HUDSON
J.:—The
City
of
Winnipeg
owns
land
lying
within
the
territorial
boundaries
of
the
appellant
municipality,
as
defined
by
the
Municipal
Boundaries
Act,
R.S.M.
1940,
c.
143.
The
question
for
decision
in
this
appeal
is
the
validity
of
tax
levies
imposed
on
such
land
by
the
municipality.
It
is
admitted
that
the
land
in
question
forms
part
of
what
is
known
as
Windsor
Park
Golf
Course,
and
that
it
was
acquired
by
the
city
under
powers
contained
in
its
Charter.
This
golf
course
is
maintained
and
operated
by
the
Public
Parks
Board
of
the
city
as
a
public
golf
course
open
to
anyone
(whether
a
resident
of
Winnipeg
or
not)
paying
the
green
fees
and
obeying
the
rules
of
the
course.
No
taxes
were
levied
against
the
land
from
the
year
1924,
when
the
plaintiff
city
acquired
same,
until
1939,
but
in
that
year
and
in
1940
a
levy
was
made
for
both
municipal
and
school
taxes.
The
plaintiff
did
not
pay
the
amount
so
levied
and
on
September
18,
1941,
the
defendant
sold
the
lands
for
non-payment
of
the
taxes
and,
as
permitted
by
the
Manitoba
statutes,
itself
purchased
the
same
at
the
tax
sale.
The
plaintiff
failed
to
redeem
within
one
year
and,
as
a
consequence,
the
defendant
municipality
applied
to
the
District
Registrar
for
a
certificate
of
title.
The
city
then
under
protest
paid
to
the
District
Registrar
the
sum
of
$1,751.40
to
redeem
the
land
and
prevent
the
issue
of
a
certificate
of
title.
In
its
statement
of
claim
the
plaintiff
alleges
that
the
land
was
not
taxable
and
that
the
defendant’s
proceedings
for
assessment
and
levy
were
defective
in
form.
The
claim
is
for
a
declaration
that
the
lands
were
exempt,
that
the
assessment
and
levy
were
illegal
and
void,
and
for
an
order
against
the
defendant
for
the
payment
of
the
sum
of
$1,751.40.
The
defendant
in
reply
asserted
its
right
to
impose
the
taxes
and
the
regularity
of
its
proceedings.
The
action
was
tried
before
Chief
Justice
McPherson,
then
of
the
Court
of
King’s
Bench
[
[1945]
C.T.C.
15],
and
he
found
for
the
plaintiff
and
awarded
the
relief
claimed
in
the
statement
of
claim.
This
was
affirmed
in
the
Court
of
Appeal
[[1945]
C.T.C.
19]
by
a
majority
of
four
to
one.
Mr.
Justice
Dysart
sitting
ad
hoc
dissented.
In
order
to
impose
the
taxes,
the
municipality
must
have
clear
statutory
power
to
do
so.
The
powers
and
the
government
of
the
City
of
Winnipeg
are
provided
for
by
a
special
Charter,
1918
(Man.),
c.
120;
that
of
most
other
municipalities
in
Manitoba,
including’the
appellant,
by
general
municipal
and
assessment
Acts,
which
do
not
apply
to
Winnipeg,
except
in
the
case
of
special
provisions
expressly
or
impliedly
made
applicable
by
the
Municipal
Act,
1933
(Man.),
c.
57,
s.
2(h),
and
the
Assessment
Act
1934,
(Man.),
ce.
49.
The
legislation
primarily
relied
on
by
the
municipality
is
found
in
the
Assessment
Act,
1934,
(Man.),
ce.
49,
s.
3(1):
"3(1)
All
lands
shall
be
liable
to
taxation
by
a
municipality
subject
to
the
following
exemptions/’
Neither
parks
nor
golf
courses
are
specified
under
the
heading
of
exemptions.
It
is
further
provided
by
s.
6:
“6.
Propery
owned
by
a
municipality,
but
situate
within
the
bounds
of
another
municipality,
shall,
unless
exempted
therefrom,
be
liable
to
assessment
and
taxation
by
the
latter
municipality.
‘
‘
The
lands
in
question
fall
within
the
territorial
boundaries
of
the
municipality,
as
defined
by
the
Municipal
Act.
However,
it
is
provided
in
the
Winnipeg
Charter,
s.
700(14)
:
"700.
The
City
may
pass
by-laws
not
inconsistent
with
the
provisions
of
any
Dominion
or
Provincial
statutes
;
"‘(14)
For
acquiring
and
holding,
by
purchase
or
otherwise,
for
the
public
use
of
the
city,
lands
situate
outside
its
limits
;
and
such
land
so
acquired
shall
form
part
of
the
city.
‘
‘
It
is
contended
on
behalf
of
the
municipality
that
s.
700(14)
does
no
more
than
include
the
land
within
the
city
for
administrative
purposes,
and
secondly,
that
this
golf
course
which
is
used
only
by
those
who
play
golf
is
not
for
public
use
within
the
meaning
of
the
section.
As
to
the
first
of
these
objections,
no
good
reason
was
given
why
a
restricted
meaning
should
be
given
to
the
words
of
the
Legislature.
Moreover,
if
we
look
at
the
corresponding
section
in
the
Municipal
Act,
1933
(Man.),
c.
57,
s.
385
(b),
we
find
that
the
Legislature
thought
it
necessary
to
expressly
authorize
such
taxation.
The
difference
between
the
sections
is
not
accidental.
It
survived
careful
scrutiny
by
the
Legislature
in
several
revisions
of
these
statutes
in
the
past
40
years.
As
to
the
second
objection,
the
expression
"‘public
use”
must
be
taken,
I
think,
to
include
any
such
use
as
by
the
manner
of
place
and
time
reasonably
may
be
said
to
promote
the
health,
welfare
or
happiness
of
citizens,
or
any
substantial
number
of
them.
The
city,
through
its
Publie
Parks
Board,
is
given
express
powers
to
provide
facilities
for
all
forms
of
recreation.
Section
835
of
the
Municipal
Act
is
as
follows:
“835.
The
parks
board
may
provide
‘facilities
for
all
forms
of
recreation
and
may,
from
time
to
time,
pass
by-laws
for
the
use,
regulation,
protection,
government,
and
operations
of
the
same
and
the
charges
for
admission
thereto
or
use
thereof.’’
In
England,
without
such
a
specific
provision,
it
has
been
held
that
a
municipal
golf
course
was
within
the
proper
field
of
municipal
governmental
activities:
Mitcham
Golf
Course
Trustees
v.
Ereaut,
[1937]
3
All
E.R.
450.
This
view
is
supported
by
many
decisions
of
the
Courts
in
the
United
States,
some
of
which
are
referred
to
by
Mr.
Justice
Bergman
in
his
judgment.
In
the
case
of
Shoemaker
v.
United
States
(1893),
147
U.S.
282,
the
Supreme
Court
unanimously
held
that
the
land
taken
for
a
public
park
was
taken
for
a
public
use.
I
am,
therefore,
of
opinion,
that
neither
objection
to
the
application
of
s.
700(14)
can
be
sustained
and
that
for
this
reason
the
appeal
fails.
It
was
also
contended
on
behalf
of
the
city
that
the
land
is
exempt
under
s.
4
of
the
city
Charter,
1918
(Man.),
ce.
20
(now
1940
(Man.),
c.
81,
s.
5(1))
which
is
as
follows:
"‘All
lands
used
for
public
park
purposes
or
exhibition
grounds,
now
or
hereafter
owned
by
the
city,
which
are
situate
outside
the
territorial
limits
of
the
city,
shall
be
exempt
from
municipal
taxation
by
any
municipality
in
which
such
lands
are
situate.”
The
property
in
question
has
all
the
characteristics
usually
associated
with
the
term
‘‘park’’.
It
has
an
extended
area
with
trees,
shrubs
and
lawns
and
in
itself
is
admirably
suited
for
outdoor
pleasures
and
recreation.
It
thus
falls
within
the
dictionary
meaning
of
the
work
“park”.
Oxford
Dictionary
:
‘‘
An
enclosed
piece
of
ground,
of
considerable
extent,
usually
within
or
adjoining
a
city
or
town,
ornamentally
laid
out
and
devoted
to
public
recreation.”
Stroud’s
Judicial
Dictionary:
‘‘The
modern
definition
of
‘Park’,
is
an
enclosed
(private
or
public)
space
of
ground
set
apart
for
ornament,
or
to
afford
the
benefit
of
air,
exercise
or
amusement.
‘
‘
However,
the
exemption
is
of
lands
‘‘used
for
public
park
purposes”
and
it
is
contended
on
behalf
of
the
municipality
that
its
use
exclusively
as
a
golf
course
where
only
golf
players
are
admitted
and
required
to
pay
for
green
fees
deprives
it
of
the
character
of
a
public
park.
Chief
Justice
McPherson
and
the
majority
of
the
Court
of
Appeal
were
of
the
opinion
that
this
limitation
on
the
use
of
the
property
did
not
alter
its
essential
character
and
that
it
still
remained
a
public
park
and
was
used
as
such.
Counsel
for
the
municipality
in
his
factum
raises
a
point
which
does
not
appear
to
have
received
the
attention
of
the
Courts
below.
He
refers
to
s.
802
of
the
Municipal
Act
which
is
as
follows
:
‘"802.
All
parks,
boulevards,
avenues
and
drives,
and
approaches
thereto,
or
streets
connecting
the
same,
dedicated
to
public
use
in
any
municipality
where
this
division
is
adopted,
shall
be
open
to
the
public
free
of
all
charge,
subject
to
such
.
.
.
rules
and
regulations
as
the
parks
board
makes
as
to
the
use
thereof.
‘
‘
It
is,
of
course,
admitted
that
under
s.
835
of
the
Municipal
Act,
already
quoted,
the
Parks
Board
has
the
right
to
provide
facilities
for
all
forms
of
recreation
and
might
pass
by-laws
for
the
use,
regulation
and
operation
of
same,
and
the
charges
for
admission
thereto
or
use
thereof.
It
is
suggested
that,
although
there
is
an
apparent
conflict,
there
is
room
for
the
application
of
both,
that
1s,
that
a
public
park
might
have
within
it
areas
used
for
particular
forms
of
recreation
where
charges
might
be
made,
but
that
this
does
not
extend
to
a
case
where
the
use
of
the
whole
park
is
confined
to
the
one
form
of
recreation
and
where
fees
are
exacted
for
the
use
thereof.
It
was
pointed
out
in
the
Court
below
that
the
City
of
Winnipeg
has
a
park
system
consisting
of
many
parks,
only
two
of
which
are
devoted
exclusively
to
golf,
that
golf
is
a
game
which
requires
a
large
space
and
that
the
practical
use
of
the
course
is
necessarily
confined
to
those
who
play
the
game.
I
am
of
opinion
that
under
the
circumstances
here
the
restrictions
placed
upon
the
use
of
the
Windsor
Park
Golf
Course
are
authorized
by
the
concluding
words
of
s.
802
and
that
the
land
in
question
should
be
held
to
be
used
for
public
park
purposes,
within
the
meaning
of
s.
4
of
the
Charter.
It
was
also
submitted
that
there
was
no
exemption
from
school
taxes
but,
even
if
this
were
so,
it
would
be
no
answer
to
the
present
action
where
both
municipal
and
school
taxes
together
form
the
levy
and
basis
of
the
tax
sale
by
defendants.
The
city
also
contended
that
there
were
irregularities
in
the
assessment
and
tax
notices
which
vitiated
the
taxation
and
the
sale.
Having
come
to
the
conclusion
that
the
appeal
should
be
dismissed
for
the
reasons
already
stated,
it
is
not
necessary
to
discuss
this.
I
think
the
appeal
should
be
dismissed
with
costs.
RAND
J.
concurs
with
KELLOCK
J.
KELLOCK
J.:—This
is
an
appeal
by
the
Rural
Municipality
from
the
judgment
or
order
of
the
Court
of
Appeal
of
Manitoba,
dated
January
15,
1945
[[1945]
C.T.C.
19],
dismissing
its
appeal
from
a
judgment
of
the
Court
of
King’s
Bench
[[1945]
C.T.C.
15]
in
favour
of
the
respondent.
The
action
was
brought
for
the
recovery
of
the
sum
of
$1,751.40
paid
under:
protest.
by
the
respondent
to
the
appellant
to
prevent
the
registration
of
the
appellant
as
owner
of
certain
park
lands
of
the
respondent
situate
within
the
territorial
limits
of
the
appellant
and
which
the
appellant
had
purported
to
sell
to
itself
for
certain
arrears
of
taxes
in
respect
of
alleged
assessments
for
the
years
1939
and
1940.
The
respondent
denied
that
under
the
relevant
legislation
the
lands
in
question
were
assessable
by
the
appellant.
Respondent
alleged
that
the
lands
had
been
purchased
by
it
in
1924,
and
had
since
that
time
been
held
as
part
of
a
system
of
parks
operated
by
the
Public
Parks
Board
of
the
city
pursuant
to
the
provisions
of
the
Municipal
Act,
R.S.M.
1940,
c.
141.
The
legislation
relied
upon
by
the
respondent
in
support
of
its
claim
to
exemption
are
ss.
4
and
700(14)
of
the
Winnipeg
Charter
1918
(Man.),
c.
120,
which
read
as
follows:
“_
"4.
All
lands
used
for
publie
park
purposes
or
exhibition
grounds,
now
or
hereafter
owned
by
the
city,
which
are
situate
outside
the
territorial
limits
of
the
city,
shall
be
exempt
from
municipal
taxation
by
any
municipality
1
in
which
such
lands
are
situate.
‘
‘
"1700.
The
City
may
pass
by-laws
not
inconsistent
with
the
provisions
of
any
Dominion
or
Provincial
statutes
;
"
(14)
For
acquiring
and
holding,
by
purchase
or
otherwise,
for
the
public
use
of
the
city,
lands
situate
outside
its
limits
:
and
such
land
so
acquired
shall
form
part
of
the
city.’’
Appellant
says
that
s.
4
is
inapplicable
for
the
reason
that,
as
it
contends,
the
respondent
i
is
not
operating
a
public
park
on
the
lands:
within
the
meaning
of
the
legislation
and
in
any
event
“municipal
taxation’’
does
not
include
school
taxes.
As
to
s.
100(14),
appellant
contends
that
the
words
"shall
form
part
of
the
city”
mean
no
more
than
that
the
lands
belong
to
the
respondent
but
are
not
exempt
from
taxation
and
that
in
any
event
the
lands
in
question
are
not
held
‘‘for
the
public
use”
of
the
respondent,
within
the
meaning
of
the
subsection.
It
will
be
convenient
to
consider
first
s.
700(14)
and:as
to
whether
or
not
the
lands
here
in
question
are
within
this
legislation.
As
far
back
as
1882,
the
then
Charter
of
the
‘respondent;
45
Vict.,
c.
36,
s.
147,
enabled
its
council
to
pass
by-laws
for
acquiring
such
lands
as
might
be
required
for
the
use
of
the’
city,
within
or
without
its
limits,
for.the
purpose
of
establishing:
cemeteries:
and
parks
as
well
as
‘for:any:
purpos
whatsoever”.
The
power
so
given
might
be
exercised
compulsorily.myi
y
In
1884
the
Section
was
recast
in
the
Charter
of
that
year
and
appears
as
s.
149
(116)
of
47
Vict.,
c.
78.
As
recast,
it
would
appear
to
authorize
a
voluntary
acquisition
only.
By
s.
234
of
c.
11
of
the
Municipal
Act
of
the
same
year,
provision
was
made
for
compulsory
acquisition
of
any
lands
"that
may
be
necessary
for
public
use
of
the
inhabitants
of
such
municipality
or
for
any
municipal
purposes
whatsoever,
which
said
lands
it
is
hereby
declared
to
be
lawful
for
such
municipality
to
expropriate
for
such
purposes’’.
In
1886,
the
Manitoba
Municipal
Act,
49
Vict.,
c.
52
was
passed
in
substitution
for
both
Acts
of
1884,
which
were
thereby
repealed.
Section
347(1)
of
the
Act
of
1886
authorized
the
acquisition
of
land
(presumably
inside
the
municipality
only)
for
"the
use’’
of
the
corporation.
This
provision
is
still
to
be
found
in
s.
385(a)
of
the
Municipal
Act,
1933
(Man.),
¢.
57.
Subsection
(18)
of
s.
347
authorized
by-laws
‘‘for
accepting
or
purchasing””
land,
inside
or
outside
the
municipality,
for
public
cemeteries
only.
Parks
are
not
mentioned.
The
by-law
is
to
declare
in
express
terms
the
purpose
for
which
the
land
is
acquired.
It
is
provided
that
when
acquired,
the
land,
although
outside,
is
to
become
part
of
the
municipality
acquiring
it
and
ceases
to
be
part
of
the
municipality
to
which
it
formerly
belonged.
The
power
to
acquire
does
not
include
the
power
to
take
compulsorily.
Section
349(45)
would
appear
to
be
the
original
ancestor
of
s.
700(14)
of
1918,
unless
it
can
be
said
that
it
arose
out
of
s.
234
of
47
Vict.,
c.
11.
Section
349(45),
however,
unlike
s.
700(14)
of
the
1918
Act,
provides
that
land
acquired
under
its
provisions
‘‘shall
not
form
part
of
the
municipality
of
such
city
or
town,
but
shall
continue
and
remain
as
of
the
municipality
where
situate’’.
Nowhere
in
the
Act
of
1886
are
parks
spoken
of
and
this
would
appear
to
have
been
an
omission
which
was
remedied
in
1888.
It
may
be
noted
in
passing
that
the
Public
Parks
Act
was
not
passed
until
1892,
55
Viet.,
¢.
31.
In
this
state
of
the
legislation,
it
would
seem
clear
as
to
the
lands
acquired
by
the
appellant
outside
its
boundaries,
for
the
purposes
of
a
cemetery,
that
such
lands
would
not,
in
the
contemplation
of
the
Legislature,
have
been
‘‘for
the
public
use
of
the
municipality”
for
the
reason
not
only
that
lands
for
cemeteries
were
specially
dealt
with,
but
that
lands
acquired
for
the
“public
use’’
continued,
by
virtue
of
the
express
terms
of
s.
349(45),
to
remain
part
of
the
municipality
where
situate,
while
lands
acquired
for
the
purposes
of
a
cemetery
under
s.
347(18)
became
part
of
the
municipality
acquiring
them.
In
1888,
by
s.
51
of
51
Vict.,
c.
27,
a
new
section,
s.
4310,,
was
added
and
made
applicable
to
the
appellant
only.
This
section
provided
for
acquisition
by
the
appellant
by
purchase
or
compulsorily,
of
lands
inside
or
outside
its
boundaries
for
the
purposes
of
cemeteries
or
parks.
Not
only
did
this
section
supply
the
omission
as
to
lands
for
park
purposes,
but
it
gave
the
city
compulsory
powers
as
to
acquiring
lands
in
outlying
municipalities
for
cemetery
purposes,
which
had
not
been
given
by
the
Act
of
1886.
In
1890,
a
new
Municipal
Act,
53
Vict.,
e.
51,
was
passed.
Section
347(18)
of
1886
became
s.
375(18)
;
s.
349(45)
became
s.
376(18)
but
a
change
was
made
and
lands
acquired
under
this
provision
were
to
become
part
of
the
city,
town
or
village
acquiring
them.
Section
43la
became
s.
473.
In
the
revision
of
1891
the
Municipal
Act
became
e.
100.
Section
375(18)
of
1890
became
s.
602(a);
s.
376(18)
became
s.
603(c)
and
s.
472
became
s.
571.
In
1902,
a
new
Winnipeg
Charter
was
passed;
1-2
Edw.
VII,
c.
77.
Section
571
of
1891
became
s.
691
of
the
new
Act.
Section
603(c)
became
s.
703(11)
;
and
s.
602
became
s.
703(4)
(5)
(6),
but
in
the
legislation
of
1902
the
provision
making
outlying
lands
acquired
for
cemeteries
part
of
the
city
acquiring
them,
which
had
persisted
down
to
1891,
was
dropped.
The
situation
then
with
respect
to
cemetery
lands
outside
the
city
became
just
the
reverse
of
what
it
had
been
under
the
Act
of
1886,
but
as
in
1886
outside
lands
for
cemeteries
could
not
be
within
the
public
use’’
clause
because
the
former
were
to
become
part
of
the
city
while
the
latter
were
to
remain
part
of
the
outside
municipality,
so
in
1902
cemetery
lands
could
not
be
within
the
"‘public
use’’
clause
because
unlike
the
latter
they
were
not
to
be
part
of
the
city
but
to
remain
part
of
the
outside
municipality.
In
my
opinion,
this
had
always
been
true
of
outside
lands
acquired
for
park
purposes.
They
had
never
at
any
time
been
declared
to
be
part
of
the
city.
But
if
it
could
have
been
argued
before
1891
that
outlying
park
lands,
although
the
subject
of
special
legislation,
were
nonetheless
within
the
‘"public
use
’’
clause,
no
such
argument
in
my
opinion
could
have
been
accepted
after
the
legislation
of
that
year.
The
Legislature,
by
continuing
to
legislate
with
respect
to
outlying
parks
and
cemeteries
by
the
same
provision
in
s.
691,
and
by
dropping
from
s.
703(4)
the
provision
of
the
old
s.
602
that
cemetery
lands
were
to
become
part
of
the
city
indicated
that
parks
and
cemeteries
were
on
the
same
footing
and
remained
part
of
the
municipality
where
they
lay.
If
that
be
true,
neither
could
be
considered
as
within
the
‘‘public
use’’
provision.
The
enactment
of
s.
4
in
1912
[c.
99]
supports
the
conclusion
arrived
at.
Its
enactment
indicates
that
such
lands
were
considered
subject
to
assessment
and
taxation
in
the
municipality
where
situate
and
if
they
were
to
be
exempted
legislation
was
necessary
for
the
purpose.
Section
12
of
the
Assessment
Act,
R.S.M.
1902,
c.
117,
provided
that
‘‘any
property
owned
by
a
municipality,
but
situate
within
the
bounds
of
another
municipality,
shall
be
liable
to
assessment
and
taxation
by
the
municipality,,
within
which
it
is
situate,
unless
the
same
be
exempted
from
taxation
by
the
couneil
of
the
municipality
within
which
such
property
is
situated”.
I
do
not
think,
therefore,
that
it
can
be
said,
as
contended
by
respondent,
that
s.
4
of
1912
was
an
unnecessary
enactment.
To
complete
the
statutory
history,
s.
703(4)
(5)
and
(6)
of
1902
became
s.
700(6)(7)
and
(8)
of
1918
and
s.
691
became
s.
696.
Coming
then
to
s.
4
of
1918,
the
appellant
submits
that
the
lands
in
question
are
not
"‘used
for
public
park
purposes’’
within
the
meaning
of
the
section
and
that
therefore
there
is
no
exemption.
Counsel
contends
that
the
existence
of
By-law
25
of
the
Public
Park
Board
of
the
respondent
prevents
the
lands
in
question
from
being
considered
as
a
public
park
or
used
for
public
park
purposes.
By-law
25
is
as
follows:
"‘1.
No
person
other
than
employees
of
the
Board
shall
be
permitted
upon
any
golf
course
provided
or
operated
by
the
Public
Parks
Board
of
the
City
of
Winnipeg
unless
and
until
he
or
she
shall
have
paid
or
caused
to
be
paid
the
admission
fee
provided
from
time
to
time
by
the
By-laws
of
the
said
Board
;
"2.
No
person
other
than
employees
of
the
said
Board
shall
be
permitted
on
any
golf
course
for
any
purpose
other
than
the
playing
of
the
game
of
golf
and
subject
to
the
rules
and
regulations
which
may
from
time
to
time
be
prescribed
by
said
Board
.
.
.
.
”4.
Any
person
found
guilty
of
an
offence
against
any
of
the
provisions
of
this
By-law,
shall,
for
every
such
offence
be
liable
to
a
fine
not
exceeding
twenty-five
($25.00)
dollars
or
he
may
be
imprisoned
with
or
without
hard
labor
for
a
term
not
exceeding
ten
days.”
It
is
stated
in
the
formal
admissions
filed,
that
the
lands
are
“maintained
and
operated
by
the
Public
Parks
Board
of
the
City
of
Winnipeg
for
the
plaintiff
as
a
publie
golf
course
open
to
anyone
paying
the
green
fees
and
obeying
the
rules
of
the
course
whether
a
resident
of
Winnipeg
or
not’’.
Prior
to
1933,
the
Public
Parks
Board
of
the
respondent
had
been
constituted
under
the
provisions
of
the
Public
Parks
Act
which
goes
back
to
99
Viet.,
¢.
31.
In
1933,
this
Act
became
Division
III
of
the
Municipal
Act,
23
Geo.
V,
e.
57,
ss.
797
to
848
inclusive.
It
is
to
be
observed
that
the
title
of
Division
IIT
is
"‘Public
Parks’’.
These
provisions
of
the
statute
become
applicable
to
any
municipality
upon
adoption
in
the
prescribed
manner
and
are
applicable
here.
Section
802
prescribes
that
all
parks
shall
be
open
to
the
public
free
of
all
charge
‘‘subject
to
such
by-laws,
rules
and
regulations
as
the
parks
board
makes
as
to
the
use
thereof’’.
The
Board,
by
s.
818(1),
is
authorized
to
pass
by-laws
for,
among
other
things,
the
"‘use’’
and
‘
regulation
of
the
parks.
By
s.
835,
it
is
provided
that
the
Parks
Board
may
"‘provide
facilities
for
all
forms
of
recreation
and
may,
from
time
to
time,
pass
by-laws
for
the
use,
regulation,
protection,
government,
and
operations
of
the
same
and
the
charges
for
admission
thereto
or
use
thereof’’.
In
my
opinion,
these
provisions
authorize
the
operation
of
the
golf
course
here
in
question
and
the
appellant
‘s
objection
is
not
maintainable.
There
remains
to
be
considered
the
question
as
to
whether
or
not
school
taxes
are
included
in
‘‘municipal
taxation”
as
that
language
is
used
in
s.
4.
Appellant
contends
they
are
not.
In
C.P.R.
v.
Winnipeg
(1900),
30
8.C.R.
558,
this
Court
held
that
a
by-law
of
the
City
of
Winnipeg
passed
in
1881
exempting
the
Railway
Company’s
lands
from
“all
municipal
taxes,
rates
and
levies,
and
assessments
of
every
nature
and
kind’’
included
school
taxes
in
the
exemption.
In
giving
the
Judgment
of
the
Court,
Sedgewick
J.
at
p.
564
accepted
the
definition
of
“Municipal
Taxes’’
as
‘‘taxes
imposed
by
the
governing
body
of
the
municipality
for
the
purposes
of
the
municipality’’
and
that
‘“taxes
imposed
for
the
support
of
schools
in
a
municipality
in
my
view
are
taxes
for
the
purposes
of
the
municipality’’.
He
also
said:
‘‘I
submit
that
any
taxation
by
a
municipal
body
for
the
purpose
of
raising
money
to
relieve
itself
from
a
municipal
obligation,
is
taxation
for
a
municipal
purpose.
The
obligation
of
imposing
this
tax
and
of
collecting
it
was
one
of
the
city’s
legislative
burdens.
Relief
from
that
burden
must
therefore
necessarily
be
a
municipal
purpose,
and
the
moneys
raised
therefor
a
municipal
tax.”
Under
the
legislation
there
considered,
the
school
trustees
had
the
right
of
determining
without
question
the
amount
to
be
raised
for
public
school
purposes
and
of
authoritatively
calling
upon
the
city
authorities
to
collect
and
hand
over
that
amount,
while
the
latter
authorities
were
under
an
absolute
obligation
to
obey
the
behests
in
that
regard
of
the
school
trustees.
What
did
the
Legislature
intend
by
the
use
of
the
phrase
“municipal
taxation’’
in
the
legislation
of
1912?
The
Assess-
ment
Act,
R.S.M.
1902,
ce.
117,
with
some
amendments
to
which
I
shall
refer,
is
the
legislation
to
be
considered
in
the
determination
of
the
question.
This
statute
governed
the
assessability
and
taxability
of
lands
in
rural
municipalities,
including
the
appellant.
Section
5
provides
that
all
lands
and
personal
property
shall
be
liable
to
‘‘municipal
taxation’’
subject
to
certain
exemptions
therein
specified,
among
which
is
el.
(b)
reading,
"‘lands
vested
in
or
held
in
trust
for
any
municipality’’.
However,
owing
to
the
provisions
of
s.
12
of
the
statute
already
referred
to,
this
clause
is
not
important
and
was
amended
in
the
revision
of
1913
to
make
the
two
provisions
harmonize.
Section
13,
as
amended
in
1911
by
1
Geo.
V,
c.
32,
s.
1,
provides
for
the
valuation
of
all
the
ratable
property
in
the
municipality
and
for
the
making
of
an
assessment
roll.
By
s.
118,
it
is
provided
that
after
the
final
revision
of
the
assessment
roll
and
the
passing
of
the
by-law
levying
the
rate,
the
clerk
of
each
municipality
is
to
make
out
a
general
tax
roll
in
which
he
shall
enter
all
the
land
and
taxable
property
in
the
municipality
comprised
in
the
assessment
roll,
and
he
is
to
set
down
in
the
roll
the
amount
of
each
rate
in
separate
columns
with
the
name
or
object
of
each
such
rate,
such
as
"‘local
rate’’
or
‘‘town
rate’’
or
‘‘school
rate’’
or
otherwise
as
the
case
may
require,
and
the
amount
for
which
the
person
is
chargeable
for
each
purpose
respectively
and
the
total
amount
required
to
be
collected
from
or
paid
by
such
person
or
property
on
the
assessment
of
that
year
for
“all
the
purposes’’
for
which
a
levy
is
required
to
be
made
in
a
municipality,
and
every
rate,
the
purposes
of
which
are
required
by
law
or
by
the
by-law
imposing
it
to
be
kept
distinct
and
accounted
for
separately
shall
be
so
entered
and
calculated
separately.
There
would
appear
to
be
no
doubt
that
school
taxes
are
by
this
legislation
considered
as
but
a
part
of
the
municipal
taxes
as
a
whole.
By
s.
48(c)
of
the
Public
Schools
Act,
R.S.M.
1902,
c.
148,
trustees
of
rural
school
districts
had
the
duty
of
applying
te
the
municipal
council
annually
for
the
levying
and
collecting
by
rate
of
all
sums
required
in
connection
with
schools.
Reference
may
also
be
made
to
s.
145
of
the
municipal
Assess-
ment
Act
which
made
provision
for
the
recovery
by
execution
of
‘‘any
school
or
other
taxes’’,
and
to
s.
151
which
authorizes
the
municipality
by
by-law
to
remit
either
in
whole
or
in
part
‘‘any
taxes’’
upon
certain
grounds
shown.
It
would
appear
clear
from
these
provisions
that
when
the
Legislature
provided
in
1912
for
the
exemption
of
Winnipeg
park
lands
in
other
municipalities
from
‘‘municipal
taxation”
it
intended
to
include
all
items
included
in
that
term
by
the
statute
which
dealt
with
such
matters,
namely,
the
municipal
Assessment
Act.
I
do
not
think
that
the
provisions
of
s.
139
of
the
Public
Schools
Act,
R.S.M.
1902,
c.
143,
affect
the
matter.
Section
136
of
that
statute
obliged
the
council
of
each
rural
municipality
to
levy
on
the
taxable
property
in
each
school
district
the
sum
of
money
required
by
the
school
district
in
addition
to
the
legislative
grant
and
the
general
municipal
levy
provided
for
by
s.
130.
Section
139
provides
that
the
taxable
property
in
the
municipality
for
school
purposes
shall
include
all
property
liable
to
""municipal
taxation”
and
also
‘‘all
property
which
has
heretofore
been
or
may
hereafter
be
exempted
by
the
municipal
council
from
municipal
taxation
but
not
from
school
taxation.
No
municipal
council
shall
have
the
right
to
exempt
any
property
whatsoever
from
school
taxation’’.
This
section
does
differentiate
between
‘‘municipal
taxation’’
and
"school
taxation”
but
refers
to
the
exercise
by
a
Municipal
Council
of
its
power
to
exempt
lands
and
prohibits
the
council
from
exempting
lands
from
school
taxation.
The
present
problem
does
not
concern
any
action
by
a
municipal
council,
but
merely
as
to
what
was
intended
by
the
Legislature
by
its
use
of
the
phrase
‘‘municipal
taxation’’.
It
might
be
argued
that
by
reference
to
s.
5(g)
of
the
municipal
Assessment
Act
which
exempts
from
‘‘municipal
taxation”
all
lands
‘‘legally
exempted
from
taxation
by
a
by-law
of
the
municipal
corporation”
that
the
word
"taxation”
in
that
clause
and
the
phrase
‘‘municipal
taxation’’
at
the
beginning
of
the
section
have
the
same
meaning
as
the
same
phrase
when
used
in
s.
139
of
the
Public
Schools
Act.
In
view
of
the
other
sections
of
the
municipal
Assessment
Act
to
which
I
have
referred,
it
seems
to
me
that
this
is
not
the
correct
interpretation,
and
that
s.
139
above
was
intended
merely
to
operate
as
a
restriction
on
the
municipal
council’s
power
of
exemption
and
is
not
to
be
used
in
support
of
the
argument
above
set
forth.
We
were
not
referred
to
any
subsequent
legislation
which
affects
this
view
and
I
have
not
been
able
to
find
any.
The
problem
in
the
case
at
bar
is
not
the
same
as
that
under
consideration
in
L
f
Institut
de
Notre
Dame
des
Missions
v.
Brandon,
[1938]
3
D.L.R.
712,
46
Man.
R.
255,
and
Ont.
Power
Co.
of
Niagara
Falls
v.
Stamford,
[1916]
1
A.C.
529,
which
dealt
with
legislation
validating
municipal
by-laws.
I
do
not
think
that
s.
828(3)
of
the
Municipal
Act
of
1933
which
enacts
that
"lands
acquired
by
a
Parks
Board
outside
the
municipality
may
be
exempted
from
taxes,
but
not
from
school
taxes,
by
the
municipality
where
situate’’
can
interfere
with
the
operation
of
s.
4
of
the
Winnipeg
Charter.
It
is
a
section
of
general
application
and
permissive
in
character.
I
would
therefore
dismiss
the
appeal
with
costs.
Appeal
dismissed.
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