KERWIN,
J.:—The
respondent,
Bennett
&
White
(Calgary)
Limited,
brought
an
action
in
the
Supreme
Court
of
Alberta
against
the
appellant,
Municipal
District
of
Sugar
City
No.
5,
for
a
declaration
that
the
assessment
of
the
respondent
for
personal
property,
made
by
the
appellant
for
the
year
1947,
is
invalid;
for
an
order
that
the
respondent’s
name
be
stricken
from
the
appellant’s
tax
roll
in
respect
of
personal
property
for
1947;
and
for
an
injunction
restraining
the
appellant
from
attempting
to
enforce
its
alleged
claim
for
taxes
and
taking
any
steps
to
seize
any
of
certain
chattels,
equipment
and
tools,
hereafter
referred
to.
The
appellant
counter-claimed
for
a
declaration
and
decree
that
the
assessment
and
taxation
referred
to
were
properly
made
and
imposed;
terminating
the
interim
injunction
already
granted;
in
the
alternative
and
in
any
event,
that
certain
proceedings
before
the
Court
of
Revision
and
the
Alberta
Assessment
Commission
preclude
the
respondent
from
maintaining
the
action
;
and,
in
the
further
alternative,
for
judgment
against
the
respondent
for
the
amount
of
the
taxes
involved
and
penalties.
The
trial
judge
granted
the
declaration
and
order
firstly
and
secondly
asked
by
the
respondent,
dismissed
the
counter-claim
and,
no
doubt
considering
it
unnecessary,
made
no
order
continuing
the
interim
injunction.
His
judgment
was
affirmed
by
the
Appellate
Division,
[1929]
2
W.W.R.
129.
The
respondent
is
a
company
incorporated
under
the
Companies
Act
of
the
Province
of
Alberta,
having
its
head-office
in
Calgary,
and
the
appellant
is
a
municipal
district
constituted
pursuant
to
the
provisions
of
the
Municipal
District
Act,
R.S.A.
1942,
e.
151.
On
July
22,
1946,
the
respondent,
therein
called
the
contractor,
entered
into
an
agreement
with
His
Majesty,
represented
therein
by
the
Minister
of
Agriculture
of
the
Dominion
of
Canada,
to
construct
certain
diversion
and
irrigation
tunnels
at
the
St.
Mary’s
Dam
Project
which
lies
within
the
boundaries
of
the
appellant.
By
clause
3
of
this
agreement,
it
was
provided
that
the
respondent
should
at
its
own
expense
provide
all
and
every
kind
of
labour,
superintendence,
services,
tools,
implements,
machinery,
plant,
materials,
articles
and
things
necessary
for
the
due
execution
and
completion
of
the
works,
and
should
deliver
the
works
complete
in
every
particular
to
His
Majesty
on
or
before
certain
fixed
dates.
By
clause
12,
all
plant,
materials,
etc.,
were
included
in
the
price
payable
by
His
Majesty
under
the
agreement.
By
clause
15
(speaking
generally)
all
plant,
etc.,
became
the
property
of
His
Majesty
subject
to
a
term
whereby
upon
the
completion
of
the
works
such
of
the
plant,
etc.,
as
should
not
have
been
used
and
converted
in
the
works,
or
disposed
of
by
His
Majesty
under
powers
conferred
by
the
contract,
should
upon
demand
be
delivered
up
to
the
respondent.
This
clause
reads
as
follows:—
‘
‘
15.
All
machinery,
tools,
plant,
materials,
equipment,
articles
and
things
whatsoever,
provided
by
the
Contractor
or
by
the
Engineer
under
the
provisions
of
sections
14
and
16,
for
the
works,
and
not
rejected
under
the
provisions
of
section
14,
shall
from
the
time
of
their
being
so
provided
become,
and,
until
the
final
completion
of
the
said
work,
shall
be
the
property
of
His
Majesty
for
the
purposes
of
the
said
works,
and
the
same
shall
on
no
account
be
taken
away,
or
used
or
disposed
of,
except
for
the
purposes
of
the
said
works,
without
the
consent
in
writing
of
the
Engineer.
His
Majesty
shall
not,
however,
be
answerable
for
any
loss,
or
damage,
whatsoever,
which
may
at
any
time
happen
to
such
machinery,
tools,
plant,
materials,
equipment,
articles
or
things.
Upon
the
completion
of
the
works
and
upon
payment
by
the
Contractor
of
all
such
moneys,
loss,
costs
and
damages,
if
any,
as
shall
be
due
from
the
Contractor
to
His
Majesty,
or
chargeable
against
the
Contractor,
under
this
contract,
such
of
the
said
machinery,
tools,
plant,
materials,
equipment,
articles
and
things
as
shall
not
have
been
used
and
converted
in
the
works
or
disposed
of
by
His
Majesty
under
powers
conferred
in
this
contract,
shall,
upon
demand,
be
delivered
up
to
the
Contractor
in
such
condition
as
they
may
then
be
in.’’
In
pursuance
of
this
agreement,
the
respondent
moved
considerable
plant
and
materials
to
the
site
of
the
works
to
be
performed,
the
site
being
owned
by
His
Majesty
and
being
within
the
limits
of
the
appellant.
In
1947,
the
appellant
assessed
and
taxed
the
said
plant
and
materials
under
the
provisions
of
the
Assessment
Act,
R.S.A.
1942,
chapter
157,
and
the
Municipal
District
Act.
Upon
receipt
of
notice
of
the
assessment,
the
respondent,
in
pursuance
of
section
35
of
the
Assess-
ment
Act,
appealed
to
the
Court
of
Revision
which,
by
section
37,
18
composed
of
members
of
the
council
of
the
municipal
district.
By
a
letter
supplementary
to
its
notice
of
appeal
to
the
Court
of
Revision,
the
respondent
had
taken
the
ground
that
the
plant,
etc.,
which
was
the
subject
of
the
assessment,
did
not
belong
to
it
but
to
His
Majesty
in
the
right
of
the
Dominion
of
Canada.
The
Court
of
Revision
confirmed
the
assessment
and
pursuant
to
section
47,
the
respondent
appealed
against
that
decision
to
the
Alberta
Assessment
Commission,
constituted
as
provided
by
the
Alberta
Municipal
Assessment
Commission
Act,
R.S.A.
1942,
chapter
156.
Section
53
of
The
Assessment
Act
reads
as
follows
:—
"53.
In
determining
all
matters
brought
before
the
Commission
it
shall
have
jurisdiction
to
determine
not
only
the
amount
of
the
assessment,
but
also
all
questions
as
to
whether
any
things
are
or
were
assessable
or
persons
were
properly
entered
on
the
assessment
roll
or
are
or
were
legally
assessed
or
exempted
from
assessment.
’’
The
Commission
dismissed
the
appeal
except
for
a
reduction
in
the
amount
of
the
assessment.
The
appellant
thereupon
threatened
to
seize
the
plant
and
equipment
under
the
powers
of
distress
given
it
by
subsection
4
of
section
310
of
the
Municipal
District
Act
in
relation
to
taxes
which
are
not
a
lien
upon
land.
The
present
action
followed
and
the
interim
injunction
referred
to
above
was
secured.
A
number
of
interesting
and
difficult
questions
were
argued
at
bar
and
some
of
them
are
referred
to
in
the
reasons
for
judgment
in
the
Courts
below.
The
first
to
be
determined
is
whether
the
decision
of
the
Assessment
Commission
is
res
judicata.
The
trial
judge
considered
that
a
previous
decision
of
the
Appellate
Division
in
In
Re
Companies
Act,
In
Re
Northern
Transport
Co.
Limited
and
Village
of
McMurray,
[1949]
1
W.W.R.
338,
effectively
disposed
of
the
contention,
and
his
reasons
were
adopted
by
the
Appellate
Division
in
the
appeal,
[1949]
2
W.W.R.
129,
in
the
present
case.
In
the
McMurray
case,
the
Appellate
Division,
holding
that
the
principle
to
be
applied
was
to
be
found
in
Toronto
Railway
Company
v.
Toronto,
[1904]
A.C.
809,
Victoria
v.
Bishop
of
Vancouver
Island,
[1921]
2
A.C.
384,
and
Donohue
Bros.
v.
St.
Etienne,
[1924]
S.C.R.
511,
decided
that
the
Alberta
Assessment
Commission
had
no
power
to
determine
that
non-taxable
property
was
taxable.
The
Toronto
Railway
case
was
decided
upon
the
provisions
of
the
Ontario
Assessment
Act,
R.S.O.
1897,
chapter
224.
Section
68
of
that
Act
enacted
with
reference
to
the
Court
of
Revision
:—
"‘At
the
time
or
times
appointed,
the
Court
shall
meet
and
try
all
complaints
in
regard
to
persons
wrongfully
placed
upon
or
omitted
from
the
roll,
or
assessed
at
too
high
or
too
low
a
sum.”
Provision
was
made
for
an
appeal
to
a
Court
of
Revision,
a
County
Judge,
a
Board
of
County
Judges
where
the
assessment
exceeded
a
certain
amount,
and
to
the
Court
of
Appeal.
Proceedings
were
taken
thereunder
wherein
the
Court
of
Appeal
determined
that
the
Railway
Company’s
electric
cars
were
real
estate
and
assessable.
The
Company
brought
an
action
for
a
declaration
that
its
cars
were
personal
property
and
not
subject
to
assessment
or
taxation.
The
Judicial
Committee
held,
reversing
the
Court
of
Appeal
and
the
trial
judge,
that
the
previous
decision
of
the
Court
of
Appeal
in
the
assessment
proceedings
was
not
res
judicata
because
by
section
68
the
jurisdiction
of
the
assessment
courts
was
confined
to
the
amount
of
assessment
and
did
not
extend
to
validate
an
assessment
unauthorized
by
the
statute.
In
the
Victoria
case,
no
appeal
from
the
assessment
had
been
taken
by
the
Bishop,
and
the
Judicial
Committee
held
that
provisions
whereby
any
one
complaining
of
an
"‘error
or
omission
in
regard
to
himself’’
as
having
been
wrongfully
placed
on
the
assessment
roll
should
have
right
of
appeal
to
a
Court
of
Revision
and
that
the
assessment
roll,
as
revised,
confirmed
and
finally
passed,
should
be
deemed
valid
and
binding
notwithstanding
any
defect
or
error,
etc.,
were
merely
machinery
sections
and
did
not
empower
the
corporation
or
its
officers
to
assess
and
tax
any
property
expressly
or
impliedly
exempt
from
taxation.
In
the
Donohue
case,
which
arose
in
the
Province
of
Quebec,
this
Court
held
that
the
appellant
was
not
restricted
to
an
appeal
under
the
assessment
provisions
but
was
entitled
to
bring
an
action
in
the
Superior
Court
for
a
declaration
that
the
assessment
of
its
machinery
was
null
and
void.
After
the
decision
in
the
Toronto
Railway
case,
the
Ontario
Assessment
Act
was
amended
in
1910
by
10
Edward
VII,
chapter
88,
when
section
19
was
enacted,
which
subsequently
became
section
83
of
R.S.O.
1914,
chapter
195,
whereby
power
and
jurisdiction
were
given
the
Court
of
Revision
to
determine
not
only
the
amount
of
any
assessment
but
also
all
questions
as
to
whether
any
person
or
things
are,
or
were,
assessable.
In
Village
of
Hagersville
v.
Hambleton
(1927),
61
O.L.R.
327,
Hambleton
had
been
assessed
by
the
Village
in
respect
of
income
and
the
assessment
was
confirmed
by
the
Court
of
Revision
and
no
further
appeal
taken.
The
defendant’s
plea
in
an
action
subsequently
brought
by
the
Village
for
taxes,
based
upon
that
assessment,
that
he
did
not
reside
in
the
Village
and
was
not
assessable
was
rejected
by
the
Court
of
Appeal
who
held
that
it
was
res
judicata
because
of
the
provisions
of
section
83.
Middleton,
J.A.,
pointed
out
that
in
two
intervening
cases,
City
of
Ottawa
v.
Nantel
(1921),
51
O.L.R.
269,
and
City
of
Ottawa
v.
Keefer
(1924),
54
O.L.R.
86,
the
attention
of
the
Court
had
not
been
drawn
to
the
amendment
to
the
Assessment
Act.
The
Hagersville
case
was
referred
to
by
Smith,
J.,
in
delivering
the
judgment
of
this
Court
in
Sift
on
v.
Toronto,
[1929]
S.C.R.
484.
There,
Sifton
removed
from
Toronto
to
the
Township
of
York
on
December
14,
1923.
An
assessment
roll
for
Toronto
had
been
prepared
in
1923,
while
Sifton
still
resided
there
and
he
was
entered
on
the
roll
for
income.
It
was
pointed
out
that
he
could
not
have
successfully
appealed
against
this
assessment.
In
1924,
Toronto
adopted,
pursuant
to
a
by-law
passed
in
accordance
with
the
Assessment
Act,
the
1923
assessment
as
the
one
for
1924.
It
was
held
that
the
assessment
in
question
was
on
Sifton
‘s
income
for
1924
and
that
by
various
enactments
referred
to,
the
municipality
was
prohibited
from
attempting
to
exercise
jurisdiction
outside
the
municipality
and
was
exceeding
its
powers
to
"
"
levy
on
the
whole
rateable
property
within
the
municipality.’’
The
Hagersville
case
was
clearly
distinguishable
and
it
was
held
that
it
had
no
application.
In
the
subsequent
case
of
City
of
Ottawa
v.
Wilson,
[1933]
O.R.
21,
the
Court
of
Appeal
held
that
where
a
person
in
an
action
for
income
taxes
was
found
to
have
been
not
resident
in
the
municipality
at
the
time
of
assessment,
the
provisions
of
the
Ontario
Assessment
Act
did
not
empower
the
assessor
to
place
her
upon
the
assessment
roll.
The
Hagersville
and
Sifton
cases
were
referred
to
by
Grant,
J.A.,
and
it
was
found
that
as
the
facts
underlying
the
ratio
decidendi
in
the
former
were
not
present,
the
decision
did
not
affect
the
matter
under
consideration.
Middleton,
J.A.,
and
Masten,
J.A.,
who
had
taken
part
in
the
Hagersville
decision,
agreed.
In
becker
v.
Toronto,
[1933]
O.R.
845,
the
Court
of
Appeal,
without
giving
reasons,
held
that
a
man
whose
property
was
exempt
from
taxation
could
recover
taxes
paid
under
protest.
In
each
of
these
cases
the
party
assessed
had
not
appealed
from
the
assessment.
In
the
present
case,
section
53
of
the
Alberta
Assessment
Act
is
very
clear
in
conferring
jurisdiction
upon
the
Commission
to
determine
whether
any
things
are,
or
were
assessable,
or
persons
were
properly
entered
upon
the
assessment
roll,
or
are,
or
were,
legally
assessed.
That
jurisdiction
was
appealed
to
by
the
present
respondent
and
it
cannot
now
be
heard
to
raise
the
same
point
again.
It
is
not
the
purpose
to
argue
that
the
members
of
the
Court
of
Revision
were
not
lawyers
and,
therefore,
presumably
incompetent
to
pass
upon
legal
questions,
and
that
the
Commission
might
not
be
composed
of
persons
of
legal
training.
The
legislature
has
seen
fit
to
set
forth
in
unmistakable
language
the
power
and
jurisdiction
of
the
Commission
and
the
meaning
of
section
53
should
not
be
abridged
even
if
it
were
thought
that
such
a
power
should
not
have
been
conferred
upon
such
a
body.
This
is
the
only
point
decided
and,
in
the
absence
of
the
Attorney-General
of
Alberta,
nothing
is
said
as
to
the
power
of
the
legislature
to
confer
such
a
jurisdiction
upon
the
Commission.
The
respondent
is
therefore
not
entitled
to
a
declaration
that
the
assessment
in
question
was
invalid
or
to
an
order
that
its
name
be
stricken
from
the
appellant’s
tax
toll
in
respect
of
personal
property
for
1947
and,
on
the
other
hand,
the
appellant
is
entitled
to
a
declaration
and
decree
that
the
assessment
and
taxation
were
properly
made
and
imposed.
However,
the
appellant
is
not
entitled
to
judgment
for
the
amount
of
the
taxes
involved.
Section
305
of
the
Municipal
District
Act
provides
that
the
taxes
due
in
respect
of
any
land,
mineral,
or
timber,
or
business,
may
be
recovered
with
interest
as
a
debt.
There
is
no
reference
to
taxes
due
in
respect
of
personal
property
and
the
rule
is
well-settled
at
common
law
that
there
is
no
such
right.
Section
370
of
the
Municipal
District
Act
does
not
confer
it.
The
appellant
is
entitled
to
exercise
whatever
powers
of
distress
are
conferred
by
subsection
4
of
section
310
of
the
Municipal
District
Act
but,
in
view
of
the
agreement
between
His
Majesty
and
the
respondent,
the
appellant
it
not
entitled
to
seize
any
of
the
machinery,
tools,
plant,
materials,
equipment,
articles
and
things
of
the
respondent,
referred
to
in
the
agreement,
while
they
are
subject
to
the
terms
thereof.
The
appeal
should
be
allowed
and
judgment
entered
for
the
appellant
in
accordance
with
the
foregoing.
The
appellant
is
entitled
to
its
costs
of
the
claim
and
counter-claim
throughout.
There
should
be
no
costs
to
or
against
the
Attorney-General
of
Canada.
The
judgment
of
Taschereau,
Rand,
Estey
and
Locke,
JJ.,
was
delivered
by
RAND,
J
:—This
appeal
raises
questions
going
to
the
taxability
of
certain
plant
and
equipment
used
by
the
respondent
as
contractor
for
works
undertaken
with
the
Dominion
Government.
The
works
were
on
a
large
scale
and
embraced
diversion
and
irrigation
tunnels
on
what
is
known
as
the
St.
Mary
Dam
Project.
The
plant
and
equipment
belonged
to
the
respondent
and
was
within
the
municipality
in
such
circumstances
that
if
they
had
not
been
affected
by
the
terms
of
the
contract
there
would
have
been
no
question
of
their
liability
to
taxation.
The
main
point
of
controversy
arises
from
the
provisions
of
paragraph
15
which
reads
thus
:—
All
machinery,
tools,
plant,
materials,
equipment,
articles
and
things
whatsoever,
provided
by
the
Contractor
or
by
the
Engineer
under
the
provisions
of
sections
14
and
16,
for
the
works,
and
not
rejected
under
the
provisions
of
section
14,
shall
from
the
time
of
their
being
so
provided
become,
and,
until
the
final
completion
of
the
said
work,
shall
be
the
property
of
His
Majesty
for
the
purposes
of
the
said
works,
and
the
same
shall
on
no
account
be
taken
away,
or
used
or
disposed
of,
except
for
the
purposes
of
the
said
works,
without
the
consent
in
writing
of
the
Engineer.
His
Majesty
shall
not,
however,
be
answerable
for
any
loss,
or
damage,
whatsoever,
which
may
at
any
time
happen
to
such
machinery,
tools,
plant,
materials,
equipment,
articles
or
things.
Upon
the
completion
of
the
works
and
upon
payment
by
the
Contractor
of
all
such
moneys,
loss,
costs
and
damages,
if
any,
as
shall
be
due
from
the
Contractor
to
His
Majesty,
or
chargeable
against
the
Contractor,
under
this
contract,
such
of
the
said
machinery,
tools,
plant,
materials,
equipment,
articles
and
things
as
shall
not
have
been
used
and
converted
in
the
works
or
disposed
of
by
His
Majesty
under
powers
conferred
in
this
contract,
shall,
upon
demand,
be
delivered
up
to
the
Contractor
in
such
condition
as
they
may
then
be
in.’’
The
effect
of
that
paragraph
is
said
to
be
to
vest
such
a
title.
or
interest
to
the
plant
and
equipment
in
the
Crown
or
to
affect
the
title
of
the
respondent
in
such
manner
as
renders
the
assessment
invalid,
and
the
first
question
is
whether
that
conclusion
is
sound.
It
will
be
seen
that
both
plant,
equipment
and
materials
are
included,
and
that
they
are
declared
to
be
the
property
of
His
Majesty
"‘for
the
purposes
of
the
said
works’’.
The
purpose
of
the
materials
is
obviously
quite
different
from
that
of
the
plant
and
equipment,
and
the
qualifying
clause
must
appropriately
respond
to
that
difference.
It
was
argued
that
the
phrase
defines
the
time
or
period
of
a
transferred
ownership;
but
at
law
there
are
no
estates
or
remainders
in
personal
property
:
the
only
title
is
the
absolute
title.
The
true
conception
where
successive
ownerships
in
A
and
B
are
in
mind
seems
to
be
that
the
property
in
B
is
made
subject
to
a
right
or
power
of
use
in
A
for
a
specified
period:
but
no
doubt
contractual
stipulations
may
affect
transfers
of
title
on
the
happening
of
events
or
conditions.
The
effect
of
the
clause
is
both
to
bind
the
use
of
the
plant.
and
equipment
to
the
works,
and
to
tie
them
to
the
area
within
which
they
are
brought
for
that
purpose.
It
is
seen
that
the
Minister
may
permit
units
to
be
removed
from
the
works
which
the
contractor
would
be
at
liberty
to
return,
and
it
would
be
treating
title
rather
freely
to
conceive
it
as
shuttling
back
and:
forth
as
the
units
might
move
on
or
off
the
working
grounds.
The
contractor
is
undoubtedly
to
remain
in
actual
and
legal
possession
of
the
plant
and
equipment
while
he
is
not
in
default;
likewise
his
beneficial
interest
in
them
is
not
affected
and
with
it
the
risk
of
loss
or
damage.
Power
is
given
to
the
Minister,
in
certain
contingencies,
to
take
the
works,
as
it
is
said,
"‘out
of
the
hands’’
of
the
contractor
and
use
the
plant
and
equipment
to
complete
them.
Upon
completion,
the
plant
and
equipment
are
to
be,
not
"‘reconveyed’’
or
‘‘re-transferred’’
to
the
contractor,
but
"delivered
up”
to
him
as
they
may
then
be,
which
I
take
to
signify
no
more
than
that
the
powers
binding
them
come
to
an
end.
Then
it
is
contemplated
that
the
plant
or
equipment
or
parts
of
either
may
not
be
owned
by
the
contractor
at
all,
but
hired
or
rented
by
him,
as
in
paragraph
29
which
speaks
of
sums
due
for
‘‘hire
of
horses,
teams
or
carts”
‘‘or
any
claims
against
the
contractor,
or
any
subcontractor
for
..
.
plant,
equipment
.
.
.
hired
or
supplied
upon
or
for
the
works”.
In
case
of
default,
also,
paragraph
18
provides
that,
‘‘all
plant,
including
horses
and
all
rights,
licences,
powers
and
privileges
affecting
the
personal
property
acquired
or
possessed
by
the
contractor
for
the
purposes
of
the
work
shall
remain
and
be
the
property
of
His
Majesty
for
all
purposes
incidental
to
the
completion
of
the
works,
and
may
be
used,
exercised
and
enjoyed
by
His
Majesty
as
fully,
to
all
intents
and
purposes,
connected
with
the
works
as
they
might
therefore
have
been
used,
exercised
and
enjoyed
by
the
contractor,
and
the
Minister
may
also,
at
his
option,
on
behalf
of
His
Majesty,
sell
or
otherwise
dispose
of’’
them.
Shepherd,
J.,
at
the
trial
who
found
against
the
assessment
seemed
to
extract
some
support
for
his
view
from
the
language
of
paragraph
12
providing,
as
he
stated
it,
‘‘that
all
plant
and
materials
furnished
by
the
plaintiff
were
included
in
the
prices
payable
by
the
Government
under
the
agreement’’;
but
that,
with
great
respect,
does
not
seem
to
be
the
true
meaning
of
the
language
paraphrased.
What
is
there
being
declared
is
that
the
price
or
prices
shown
in
paragraph
34,
which
deals
with
unit
prices,
include
everything
done
and
furnished
by
the
contractor
and
the
reference
to
the
plant
excludes
by
way
of
precaution
any
question
of
adding
to
those
prices
rental
or
other
compensation
for
the
use
of
the
equipment.
Such
allowances
are,
In
special
circumstances,
contemplated
by
the
paragraph
which,
for
new
work,
provides
that
in
addition
to
the
actual
and
reasonable
cost,
"‘10
per
cent
thereon
for
the
use
of
tools,
contractor’s
plant,
superintendence
and
profits’’
is
to
be
allowed.
It
is,
I
think,
incontrovertible
that
neither
plant
nor
equipment
is,
in
such
sense,
"
"
paid
for
‘
‘
by
the
Crown.
These
stipulations
make
it
clear
to
me
that
what
has
been
vested
in
the
Crown,
in
relation
to
the
plant
and
equipment,
is
a
group
of
rights
and
powers
to
the
extent
of
the
contractor’s
title
or
interest
in
them;
and
that
the
contractor
employs
his
own
property
as
he
would
ordinarily
do
but
within
those
restrictions
both
as
to
its
use
and
its
residence.
The
effect
of
the
language
is
not,
"‘I
give
you
the
property
but
subject
to
my
use
of
it
for
the
purposes
of
the
contract’’;
it
is
rather,
"‘I
give
you
the
right
to
have
the
property
kept
on
your
land
and
its
use
applied
to
those
purposes
whether
I
fulfill
them
or
some
one
else
does’’.
That
arrangement
is
virtually
identical
with
that
in
Keen
v.
Keen,
Ex
.p.
Collins,
[1902]
1
K.B.
555.
Such
was
the
situation
at
the
time
of
the
assessment.
On
appeal,
[1949]
2
W.W.R.
129,
Ford,
J.A.,
seems
to
lay
it
down
that
taxability
of
personal
property
depends
upon
the
competency
of
the
taxing
authority
at
the
moment
of
assessment
to
exercise
against
the
property
the
powers
of
distress
given
by
the
statute,
which,
in
some
manner,
follows
from
the
fact
that
the
power
given
is
"‘to
tax
property
and
not
persons
in
respect
of
an
interest
therein’’.
What,
then,
is
meant
by
taxing
property
as
distinguished
from
persons
in
respect
of
property
?
The
notion
that
to
4
"tax
property”
is
to
subject
it,
as
a
legal
object,
to
some
sort
of
inhering
obligation
vaguely
to
be
regarded
as
the
equivalent
of
a
hen
is,
I
think,
a
misconception.
Although
the
Assessment
Act
speaks
of
the
taxation
of
property
or
business,
it
does
not
always
do
so:
section
26(3),
"‘every
person
who
is
assessed
in
respect
of
such
property’’;
section
32,
"where
any
person
was
at
the
time
of
the
assessment
taxable
in
respect
of
any
property,
business,
trade
or
profession”’
;
section
33,
similar
language
but
also
"‘the
assessment
of
the
property’’;
section
291
of
the
Municipal
Districts
Act
refers
to
business
taxes
"
1
payable
by
each
person
assessed
.
.
.
in
respect
of
a
taxable
business’’;
section
295,
to
the
taxes
due
by
a
person
whose
name
appears
on
the
roll
"‘in
respect
of
the
property
or
business
for
which
he
is
assessed’’;
section
310(4),
dealing
with
distress
for
taxes
which
are
not
a
lien
on
land,
in
paragraph
(a)
provides
for
distress
‘‘upon
the
goods
or
chattels
of
the
person
taxed
wherever
found
within
the
province”;
and
paragraph
(c),
"‘upon
the
goods
and
chattels
in
the
possession
of
the
person
taxed,
etc.”
On
the
other
hand,
section
305,
dealing
with
taxes
"‘due
in
respect
of
any
land,
etc.”,
declares
that
they
may
be
recovered
as
a
debt
and
‘‘shall
be
a
special
lien
on
the
land’’.
But
no
hen
is
created
on
personal
property.
Although
the
personal
property
existing
at
the
time
is
the
basis
of
the
assessment,
the
collection
of
the
tax
is
not
in
any
manner
bound
up
with
it.
The
tax
based
on
today’s
personal
property
may
be
collected
on
tomorrow’s
property,
whether
within
or
without
the
municipality.
These
provisions
distinguish
between
the
assessment
and
imposition
of
a
tax
and
the
modes
of
collection,
but
all
three
of
them
must
be
found
either
expressly
or
impliedly
in
the
taxing
statute;
together
they
constitute
the
legislative
authority
and
power
for
the
exaction.
Except
as
it
may
be
evidential
of
an
implied
means
of
collection,
the
conception
of
the
assessment,
per
se,
as
of
property
or
of
a
person
in
relation
to
property,
carries
no
practical
significance
of
difference.
The
Minister’s
rights
and
powers,
being
security
for
the
performance
of
the
contract,
would
be
specifically
enforceable
and
constitute
an
interest
ad
rem.
It
may
be,
on
the
principle
of
In
re
Marriage,
Neave
&
Co.,
[1896]
2
Ch.
663,
that
such
an
interest
cannot
be
asserted
by
a
subject
against
a
distress
of
this
nature:
but,
as
enjoyed
by
the
Crown,
it
could
not
so
be
defeated.
But
these
rights
and
powers
are
no
essential
part
of
the
title;
they
are
exercisable
in
relation
to
the
use
of
the
property
and
so
far
they
derogate
from
one
of
the
incidents
of
ownership;
but
they
assume
title
in
the
contractor.
Being
of
such
a
nature,
the
interest
as
at
the
time
of
assessment,
if
held
by
a
subject,
would
not
be
a
taxable
interest
under
the
Assessment
Act.
The
statute
contains
nothing
that
even
purports
to
make
assessability
conditional
upon
contemporaneous
exigibility
by
distress.
The
basic
fact
for
assessment
is
the
ownership
or
legal
possession
of
personal
property,
and
here,
at
the
critical
time,
both
were
in
the
respondent.
Goods
subject
to
a
chattel
mortgage
and
in
the
possession
of
the
mortgagor
are
clearly
liable
to
assessment
and
to
distress,
and,
seemingly,
I
should
say,
distrainable
whether
or
not
in
his
possession,
where
not
in
the
possession
of
the
mortgagee.
Before
that
step,
the
mortgagor
is
the
owner
within
the
meaning
of
the
statute.
A
fortiori
a
mere
interest
ad
rem
does
not
affect
that
title
or
prevent
a
distress.
Taking
the
personal
property,
then,
as
being
taxable,
can
the
taxes
be
recovered
by
suit
against
the
owner
as
for
a
debt?
Since
the
remedy
must
appear
from
the
statute
and
as
the
statute
here,
while
specifically
providing
for
the
recovery
by
suit
of
taxes
imposed
in
respect
of
land,
has
not
done
so
for
taxes
on
personal
property
and
has
instead
provided
the
means
of
distress,
no
such
right
can
be
implied.
It
is
objected
that
the
interest
of
the
Crown,
exempt
from
taxation,
has
nevertheless
been
included
in
the
property
taxed;
but
as
that
interest
was
not
at
the
time
of
assessment
a
taxable
interest,
and
the
value
of
the
user
has
never
in
fact
been
out
of
the
contractor,
the
point
falls.
Moreover,
this
contention
ignores
the
distinction
between
taxing
an
interest
of
the
Crown
and
taxing
an
interest
of
the
subject
as
if,
for
purposes
of
amount,
he
were
the
owner
of
the
Crown’s
interest:
Fairbanks
v.
Halifax,
[1928]
A.C.
117.
The
remaining
question
is
whether
any
of
the
plant
and
equipment
is
exempt
under
paragraph
(z)
of
section
5(1)
as
being
within
the
expression
"‘motor
vehicles’’.
The
word
""vehicle”
in
its
original
sense
conveys
the
meaning
of
a
structure
on
wheels
for
carrying
persons
or
goods.
We
have
generally
distinguished
carriage
from
haulage,
and
mechanical
units
whose
chief
function
is
to
haul
other
units,
to
do
other
kinds
of
work
than
carrying,
are
not
usually
looked
upon
as
vehicles.
But
that
meaning
has,
no
doubt,
been
weakened
by
the
multiplied
forms
in
which
wheeled
bodies
have
appeared
with
the
common
feature
of
self-propulsion
by
motor.
The
object,
then,
of
the
exemption
becomes
important;
and,
quite
apart
from
the
canon
that
an
exemption
from
taxation
should
be
in
precise
language,
it
seems
to
me
that
in
this
case,
in
relevant
statutory
expressions
that
object
does
appear.
By
section
119
of
The
Vehicles
and
Highway
Traffic
Act,
chap.
275,
R.S.A.
1942,
it
is
declared
that
except
where
an
Act
specifically
provides
to
the
contrary,
"‘no
municipality
shall
have
the
power
to
pass,
enforce
or
maintain
any
by-law
requiring
from
any
owner
of
a
motor
vehicle
or
chauffeur,
any
tax,
fee,
licence
or
permit
for
the
use
of
the
public
highways
.
.
.’’.
Although
the
tax
is
associated
with
the
use
of
the
highways,
I
take
it
to
evidence
the
intention
that
the
exaction
of
fees
or
taxation
for
motor
vehicles—which,
to
some
extent
at
least,
use
highways
as
part
of
their
normal
operation—is
to
be
provincial
and
not
municipal.
But
"‘motor
vehicle’’
in
that
Act
does
not
include
traction
engines
or
vehicles
running
on
rails.
What
was
intended
by
the
exemption
in
the
Assessment
Act
was
to
make
clear
the
uniformity
between
the
two
statutes.
The
exemption
then
does
not
include
units
of
self-propelled
equipment
whose
main
purpose
is
either
that
of
haulage
or
work
other
than
conveying
or
vehicles
running
on
rails
as
distinguished
from
general
locomotion.
The
objects
fall
within
four
categories.
There
are,
first
what
are
described
as
dumptors
assessed
at
$18,000:—these
are
ordinary
four-wheeled
vehicles
with
gasoline
engine,
the
body
of
which
is
a
box
and
the
purpose
of
which
is
to
carry
material
from
place
to
place.
I
am
unable
to
distinguish
them
from
the
ordinary
truck,
and
they
would
seem
clearly
to
be
exempt.
The
second
class
consist
of
caterpillar
tractors
used,
with
concave
blades
attached
to
the
front
as
bulldozers,
or
with
other
devices
attached
behind
to
gather
up
material
of
excavation.
These,
as
clearly,
are
not
exempt.
The
third
are
known
as
draglines;
these
are
large
units,
in
operation
like
mechanical
shovels,
which
excavate
earth
and
other
materials
by
means
of
a
scoop
bucket
dragged
along
the
ground
by
heavy
cables.
The
entire
body
moves
on
caterpillar
threads
by
its
own
power,
but
as
can
be
seen,
its
whole
function
is
that
of
doing
work
as
against
carrying,
which
excludes
it
from
the
exemption.
The
fourth
are
locomotives
and
cars
which
run
on
rails
to
carry
away
the
excavated
material:
they
remain
taxable.
Other
items
of
equipment
such
as
dozer
blades,
caterpillar
power
units,
dragline
buckets,
and
Letourneau
Carryalls,
are
all
accessories
to
or
integral
parts
of
the
units
in
the
four
classes,
which
they
must
follow.
In
the
result,
then,
the
assessment
should
be
reduced
by
the
amount
representing
the
dumptors
and
their
accessories
;
subject
to
that,
it
remains.
Mr.
Virtue
contends
that
as
the
respondent
appealed
both
to
the
Court
of
Revision
and
the
Alberta
Assessment
Commission,
the
taxability
of
the
respondent
is
by
the
effect
of
section
53
of
the
Assessment
Act
res
judicata.
The
section
provides
:—
"‘In
determining
all
matters
brought
before
the
Commission
it
shall
have
jurisdiction
to
determine
not
only
the
amount
of
the
assessment,
but
also
all
questions
as
to
whether
any
things
are
or
were
assessable
or
persons
were
properly
entered
on
the
assessment
roll
or
are
or
were
legally
assessed
or
exempted
from
assessment.’’
This
language,
it
will
be
noticed,
does
not
purport
to
conclude
issues
on
the
questions
mentioned.
If
the
Commission
were
an
ordinary
court,
dealing
in
a
judicial
sense
with
matters
of
civil
rights,
the
import
of
jurisdiction
would
be
unquestioned.
But
taxation
is
essentially
an
administrative
function;
the
assessor
is
directed
by
the
statute
to
ascertain
the
value
of
certain
property
as
the
basis
on
which
the
province
will
exact
a
contribution
from
persons
interested
in
it
to
enable
government
to
be
carried
on.
That
ascertainment
is
an
act
in
rem
and
its
execution,
given
the
jurisdiction
to
tax,
lies
in
such
mode
and
such
means
as
the
legislature
may
prescribe.
But
the
statute,
in
defining
the
subject-matter
of
taxation,
necessarily
limits
the
scope
of
legal
action,
and
if,
as
we
say,
a
subject
is
excluded
from
taxation,
then
as
to
it,
a
purported
administrative
act
would
have
no
legal
effect.
Whether
an
act
is
or
is
not
within
a
jurisdiction
depends,
if
challenged,
upon
a
determination
by
a
tribunal.
Ordinarily,
jurisdictional
facts,
arising
under
a
statute,
are
found
by
the
civil
courts;
and
when
we
speak
of
a
finding
of
non-assessability
of
property,
we
mean
as
that
conclusion
has
been
or
is
declared
by
those
tribunals.
But
the
initial
question
is
not
what
the
fact
is
in
actuality,
which
must
be
as
it
appears
to
some
mind;
it
is
rather,
what
is
the
tribunal
to
which
we
must
look
for
that
jurisdictional
determination?
In
dealing
with
taxation,
from
assessors
to
taxation
commissions,
the
provisions
of
the
statute
regarding
liability
and
exemption
are
necessarily
taken
into
account
by
lay
persons
and
bodies.
The
determination
of
an
exemption
involves
an
interpretation
of
the
statute,
and
it
thus
affects
a
civil
right.
But
the
assessor
must
have
regard
to
exemptions
for
the
purpose
of
the
administrative
integrity
of
the
roll
and
although
it
is
his
duty
to
follow
the
provisions
of
the
statute
to
the
extent
his
judgment
permits
him
to
do
so,
it
is
undoubted
that
that
preliminary
judgment
is
essentially
different
from
a
judicial
determination
of
the
legal
question.
The
assessor,
as
part
of
his
administrative
duty,
and
as
distinguished
from
purely
administrative
acts,
exercises
a
lay
judgment
in
the
interpretation
of
the
statute.
From
the
whole
of
his
exercise
of
authority,
the
statute
ordinarily
gives
a
right
of
appeal.
By
the
nature
of
appeal,
in
the
absence
of
special
and
original
powers
given
to
the
revising
body,
it
is
to
be
taken
as
limited
to
examination
of
the
matter
that
was
before
the
assessor
and
to
the
giving,
in
the
same
sense
of
the
decision
which
he
should
have
given.
In
this
case,
section
35
of
the
Assessment
Act
provides
for
a
complaint
to
the
Court
of
Revision
which
is
to
be
in
respect
of
:—
(a)
any
error
or
omission
alleged
in
respect
of
the
assessment
of
any
property
or
persons;
(b)
any
assessment
alleged
to
be
too
high
or
too
low;
(c)
any
property
or
business
in
any
way
wrongfully
assessed
;
(d)
the
name
of
any
person
alleged
to
be
wrongfully
entered
upon
or
omitted
from
the
assessment
roll.
Section
45
provides
:—
"‘Upon
the
termination
of
the
sittings
of
the
Court
of
Revision
.
.
.
the
Secretary-Treasurer
shall
.
.
.
enter
.
.
.
the
following
certificate
.
.
.;
and
the
roll
as
thus
finally
completed
and
certified
shall
be
the
assessment
roll
for
that
year,
subject
to
amendment
on
appeal
to
the
Alberta
Assessment
Commission
.
.
.
and
shall
be
valid
and
bind
all
parties
concerned,
notwithstanding
any
defect
in
or
omission
from
the
said
roll
or
mistake
made
in
or
with
regard
to
such
roll
or
any
defect,
error
or
mis-statement
in
any
assessment
slip
or
notice
or
any
omission
to
deliver
or
to
transmit
any
assessment
slip
or
notice.
‘
‘
Authority
must
obviously
be
vested
in
that
court
to
amend
in
any
respect
the
roll
as
completed
by
the
assessor,
and
the
provisions
of
the
Act
do
that.
As
in
the
case
of
the
assessor,
finality
is
given
or
confirmed
to
the
purely
administrative
acts,
but
in
the
quasi-judicial
determinations,
the
decision
is
of
the
same
character
as
that
of
the
assessor.
It
is
seen,
next,
that
further
amendment
by
the
Assessment
Commission
shall
be
"‘on
appeal’’,
and
it
is
on
that
footing
that
section
53
confers
jurisdiction
on
the
Commission
as
preceding
sections
had
vested
jurisdiction
in
the
Court
of
Revision.
But
following
the
same
rule,
what
the
Commission
does
is
to
correct
or
confirm
the
actions
of
the
assessor
and
the
Court
of
Revision
within
their
jurisdictions.
It
is
for
determining
"
"
all
matters
brought
before
the
Commission’’
that
the
jurisdiction
is
declared,
but
those
matters
are
such
as
come
by
way
of
appeal,
and
I
see
nothing
in
the
section
which
introduces
a
new
and
original
authority
to
deal
with
those
matters
in
other
than.
the
administrative
manner
in
which
they
have
already
been
dealt
with:
I
see
nothing
intended
to
confer
a
purely
judicial
function
dealing
with
civil
rights.
The
material
sections
in
the
Alberta
Act
have
their
prototypes
in
provisions
of
the
Ontario
Assessment
Act,
and
it
is
argued
that
the
case
of
Village
of
Hagersville
v.
Hambleton
(1927),
61
O.L.R.
327,
has
given
an
authoritative
interpretation
of
section
83,
which
corresponds
to
section
53,
to
the
effect
that
a
confirmation
by
the
Court
of
Revision
of
an
assessment
for
income
tax
was
conclusive
as
to
the
residence
of
the
person
assessed.
The
Judicial
Committee
in
Toronto
Railway
Company
v.
Toronto,
[1904]
A.C.
809,
had
found
the
jurisdiction
of
the
Court
of
Revision
limited
to
the
question
or
more
or
less
in
value,
from
which
it
followed
that
whether
a
person
was
or
was
not
a
resident
of
a
municipal
area
within
the
meaning
of
the
statute
was
a
question
to
be
determined
by
the
civil
courts.
But
section
83
had
been
amended
and
the
application
of
that
authority
was
rejected.
Riddell,
J.A.,
at
the
opening
of
his
judgment,
says
:—
"‘I
may
say
at
once
that
if
the
liability
of
the
defendant
to
be
assessed
depended
on
the
evidence
of
residence
given
at
the
trial,
the
judgment
appealed
from
could
not
stand.’’
He
held
the
amendment
to
have
established
exclusive
tribunals
of
appeal
to
which
only
the
assessed
person
could
resort,
and
that
the
fact
of
residence
as
found
by
the
Court
of
Revision
was
conclusive.
In
this
view,
the
other
members
of
the
Court
concurred.
In
the
next
year,
Sifton
v.
City
of
Toronto
(1929),
63
O.L.R.
397,
came
before
the
same
court.
There,
the
plaintiff
had
resided
in
Toronto
from
the
beginning
of
the
year
until
the
14th
of
December
of
1923
when
he
moved
to
and
became
a
resident
of
another
municipality
where
he
continued
to
reside
during
the
whole
of
1924.
He
had
been
assessed
in
1923
for
income
and
had
paid
the
tax
to
Toronto.
Under
section
56
of
the
Assessment
Act,
on
the
28th
of
February,
1924,
Toronto
passed
a
by-law
adopting
the
assessment
made
for
1923
as
that
for
the
current
year
1924,
and
later
in
1924
demanded
taxes
accordingly
from
the
former
taxpayer.
They
were
paid,
and
proceedings
brought
to
recover
them.
On
appeal
from
the
judgment
of
the
County
Court
dismissing
the
action,
the
court
was
equally
divided:
Mulock,
C.J.,
and
Grant,
J.A.,
were
to
dismiss
and
Magee,
J.A.,
and
Hodgins,
J.A.,
were
for
allowance.
In
this
Court,
[1929]
S.C.R.
484,
the
judgment
below
was
reversed.
Smith,
J.,
who
gave
the
judgment,
distinguished
the
case
of
Hagersville
v.
Hambleton
(1927),
61
O.L.R.
327,
on
the
ground
that
upon
the
adoption
of
the
roll
by
the
by-law
of
February
28th
there
was
no
tribunal
to
which
the
taxpayer
could
appeal
against
an
improper
assessment.
But
what
lay
at
the
bottom
of
the
decision
was
the
fact
that
in
February,
1924,
when
the
resolution
of
adoption
of
the
roll
was
passed,
the
person
assessed
was
not
resident
in
Toronto.
There
was
an
apparent
conflict
between
the
statutory
provision
that
Toronto
could
tax
only
those
who
were
resident
within
its
boundaries,
and
the
declaration
that
the
roll
as
certified
was
to
be
the
roll
for
the
year
in
question.
But
the
fact
giving
rise
to
that
conflict
was
held
to
be
determinable
by
the
civil
court,
and
the
former
provision
to
be
controlling.
That
case
was
followed
by
Ottawa
v.
Wilson,
[1933]
O.R.
21.
The
situation
was
somewhat
similar.
Before
the
assessment
against
the
defendant
was
made,
she
had
moved
from
Ottawa
to
Rockcliffe,
but
after
that
removal,
and
in
the
same
year,
her
name
had
been
entered
upon
the
roll
for
Ottawa.
No
appeal
was
taken
to
the
assessment
tribunals.
In
an
action
to
recover
the
taxes,
it
was
held
that
it
was
ultra
vires
of
Ottawa
to
assess
a
person
who,
as
determined
by
the
civil
courts,
was
not
a
resident.
Although
the
Hagersville
case
is
mentioned,
it
is
declared
by
Grant,
J.A.,
that,
as
interpreted
by
the
Sifton
judgment,
it
did
not
affect
the
case
at
bar.
With
Grant,
J.A.,
agreed
Mulock,
C.J.O.,
and
Masten,
J.A.
Middleton,
J.A.,
concurred
in
those
views:
he
treated
the
Sifton
decision
as
carrying
to
its
logical
conclusion
the
principle
that
a
person
can
only
be
assessed
for
income
"‘in
the
municipality
in
which
he
resides’’.
But
again
arises
the
question,
as
found
by
what
tribunal?
So
far
as
the
Hagersville
case
declares
an
exclusive
jurisdiction
in
the
assessment
tribunals
for
determining
the
fact
of
residence,
it
must
be
taken
to
be
inconsistent
with
these
subsequent
decisions;
and
I
attribute
to
those
tribunals
only
a
jurisdiction
of
an
administrative
body
as
I
have
defined
it.
What
questions
of
law
involved
in
the
assessment
can
be
dealt
with
on
appeal
from
those
tribunals
to
a
superior
court,
a
step
which
in
Alberta
does
not
lie,
depends
on
the
language
of
the
statute
giving
the
right
of
appeal.
What
appears
then
is
this,
that
if
as
found
by
the
civil
courts,
jurisdiction
for
the
act
of
assessment
is
absent,
neither
the
decision
of
the
assessment
courts
nor
any
statutory
provision
dealing
with
the
conclusiveness
of
the
roll
is
effective.
That
was
the
view
taken
of
somewhat
similar
language
in
À.
M.
Buckland
v.
Donaldson,
[1928]
1
W.W.R.
40,
and
in
Victoria
v.
Bishop
of
Vancouver,
[1921]
2
A.C.
384
at
396.
The
same
principle
applies
a
fortiori
to
the
question
of
exempted
property.
Whatever
may
be
determined
to
be
in
that
class
is
beyond
the
jurisdiction
of
assessment;
and
the
judicial
interpretation
and
application
of
the
language
of
exemption
is
for
the
civil
courts.
It
may
be,
given
property
within
the
province,
that
the
legislature
might
declare
the
scope
of
the
exemption
should
be
as
interpreted
by
the
assessment
tribunal:
that
would
be
to
vest
a
sub-legislative
taxing
authority
in
the
Commission..
But
in
this
case
the
legislature
has
not
done
so.
Or
the
legislature
might
purport
to
set
up
special
provincial
courts
to
interpret
judicially
legislative
provisions
affecting
civil
rights.
If
it
were
clear
that
that
was
the
effect
of
the
statute
in
this
case,
then
the
serious
question
of
ultra
vires
would
be
presented.
But
where
the
legislative
language
is
capable,
as
here,
of
being
given
rational
meaning
within
undoubted
provincial
authority,
and
any
other
view
would
raise
doubts
and
anomalies
within
the
statute,
the
legislature’s
intention
to
go
beyond
that
authority
and
within
a
questionable
field
should
not
be
inferred.
For
these
reasons,
section
53
is
not
to
be
construed
as
purporting
to
vest
in
the
Assessment
Commission
judicial
authority
to
determine
questions
of
jurisdiction
arising
out
of
the
provisions
declaring
exemptions;
as
the
civil
rights
of
owners
of
property
are
involved,
the
section
is
to
be
taken,
in
that
respect,
to
contemplate
only
such
dealing
with
the
roll
by
the
Commission
in
the
exercise
of
its
practical
judgment
on
such
matters
as
will
render
it
as
free
as
possible
from
errors
of
law.
I
would,
therefore,
allow
the
appeal
and,
subject
to
the
modification
in
the
assessment
roll
mentioned,
dissolve
the
injunction
and
dismiss
the
action.
On
the
counterclaim,
the
appellant
is
entitled
to
a
declaration
that
the
taxes
as
modified
were
properly
imposed:
but
the
appellant
cannot
distrain
upon
the
property
taxed
while
it
is
under
the
obligations
of
the
contract.
The
appellant
should
have
its
costs
of
the
action
including
the
counterclaim
throughout.
The
intervention
of
the
Attorney-General
will
be
without
costs.
Appeal
allowed
with
costs.
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