents
to
submit
at
the
beginning
of
each
current
year,
an
estimate
of
its
expenditures
on
each
of
the
different
services
of
the
harbour,
(a)
out
of
revenue,
and
(b)
out
of
capital
funds.
These
estimates
are
to
be
subject
to
the
approval
of
the
Minister;
who
may
require
the
reduction
of
any
item.
And
the
statute
requires
peremptorily
that
the
expenditure
for
the
year
shall
be
confined
‘‘to
a
total
within
the
estimates
so
approved’’.
This
last
is
a
statutory
provision
binding,
apparently,
upon
the
Minister
and
the
Governor
in
Council,
as
well
as
on
the
respondents.
But
further,
within
the
limits
so
fixed,
the
expenditure
of
all
revenue
is,
as
already
mentioned,
by
sec.
19,
subject
to
the
supervision
and
control
of
the
Minister.
Any
surplus
of
revenue,
after
payment
of
the
costs
of
collection
and
services,
is
to
be
applied,
first,
in
payment
of
interest
on
money
borrowed,
and
secondly,
under
the
direction
of
the
Minister,
in
the
creation
of
a
sinking
fund.
The
remaining
provisions
of
the
statute,
except
those
concerned
with
the
constitution
of
the
Corporation,
do
not
require
any
special
comment
save,
perhaps,
this:
the
powers
of
the
respondents
in
respect
of
the
collection
of
rates
and
tolls,
and
the
enforcement
and
the
collection
of
penalties,
and
their
rights
in
respect
of
the
recovery
of
damages
to
their
property
are
exceptional,
and
of
such
a
character
as
to
suggest
that
the
services
of
the
respondents
are
regarded
by
the
statute
as
exclusively
governmental
services.
The
constitution
of
the
Corporation
is
important.
There
are
three
Commissioners,
each
of
which
is
appointed
by
the
Governor
in
Council
on
the
recommendation
of
the
Minister.
Their
tenure
of
office
is
‘‘during
pleasure’’.
One
of
them
is
to
be
President,
to
be
named
from
time
to
time
by
the
Governor
in
Council.
A
Commissioner
resigns
his
office
by
notice
in
writing
to
the
Minister.
The
Governor
in
Council
determines
their
remuneration,
which
is
to
be
paid
out
of
the
revenue
of
the
harbour.
I
agree
with
the
view
unanimously
accepted
by
the
Supreme
Court
of
Nova
Scotia
that
the
relation
of
the
respondents
to
the
Crown,
in
respect
of
the
occupation
for
which
they
have
been
assessed,
is
of
such
a
character
as
to
constitute
that
occupation
an
occupation
"‘for
the
Crown’’
in
the
sense
of
the
principle
as
stated
above,
in
the
language
of
Lord
Blackburn,
and
as
elucidated
in
its
application
by
the
courts
in
England
and
by
the
Judicial
Committee
of
the
Privy
Council.
It
is
not
necessary,
I
think,
to
go
through
the
authorities
in
detail.
The
judgments
of
Lord
Blackburn
and
Lord
Watson
in
Coomb
er
v.
Justices
of
Berks
(1883)
9
App.
Cas.
61
show
very
clearly
indeed
the
view
accepted
by
these
great
judges
as
to
the
scope
of
the
principle.
They
both
adopt
the
statement
of
it
by
Lord
Cairns
in
Greig
v.
University
of
Edinburgh
(1888)
L.R.
1
H.L.,
Se.
348,
at
390,
in
these
words:
"‘The
Crown
not
being
named
in
the
English
or
Scotch
statutes
on
the
subject
of
assessment,
and
not
being
bound
by
statute
when
not
expressly
named,
any
property
which
is
in
the
occupation
of
the
Crown
or
of
persons
using
it
exclusively
in
and
for
the
service
of
the
Crown,
is
not
rateable
to
the
relief
of
the
poor.’’
It
is
quite
clear,
however,
that
the
phrase
"‘service
of
the
Crown’’
is
not
understood
by
them
in
any
such
limited
sense
as
would
exclude
such
services
as
those
performed
by
the
respondents.
At
page
68,
Lord
Blackburn,
after
referring
to
Lord
Westbury’s
language
in
the
Mersey
Docks
case
(
(1864)
11:
H.L.C.
443),
says:
.
.
in
Greig
v.
University
of
Edinburgh
(1868)
L.R.
1
H.L.,
Se.
348,
at
354,
he
more
clearly
shows
what
was
his
view
by
using
this
language
‘property
occupied
by
the
servants
of
the
Crown,
and
(according
to
the
theory
of
the
Constitution)
property
occupied
for
the
purposes
of
the
administration
of
the
government
of
the
country,
became
exempt
from
liability
to
the
poor-rate’.”
He
proceeds
to
say
that
Lord
Cranworth
(in
his
judgment
in
the
Mersey
Docks
ease
(1864)
11
H.L.C.
448,
at
508)
was
on
his
guard
against
being
supposed
to
decide
that
all
the
earlier
cases
were
right
"‘in
deciding
that
the
purposes
were
those
of
the
public
government’’;
but
that
he
does
not
impeach
them.
Turning
to
the
judgment
of
Lord
Watson,
we
find
him
employing
language
pointing
to
the
essential
distinction
as
that
between
public
purposes
in
the
broad
sense
and
(in
Lord
Blackburn’s
phrase)
"‘purposes
of
the
public
government’’.
At
p.
73,
Lord
Watson
says
it
was
sufficient
in
the
Mersey
Docks
case
"
"
to
establish
that
occupation
for
what
were
strictly
speaking
public,
though
in
no
sense
Government,
purposes,
was
not,
as
regarded
exemption
from
the
poor-rate,
in
pari
casu
with
the
occupation
of
the
Crown.”
He
seems
to
say
that
the
point
for
consideration
in
such
cases
is
whether
or
not
the
occupation
‘‘must
be
held
to
be’’
for
"‘a
proper
Government
use’’,
and
this
appears
to
be
adopted
by
Lord
Bramwell
at
p.
79.
To
state
again,
in
more
summary
fashion,
the
nature
of
the
powers
and
duties
of
the
respondents:
Their
occupation
is
for
the
purpose
of
managing
and
administering
the
public
harbour
of
Halifax
and
the
properties
belonging
thereto
which
are
the
property
of
the
Crown;
;
their
powers
are
derived
from
a
statute
of
the
Parliament
of
Canada;
but
they
are
subject
at
every
turn
in
executing
those
powers
to
the
control
of
the
Governor
representing
His
Majesty
and
acting
on
the
advice
of
His
Majesty’s
Privy
Council
for
Canada,
or
of
the
Minister
of
Marine
and
Fisheries;
they
cannot
take
possession
of
any
property
belonging
to
the
harbour
property
without
the
consent
of,
and
only
upon
such
terms
as
may
be
imposed
by,
the
Government
;
they
cannot
acquire
property
or
dispose
of
property
without
the
same
consent;
they
can
only
acquire
capital
funds
by
measures
taken
under
the
control
of
the
Government;
they
can
only
apply
capital
funds
in
constructing
works
and
facilities
under
a
supervision
and
control,
the
character
of
which
has
been
explained;
the
tolls
and
charges
which
are
the
sources
of
their
revenue
they
can
only
impose
under
the
authority
of
the
Government
;
the
expenditure
of
revenues
in
the
maintenance
of
services
is
under
the
control
and
supervision
of
a
Government
Department;
the
salaries
and
compensation
payable
to
officers
and
servants
are
determined
under
the
authority
of
the
Government
;
the
regulations
necessary
for
the
control
of
the
harbour,
the
harbour
works,
officers
and
servants,
the
proceedings
of
the
Corporation,
can
only
take
effect
under
the
same
authority
;
the
surplus
of
revenue
after
providing
for
costs
of
services
and
the
interest
on
the
debenture
debt
goes
into
a
sinking
fund
under
the
direction
of
the
Minister;
finally,
they
are
appointed
by
the
Crown
and
hold
office
during
pleasure.’
I
cannot
doubt
that
the
services
contemplated
by
this
legislation
are,
not
only
public
services
in
the
broad
sense,
but
also,
in
the
strictest
sense,
Government
services;
or
that
the
occupation
of
the
Government
property
with
which
we
are
concerned
is,
in
the
meaning
with
which
Lord
Cairns
used
the
words
in
the
passage
cited
(and
in
the
sense
in
which
those
words
were
interpreted
by
Lord
Blackburn
and
Lord
Watson),
an
occupation
by
persons
"‘using’’
that
property
4
‘
exclusively
in
and
for
the
service
of
the
Crown’’.
It
is
not
without
importance
to
observe
that,
since
Confederation,
except
in
special
cases
where
it
has
been
found
convenient
to
make
provision
for
the
administration
of
harbours
by
the
appointment
of
harbour
commissioners,
the
control,
management
and
regulation
of
the
matters
committed
to
the
charge
of
the
respondents
have
been
treated
in
this
country
as
belonging
to
the
services
of
the
Crown.
By
c.
89
of
the
Revised
Statutes
of
Canada
(1927),
sec.
4,
‘‘,..
the
use,
maintenance,
and
ordinary
repairs
of
all
harbours,
wharfs,
piers
and
breakwaters
constructed
or
completed
at
the
expense
of
Canada,
or
in
any
way
the
property
of
Canada,
and
the
making
and
enforcing
of
regulations
concerning
such
use,
maintenance
and
ordinary
repairs,
and
the
collection
of
tolls
and
dues
for
such
use,
‘
‘
are
placed
under
the
control
and
managament
of
the
Minister
of
Marine
and
Fisheries.
By
the
same
statute
(see.
7),
the
Governor
in
Council
is
empowered
"‘on
the
recommendation
of
the
Minister’’
(of
Marine
and
Fisheries)
to
"make
rules
and
regulations
for
the
use
and
management
of
such
harbours,
wharfs,
piers
and
breakwaters’’
and
to
establish
"‘a
tariff
or
tariffs
of
the
tolls
and
dues
to
be
paid
for
the
use
of’’
them
‘‘to
be
levied
on
persons
or
vessels
using
them,
and
on
goods,
wares
or
merchandise
landed
or
shipped
on
or
from
off
them”.
The
statute
substantially
in
its
present
form
has
been
in
effect
since
1877.
Prior
to
that
date,
the
powers
vested
in
the
Department
of
Marine
and
Fisheries
by
the
statute
of
1877
had
been
exercised
in
part
by
that
department,
and
in
part
by
the
Public
Works
Department.
By
ec.
42
of
the
statutes
of
1872
it
was
enacted
:
“2.
The
Governor
in
Council
may
from
time
to
time
appoint
a
fit
and
proper
person
to
be
Harbour
Master
for
the
Port
of
Halifax,
in
the
Province
of
Nova
Scotia.
“3.
Every
Harbour
Master
appointed
under
this
Act
shall
be
under
the
control
of
the
Minister
of
Marine
and
Fisheries,
to
whom
he
shall
furnish
a
report
in
writing
and
on
oath,
as
soon
as
possible
after
the
thirty-first
day
of
December
in
each
year,
of
his
doings
in
office,
and
of
the
fees
of
office
received
by
him
during
each
year.
“4.
The
rights,
powers
and
duties
of
the
Harbour
Master
for
the
Port
of
Halifax,
shall
be
such
as
may
from
time
to
time
be
conferred
and
imposed
upon
him
by
rules
and
regulations
made
by
the
Governor
in
Council
for
the
government
of
his
office
and
of
the
Port
of
Halifax,
and
for
his
remuneration,
which
rules
and
regulations
the
Governor
in
Council
is
hereby
authorized
and
empowered
to
make,
and
from
time
to
time
to
alter,
amend
or
repeal?
‘
These
provisions
applied
to
the
Port
of
Halifax
down
to
1927.
Two
judgments
of
the
Judicial
Committee
of
the
Privy
Council
are
relied
upon
by
the
appellants.
The
first
is
Fox
v.
Government
of
Newfoundland
[1898]
A.C.
667.
The
question
involved
in
that
case
was
whether
certain
moneys
owing
to
the
boards
of
education
of
Newfoundland
took
priority
over
ordinary
debts
in
the
liquidation
of
a
bank,
as
falling
within
the
description
"‘debts
and
claims
due
to
the
Crown
or
to
the
government
or
revenues
of
the
Colony’’.
The
question
considered
by
the
Judicial
Committee
was
whether
or
not
these
boards
were
agents
of
the
government.
It
was
held
they
were
not.
That
view
was
based
upon
provisions
of
the
statute
by
which
the
boards
were
constituted.
Their
Lordships
held
that,
"‘The
appointment
of
boards
for
each
of
the
three
religious
denominations,
and
the
constitution
of
the
board,
indicate
that
it
is
.
.
.
to
have
within
the
limit
of
general
educational
purposes
a
discretionary
power
in
expending’’
the
moneys
transferred
to
it—"‘a
power
which
is
independent
of
the
Government’’.
There
was
provision
for
auditing
of
the
accounts,
but
it
was
held
that
this
was
merely
for
the
information
of
the
Government
and
Legislature
and
not
in
order
that
any
item
of
expenditure
might
be
disallowed
if
the
Government
did
not
approve
of
it.
The
statute
made
a
distinction
between
money
to
be
expended
by
a
board
of
education
and
money
to
be
expended
as
the
Governor
in
Council
might
determine.
It
is
quite
evident
that
these
considerations
have
no
application
in
the
present
case.
The
control,
carefully
reserved,
as
we
have
seen,
to
the
Government,
by
statute
before
us,
had
no
place
in
the
Newfoundland
scheme.
In
Metropolitan
Meat
Industry
Board
v.
Sheedy
[1927]
A.C.
899,
a
similar
question
was
raised
:
that
is
to
say,
whether
a
debt
due
to
the
Metropolitan
Meat
Industry
Board
of
New
South
Wales
was
a
debt
due
to
the
Crown.
Lord
Haldane,
who
delivered
the
judgment
of
the
Committee,
discusses
the
cases
to
which
reference
has
already
been
made.
As
regards
Fox
v.
Govern-
ment
of
Newfoundland
[1898]
A.C.
667,
he
explains
the
ratio
decidendi
in
this
way
:—
"‘The
reason
was
that
the
various
boards
of
education
were
not
mere
agents
of
the
Government
for
the
distribution
of
money
entrusted
to
them,
but
were
to
have,
within
the
limits
of
general
educational
purposes,
uncontrolled
discretionary
power
in
expending
it.
The
service,
in
other
words,
was
not
treated
as
being
the
service
of
the
Sovereign
exclusively
within
the
meaning
of
the
principle,
but
their
own
service.’’
As
regards
the
New
South
Wales
Board,
whose
powers
were
under
review,
he
says,
"‘They
are
a
body
with
discretionary
powers
of
their
own.
Even
if
a
Minister
of
the
Crown
has
power
to
interfere
with
them,
there
is
nothing
in
the
statute
which
makes
the
acts
of
administration
his
as
distinguished
from
theirs.
That
they
were
incorporated
does
not
matter.
It
is
also
true
that
the
Governor
appoints
their
members
and
can
veto
certain
of
their
actions.
But
these
provisions,
even
when
taken
together,
do
not
outweigh
the
fact
that
the
Act
of
1915
confers
on
the
appellant
Board
wide
powers
which
are
given
to
it
to
be
exercised
at
its
own
discretion
and
without
consulting
the
direct
representatives
of
the
Crown.
Such
are
the
powers
of
acquiring
land,
constructing
abattoirs
and
works,
selling
cattle
and
meat,
either
on
its
own
behalf
or
on
behalf
of
other
persons,
and
leasing
its
property.
Nor
does
the
Board
pay
its
receipts
into
the
general
revenue
of
the
State,
and
the
charges
it
levies
go
into
its
own
fund.
‘
‘
Obviously,
there
is
little
relevant
analogy
between
such
a
body
and
the
respondents,
whose
duties
mainly
consist
in
managing
and
administering
property
which
belongs
to
the
Crown,
and
whose
activities,
and
whose
revenues
and
expenditures,
are
subject
to
the
control
and
supervision
of
the
Crown,
as
explained
above.
The
position
of
the
respondents
cannot,
I
think,
in
any
pertinent
sense,
be
distinguished
from
that
of
the
Commissioners
whose
status
was
in
question
in
The
Queen
v.
McCann
(1868)
L.R.
3
Q.B.
141.
Indeed,
if,
instead
of
three
Harbour
Commissioners
to
be
appointed
by
the
Crown,
holding
office
during
pleasure,
the
statute
had
made
provision
for
the
appointment
of
a
single
Harbour
Commission,
that
Commissioner
to
be
the
Minister
of
Marine,
or
the
Deputy
Minister
of
Marine,
for
the
time
being,
we
should
have
had
a
substantially
identical
case.
But
there
is
another
point
of
view
from
which
the
controversy
in
this
appeal
ought
to
be
considered.
It
results,
I
think,
from
the
examination
of
the
legislation,
first,
that,
as
I
have
already
said,
the
occupation
by
the
respondents
of
the
property
and
facilities
under
their
‘‘jurisdiction’’
is
an
occupation
for
the
Dominion
of
Canada;
and,
second,
that
the
property
of
the
respondents
is
part
of
the
public
property
of.
Canada.
I
have
nothing
to
add
upon
the
first
branch
of
this
proposition.
As
to
the
second,
there
are
some
points
which
ought,
perhaps,
to
be
emphasized.
First
of
all,
the
public
harbour
of
Halifax
passed,
by
force
of
sec.
108
of
the
British
North
America
Act,
as
property,
to
the
Crown
in
right
of
the
Dominion,
and
is
still
part
of
the
public
property
of
the
Dominion.
Admittedly,
indeed,
all
the
real
property
and
harbour
facilities
over
which
the
respondents
exercise
any
control
are
the
property
of
the
Government.
The
sources
of
revenue
are
the
charges
and
tolls
payable
in
respect
of
the
use
of
the
harbour
and
harbour
facilities.
Moneys
obtained
by
borrowing
are
obtained
upon
the
security
of
these
revenues
and
sources
of
revenue—in
actual
fact
in
the
form
of
advances
by
the
Government
upon
such
security.
The
ultimate
source
of
all
revenue,
outside
of
port
dues
(part
of
the
duties
and
revenues
vested
in
the
Dominion
by
the
British
North
America
Act,
sec.
102),
is
the
property
of
the
Dominion.
The
statute
treats
all
these
revenues
as
moneys
at
the
disposition
of
Parliament,
and,
subject
to
the
specific
directions
of
the
statute,
gives
the
control
of
them
to
the
Government.
If
the
Corporation
had
been
constituted
as
above
suggested,
as
consisting
of
a
single
Commissioner,
to
be
the
Minister
of
Marine
for
the
time
being,
it
would
not
have
been
disputed
that
a
proposal
to
levy
a
tax
upon
the
Corporation’s
occupation
of
the
harbour
property
was
virtually
a
proposal
to
tax
the
Dominion
Government,
or
the
property
of
the
Dominion
Government.
Any
such
attempt
must
fail,
as
ultra
vires
of
a
Provincial
Legislature.
The
general
words
of
the
charter
should
be
read
as
excluding
such
a
tax.
The
appeal
should
be
dismissed
with
costs.
Appeal
dismissed.
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