RINFRET
C.J.C.:—The
Province
of
Saskatchewan
was
established
in
1905
by
Statutes
of
Canada,
4-5
Edw.
VII,
ec.
42.
By
force
of
that
statute
(s.
3),
the
provisions
of
the
B.N.A.
Acts,
1867
to
1886,
apply
to
that
Province
"‘in
the
same
way
and
to
the
like
extent
as
they
apply
to
the
provinces
heretofore
comprised
in
the
Dominion,
as
if
the
said
province
of
Saskatchewan
had
been
one
of
the
provinces
originally
united’’,
except
insofar
as
varied
by
that
Statute
or
except
such
provisions
as
are
in
terms
made
or
by
reasonable
intendment
may
be
held
to
be
specially
applicable
to
or
only
to
affect
one
or
more
and
not
the
whole
of
the
said
Provinces.
Section
24
of
the
Saskatchewan
Act
provides
that
the
powers
granted
to
the
said
Province
shall
be
exercised
subject
to
the
provisions
of
cl.
16
of
the
contract
set
forth
in
the
schedule
to
chapter
1
of
the
Statutes
of
1881,
being
An
Act
respecting
the
Canadian
Pacific
Railway.
Clause
16
of
that
contract
provides:
"‘16.
The
Canadian
Pacific
Railway,
and
all
stations
and
station
grounds,
work
shops,
buildings,
yards
and
other
property,
rolling
stock
and
appurtenances
required
and
used
for
the
construction
and
working
thereof,
and
the
capital
stock
of
the
Company,
shall
be
forever
free
from
taxation
by
the
Dominion,
or
by
any.
Province
hereafter
to
be
established,
or
by
any
Municipal
Corporation
therein;
and
the
lands
of
the
Company,
in
the
North-West
Territories,
until
they
are
either
sold
or
occupied,
shall
also
be
free
from
such
taxation
for
20
years
after
the
grant
thereof
from
the
Crown”.
Clause
1
of
the
contract
provides
:
"‘1.
For
the
better
interpretation
of
this
contract,
it
is
hereby
declared
that
the
portion
of
railway
hereinafter
called
the
Eastern
section,
shall
comprise
that
part
of
the
Canadian
Pacific
Railway
to
be
constructed,
extending
from
the
Western
terminus
of
the
Canada
Central
Railway,
near
the
East
end
of
Lake
Nipissing,
known
as
Callander
Station,
to
a
point
of
Junction
with
that
portion
of
the
said
Canadian
Pacific
Railway
now
in
course
of
construction
extending
from
Lake
Superior
to
Selkirk
on
the
East
side
of
Red
River;
which
latter
portion
is
hereinafter
called
the
Lake
Superior
section.
That
the
portion
of
said
railway,
now
partially
in
course
of
construction,
extending
from
Selkirk
to
Kamloops,
is
hereinafter
called
the
Central
section;
and
the
portion
of
said
railway
now
in
course
of
construction,
extending
from
Kamloops
to
Port
Moody,
is
hereinafter
called
the
Western
section.
And
that
the
words
‘the
Canadian
Pacific
Railway,’
are
intended
to
mean
the
entire
railway,
as
described
in
the
Act
37th
Victoria,
chap.
14.
The
individual
parties
hereto,
are
hereinafter
described
as
the
Company;
and
the
Government
of
Canada
is
hereinafter
called
the
Government.
’
’
The
description
referred
to
in
the
Act
37th
Vict.
c.
14,
is
contained
in
ss.
1
to
4
of
that
statute
and
reads
as
follows:
"‘1.
A
railway
to
be
called
the
‘Canadian
Pacific
Railway’
shall
be
made
from
some
point
near
to
and
south
of
Lake
Nipissing
to
some
point
in
British
Columbia
on
the
Pacific
Ocean,
both
the
said
points
to
be
determined
and
the
course
and
line
of
the
said
railway
to
be
approved
of
by
the
Governor
in
Council.
‘2.
The
whole
line
of
the
said
railway,
for
the
purpose
of
its
construction,
shall
be
divided
into
four
sections
;—the
first
section
to
begin
at
a
point
near
to
and
south
of
Lake
Nipissing,
and
to
extend
towards
the
upper
or
western
end
of
Lake
Superior,
to
a
point
where
it
shall
intersect
the
second
section
hereinafter
mentioned;
the
second
section
to
begin
at
some
point
on
Lake
Superior,
to
be
determined
by
the
Governor
in
Council,
and
connecting
with
the
first
section,
and
to
extend
to
Red
River,
in
the
Province
of
Manitoba;
the
third
section
to
extend
from
Red
River,
in
the
Province
of
Manitoba,
to
some
point
between
Fort
Edmonton
and
the
foot
of
the
Rocky
Mountains,
to
be
determined
by
the
Governor
in
Council
;
the
fourth
section
to
extend
from
the
western
terminus
of
the
third
section
to
some
point
in
British
Columbia
on
the
Pacific
Ocean.
“3.
Branches
of
the
said
railway
shall
also
be
constructed
as
follows,
that
is
to
say:—
((
First.—A
branch
from
the
point
indicated
as
the
proposed
eastern
terminus
of
the
said
railway
to
some
point
on
the
Georgian
Bay,
both
the
said
points
to
be
determined
by
the
Governor
in
Council.
^Secondly.—A
branch
from
the
main
line
near
Fort
Garry
in
the
Province
of
Manitoba,
to
some
point
near
Pembina
on
the
Southern
boundary
thereof.
"4.
The
branch
railways
above
mentioned
shall,
for
all
intents
and
purposes,
be
considered
as
forming
part
of
the
Canadian
Pacific
Railway,
and
as
so
many
distinct
sections
of
the
said
railway,
and
shall
be
subject
to
all
the
provisions
hereinafter
made
with
respect
to
the
said
Canadian
Pacific
Railway,
except
in
so
far
as
it
may
be
otherwise
provided
for
by
this
Act.’’
The
Canadian
Pacific
Railway
Company
was
constituted
pursuant
to
Statutes
of
Canada,
44
Vict.,
ce.
1,
assented
to
on
February
19,
1881,
by
letters
patent
granted
by
His
Excellency
the
Governor-General
under
the
Great
Seal
of
Canada,
under
date
February
16,
1881.
The
contract
which
the
Court
is
called
upon
to
construe
was
executed
between
the
Crown,
in
the
right
of
the
Dominion
of
Canada,
and
George
Stephen
and
others
relating
to
the
Canadian
Pacific
Railway
and
was
dated
October
21,
1880.
It
was
appended
as
a
schedule
to
the
statute
44
Vict.,
ce.
1,
and
it
was
ratified
by
that
statute;
the
wording
of
the
contract
being
incorporated
in
the
letters
patent.
Section
4
of
the
schedule
to
the
said
contract
provides
that—
""All
the
franchises
and
powers
necessary
or
useful
to
the
Company
to
enable
them
to
carry
out,
perform,
enforce,
use,
and
avail
themselves
of,
every
condition,
stipulation,
obligation,
duty,
right,
remedy,
privilege,
and
advantage
agreed
upon,
contained
or
described
in
the
said
contract,
are
hereby
conferred
upon
the
Company”.
The
contract
provided
for
the
incorporation
of
Canadian
Pacific
Railway
Company
and
the
construction
by
it
of
a
main
line
of
railway
from
Callander
Station,
near
Lake
Nipissing,
in
the
Province
of
Ontario,
the
western
terminus
of
the
existing
railway
system
of
Canada,
to
Port
Moody
located
on
the
seaboard
of
British
Columbia.
The
contract
provided
for
the
construction
of
branch
lines
by
el.
14
as
follows:
‘14
The
Company
shall
have
the
right,
from
time
to
time,
to
lay
out,
construct,
equip,
maintain
and
work
branch
lines
of
railway
from
any
point
or
points
along
their
main
line
of
railway,
to
any
point
or
points
within
the
territory
of
the
Dominion.
Provided
always,
that
before
commencing
any
branch
they
shall
first
deposit
a
map
and
plan
of
such
branch
in
the
Department
of
Railways.
And
the
Government
shall
grant
to
the
Company
the
lands
required
for
the
road
bed
of
such
branches,
and
for
the
stations,
station
grounds,
buildings,
workshops,
yards
and
other
appurtenances
requisite
for
the
efficient
construction
and
working
of
such
branches,
in
so
far
as
such
lands
are
vested
in
the
Government’’.
The
area
through
which
the
Canadian
Pacific
Railway
was
to
be
constructed
between
the
western
boundary
of
Manitoba,
as
then
constituted,
and
the
eastern
boundary
of
British
Columbia
was
then
part
of
the
North-West
Territories
and
was
administered
by
the
Dominion
Government.
The
Province
of
Saskatchewan,
having
been
established
as
aforesaid
in
1905,
certain
municipal
statutes
were
subsequently
passed
in
the
years
1946
and
1947,
which
provided:
11
(a)
That
the
railway
roadway
and
other
land
within
the
province
owned
by
railway
companies
shall
be
assessed
and
taxed,
and
(b)
That
railway
companies,
whether
their
property
is
liable
to
assessment
and
taxation
or
not,
shall
be
liable
to
assessment
and
taxation
in
respect
of
the
business
carried
on
as
a
railway
within
the
Province
at
a
rate
per
square
foot
of
the
floor
space
of
each
building
or
part
thereof
used
for
business
purposes.’’
Disputes
having
arisen
between
various
municipalities
and
the
Canadian
Pacific
Railway
with
respect
to
the
latter
legislation,
the
Executive
Council
of
the
Province
of
Saskatchewan,
on
the
recommendation
of
the
Attorney-General
and
pursuant
to
the
provisions
of
the
Constitutional
Questions
Act,
R.S.S.
1940,
c.
72,
was
pleased
to
refer
to
the
Court
of
Appeal
for
Saskatchewan
the
following
questions
for
hearing
and
consideration
:
"‘1.
Does
clause
16
of
the
contract
set
forth
in
the
Schedule
to
Chapter
1
of
the
Statutes
of
Canada,
44
Victoria
(1881),
being
an
Act
respecting
the
Canadian
Pacific
Railway,
exempt
and
free
from
taxation
the
stations
and
station
grounds,
work
shops,
buildings,
yards,
and
other
property,
used
for
the
working
of
the
branch
lines
of
the
Canadian
Pacific
Railway
Company
situated
in
Saskatchewan?
"2.
Does
clause
16
of
the
contract
aforesaid
exempt
and
free
the
Canadian
Pacific
Railway
Company
from
taxation
in
Saskatchewan
in
respect
of
the
business
carried
on
as
a
railway
"‘(a)
based
on
the
area
of
the
land
or,
the
floor
space
of
buildings
used
for
the
purposes
of
such
business,
(b)
based
on
the
rental
value
of
the
land
and
buildings
used
for
the
purposes
of
such
business,
"‘(c)
based
on
the
assessed
value
of
the
land
and
buildings
used
for
the
purposes
of
such
business,
but
not
made
a
charge
upon
such
land
or
buildings
?
“3.
Are
the
provisions
of
the
said
The
Village
Act,
1946,
The
Rural
Municipalities
Act,
1946,
The
Local
Improvement
Districts
Act,
1946,
The
City
Act,
1947,
and
the
Town
Act,
1947,
all
as
amended,
relating
to
the
assessment
and
taxation
of
the
real
estate
of
railway
companies,
operative
in
respect
of
branch
lines
of
Canadian
Pacific
Railway
Company
in
the
Province
of
Saskatchewan
constructed
pursuant
to
clause
14
of
the
said
contract
?
"
"
4.
Are
the
provisions
of
the
said
The
Village
Act,
1946,
The
Rural
Municipalities
Act,
1946,
The
Local
Improvement
Districts
Act,
1946,
The
City
Act,
1947,
and
the
Town
Act,
1947,
all
as
amended,
relating
to
the
assessment
and
taxation
of
railway
companies
in
respect
of
the
business
carried
on
as
a
railway,
operative
with
respect
to
Canadian
Pacific
Railway
Company
in
respect
of
the
stations,
workshops,
and
other
buildings,
used
for
the
working
of
""
(a)
the
main
line
of
its
railway
in
Saskatchewan,
and
"‘(b)
its
branch
lines
in
Saskatchewan?”
The
Court
of
Appeal
of
Saskatchewan
[63
C.R.T.C.
145]
by
a
majority
answered
"‘No’’
to
Qq.
1
and
2(a);
"Yes’’
to
Qq.
3,
4(a)
and
4(b)
;
but
declined
to
answer
Qq.
2(b)
and
2(c).
Mr.
Justice
Gordon
dissented
as
to
the
answer
given
by
the
majority
of
the
Court
to
Qq.
1
and
3.
From
that
judgment
the
Canadian
Pacific
Railway
Company
appeals
to
this
Court
and
we
heard
counsel
for
the
Company
and
for
the
Attorney-General
for
Saskatchewan.
It
is
apparent
that
the
answers
to
be
given
to
the
several
questions
submitted
to
the
Court
depend
upon
the
construction
to
be
put
on
the
contract
between
the
Crown
and
George
Stephen
and
others
already
referred
to,
and,
more.
particularly,
on
ss.
1,
14,
16
and
22
thereof.
Sections
1,
14
and
16
form
part
of
the
Order
of
Reference
and
have
been
above
reproduced.
Section
22
reads
as
follows:
"22.
The
Railway
Act
of
1879,
in
so
far
as
the
provisions
of
the
same
are
applicable
to
the
undertaking
referred
to
in
this
contract,
and
in
so
far
as
they
are
not
inconsistent
herewith
or
inconsistent
with
or
contrary
to
the
provisions
of
the
Act
of
incorporation
to
be
granted
to
the
Company,
shall
apply
to
the
Canadian
Pacific
Railway.
‘‘
By
Qq.
1
and
3
the
Court
of
Appeal
was
asked,
in
effect,
whether
the
freedom
from
taxation
in
el.
16
applies
to
branch
lines
constructed
under
the
authority
of
cl.
14
of
the
contract.
By
Qq.
2
and
4
the
Court
of
Appeal
was
asked,
in
effect,
whether
the
freedom
from
taxation
in
el.
16
applies
to
business
taxes
provided
for
in
certain
statutes
of
the
Province
of
Saskatchewan.
It
will
be
observed
that
Q.
1
is
so
worded
as
to
apply
to
all
branch
lines
of
the
appellant
in
Saskatchewan.
In
the
Court
of
Appeal,
however,
only
branch
lines
constructed
under
the
authority
of
the
contract
were
in
issue
and
the
appellant
stated
in
this
Court
that
it
did
not
contend
that
the
freedom
from
taxation
in
cl.
16
of
the
contract
extends
to
branch
lines
other
than
those
constructed
under
the
authority
of
el.
14.
The
same
observation
should
not
be
made
of
Q.
3,
since
it
is
in
terms
limited
to
branch
lines
constructed.
pursuant
to
el.
14.
The
Company
submitted
that
the
true
answer
to
be
given
to
Q.
1
should
be
in
the
affirmative
;
but
that
even
if
the
Court
of
Appeal
was
to
be
upheld
in
its
view,
then
Q.
1
should
not
be
answered
unreservedly
in
the
negative,
but
that
there
should
be
added
to
the
word
""No”
the
following
words:
"‘Provided,
however,
that
cl.
16
does
exempt
and
free
from
taxation
such
stations
and
station
grounds,
work
shops,
buildings,
yards
and
other
property
required
and
used
for
the
construction
and
working
of
the
Canadian
Pacific
Railway
(meaning
‘the
entire
railway
as
described
in
the
Act
37
Vict.,
¢.
14’,
that
is
to
say:
the
four
main
line
sections,
the
Georgian
Bay
branch,
the
Pembina
branch
and
the
Winnipeg
branch).’’
The
Company
further
submitted
that
Q.
3
should
be
answered
in
the
negative;
but
that,
at
all
events,
if
the
Court
of
Appeal
should
be
upheld
in
its
view,
Q.
3
should
not
be
answered
unreservedly
in
the
affirmative,
but
that
there
should
be
added
to
the
word
"‘Yes’’
the
following
words:
^Provided,
however,
that
such
provisions
are
not
operative
in
respect
of
stations
and
station
grounds,
work
shops,
buildings,
yards
and
other
property
located
on
such
branch
lines
and
required
and
used
for
the
construction
and
working
of
the
Canadian
Pacific
Railway
(meaning
‘the
entire
railway
as
described
in
the
Act
37
Vict.,
c.
14’,
that
is
to
say:
the
four
main
line
sections,
the
Georgian
Bay
branch,
the
Pembina
branch
and
the
Winnipeg
branch).’’
As
to
Q.
2,
the
Company
submitted
that
it
should
be
answered
in
the
affirmative
and
that
Q.
4
should
be
answered
in
the
negative.
At
bar,
counsel
for
the
respondent
stated
that
the
Province
would
be
agreeable
to
a
qualified
answer
being
given
to
Q.
1,
so
that
it
would
read
as
follows:
“No.
Provided,
however,
that
the
fact
that
such
property
is
used
for
the
working
of
the
branch
lines
would
not,
of
itself,
defeat
any
exemption
to
which
such
property
might
be
entitled
by
reason
of
its
being
required
and
used
for
the
working
of
the
main
line
of
the
Canadian
Pacific
Railway
in
Saskatchewan.’’
Of
the
Statute
of
Canada
of
1881
(44
Vict.,
c.
1),
which
is
entitled
An
Act
respecting
the
Canadian
Pacific
Railway,
very
little
need
be
said.
The
preamble
states
that
the
Parliament
of
Canada
has
expressed
a
preference
for
the
construction
and
operation
of
the
railway
by
means
of
an
incorporated
company
aided
by
grants
of
money
and
land
and
that
certain
statutes
have
been
passed
to
enable
that
course
to
be
followed,
but
the
enactments
therein
contained
have
not
been
effectual
for
that
purpose.
It
further
states
that
a
contract
has
been
entered
into
for
the
construction
of
the
railway;
that
the
contract
has
been
laid
before
Parliament
and
that
it
is
expedient
to
approve
and
ratify
it,
as
well
as
to
make
provision
for
the
carrying
out
of
the
same.
A
copy
of
the
contract
is
annexed
to
the
statute.
It
is
declared
approved
and
ratified
and
the
Government
is
authorized
to
perform
and
carry
out
the
conditions
thereof;
and
that,
for
the
purpose
of
incorporating
the
persons
mentioned
in
the
contract
and
those
who
shall
be
associated
with
them
in
the
undertaking,
the
Governor
may
grant
to
them,
in
conformity
with
the
contract,
under
the
corporate
name
of
the
Canadian
Pacific
Railway
Company,
a
charter
conferring
upon
them
the
franchises,
privileges
and
powers
embodied
in
the
schedule,
and
that
such
charter,
being
published
in
the
Canada
Gazette,
shall
have
force
and
effect
as
if
it
were
an
Act
of
Parliament,
and
shall
be
held
to
be
an
Act
of
incorporation
within
the
meaning
of
the
contract.
The
statute
provides
that
the
Government
may
make
to
the
Company
certain
grants
of
money
and
land
upon
the
terms
and
conditions
agreed
upon
in
the
contract;
that
the
Government
may
permit
the
admission
free
of
duty
of
certain
materials
to
be
used
in
the
original
construction
of
the
railway
and
convey
to
the
Company
the
possession
of
and
right
to
work
and
run
the
several
portions
of
the
railway,
as
the
same
shall
be
hereafter
completed;
and
the
Government
shall
also
take
security
for
the
continuous
operation
of
the
railway
during
the
ten
years
next
subsequent
to
the
completion
thereof
in
the
manner
provided
by
the
contract.
It
is
apparent,
therefore,
that
the
statute,
in
effect,
was
passed
with
the
object
of
approving
and
ratifying
the
contract
without
adding
anything
to
it
and
that
it
is
to
the
contract,
and
not
to
the
statute,
that
we
must
look
for
the
purpose
of
answering
the
questions
submitted
to
the
Court.
The
difference
is
important
for
a
term
of
a
contract
is
quite
another
thing
from
an
exemption
section
in
a
taxing
Act:
C.P.R.
v.
Burnett
(1889),
5
Man.
KR.
395.
Here,
the
appellant
does
not
claim
a
special
treatment
as
was
the
case
decided
by
the
Judicial
Committee
in
Montreal
v.
Collège
Sainte-Marie,
54
D.L.R.
520
at
pp.
521-2,
[1921]
1
A.C.
288
at
pp.
290-1.
The
exemptions
claimed
by
the
appellant
are
the
result
of
a
quid
pro
quo,
the
Company
receiving
these
exemptions
as
a
consideration
for
the
fact
that
they
undertook
the
construction
and
the
working
of
the
railway
throughout
Canada.
In
that
respect,
the
statute
added
nothing
to
the
con-
sideration
given
by
the
Government;
the
provisions
relating
thereto
are
entirely
contained
in
the
contract.
Now,
el.
1
of
the
contract
is
stated
to
be
inserted
"‘for
the
better
interpretation
of
this
contract’’.
It
may
be
said,
however,
that
the
definition
there
given
of
"‘the
Canadian
Pacifie
Railway’’
far
from
helping
in
that
interpretation
is
rather
confusing.
It
states
that
the
words
"‘the
Canadian
Pacific
Rail-
way’’,
are
intended
to
mean
the
entire
railway,
as
described
in
the
Act
37
Vict.,
ec.
14,
and
it
adds
that
the
individual
parties
to
the
contract
"‘are
hereinafter
described
as
the
Company’’.
As
a
matter
of
fact,
the
entire
railway,
as
described
in
that
Act
of
1874,
consisted
of
seven
sections,
four
of
which
were
described
in
s.
2,
two
of
which
were
described
in
ss.
3
and
4,
and
the
seventh
of
which
was
described
in
an
amending
Act
of
1879
[c.
14],
this
amending
Act
expressly
providing
that
all
the
provisions
of
the
1874
Act,
with
respect
to
branches
of
the
railway,
were
to
apply
to
this
added
branch.
The
seventh
section
of
the
1874
railway,
known
as
the
Winnipeg
Branch,
is
not
expressly
mentioned
in
the
contract.
It
had,
however,
at
that
time
been
constructed,
or
was
in
the
course
of
construction,
probably
as
part
of
the
main
line,
and
it
was
conveyed
to
the
Company
pursuant
to
el.
7
of
the
contract.
But,
by
el.
1
of
the
contract
of
1880,
only
four
sections
are
provided
for.
The
section
corresponding
with
the
first
section
of
the
1874
railway
is
called
the
Eastern
Section.
The
section
corresponding
with
the
second
section
of
the
1874
railway
is
called
the
Lake
Superior
Section.
The
section
extending
from
Selkirk
to
Kamloops
is
called
the
Central
Section,
which
corresponds
with
the
third
section
and
part
of
the
fourth
section
of
the
1874
railway;
and
the
section
extending
from
Kamloops
to
Port
Moody
is
called
the
Western
Section
and
corresponds
with
part
of
the
fourth
section
of
the
1874
railway.
The
fifth
section
of
the
1874
railway,
known
as
the
Georgian
Bay
branch,
is
not
provided
for
in
the
contract
of
1880
and
was
never
built.
The
sixth
section
of
the
1874
railway,
known
as
the
Pembina
branch,
is
not
expressly
mentioned
in
the
contract
of
1880.
It
had
then
been
completed
and
was
later
conveyed
to
the
Company
pursuant
to
el.
7
of
the
contract.
The
seventh
section
of
the
1874
railway,
known
as
the
Winnipeg
branch,
is
not
provided
for
by
the
contract
of
1880,
and,
as
such,
was
not
built.
By
the
contract,
the
Government
was
to
cause
to
be
completed
the
Lake
Superior
section
and
the
Western
section.
The
Company
was
to
construct
the
Eastern
section
and
the
Central
section.
Upon
completion
of
those
two
last
sections
by
the
Company,
the
Government
was
to
convey
to
the
Company
those
parts
of
the
railway
which
the
Government
undertook
to
construct.
Thus,
the
railway
contemplated
by
the
1880
contract
is
not
accurately
described
in
cl.
1
thereof
in
the
Act
37
Vict.,
c.
14;
and
one
may
not
rely
upon
that
so-called
description
for
the
purpose
of
construing
the
contract
of
1880,
for
the
railway
provided
for
by
the
1880
contract
was
a
different
railway
from
the
entire
railway
described
in
the
1874
Act.
It
is
common
ground
that
one
of
the
principal
concepts
underlying
the
1880
contract
was
for
the
purpose
of
constructing
a
railway
to
open
up
the
North-West
Territories.
For
this
purpose,
the
railway
was
to
consist
of
a
main
line
and
of
an
indeterminate
number
of
branches,
as
shown
by
the
authority
given
to
the
contractors
by
el.
14.
By
that
clause,
the
Company
was
given
the
right,
from
time
to
time,
to
lay
out,
construct,
equip,
maintain
and
work
branch
lines
of
railways
from
any
point
or
points
along
their
main
line
to
any
point
or
points
within
the
territory
of
the
Dominion.
The
only
proviso
was
that
before
commencing
any
branch
the
railway
had
first
to
deposit
a
map
and
plan
of
such
branch
in
the
Department
of
Railways.
Further,
the
Government
undertook
to
grant
to
the
Company
the
lands
required
for
the
road
bed
of
such
branches
and
for
the
stations,
station
grounds,
buildings,
workshops,
yards
and
other
appurtenances
requisite
for
the
efficient
construction
and
working
of
such
branches,
insofar
as
such
lands
were
vested
in
the
Government.
Moreover,
for
20
years
from
the
date
of
the
contract,
no
line
of
railway
was
to
be
authorized
by
the
Dominion
Parliament
to
be
constructed
south
of
the
Canadian
Pacific
Railway
from
any
point
at
or
near
the
railway,
except
such
line
as
shall
run
south-west
or
to
the
westward
of
south-west;
nor
to
within
fifteen
miles
of
Latitude
49.
And
in
the
establishment
of
any
new
Province
in
the
North-West
Territories,
provision
shall
be
made
for
continuing
such
prohibition
after
such
establishment
until
the
expiration
of
the
said
period
of
20
years
(el.
15
of
the
1880
contract).
It
is
quite
clear,
therefore,
that
describing
the
railway
contemplated
by
the
contract
as
being
described
in
the
Act
37
Vict.,
e.
14
(1874)
was
quite
inappropriate.
If
it
had
any
meaning
at
all,
it
must
have
been
for
the
purpose
of
identifying
the
Canadian
Pacific
Railway
for
the
construction
of
which
the
Act
of
1874
provided.
It
must
be
given
a
meaning
and
I
cannot
find
any
other.
Now,
Q.
1
is
put
in
respect
of
stations
and
station
grounds,
workshops,
buildings,
yards
and
other
property
used
for
the
working
of
the
branch
lines
situated
in
Saskatchewan.
If
we
turn
to
the
railway
described
in
ss.
1
to
4
of
the
Statute
37
Viet.,
c.
14,
it
is
to
be
noted
that
the
branches
are
there
specifically
described
as
"‘a
branch
from
the
point
indicated
as
the
proposed
eastern
terminus
of
the
said
railway
to
some
point
on
the
Georgian
Bay’’
and
"‘a
branch
from
the
main
line
near
Fort
Garry,
in
the
Province
of
Manitoba,
to
some
point
near
Pembina
on
the
southern
boundary
thereof’’;
and
s.
4
states
that
‘‘the
branch
railways
above
mentioned
shall
.
.
.
.
be
considered
as
forming
part
of
the
Canadian
Pacific
Railway,
and
as
so
many
distinct
sections
of
the
said
railway,
and
shall
be
subject
to
all
the
provisions
hereinafter
made
with
respect
to
the
said
Canadian
Pacifie
Railway”.
It
would
seem
to
me,
therefore,
that
the
branch
lines
to
which
the
benefit
of
the
exemption
applies,
under
cl.
16
of
the
contract,
were
meant
to
be
only
those
which
are
described
in
ss.
3
and
4
of
the
Act
37
Vict.,
c.
14,
and
not
to
apply
to
the
branch
lines
referred
to
in
el.
14
of
the
contract,
which
were
not
included
in
the
description
contained
in
ss.
3
and
4
of
the
Act
37
Viet.
This
conclusion,
however,
should
be
qualified,
as
suggested
by
the
appellant,
by
saying
that
cl.
16
does
exempt
and
free
from
taxation
such
stations
and
station
grounds,
workshops,
buildings,
yards
and
other
property
required
and
used
for
the
construction
and
working
of
the
entire
railway
as
described
in
the
Act
37
Vict.,
ce.
14.
This
qualification,
moreover,
agrees
with
the
statement
made
by
counsel
for
the
respondent
to
the
effect
‘‘that
the
fact
that
such
property
is
used
for
the
working
of
the
branch
lines
would
not,
of
itself,
defeat
any
exemption
to
which
such
property
might
be
entitled
by
reason
of
its
being
required
and
used
for
the
working
of
the
main
line
of
the
Canadian
Pacifie
Railway
in
Saskatchewan’’.
By
force
of
s.
4
of
Sch.
‘‘A’’,
annexed
to
the
contract,
and
referred
to
in
s.
21
thereof
(already
reproduced
at
the
beginning
of
these
reasons),
all
the
advantages
agreed
upon,
contain-
ed
or
described
in
the
contract
of
1881
were
"‘conferred
upon
the
company’’,
but,
of
course,
this
cannot
be
read
as
having
extended
the
tax
exemption.
What
the
Company
thereby
acquired
was
the
exemption
described
in
s.
16
of
the
contract
and
nothing
more.
This
is
further
emphasized
by
the
wording
of
the
Act
respecting
the
Canadian
Pacific
Railway
(44
Vict.,
c.
1).
By
that
statute,
the
contract
was
approved
and
ratified
and
it
was
therein
contained
that
for
the
purpose
of
incorporating
the
persons
mentioned
in
the
contract
and
those
who
shall
be
associated
with
them
in
the
undertaking,
the
Governor
may
grant
to
them
in
conformity
with
the
contract,
under
the
corporate
name
of
the
Canadian
Pacific
Railway
Company,
a
charter
conferring
upon
them
the
franchises,
privileges
and
powers
embodied
in
the
schedule.
This
made
clear
the
intention
of
Parliament
that
the
tax
exemption
contained
in
el.
16
was
conferred
upon
the
Company
exactly
as
described
in
the
said
clause.
The
object
was
only
to
specify
that
the
exemption
was
to
apply
to
the
corporate
entity
or
person,
but
only
in
respect
of
the
property
described
in
el.
16
:
Provincial
Treasurer
of
Alta.
v.
Kerr,
[1933]
A.C.
710
at
p.
718;
Lindley,
J.,
in
Hartley
v.
Hudson
(1879),
4
C.P.D.
367.
As
for
the
business
tax,
that
is
only
a
form
of
municipal
taxation
and
as,
under
el.
16
of
the
contract
and
s.
4
of
the
schedule,
the
company
is
‘‘forever
free
from
taxation
by
the
Dominion,
or
by
any
Province
hereafter
to
be
established,
or
by
any
Municipal
Corporation
therein’’,
I
am
of
opinion
that,
as
to
the
business
carried
on
as
a
railway
(both
main
line
and
branches,
as
described
in
ss.
1
to
4
of
the
Act
37
Vict.,
e.
14),
el.
16
of
the
contract
exempts
and
frees
the
Canadian
Pacific
Railway
Company
from
taxation
in
Saskatchewan
in
respect
of
its
business.
In
1905,
when
the
Province
of
Saskatchewan
was
constituted,
s.
24
of
the
Saskatchewan
Act
provided
that
the
powers
of
the
province
should
be
exercised
subject
to
el.
16
of
the
contract.
The
respondent
is,
therefore,
bound
by
that
clause,
and,
in
my
humble
opinion,
the
answer
to
each
of
the
questions
submitted
should
be
as
follows:
1.
Question
No.
1—No,
provided,
however,
that
the
fact
that
such
property
is
used
for
the
working
of
the
branch
lines
would
not,
of
itself,
defeat
any
exemption
to
which
such
property
might
be
entitled
by
reason
of
its
being
required
and
used
for
the
working
of
the
main
line
of
the
Canadian
Pacific
Railway
in
Saskatchewan
;
2.
Questions
No.
2
(a),
(b)
and
(c)—Yes.
As
to
the
business
carried
on
as
a
railway
(both
main
line
and
branches,
as
described
in
ss.
1
to
4
of
the
Act
37
Vict.,
ce.
14),
el.
16
of
the
contract
exempts
and
frees
the
Canadian
Pacific
Railway
Company
from
taxation
in
Saskatchewan
in
respect
of
its
business;
3.
Question
No.
3—Yes,
provided,
however,
that
such
provisions
are
not
operative
in
respect
of
stations
and
station
grounds,
workshops,
buildings,
yards
and
other
property
located
on
such
branch
lines
and
required
and
used
for
the
construction
and
working
of
the
Canadian
Pacific
Railway,
as
described
in
the
Act
37
Vict.,
ce.
14
;
4.
Question
No.
4(a)—No;
Question
No.
4
(b)—Yes,
subject
to
the
limitations
already
stated
in
the
answers
to
questions
Nos.
1,
2
(a),
(b),
(c)
and
to
Question
No.
3.
For
the
above
reasons,
the
appeal
should
be
allowed,
in
accordance
with
the
above
answers,
with
one-half
of
its
costs
of
this
appeal
to
the
appellant.
KERWIN,
J.:—I
agree
with
the
reasons
for
judgment
of
Mr.
Justice
Locke.
KELLOCK,
J.:—This
is
an
appeal
from
the
judgment
of
the
Court
of
Appeal
for
Saskatchewan
[[1949]
2
D.L.R.
240,
63
C.R.T.C.
145]
answering
certain
questions
referred
to
that
Court
by
the
Lieutenant-Governor
in
Council.
Stated
generally,
the
questions
involve
the
extent
of
exemption
from
taxation
provided
for
by
para.
16
of
the
contract
of
October
21,
1880,
and
approved
by
44
Vict.
c.
1.
Appellant
first
contends
that
the
exemption
extends
to
branch
lines
which
the
appellant
was
authorized
by
para.
14
of
the
contract
from
"‘time
to
time”
to
construct
and
work.
These
paragraphs
are
as
follows
:
”1
4.
The
Company
shall
have
the
right,
from
time
to
time,
to
lay
out,
construct,
equip,
maintain
and
work
branch
lines
of
railway
from
any
point
or
points
along
their
main
line
of
railway,
to
any
point
or
points
within
the
territory
of
the
Dominion.
Provided
always,
that
before
commencing
any
branch
they
shall
first
deposit
a
map
and
plan
of
such
branch
in
the
Department
of
Railways.
And
the
Government
shall
grant
to
the
Company
the
lands
required
for
the
road
bed
of
such
branches,
and
for
the
stations,
station
grounds,
buildings,
workshops,
yards
and
other
appurtenances
requisite
for
the
efficient
construction
and
working
of
such
branches,
in
so
far
as
such
lands
are
vested
in
the
Government.
"16.
The
Canadian
Pacific
Railway,
and
all
stations
and
station
grounds,
work
shops,
buildings,
yards
and
other
property,
rolling
stock
and
appurtenances
required
and
used
for
the
construction
and
working
thereof,
and
the
capital
stock
of
the
Company,
shall
be
forever
free
from
taxation
by
the
Dominion,
or
by
any
Province
hereafter
to
be
established,
or
by
any
Municipal
Corporation
therein;
and
the
lands
of
the
Company,
in
the
North-West
Territories,
until
they
are
either
sold
or
occupied,
shall
also
be
free
from
such
taxation
for
20
years
after
the
grant
thereof
from
the
Crown.”
Appellant
says
that
"‘the
Canadian
Pacific
Railway’’
in
para.
16
includes
the
branch
lines
contemplated
by
para.
14,
while
the
contention
of
the
respondent
is
that,
by
reason
of
the
definition
of
"‘the
Canadian
Pacific
Railway’’
in
para.
1
of
the
contract,
the
appellant’s
contention
is
excluded.
Paragraph
1
together
with
the
introductory
words
with
which
the
contract
commences
are
as
follows:
"‘That
the
parties
hereto
have
contracted
and
agreed
with
each
other
as
follows,
namely
:—
"1.
For
the
better
interpretation
of
this
contract,
it
is
hereby
declared
that
the
portion
of
railway
hereinafter
called
the
Eastern
section,
shall
comprise
that
part
of
the
Canadian
Pacific
Railway
to
be
contructed,
extending
from
the
Western
terminus
of
the
Canada
Central
Railway,
near
the
East
end
of
Lake
Nipissing,
known
as
Callander
Station,
to
a
point
of
junction
with
that
portion
of
the
said
Canadian
Pacific
Railway
now
in
course
of
construction
extending
from
Lake
Superior
to
Selkirk
on
the
East
side
of
Red
River;
which
latter
portion
is
hereinafter
called
the
Lake
Superior
section.
That
the
portion
of
said
railway,
now
partially
in
course
of
construction,
extending
from
Selkirk
to
Kamloops,
is
hereinafter
called
the
Central
section;
and
the
portion
of
said
railway
now
in
course
of
construction,
extending
from
Kamloops
to
Port
Moody,
is
hereinafter
called
the
Western
section.
And
that
the
words
‘the
Canadian
Pacific
Railway,’
are
intended
to
mean
the
entire
railway,
as
described
in
the
Act
37th
Victoria,
chap.
14.
The
individual
parties
hereto,
are
hereinafter
described
as
the
Company;
and
the
Government
of
Canada
is
hereinafter
called
the
Government.’’
"‘The
entire
railway,
as
described
in
the
Act
37th
Victoria,
chap.
14”
is
to
be
found
in
the
first
four
sections
of
that
statute.
Section
1
reads:
"1.
A
railway
to
be
called
the
‘Canadian
Pacific
Railway’
shall
be
made
from
some
point
near
to
and
south
of
Lake
Nip-
issing
to
some
point
in
British
Columbia
on
the
Pacific
Ocean.
both
the
said
points
to
be
determined
and
the
course
and
line
of
the
said
railway
to
be
approved
of
by
the
Governor
in
Council.
‘
‘
By
s.
2
it
is
provided
that
the
whole
line
of
the
said
railway
shall
be
divided
into
four
sections,
and
the
sections
are
delimited,
therein.
Sections
3
and
4
are
as
follows
:
“3.
Branches
of
the
said
railway
shall
also
be
constructed
as
follows,
that
is
to
say
:—
First.—A
branch
from
the
point
indicated
as
the
proposed
eastern
terminus
of
the
said
railway
to
some
point
on
the
Georgian
Bay,
both
the
said
points
to
be
determined
by
the
Governor
in
Council.
^Secondly.—A
branch
from
the
main
line
near
Fort
Garry,
in
the
Province
of
Manitoba,
to
some
point
near
Pembina
on
the
southern
boundary
thereof.’’
"4.
The
branch
railways
above
mentioned
shall,
for
all
intents
and
purposes,
be
considered
as
forming
part
of
the
Canadian
Pacific
Railway,
and
as
so
many
distinct
sections
of
the
said
railway,
and
shall
be
subject
to
all
the
provisions
hereinafter
made
with
respect
to
the
said
Canadian
Pacific
Railway,
except
in
so
far
as
it
may
be
otherwise
provided
for
by
this
Act.’’
Mr.
Carson,
for
the
appellant,
contends
that
the
definition
of
‘‘the
Canadian
Pacific
Railway’’
in
para.
1
of
the
contract
applies
only
for
the
purposes
of
that
paragraph
and
not
throughout
the
contract.
Prima
facie,
that
contention
is
unsound.
The
opening
words,
“For
the
better
interpretation
of
this
contract,
it
is
hereby
declared”,
apply
not
only
to
what
follows
in
the
first
sentence,
but
to
the
second
sentence.
As
far
as
is
relevant
to
the
point
with
which
we
are
here
concerned,
the
paragraph
reads:
‘‘For
the
better
interpretation
of
this
contract,
it
is
hereby
declared
that
..
.
And
that
the
words
‘the
Canadian
Pacific
Railway,
are
intended
to
mean
the
entire
railway,
as
described
in
the
Act
sith
Victoria,
chap.
14.’’
Unless,
therefore,
there
are
compelling
reasons
in
any
particular
context
to
the
contrary,
the
definition
is
to
be
applied
throughout
the
contract.
Mr.
Carson
bases
his
contention
upon
what
he
contends
to
be
a
fact,
namely,
that
the
Georgian
Bay
branch
had,
at
the
date
of
the
contract,
been
abandoned
to
the
knowledge
of
both
parties,
and
that
the
1874
railway,
with
or
without
the
amendment
of
1879,
was
not,
therefore,
in
contemplation
as
the
subject
matter
of
the
contract,
but
something
less
than
that.
In
the
first
place,
however,
the
alleged
abandonment
of
the
branch
has
not
been
shown
as
matter
of
fact
at
all.
All
that
appears
upon
the
material
to
which
Mr.
Carson
refers,
namely,
the
report
of
the
Royal
Commission
of
April
8,
1882,
and
the
Order
in
Council
of
July
25,
1879,
is
abandonment
of
a
contract
for
the
construction
of
a
part
of
that
branch.
The
report
deals
with
"Contract
No.
37’’
dated
August
2,
1878,
by
which
certain
named
contractors
undertook
to
complete
certain
work
in
connection
with
some
fifty
miles
of
the
Georgian
Bay
branch,
The
report
states
that
‘
4
before
much
progress
had
been
made
under
this
contract,
the
Government
adopted
a
policy
of
discontinuing
the
construction
of
the
Georgian
Bay
branch,
and
the
following
Order
in
Council
was
passed’’.
On
referring
to
the
above
Order
in
Council,
however,
all
it
provides
for
is
that
it
was
“‘not
the
intention
of
the
Government
to
proceed
further
with
the
work
under
this
contract’’
and
that
instructions
should
be
given
to
stop
the
work.
By
a
subsequent
Order
in
Council
of
August
14,
1879,
the
contract
was
‘‘taken
out
of
their
[the
contractors’]
hands
and
annulled’’.
Counsel
also
refers
to
certain
evidence
given
by
the
late
Sir
Charles
Tupper
before
the
Commission,
but
this
evidence
is
similarly
restricted
to
the
‘‘reason
for
abandoning
the
Georgian
Bay
branch
which
was
under
contract
with
Heney,
Charlesbois
and
Co.’’
It
does
not
go
beyond
the
Orders
in
Council.
It
is
noteworthy
that
in
the
report
itself,
reference
is
made
to
an
earlier
contract
with
a
Mr.
Foster,
‘‘No.
12’’,
concerning
the
Georgian
Bay
branch
having
been
annulled
by
an
Order
in
Council
of
February
28,
1876,
as
the
route
named
in
that
contract
had
presented
more
engineering
difficulties
than
were
anticipated,
and
a
new
survey
had
to
be
made
for
the
route
in
question
in
Contract
No.
37.
What
happened
in
connection
with
these
two
contracts
illustrates
a
situation
by
no
means
unique
at
that
time,
when
contractors
defaulted
on
their
contracts
to
build
a
part
or
parts
of
the
Canadian
Pacific.
This
did
not
mean
the
abandonment
of
the
intention
to
construct
the
“railway”
or
even
the
particular
parts
which
formed
the
subject-matter
of
the
contracts.
The
very
contract
here
in
question,
in
para.
5,
indicates
that
the
Government
had
had
the
same
experience
with
contractors
for
the
100
miles
of
rail-
way
extending
west
of
the
City
of
Winnipeg,
and
had
had
to
take
that
work
out
of
the
hands
of
the
contractor.
The
most
striking
thing,
however,
in
negation
of
the
appellant’s
contention
is
that,
after
the
Orders
in
Council
of
1879,
the
°
Canadian
Pacific
Railway’’
was
defined
both
in
the
contract
here
in
question
and
in
the
statute
confirming
it
by
express
reference
to
the
1874
statute.
This
shows
clearly
in
my
opinion
that
the
1874
railway
in
its
entirety,
including
the
Georgian
Bay
branch,
was
in
the
contemplation
of
the
contracting
parties,
unaffected
by
the
fact
that
in
the
preceding
year
the
Government
had
had
to
take
the
contract
for
the
fifty-mile
stretch
out
of
the
hands
of
the
then
contractors.
As
a
matter
of
fact,
in
1883
the
company
itself
commenced
construction
of
a
branch
line
from
Sudbury
to
Sault
Ste.
Marie
and
completed
it
in
1886
prior
to
the
completion
date
fixed
by
paras.
4
and
6
of
the
contract
of
1880
here
in
question.
This
appears
in
the
case
filed
in
the
Branch
Lines
case
(1905),
36
S.C.R.
42.
This
""
Algoma”
branch
is
referred
to
in
48-49
Vict.,
c.
57.
At
p.
49
of
36
S.C.R.
it
is
stated
that
by
1884
this
branch
line
had
been
constructed
‘‘as
far
as
Algoma
on
the
Georgian
Bay’’.
It
may
be—there
is
no
evidence
one
way
or
the
other—that
the
Georgian
Bay
branch
contemplated
by
s.
3
of
the
1874
Act
was
abandoned
after
the
date
of
the
contract,
in
favour
of
this
Algoma
branch.
However
that
may
be,
the
appellant
has
failed,
in
my
opinion,
to
establish
the
factual
basis
it
seeks
to
establish
for
its
contention.
I
think,
therefore,
that
the
definition
in
para.
1
should
be
employed,
as
that
paragraph
says,
for
the
better
interpretation
of
this
‘‘contract’’
and
not
simply
for
the
purposes
of
para.
1.
That
the
words
‘‘the
Canadian
Pacific
Railway’’
were
deliberately
intended
to
‘‘mean’’
the
‘‘entire’’
railway
as
described
in
the
Act
37
Vict.,
c.
14,
is,
I
think,
further
emphasized
by
the
fact
that
prior
to
the
contract
here
in
question,
the
statute
of
1879,
42
Vict.,
c.
14,
had
been
passed.
Section
1
reads
as
follows:
‘‘A
branch
of
the
Canadian
Pacific
Railway
shall
be
constructed
from
some
point
west
of
the
Red
River,
on
that
part
of
the
main
line
running
south
of
Lake
Manitoba,
to
the
City
of
Winnipeg,
there
to
connect
with
the
branch
line
from
Fort
Garry
to
Pembina
;
and
all
the
provisions
of
‘The
Canadian
Pacific
Railway
Act,
1874,’
with
respect
to
branches
of
the
said
railway
not
inconsistent
with
this
Act,
shall
apply
to
the
branch
to
be
constructed
under
this
Act.’’
We
were
informed
on
the
argument
that
this
1879
branch
had.
at
the
time
of
the
contract,
become
a
part
of
the
main
line.
By
this
it
must
be
meant
that,
at
the
time
of
the
Act
of
1879,
the
main
line
as
projected
was
to
pass
north
of
the
City
of
Winnipeg
and
that,
by
the
date
of
the
contract,
this
plan
had
been
changed
in
favour
of
one
which
would,
by
placing
the
City
of
Winnipeg
on
the
main
line,
do
away
with
the
necessity
for
construction
of
this
branch.
Under
the
provisions
of
s.
1
of
the
Act
of
1874,
the
main
line
had
not
been
more
definitely
located
by
the
statute
than
from
"‘some
point
near
to
and
south
of
Lake
Nipissing
to
some
point
in
British
Columbia
on
the
Pacific
Ocean’’,
both
of
these
points
and
the
course
of
the
line
itself
to
be
approved
by
the
Governor
in
Council.
Section
2
did
not
more
closely
fix
the
location
of
the
main
line
in
Manitoba
than
"‘the
second
section
to
begin
at
some
point
on
Lake
Superior,
to
be
determined
by
the
Governor
in
Council,
and
connecting
with
the
first
section,
and
to
extend
to
Red
River
in
the
Province
of
Manitoba;
the
third
section
to
extend
from
Red
River,
in
the
Province
of
Manitoba,
to
some
point
between
Fort
Edmonton
and
the
foot
of
the
Rocky
Mountains,
to
be
determined
by
the
Governor
in
Council.”
Accordingly,
it
was
competent
for
the
Governor
in
Council.
as
well
after
the
Act
of
1879
as
before,
to
determine
the
course
of
the
main
line
so
as
to
pass
through
the
City
of
Winnipeg,
and
it
had
evidently
become
unnecessary,
in
settling
the
contract
of
1880,
to
refer
to
the
amendment
of
1879
because
of
the
change
in
the
projected
route
of
the
main
line.
The
choice
of
language
in
para.
1,
that
‘‘the
words
‘the
Canadian
Pacific
Railway,’
are
intended
to
mean
the
entire
railway
as
described
in
the
Act
3{th
Victoria,
chap.
14’’,
accordingly
meant
what
they
said,
namely,
the
main
line
as
described
in
that
statute
as
it
might
be
located
by
the
Governor
in
Council,
together
with
the
two
branches
therein
mentioned,
and
nothing
else.
The
Georgian
Bay
branch
was
thus
deliberately
included
and
there
could
have
been
no
intention
to
abandon
it
at
that
time.
Far
from
finding
anything
in
other
parts
of
the
contract
which
casts
doubt
on
the
view
just
expressed,
the
contract
is
consistent
throughout
when
the
definition
in
the
first
paragraph
is
employed
as
that
paragraph
instructs,
namely,
for
the
better
interpretation
"‘of
this
contract’’.
Under
para.
3,
the
company
was
to
construct
and
equip
the
Eastern
and
Central
sections,
and
by
para.
4
these
sections
were
to
be
completed,
equipped
and
in
running
order
by
May
1.
1591,
subject
to
certain
events
therein
provided
for.
By
para.
6,
the
Government
assumed
the
obligation
of
completing
the
Lake
Superior
and
Western
sections,
the
latest
date
set
for
completion
being
also
May
1,
1891.
Paragraph
7
is
as
follows:
"The
railway
constructed
under
the
terms
hereof
shall
be
the
property
of
the
Company:
and
pending
the
completion
of
the
Eastern
and
Central
sections,
the
Government
shall
transfer
to
the
Company
the
possession
and
right
to
work
and
run
the
several
portions
of
the
Canadian
Pacific
Railway
already
constructed
or
as
the
same
shall
be
completed.
And
upon
the
completion
of
the
Eastern
and
Central
sections,
the
Government
shall
convey
to
the
Company,
with
a
suitable
number
of
station
buildings
and
with
water
service
(but
without
equipment),
those
portions
of
the
Canadian
Pacific
Railway
constructed
or
to
be
constructed
by
the
Government
which
shall
then
be
completed;
and
upon
completion
of
the
remainder
of
the
portion
of
railway
to
be
constructed
by
the
Government,
that
portion
shall
also
be
conveyed
to
the
Company;
and
the
Canadian
Pacific
Railway
shall
become
and
be
thereafter
the
absolute
property
of
the
Company.
And
the
Company
shall
thereafter
and
forever
efficiently
maintain,
work
and
run
the
Canadian
Pacific
Railway.’’
The
language
with
which
this
paragraph
begins,
"The
railway
constructed
under
the
terms
hereof
shall
be
the
property
of
the
Company’’,
should,
I
think,
be
interpreted
in
the
light
of
the
words
in
the
last
two
sentences
of
the
paragraph
and
the
confirming
statute
itself.
With
respect
to
possession
and
right
to
operate,
the
paragraph
provides
that,
pending
completion
of
the
Eastern
and
Central
sections,
the
Government
should
transfer
to
the
company
the
possession
and
right
to
operate
‘
"
the
several
portions
of
the
Canadian
Pacific
Railway
already
constructed
or
as
the
same
shall
be
completed’’.
This
language
would
entitle
the
company,
immediately
upon
the
execution
of
the
contract,
to
delivery
of
possession
of
all
portions
of
‘‘the
Canadian
Pacific
Railway’‘
already
constructed
at
the
date
of
the
contract,
and
to
possession
of
the
remainder
as
it
became
progressively
finished.
In
the
third
paragraph
of
the
preamble
of
the
statute,
it
is
stated
that
certain
sections
of
the
“said”
railway
had
already
been
constructed
by
the
Government,
while
others
were
in
course
of
construction,
the
greater
portion
of
the
‘‘main
line
thereof””,
however,
not
having
yet
been
commenced
or
placed
under
contract,
and
it
was
necessary
in
the
interests
of
good
faith
to
“complete
and
operate
the
whole
of
the
said
Railway”.
The
fourth
paragraph
of
the
preamble
states
that
a
contract
had
been
entered
into
for
the
construction
of
4
‘the
said
portion
of
the
main
line
of
the
said
Railway”
(that
is,
that
portion
of
the
main
line
of
the
1874
railway
not
then
commenced
or
placed
under
contract)
and
for
"‘the
permanent
working
of
the
whole
line
thereof.’’
There
can
be
little
doubt
that
the
‘‘whole
of
the
said
railway”
was
the
1874
railway
as
defined
by
the
Act
37
Vict.
ec.
14,
in
view
of
the
clear
statements
to
that
effect
in
ss.
4,
5
and
6.
I
think
‘‘the
whole
of
the
said
railway”
and
‘‘the
whole
line
thereof”
mean
the
same
thing.
No
one
suggests,
least
of
all
the
appellant,
that
the
contract
did
not
entitle
the
appellant
to
a
conveyance
of
the
Pembina
branch,
which
was
not,
of
course,
part
of
the
“main
line’’.
In
my
opinion,
these
considerations
throw
light
upon
the
construction
of
the
second
sentence
of
para.
7.
This
provides
that,
upon
completion
of
the
Eastern
and
Central
sections,
the
Government
should
convey
to
the
company
‘‘those
portions
of
the
Canadian
Pacific
Railway
constructed
or
to
be
constructed
by
the
Government
which
shall
then
be
completed”.
The
corresponding
language
in
s.
5
of
the
statute
is
‘‘those
portions
of
the
Canadian
Pacific
Railway
constructed,
or
agreed
by
the
said
contract
to
be
constructed
by
the
Government,
which
shall
then
be
completed’’.
This
language
would
entitle
the
Company
to
a
conveyance
of
the
portions
of
railway
already
in
existence
at
the
date
of
the
contract
and
(reading
the
language
as
set
out
in
the
section)
the
Lake
Superior
and
Western
sections
only.
However,
the
paragraph
goes
on
to
provide
that
‘‘upon
completion
of
the
remainder
of
the
portion
of
.
.
.
railway
to
be
constructed
by
the
Government,
that
portion
also
may
be
conveyed
.
.
.
to
the
Company’’.
It
is
noteworthy
that
after
the
word
‘‘Government’’
there
is
no
such
wording
as
‘‘under
the
contract’’
or
‘‘as
provided
by
the
contract’’,
and
in
my
opinion
this
fact
is
significant.
I
think
that
“the
remainder’’
includes
all
of
the
1874
railway
including
its
branches,
and
that
construction
is
borne
out
by
the
reference
to
the
preamble
already
made
and
to
the
concluding
parts
of
para.
7
of
the
contract.
It
is
‘‘the
Canadian
Pacific
Railway
defined
as
aforesaid’’
which
is
‘‘thereafter’’
to
be
the
absolute
property
of
the
Company.
It
is,
therefore,
the
entire
railway
of
1874
and
"‘thereafter’’
must
mean
upon
the
completion
of
that
railway.
The
reiteration
in
ss.
5
and
6
of
the
statute
of
the
definition
employed
in
para.
1
of
the
contract,
and
the
use
of
‘‘the
Canadian
Pacific
Railway’’
three
times
in
para.
7
renders
it
imperative,
in
my
opinion,
to
read
these
words
as
inclusive
of
the
1874
railway
in
its
entirety
and
exclusive
of
anything
else
including
branches
which
might
or
might
not
be
built
in
pursuance
of
the
power
conferred
by
para.
14
of
the
contract.
Under
para.
17,
the
Government
was
entitled
to
retain
certain
bonds,
if
issued
by
the
company,
as
security
‘‘for
the
due
performance
of
the
present
contract
in
respect
of
the
maintenance
and
continuous
working
of
the
railway
by
the
Company,
as
herein
agreed,
for
ten
years
after
the
completion
thereof’’
It
was
also
provided
that
if
there
was
no
default
in
the
maintenance
and
working
of
‘‘the
said
Canadian
Pacific
Railway’’,
the
Government
would
not
ask
for
interest
on
these
bonds.
It
would,
of
course,
be
absurd
to
say
that
‘‘the
railway”
or
‘‘the
said
Canadian
Pacific
Railway’’
in
para.
17
included
para.
14
branches,
for
the
reason
that
the
period
of
“ten
years
after
the
completion
thereof’’
would
never
begin
to
run.
The
railway
which
was
to
become
the
property
of
the
company
after
completion
and
thereafter
to
be
maintained
and
worked
by
it
as
provided
by
para.
7
was
clearly
the
1874
railway
to
the
exclusion
of
the
para.
14
branches,
and
the
security
to
be
given
under
para.
17
was
to
be
given,
if
the
bonds
were
issued,
for
the
period
ending
upon
the
expiration
of
10
years
after
the
completion
of
that
railway.
By
para.
9,
provision
is
made
for
the
granting
of
subsidies
of
land
and
money,
for
which
subsidies
‘‘the
construction
of
the
Canadian
Pacific
Railway
shall
be
completed
and
the
same
shall
be
equipped,
maintained
and
operated’’.
This
paragraph,
like
para.
7,
would
appear
to
proceed
on
the
assumption
that,
if
the
Company
carried
out
its
part
of
the
work
of
construction,
1.€.,
the
Eastern
and
Central
sections,
this
would
‘‘complete’’
the
construction
of
the
whole,
as
the
Government
was
to
construct
the
remainder
so
that
the
Company
would
be
enabled
to
carry
out
its
obligation
to
equip,
maintain
and
operate
the
whole.
Paragraph
10
provides
for
the
grant
by
the
Government
to
the
Company
of
the
lands
required
for
the
road
bed
of
‘‘the
railway’’
and
for
its
stations,
station
grounds,
workshops,
dock
ground
and
water
frontage
at
the
termini
on
navigable
waters,
buildings,
yards
and
other
appurtenances
required
for
the
effectual
construction
and
working
of
‘‘the
railway’’
insofar
as
such
land
shall
be
vested
in
the
Government.
It
is
plain,
in
my
opinion,
that
"‘the
railway”
as
used
twice
above
does
not
include
the
branch
lines
authorized
by
para.
14,
if
for
no
other
reason
than
that
in
the
last-mentioned
paragraph
there
is
a
specific
provision
that
the
Government
should
grant
to
the
Company
the
land
required
for
the
road
bed
of
branches
constructed
thereunder
and
for
the
stations,
station
grounds,
buildings,
workshops,
yards
and
other
appurtenances
requisite
for
the
efficient
construction
and
working
of
such
branches.
This
in
my
opinion,
is
the
plainest
indication
that
"‘the
railway”
in
para.
10
means
the
railway
as
defined
in
para.
1,
and
that
the
branches
comprised
within
para.
14
are
not
part
of
that
railway,
that
is,
"‘the
Canadian
Pacific
Railway”.
Paragraph
15
is
as
follows:
"‘For
twenty
years
from
the
date
hereof,
no
line
of
railway
shall
be
authorized
by
the
Dominion
Parliament
to
be
constructed
South
of
the
Canadian
Pacific
Railway,
from
any
point
at
or
near
the
Canadian
Pacific
Railway,
except
such
line
as
shall
run
South
West
or
to
the
Westward
of
South
West;
nor
to
within
fifteen
miles
of
Latitude
49.
And
in
the
establishment
of
any
new
Province
in
the
North-West
Territories,
provision
shall
be
made
for
continuing
such
prohibition
after
such
establishment
until
the
expiration
of
the
said
period.”
I
think
this
paragraph
is
to
be
read
consistently
with
the
definition
in
para.
1.
It
means,
in
my
opinion,
that
Parliament
may
not
authorize
another
line
except
such
as
shall
(a)
have
as
its
southerly
terminus
a
point
nearer
to
the
international
border
than
fifteen
miles;
(b)
run
in
the
specified
direction;
and
(c)
have
as
its
northerly
terminus
any
point
‘‘at
or
near’’
the
main
line
or
either
branch
line.
By
para.
22
it
is
provided
that
the
Railway
Act
of
1879,
insofar
as
applicable
to
the
undertaking
referred
to
in
the
contract
and
insofar
as
not
inconsistent
with
the
contract
itself
or
the
Act
of
incorporation
to
be
granted
to
the
Company,
shall
apply
to
“the
Canadian
Pacific
Railway”.
I
see
no
difficulty
again
in
applying
the
definition
in
para.
1
to
this
paragraph.
‘‘The
Canadian
Pacific
Railway”
and
‘‘the
Company”
are
expressly
and
separately
referred
to
in
the
paragraph.
In
my
opinion,
it
is
perfectly
clear
and
the
definition
clearly
applies.
It
is
significant
that
when
one
comes
to
Sch.
‘‘A’’
to
the
contract,
the
first
use
of
the
words
‘‘the
Canadian
Pacific
Rail
way’’
is
in
para.
15
which
contains
a
description
of
what
is
intended
thereby
and
what
is
intended
when
those
words
are
"‘hereinafter”
used
in
the
schedule.
In
this
description
and
definition
the
branches
authorized
by
para.
14
of
the
contract
are
specifically
taken
in
by
the
use
of
the
words
‘‘other
branches
to
be
located
by
the
Company
from
time
to
time
as
provided
by
the
said
contract’’.
Again
in
para.
18(d)
of
the
schedule
there
is
an
express
distinction
drawn
between
the
‘‘main
line’’
and
‘‘any
branch
of
such
railway
hereafter
to
be
located
by
the
said
Company
in
respect
of
which
the
approval
of
the
Governor
in
Council
shall
not
be
necessary’’
(1.e.,
branches
to
be
located
as
authorized
by
para.
14
of
the
contract
by
simply
filing
a
plan).
The
view
to
which
I
have
come,
negativing
the
appellant’s
contention
on
the
first
branch
of
this
case,
is,
I
think,
confirmed
by
the
provisions
of
the
confirming
statute,
44
Viet.,
ec.
1.
I
have
already
referred
to
certain
parts
of
the
preamble.
Section
3
provides
for
a
subsidy
in
favour
of
the
Company
in
consideration
of
the
‘‘completion
and
efficient
operation”
of
the
‘‘railway’’
as
stipulated
in
the
contract.
So
far
as
construction
was
concerned,
the
Company
was
limited
to
the
Eastern
and
Central
sections
but
as
to
operation
it
was
interested
in
the
whole.
As
in
the
case
of
paras
7
and
9
of
the
contract,
this
section
appears
to
proceed
on
the
assumption
that
“completion”
of
the
entire
railway
would
be
effected
if
the
Company
built
the
Eastern
and
Central
sections,
as
the
Government
would
see
to
the
rest.
Section
4
provides
for
the
admission
duty
free
of
materials
to
be
used
in
the
original
construction
of
‘‘the
Canadian
Pacific
Railway’’
and
of
a
telegraph
line
in
connection
‘‘therewith’’
and
for
all
telegraphic
apparatus
required
for
the
first
equipment
of
‘‘such
telegraph
line’’
as
provided
by
para.
10
of
the
contract.
In
my
opinion,
the
telegraph
line
envisaged
by
this
section
in
connection
with
‘‘the
Canadian
Pacific
Railway’’
was
the
same
telegraph
line
as
is
described
in
s.
5
of
the
Act
of
1874,
namely,
a
line
of
electric
telegraph
along
the
‘‘
whole
extent
respectively’’
of
the
“said
railway
and
branches’’,
i.e.,
the
Pembina
and
Georgian
Bay
branches.
I
have
already
dealt
with
the
remainder
of
the
statute.
There
is
therefore
not
only
nothing
in
the
statute
which
could
by
any
possibility
be
taken
to
include
in
the
words
‘‘the
Canadian
Pacific
Railway”
para.
14
branches,
but
on
the
contrary
the
clearest
exclusion
of
such
branches
by
the
deliberate
use
of
the
definition
employed
in
para.
1
of
the
contract
in
ss.
4
and
5
and
in
s.
6
by
reference.
I
would
therefore
affirm
the
judgment
below
on
this
point.
The
further
question
in
this
appeal
may
be
shortly
stated
as
to
whether
the
exemption
provided
for
by
para.
16
of
the
contract
extends
to
‘‘business’’
taxes
as
provided
for
by
the
Saskatchewan
statutes
set
out
in
the
case.
The
argument
proceeded
on
the
basis
that
it
was
sufficient
for
the
purposes
of
this
question
to
consider
the
provisions
of
the
City
Act,
1947
(Sask.),
c.
43.
The
statute
provides
by
s.
441
that
the
assessor
shall
each
year
assess
(1)
the
owner
or
occupant
‘‘in
respect
to
every
parcel
of
land’’
in
the
city,
with
certain
exceptions,
and
(2)
every
person
‘‘who
is
engaged
in
.
.
.
business’’.
‘‘Business’’,
which
is
defined
by
para.
(4)
of
s.
2
as
including
any
trade,
profession,
calling,
occupation
or
employment,
is
to
be
assessed
as
provided
by
s.
443.
Under
that
section
the
assessor
shall
fix
a
rate
per
square
foot
of
the
floor
space
of
each
building
or
part
thereof
used
for
business
purposes,
and
a
different
rate
may
be
fixed
for
different
classes
of
business.
It
must
not,
however,
exceed
the
statutory
limits
which
appear
to
run
from
$4
to
$15
per
sq.
ft.
It
is
provided
by
s-s.
(5a)
[enacted
1948
(Sask.),
c.
33,
s.
19]
of
this
section
that
a
railway
company,
whether
its
property
is
liable
to
assessment
and
taxation
or
not,
shall
be
liable
to
assessment
and
taxation
under
this
section
“in
respect
of
the
business
carried
on
as
a
railway”
and
the
provisions
of
the
section
otherwise
are
made
to
apply
except
that
in
the
case
of
a
railway
it
is
only
buildings
occupied
which
may
be
taken
into
consideration:
(s-s.
(2)
).
It
is
provided
by
s.
479
that,
subject
to
other
provisions
of
the
statute,
the
municipal
and
school
taxes
shall
be
levied
upon
lands,
businesses
and
special
franchises.
The
last
mentioned
is
dealt
with
in
s-ss.
(7)
and
(8)
of
s.
443
by
which
the
owner
of
a
special
franchise
is
assessed
for
10
%
of
the
value
of
the
franchise
and
is
not
assessable
in
respect
of
business.
By
s.
485
the
owner
of
a
building
is
liable,
in
addition
to
taxes
levied
in
respect
of
the
land
and
buildings,
to
business
tax
levied
in
respect
of
business
carried
on
therein.
By
s.
495
the
council
is
required
to
levy
annually
on
the
whole
rateable
property
within
the
municipality.
Section
504
deals
with
the
tax
roll
and
by
s-s.
(2)
it
is
provided
that
this
roll
shall
contain
‘‘(a)
the
name
of
every
person
assessed;
(c)
the
nature
and
description
of
the
property
in
respect
of
which
he
is
assessed;
(d)
the
total
amount
for
which
he
is
assessed”.
It
is
plain
in
my
view
that
the
‘‘
business”
assessment
provided
for
by
these
taxing
provisions
is
the
assessment
(and
taxation)
of
a
person
in
respect
of
land
or
building
occupied
by
him
for
the
purposes
of
a
business,
and
that,
apart
from
any
question
of
a
statutory
lien
or
charge,
such
taxation
does
not
differ
from
that
of
a
person
in
respect
of
ownership
of
land
and
building.
In
each
case,
the
liability
imposed
is
with
respect
to,
in
the
one
case,
the
value
of
land
owned,
and
in
the
other,
with
respect
to
the
value
fixed
by
the
statute,
of
land
occupied.
In
nature,
therefore,
there
is
no
essential
difference.
In
the
case
of
the
land
tax,
the
tax
is
not
simply
imposed
upon
and
payable
out
of
the
land,
nor
in
the
case
of
the
business
tax
is
it
simply
imposed
upon
and
payable
out
of
assets
apart
from
the
land
employed
in
carrying
on
the
business.
In
each
case
the
tax
is
imposed
upon
a
person
in
respect
of
land
owned
or
occupied.
With
respect
to
the
meaning
of
‘‘taxation
of
property”
as
distinguished
from
‘‘taxation
of
persons
in
respect
of
property
1
Rand,
J.
said
in
Sugar
City
M.D.
No.
5
v.
Bennett
and
White
(Calgary)
Ltd.,
[1950]
S.C.R.
450
that
"‘to
‘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
lien,
is,
I
think,
a
misconception
.
.
.
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’’.
In
Provincial
Treasurer
of
Alta.
v.
Kerr,
[1933]
A.C.
710
at
p.
718,
Lord
Thankerton
said:
‘‘Generally
speaking,
taxation
is
imposed
on
persons,
the
nature
and
amount
of
the
liability
being
determined
either
by
individual
units,
as
in
the
ease
of
a
poll
tax,
or
in
respect
of
the
taxpayers’
interests
in
property
or
in
respect
of
transactions
or
actings
of
the
taxpayers.
It
is
at
least
unusual
to
find
a
tax
imposed
on
property
and
not
on
persons.
’
‘
In
the
present
instance,
the
tax
here
in
question
is
imposed
on
persons
in
respect
of
their
interest
in
property,
not
as
a
matter
of
title
but
as
a
matter
of
use.
In
Halifax
v.
Fairbanks,
[1928]
A.C.
117,
the
respondent
wned
premises
which
it
let
to
the
Crown
for
use
as
a
ticket
office,
the
lessee
agreeing
to
pay
the
‘‘business
tax’’.
The
city
assessed
the
respondent
for
business
tax
under
provincial
legislation
which
imposed
a
“business
tax”
to
be
paid
by
every
occupier
of
real
property
for
the
purposes
of
any
trade.
The
statute
also
provided
that
any
property
let
to
a
person
exempt
from
taxation
was
to
be
deemed,
for
business
purposes,
to
be
in
the
occupation
of
the
owner
and
to
be
assessed
for
business
tax
according
to
the
purposes
for
which
it
was
occupied.
The
city
was
authorized
under
the
legislation
to
levy
the
business
tax,
a
household
tax
and
a
real
property
tax.
The
business
tax
was
assessed
on
50
%
of
the
capital
value
of
the
property
occupied
for
purposes
of
the
business.
The
household
tax
was
payable
by
every
occupier
of
real
property
for
residential
purposes,
and
was
assessed
on
10%
of
the
capital
value
of
such
property.
The
real
property
tax
was
a
tax
on
the
owners
of
all
real
property
and
was
assessed
on
the
capital
value.
The
actual
question
for
decision
in
the
case
was
as
to
whether
or
not
the
business
tax
was
or
was
not
a
direct
tax
within
the
meaning
of
s.
92
of
the
B.N.A.
Act.
While
that
was
the
actual
question
for
decision,
their
Lordships
had
to
consider
the
nature
of
the
tax.
After
pointing
out
that
the
framers
of
the
B.N.A.
Act
had
drafted
that
statute
on
the
basis
of
a
well-known
distinction
at
that
time
between
direct
and
indirect
taxes,
Viscount
Cave,
L.C.,
said
at
p.
124
A.C.:
"Thus,
taxes
on
property
or
income
were
everywhere
treated
as
direct
taxes
;
.
.
.
When
therefore
the
Act
of
Union
allocated
the
power
of
direct
taxation
[for
provincial
purposes]
to
the
Province,
it
must
surely
have
intended
that
the
taxation
[for
those
purposes*]
of
property
and
income
should
belong
exclusively
to
the
provincial
legislatures.”
Their
Lordships
decided
that
the
tax
in
question
was
a
tax
on
property
and
a
direct
tax.
Under
the
provisions
of
para.
16
of
the
contract
here
in
question,
the
stations,
station
grounds,
work
shops
and
buildings
required
for
the
working
of
the
railway
were
to
be
‘‘forever
free
from
taxation’’.
It
would
be
an
extraordinary
result
if
the
proper
interpretation
of
this
exemption
were
to
be
said
to
be
that
while
taxes
imposed
upon
the
owner
in
respect
of
his
ownership
of
these
things
fall
within
the
exemption,
nevertheless
taxes
imposed
upon
the
owner
in
respect
of
his
use
of
the
same
items
do
not.
I
do
not
think
the
intention
of
the
contracting
parties
to
be
derived
from
the
language
which
they
have
employed
involves
any
such
result
and
I
think
application
of
the
business
tax
here
in
question
to
the
"‘Canadian
Pacific
Railway’’
as
I
have
already
interpreted
those
words
is
precluded
by
the
terms
of
para.
16,
made
binding
upon
the
Province
by
s.
24
of
4-5
Edw.
VII,
c.
42,
Canada.
I
do
not
think
it
useful
to
refer
to
dicta
in
earlier
cases
in
this
Court.
In
none
of
them
was
there
involved
the
question
here
under
consideration.
We
were
also
referred
to
decisions
with
respect
to
‘‘business
tax”
in
the
provincial
Courts,
for
instance,
lve
Hydro
Elec.
P.
Commission
and
Hamilton
(1920),
47
O.L.R.
155.
By
virtue
of
8
Geo.
V,
c.
20,
s.
39,
which
enacted
s.
45(a)
of
the
Assessment
Act,
certain
property
of
the
Commission
(assuming
the
statute
applied
to
the
particular
Commission
there
in
question)
was
to
be
exempt
from
assessment
and
taxation
and
it
was
argued
that
inasmuch
as
the
business
tax
imposed
by
the
Act
must
be
paid
out
of
the
property,
the
Commission
was
exempt
from
business
tax.
The
Ontario
Assess-
ment
Act
provided
for
assessment
and
taxation
of
land
and
also
for
business
assessment
and
taxation.
In
the
course
of
his
judgment,
the
Chief
Justice
said
at
pp.
160-1
O.L.R.:
"The
business
assessment
is
imposed
by
sec.
10,
and
is
a
personal
tax,
and
not
a
tax
on
real
or
personal
property.
The
assessment
on
land
is
used
only
for
the
purpose
of
determining
the
amount
of
business
assessment,
which
is
a
percentage
on
the
assessed
value
of
the
land
occupied
or
used
for
the
purpose
of
the
business.
‘
‘
The
business
tax
under
the
statute
did
not
constitute
a
lien
on
the
land
as
was
the
case
with
the
real
property
tax,
and
in
that
sense
it
was
not
a
tax
"‘on’’
land.
Both,
however,
constituted
taxes
on
persons
with
respect
to
their
ownership
or
occupation
of
land
and
under
the
contract
in
question
on
this
appeal
both
are
within
the
intendment
of
the
language
employed
in
para.
16.
As
stated
by
Beck,
J.,
as
he
then
was,
in
Hedley
Shaw
Mllg.
Co.
v.
Medicine
Hat,
[1918]
1
W.W.R.
754
at
p.
756:
"‘The
‘business
assessment’
.
.
.
.
is
in
effect
an
assessment
of
the
‘buildings
or
lands
or
both’,
in
or
on
which
the
business
is
carried
on.’’
In
Re
Ford
Motor
Co.
and
Ford
City,
[1929]
2
D.L.R.
109,
63
O.L.R.
410,
Middleton,
J.A.,
said
with
reference
to
business
assessment
under
the
Ontario
statute:
‘‘In
lieu
of
the
assessment
on
personal
property,
there
was
substituted
a
business
assessment,
fundamentally
based
upon
the
value
of
the
land
actually
occupied
in
connection
with
the
business
which
forms
the
subjectmatter
of
the
assessment.”
It
is
nothing
less
than
the
assessment
of
a
person
with
respect
to
land
occupied
by
him.
The
assessment
and
the
tax
which
follows
are
in
essence
the
same,
whether
the
assessment
is
the
full
capital
value
of
the
land
as
in
the
case
of
‘‘land
tax’’
or
a
percentage
of
that
value
as
in
the
case
of
business
and
household
assessment
in
the
City
of
Halifax
and
business
assessment
under
the
Ontario
statute,
or
whether
the
assessment
is
a
value
of
the
land
fixed
by
statute
as
in
the
case
of
the
Saskatchewan
legislation.
The
decision
in
Moose
Jaw
v.
B.A.
Oil
Co.,
[1937]
2
W.W.R.
309,
is
largely
based
on
the
passage
quoted
from
the
judgment
in
Hydro
Elec.
P.
Commission
and
Hamilton,
ubi.
cit.,
and
for
the
reasons
already
given
I
do
not
think
it
can
apply
here.
I
adopt
the
answers
given
by
my
brother
Locke,
and
would
allow
the
appellant
one-half
of
its
costs
in
this
Court.
ESTEY,
J.,
(dissenting)
:—This
is
an
appeal
from
the
answers
given
by
the
Court
of
Appeal
for
Saskatchewan
[[1949]
2
D.L.R.
240,
63
C.R.T.C.
145]
to
four
questions
submitted
to
it
under
the
Constitutional
Questions
Act
of
that
Province
(R.S.S.
1940,
c.
72).
Questions
1
and
3
ask:
Does
cl.
16
of
the
contract
dated
October
21,
1880,
for
the
construction
of
the
Canadian
Pacific
Railway,
exempt
and
free
from
taxation
the
branch
lines
constructed
pursuant
to
el.
14
of
the
said
contract,
and
the
stations,
the
station
grounds,
work
shops,
buildings,
yards
and
other
property
used
for
the
working
of
those
branch
lines?
Questions
2
and
4
ask:
Does
cl.
16
of
the
said
contract
exempt
and
free
the
Canadian
Pacific
Railway
from
taxation
in
respect
to
the
business
carried
on
by
the
Railway
in
Saskatchewan?
Clause
16
of
the
contract
reads:
"‘The
Canadian
Pacific
Railway,
and
all
stations
and
station
grounds
work
shops,
buildings,
yards
and
other
property,
rolling
stock
and
appurtenances
required
and
used
for
the
construction
and
working
thereof,
and
the
capital
stock
of
the
Company,
shall
be
forever
free
from
taxation
by
the
Dominion,
or
by
any
Province
hereafter
to
be
established,
or
by
any
Municipal
Corporation
therein;
and
the
lands
of
the
Company,
in
the
North-West
Territories,
until
they
are
either
sold
or
occupied,
shall
also
be
free
from
such
taxation
for
twenty
years
after
the
grant
thereof
from
the
Crown.”
The
statute
(1905
(Can.),
c.
42)
creating
the
Province
of
Saskatchewan
provided
in
s.
24
thereof:
‘‘The
powers
hereby
granted
to
the
said
province
shall
be
exercised
subject
to
the
provisions
of
section
16
of
the
contract
set
forth
in
the
schedule
to
chapter
1
of
the
statutes
of
1881,
being
an
Act
respecting
the
Canadian
Pacific
Railway
Company.”
These
questions
arise
by
virtue
of
amendments
made
by
the
Legislature
of
that
Province
to
its
municipal
Acts
in
1948.
These
are:
City
Act,
1947
(Sask),
c.
48;
Town
Act,
1947
(Sask.),
e.
44;
Village
Act,
1946
(Sask.),
ce.
31;
Rural
Municipality
Act,
1946
(Sask.),
c.
32,
and
Local
Improvement
Districts
Act,
1946
(Sask.),
c.
33.
The
issues
have
been
presented
on
the
basis
that
these
1948
amendments
are
all
to
the
same
effect
and,
therefore,
reference
will
be
made
only
to
the
provisions
of
the
City
Act.
The
aforementioned
contract
of
October
21,
1880,
was
made
a
schedule
to
and
approved
and
ratified
by
a
statute
of
the
Dominion
of
Canada
(1881,
ce.
1).
The
terms
of
incorporation
were
made
a
schedule
to
this
contract
and
later
the
Canadian
Pacific
Railway
was
incorporated
by
letters
patent
dated
February
16,
1881,
in
terms
identical
with
those
made
a
schedule
to
the
contract.
The
preamble
to
the
foregoing
statute
(1881,
ec.
1)
approving
the
construction
contract
recited,
inter
alia,
the
obligation
of
the
Dominion
to
construct
a
railway
connecting
the
seaboard
of
British
Columbia
with
the
railway
system
of
Canada,
the
efforts
made
to
obtain
the
construction
of
that
railway,
and
that
certain
portions
thereof
had
already
been
constructed
by
the
Dominion
Government.
It
also
pointed
out
the
necessity
for
the
development
of
the
North-West
Territories.
The
contract
divided
the
main
line
into
four
sections
:
Eastern,
Lake
Superior,
Central
and
Western.
It
provided
that
the
Company
would
construct
the
Eastern
and
Central
sections
and
that
the
Government
would
transfer
the
completed
Lake
Superior
and
Western
sections
to
the
Company,
which
would
equip,
maintain
and
efficiently
operate
the
entire
railway.
Clause
I
of
the
contract
sets
out
certain
definitions.
The
answers
to
Qq.
1
and
3
depend
largely
upon
the
construction
of
the
words
"‘and
that
the
words
‘the
Canadian
Pacific
Railway/
are
intended
to
mean
the
entire
railway
as
described
in
the
Act
37th
Victoria,
chap.
14’
as
they
appear
in
that
clause.
“1.
For
the
better
interpretation
of
this
contract,
it
is
hereby
declared
that
the
portion
of
railway
hereinafter
called
the
Eastern
section,
shall
comprise
that
part
of
the
Canadian
Pacifie
Railway
to
be
constructed,
extending
from
the
Western
terminus
of
the
Canada
Central
Railway,
near
the
East
end
of
Lake
Nipissing,
known
as
Callander
Station,
to
a
point
of
junction
with
that
portion
of
the
said
Canadian
Pacific
Railway
now
in
course
of
construction
extending
from
Lake
Superior
to
Selkirk
on
the
East
side
of
Red
River;
which
latter
portion
is
hereinafter
called
the
Lake
Superior
section.
That
the
portion
of
said
railway,
now
partially
in
course
of
construction,
extending
from
Selkirk
to
Kamloops,
is
hereinafter
called
the
Central
section;
and
the
portion
of
said
railway
now
in
course
of
construction,
extending
from
Kamloops
to
Port
Moody,
is
hereinafter
called
the
Western
section.
And
that
the
words
‘the
Canadian
Pacific
Railway,’
are
intended
to
mean
the
entire
railway,
as
described
in
the
Act
37
th
Victoria,
chap.
14.
The
individual
parties
hereto,
are
hereinafter
described
as
the
Company;
and
the
Government
of
Canada
is
hereinafter
called
the
Government.
‘
‘
The
appellant
contends
that
the
definition
of
*
‘
Canadian
Pacific
Railway’’
in
el.
1
is
for
the
purpose
of
that
clause
only
and
that
in
cl.
16
the
words
‘‘Canadian
Pacific
Railway”
include
the
main
line
and
the
branch
lines
constructed
under
c.].
14
of
the
contract,
and
the
property
specified
in
el.
16.
The
respondent
contends,
to
the
contrary,
that
the
definition
set
forth
in
el.
1
of
""Canadian
Pacific
Railway”
applies
generally
throughout
the
contract
and
in
particular
to
cl.
16
and,
therefore,
the
exemption
is
restricted,
so
far
as
the
Province
of
Saskatchewan
is
concerned,
to
the
main
line
and
the
property
specified
in
that
clause.
The
opening
words
of
cl.
1,
‘‘for
the
better
interpretation
of
this
contract,’’
disclose
that
the
purpose
and
intent
of
el.
1
is
to
provide
such
definitions
as
may
assist
in
the
interpretation
of
the
contract.
The
four
sections,
Eastern,
Lake
Superior,
Central
and
Western,
of
the
main
line
are
first
defined.
Then
follows
the
sentence
"‘and
that
the
words
‘the
Canadian
Pacific
Railway,’
are
intended
to
mean
the
entire
railway
as
described
in
the
Act
37
th
Victoria,
chap.
14’’.
This
sentence
indicates
that
"the
Canadian
Pacific
Railway”
did
not
mean
merely
the
four
sections
defined
and
constituting
the
main
line,
but
in
addition
thereto
the
three
branch
lines
defined
in
the
Act
of
1874
and
the
amendment
thereof
in
1879
described
as
the
Georgian
Bay,
Pembina
and
Winnipeg
branch
lines.
Then
follows
the
definitions
of
the
words
"Company’’
and
"‘Government.’’
Counsel
for
the
appellant
emphasized
that
the
word
"‘hereinafter’’
does
not
appear
in
relation
to
‘‘the
Canadian
Pacific
Railway”
while
it
does
appear
with
regard
to
every
other
term
defined
in
that
paragraph.
Under
other
circumstances
such
might
be
significant,
but
in
this
particular
case
the
phrase
is
used
twice
prior
to
this
definition
in
cl.
1
and,
while
this
definition
is
not
essential
to
clarify
the
meaning
of
the
phrase
as
used
in
that
clause,
it
was
a
circumstance
sufficient
to
justify
the
draftsman’s
omission
of
the
word
‘‘hereinafter’’
in
this
instance.
The
conclusion
seems
unavoidable
that
the
parties
intended
that
the
definitions
in
el.
1
should
obtain
generally
throughout
the
contract
and
that
the
phrase
‘‘the
Canadian
Pacific
Railway’’
as
in
that
clause
defined
includes
the
main
line
and
the
three
branches,
Georgian
Bay,
Pembina
and
Winnipeg
(hereinafter
referred
to
as
the
“specified
branches’’).
Moreover,
this
conclusion
finds
support
when
the
contract
is
read
as
a
whole.
In
the
Act
of
1874
only
the
main
line
and
the
three
specified
branches
were
provided
for.
There
was
no
provision
for
the
construction
of
branch
lines
such
as
that
contained
in
el.
14
of
the
1880
contract.
Clause
14
reads
as
follows:
“The
Company
shall
have
the
right,
from
time
to
time
to
lay
out,
construct,
equip,
maintain
and
work
branch
lines
of
railway
from
any
point
or
points
along
their
main
line
of
railway,
to
any
point
or
points
within
the
territory
of
the
Dominion.
Provided
always,
that
before
commencing
any
branch
they
shall
first
deposit
a
map
and
plan
of
such
branch
in
the
Department
of
Railways.
And
the
Government
shall
grant
to
the
Company
the
lands
required
for
the
road
bed
of
such
branches,
and
for
the
stations,
station
grounds,
buildings,
workshops,
yards
and
other
appurtenances
requisite
for
the
efficient
construction
and
working
of
such
branches,
in
so
far
as
such
lands
are
vested
in
the
Government.”
Under
the
contract
of
1880
the
railway
envisaged
may
be
divided
into
three
parts:
the
four
sections
constituting
the
main
line,
the
three
specified
branches,
the
construction
of
both
of
these
being
obligatory
under
the
contract,
and
as
to
the
third,
or
the
branch
lines
under
el.
14,
the
contract
created
no
obligation
but
granted
to
the
Company
the
privilege
of
constructing
these
from
time
to
time
as
it
might
decide.
The
Winnipeg
branch
provided
for
in
the
1879
amendment
was
never
completed
and
the
part
thereof
constructed
by
the
Government
was
transferred
to
the
Company
and
included
in
the
main
line
when
its
route
in
the
Winnipeg
area
was
changed.
The
Pembina
branch
was
completed
by
the
Government
and
turned
over
to
the
Company,
but
the
Georgian
Bay
branch
was
never
constructed.
I
do
not
think,
however,
that
any
conclusion
ean
be
drawn
from
the
fact
that
these
changes
were
made.
The
statutes
and
Orders
in
Council
passed
between
1874
and
1880
clearly
disclose
that
the
actual
location
of
the
main
line
was
changed
from
time
to
time.
When
this
contract
was
executed
in
1880
it
seems
clear
that
the
parties
had
in
mind
the
Dominion
Government’s
obligation
with
the
Province
of
British
Columbia
to
construct
a
railway
and
the
development
of
the
prairies;
but
the
route
of
the
railway
had
been
only
tentatively
arrived
at.
In
fact,
under
el.
13
of
the
contract,
the
Company
had
the
right,
subject
to
the
approval
of
the
Governor
in
Council,
to
determine
the
exact
location
of
the
line
within
the
two
sections
it
was
building
and
the
Government
itself
made
changes
in
the
sections
which
it
constructed.
All
this
but
emphasizes
the
fact
that
no
conclusion
can
be
drawn
from
the
fact
that
changes
were
made
with
regard
to
the
specified
branch
lines
adverse
to
the
respondent’s
contention
in
respect
to
the
meaning
of
"the
Canadian
Pacific
Railway’’
where
it
appears
in
cl.
1.
It
is
significant
that
branch
lines,
apart
from
those
included
in
the
reference
to
the
Act
of
1874,
are
referred
to
only
in
cis.
11
and
14.
In
the
former
the
reference
is
not
of
any
assistance
in
determining
the
answers
to
the
questions
here
submitted,
as
it
merely
indicates
the
locations
which
the
Company
may
select
in
substitution
for
those
sections
of
land
contained
in
the
twenty-
five
million
acres
which
‘‘consist
in
a
material
degree
of
land
not
fairly
fit
for
settlement’’.
While
the
Government
granted
to
the
Company
land
for
the
stations,
station
grounds,
etc.,
on
both
the
main
and
branch
lines,
provisions
therefor
were
made
in
separate
clauses:
that
for
the
former
in
cl.
10,
and
the
latter
in
cl.
14.
Clause
14
imposes
no
obligation
upon
the
Company
to
construct
these
branch
lines.
It
merely
gives
to
the
Company
the
privilege
of
constructing
them
as
and
when
they
may
decide
to
do
so.
The
consideration
of
land
and
money
and
the
transfer
of
the
Lake
Superior
and
the
Winnipeg
sections
when
constructed
had,
under
the
terms
of
the
contract,
no
relation
to
the
branch
lines
referred
to
in
cl.
14
and
imposed
no
obligation
on
the
Company
to
construct
them.
In
cl.
7,
when
the
parties
intended
to
refer
to
the
railway
and
the
specified
branches,
they
spoke
of
"the
Canadian
Pacific
Railway,’’
but
when
referring
to
those
parts
to
be
constructed
and
transferred
to
the
Company
the
terms
‘‘several
portions
of’’
or
those
portions
of”
preceded
the
words
"the
Canadian
Pacific
Railway’’.
Then
again
in
cl.
8
the
parties
provided
that
when
the
Government
transferred
‘‘the
respective
portions
of
the
Canadian
Pacific
Railway”
the
Company
should
equip,
maintain
and
operate
same.
In
these
clauses
when
the
parties
used
the
phrase
44
the
Canadian
Pacific
Railway”
they
intended
it
as
defined
in
el.
1.
The
parties,
in
cl.
9,
are
providing
for
the
payment
and
transfer
to
the
Company
of
the
subsidies
as
the
construction
on
the
part
of
the
Company
progressed.
It
is
clear
that
the
consideration
of
money
and
land
in
this
contract
has
no
reference
to
the
actual
work
of
constructing
the
branch
lines
provided
for
in
cl.
14
and
these
branch
lines
are
not
included
in
this
clause
under
the
words
‘‘the
Canadian
Pacific
Railway”.
The
context
makes
it
clear
that
the
parties
in
the
phrase
‘‘the
Canadian
Pacific
Railway”
are
referring
to
that
portion
to
be
constructed
by
the
Company.
A
general
definition
in
a
contract
such
as
that
which
appears
in
cl.
1
is
always
subject
to
the
implication
that
it
applies
only
where
the
context
does
not
otherwise
indicate.
There
may
be
some
ambiguity
with
respect
to
this
phrase
‘‘the
Canadian
Pacific
Railway’’
in
el.
15.
It
may
well
be
that
the
parties
here
intended
the
phrase
to
mean
the
main
line.
If
that
be
the
construction,
it
is
again
on
the
basis
that
the
context
leads
to
that
conclusion,
but
here
again
it
cannot
be
suggested
that
the
branch
lines
under
cl.
14
are
included
in
the
phrase
"‘the
Canadian
Pacific
Railway’’
as
used
in
this
clause.
Clause
17
authorized
the
issue
by
the
Company
of
land
grant
bonds
and
when
issued
one-fifth
shall
be
deposited
with
the
Government
*
"
as
security
for
the
due
performance
of
the
present
contract
in
respect
of
the
maintenance
and
continuous
working
of
the
railway
by
the
Company,
as
herein
agreed,
for
ten
years
after
the
completion
thereof
.
.
.
And
as
to
the
said
one-fifth
of
the
said
bonds,
so
long
as
no
default
shall
occur
in
the
maintenance
and
working
of
the
said
Canadian
Pacific
Railway’’.
It
is
as
defined
in
cl.
1
that
the
phrase
‘‘the
Canadian
Pacific
Railway’’
is
here
used.
It
includes
the
“maintenance
and
continuous
working’’
thereof
but
not
of
the
branch
lines
as
constructed
under
el.
14.
Clause
22
makes
applicable
the
Railway
Act
of
1879
to
‘‘the
undertaking
referred
to
in
this
contract’’,
and
then.
goes
on
to
provide
that
the
said
Act
shall
apply
to
‘‘the
Canadian
Pacific
Railway’’,
except
where
the
provisions
of
this
contract,
or
the
Act
of
incorporation,
show
a
contrary
intention.
The
parties,
in
this
clause,
have
in
mind
both
‘‘the
undertaking
referred
to
in
this
contract”
and
the
provisions
of
s.
17
of
the
letters
patent
incorporating
the
Canadian
Pacific
Railway.
The
use
of
the
phrase
in
this
last
clause
no
doubt
refers
to
the
railway
as
it
may
be
eventually
constructed,
but
it
is
abundantly
clear
that
in
this
clause
‘‘the
undertaking
referred
to
in
this
contract”
is,
in
the
contemplation
of
the
parties,
quite
a
different
entity
from
‘‘the
Canadian
Pacific
Railway’’
as
it
may
ultimately
be
constructed.
Paragraph
15
of
the
Terms
of
Incorporation
provides:
“And
the
said
main
line
of
railway,
and
the
said
branch
lines
of
railway,
shall
be
commenced
and
completed
as
provided
by
the
said
contract;
and
together
with
such
other
branch
lines
as
shall
be
hereafter
constructed
by
the
said
Company,
and
any
extension
of
said
main
line
of
railway
that
shall
hereafter
be
constructed
or
acquired
by
the
Company,
shall
constitute
the
line
of
railway
hereinafter
called
THE
CANADIAN
Pacific
Railway.”
The
Terms
of
Incorporation
were
made
a
schedule
to
the
contract
and,
therefore,
these
documents
must
be
read
together.
The
language
adopted
in
the
foregoing
para.
15
further
indicates
that
the
parties
contemplated
the
branch
lines
constructed
under
cl.
14
a
separate
and
distinct
entity
from
the
main
line
and
specified
branch
lines
and
where
they
were
intended
to
be
included
they
were
expressly
mentioned.
In
el.
1
the
words
""Company”
and
‘‘Government’’
are
defined
and
as
such
used
throughout
the
contract.
These
words
and
the
terms
“Eastern,”
‘‘Lake
Superior,’’
‘‘Central’’
and
“Western”
sections
are
all
used
throughout
the
contract
as
defined
in
cl.
1.
The
terms
of
the
clause
do
not
suggest
any
exception
with
respect
to
the
definition
of
‘‘the
Canadian
Pacific
Railway’’
apart
from
the
omission
of
the
word
‘‘hereinafter’’
already
discussed
and
which
is
not
of
sufficient
significance
to
offset
the
purpose
and
intent
of
the
clause
as
expressed
in
the
opening
words
thereof.
Moreover,
the
paragraphs
above
mentioned
and
discussed
support
the
view
that
the
parties
intended
throughout
that
the
words
‘‘the
Canadian
Pacific
Railway”
should
be
construed,
unless
the
context
otherwise
indicates,
as
defined
in
el.
1.
The
first
words
in
cl.
16
are
‘‘The
Canadian
Pacifie
Railway”.
This
phrase
does
not
refer
to
the
Company
as
incorporated
by
letters
patent
in
the
following
February.
In
el.
1
it
is
provided:
“The
individual
parties
hereto,
are
hereinafter
described
as
the
Company’’
and
throughout
the
contract
this
word
is
used
as
so
defined,
except
where,
as
in
el.
17,
the
context
indicates
a
different
meaning.
Moreover,
in
cl.
16
the
items
specified
are
restricted
to
those
‘‘required
and
used
for
the
construction
and
working
thereof’’.
The
word
‘‘thereof’’
refers
back
to
‘‘the
Canadian
Pacific
Railway”
and
as
such
refers
to
the
physical
property.
This
conclusion
is
supported
by
the
manner
in
which
these
words
are
used
throughout
the
contract.
In
cl.
17
reference
is
made
to
‘‘the
maintenance
and
working
of
the
said
Canadian
Pacific
Railway’’.
In
el.
7:
“The
Canadian
Pacific
Railway
shall
become
and
be
thereafter
the
absolute
property
of
the
Company.’’
In
el.
9:
“The
construction
of
the
Canadian
Pacific
Railway.”
It
is
the
physical
property
of
the
lines
in
respect
to
which
the
parties
had
obligated
themselves
to
construct
under
the
contract
that
is
included
in
the
meaning
of
this
phrase
generally
throughout
the
contract.
This
construction
is
in
accord
with
the
meaning
as
defined
in
el.
1
and
there
is
nothing
in
the
context
of
cl.
16
to
indicate
any
other
or
different
meaning.
It
was
contended
that
the
word
‘‘all’’
in
the
phrase
"‘all
stations
and
station
grounds’’
in
cl.
16
indicates
that
stations
etc.
both
of
the
main
and
branch
lines
constructed
under
cl.
14
were
to
be
exempt.
This
contention
overlooks
that
it
is
"‘all
stations
.
.
.
required
and
used
for
the
construction
and
working
thereof’’.
This
latter
word
"‘thereof’’
refers
back
to
‘‘the
Canadian
Pacific
Railway’’
in
the
first
line.
In
these
circumstances
the
submission
that
in
el.
16
the
phrase
"‘the
Canadian
Pacific
Railway’’
should
include
not
only
the
main
line
and
the
specified
branches
but
also
the
branch
lines
to
be
at
some
future
time
constructed
by
the
Company
under
the
privilege
granted
in
el.
14
is
to
attribute
an
intention
to
the
parties
which,
having
regard
to
the
other
provisions,
they
would
have
expressed
in
either
language
which
is
clear
and
definite
or
such
as,
by
necessary
implication,
would
include
these
branch
lines
constructed
under
el.
14.
Appellant
then
submits
that
the
similarity
of
the
language
in
cis.
14
and
16,
as
well
as
the
fact
that
cl.
16
follows
so
immediately
thereafter,
discloses
an
intention
on
the
part
of
the
contracting
parties
to
exempt
the
branch
lines
constructed
under
cl.
14.
The
respective
clauses
of
the
contract
should
be
read
together,
in
this
sense,
that
any
conflict
should,
so
far
as
construction
of
the
language
may
permit,
be
avoided.
Here,
however,
the
language
of
cl.
16
presents
no
ambiguity,
once
the
meaning
of
"‘the
Canadian
Pacific
Railway”
is
determined,
and
so
construed
it
is
not
in
conflict
with
any
provision
in
el.
14.
Moreover,
in
regard
to
the
construction
of
the
branch
lines
under
cl.
14,
the
Government
made
no
contribution,
either
of
money
or
of
lands,
corresponding
to
the
$25,000,000
and
the
20,000,000
acres
of
land
as
specified
in
the
contract.
The
branch
lines
under
cl.
14
were
a
matter
separate
and
apart
from
the
main
line
and
the
specified
branches
and
when
cl.
16
is
read
and
construed
in
the
light
of
this
general
intention
and
the
specific
clauses
already
mentioned
it
is
clear
that
branch
lines
were
not
intended
to
be
included
under
the
exemption
therein
provided
for.
It
is
true,
as
the
appellant
contends,
that
the
Government
intended
to
encourage
the
construction
of
branch
lines,
but
only
to
the
extent
provided
for
in
el.
14.
I
am,
therefore,
in
agreement
with
the
learned
Judges
in
the
Court
of
Appeal
that
the
exemption
in
cl.
16
does
not
apply
to
the
branch
lines
constructed
under
cl.
14.
I
would,
however,
vary
the
answers
to
Qq.
1
and
3
as
stated
by
my
brother
Locke.
Then
referring
to
Qq.
2
and
4,
these
ask
if
the
Canadian
Pacific
Railway,
by
virtue
of
the
above-quoted
el.
16,
is
exempt
from
the
business
tax
authorized
by
the
amendments
to
the
aforementioned
Municipal
Acts.
Business
is
defined
"‘to
include
any
trade,
profession,
calling,
occupation
or
employment,’’
City
Act,
s.
2(4).
Section
443(1)
of
that
Act
provides
that
the
business
tax
shall
be
computed
at
"‘a
rate
per
square
foot
of
the
floor
space
.
.
.
used
for
business
purposes,
and
shall
as
far
as
he
deems
practicable
classify
the
various
businesses
and
portions
thereof’’.
Then
s.
443
(5a)
deals
specifically
with
the
railway
and
provides
as
follows
:"A
railway
company,
whether
its
property
is
liable
to
assessment
and
taxation
or
not,
shall
be
liable
to
assessment
and
taxation
under
this
section
in
respect
of
the
business
carried
on
as
a
railway
and
the
provisions
of
this
section,
except
subsection
(2),
shall
apply.”
This
is
a
familiar
type
of
tax,
in
its
nature
and
character
distinct
from
other
taxes.
It
is
not
imposed
upon
particular
items
of
property,
real
or
personal,
and
is
not
dependent
upon
ownership
or
interest
in
either
the
premises
or
the
chattels
thereon.
It
is
not
a
tax
upon
occupation.
A
person
may
occupy
the
premises
and
be
in
possession
of
the
chattels
thereon,
but
neither
would
provide
a
basis
for
the
assessment
of
this
business
tax.
The
essential
without
which
such
a
tax
cannot
be
imposed
is
that
a
business
is
conducted
upon
the
premises.
Sir
George
Jessel,
M.R.,
defined
business:
"‘Anything
which
occupies
the
time
and
attention
and
labour
of
a
man
for
the
purpose
of
profit
is
business.
It
is
a
word
of
extensive
use
and
indefinite
signification’’:
Smith
v.
Anderson
(1880),
15
Ch.
D.
247
at
p.
298.
Rowlatt,
J.,
in
Commissioners
of
Inland
Revenue
v.
Marine
Steam
Turbine
Co.,
[1920]
1
K.B.
193
at
p.
203,
after
pointing
out
that
the
word
‘‘business’’
may
have
a
very
wide
meaning
and
that
"‘in
whatever
sense
it
be
understood,
is
undoubtedly
an
elastic
word
capable
of
wide
extension’’,
stated:
"‘The
word
‘business,’
however,
is
also
used
.
.
.
as
meaning
an
active
occupation
or
profession
continuously
carried
on,
and
it
is
in
this
sense
that
the
word
is
used
in
the
Act
with
which
we
are
here
concerned.
’
’
The
business
of
the
Company
is
its
activity
or
undertaking.
In
the
main
that
of
the
appellant
is
the
provision
and
selling
of
services
and
facilities
for
transportation
of
passengers
and
goods.
The
time
and
ability
of
its
officers,
agents
and
servants
are
directed
to
the
provision
and
selling
of
these
services
and
facilities
and
it
is
that
activity
or
undertaking
that
constitutes
the
business
of
the
Company.
The
business
tax
here
provided
for
is
imposed
upon
that
activity
or
undertaking.
This
being
the
nature
and
character
of
the
tax,
the
question
arises:
Is
it
within
the
ambit
of
the
exemption
in
cl.
16?
The
phrase
"the
Canadian
Pacific
Railway”
in
that
clause,
as
already
defined,
includes
the
main
and
specified
branch
lines.
These,
together
with
the
other
property
‘‘used
for
the
construction
and
working
thereof’’,
constitute
that
which
‘‘shall
be
forever
free
from
taxation’’.
In
this
clause
the
word
‘‘thereof’’
refers
to
the
phrase
‘‘the
Canadian
Pacific
Railway’’
in
the
first
line
of
the
clause
and,
therefore,
to
the
physical
property
of
the
main
and
specified
branch
lines
and
the
phrase
‘‘used
for
the
construction
and
working
thereof’’
determines
the
quantum
of
the
property
included
under
the
exemption.
It
is
the
taxation
of
the
physical
property
specified
in
el.
16
that
is
exempted
by
the
provisions
of
that
clause.
That
all
or
any
part
of
this
as
well
as
other
property
would
be
used
in
the
course
of
its
business
does
not
extend
the
scope
of
the
exemption.
The
business
of
the
Company
is
distinct
from
the
physical
property
and
its
separate
significance
is
in
no
way
destroyed
by
the
use
of
the
specified
or
any
other
property
in
the
course
thereof.
In
1880
taxes
were
generally
spoken
of
as
property
or
personal
taxes.
The
former
included
taxation
of
real
and
personal
property
and
the
latter
income
and
poll
taxes.
Our
attention
was
drawn
to
the
fact,
in
the
course
of
the
hearing,
that
at
that
time
both
British
Columbia
and
Ontario
imposed
income
taxes.
It
may
be
assumed
that
the
business
tax
as
here
asssessed
was
not
in
the
contemplation
of
the
parties.
They
would
be
cognizant
of
all
of
the
foregoing
taxes
and
of
the
efforts
of
even
that
day
to
find
new
sources
of
revenue.
It
was
in
1875
that
the
Legislature
of
Quebec
enacted
what
was
construed
as,
in
effect,
a
stamp
tax
upon
policies
of
insurance:
A.-G.
Que.
v.
Queen
Ins.
Co.
(1878),
3
App.
Cas.
1090.
In
these
circumstances,
if
the
parties
had
intended
that
more
than
a
tax
upon
the
physical
property
should
be
exempted,
they
would
have
adopted
language
expressive
of
that
intention.
On
the
contrary
the
parties,
in
the
language
they
have
chosen,
have
expressed
their
intention
in
terms
not
sufficiently
wide
and
comprehensive
to
include
a
business
tax
such
as
provided
for
in
the
municipal
legislation
here
under
review.
It
is
unnecessary
here
to
discuss
whether
a
business
tax
is
a
property
or
a
personal
tax,
as
in
either
event
the
language
in
el.
16
does
not
include
it
in
the
scope
of
the
exemption
therein
provided
for.
In
Can.
Nor.
Pacific
R.
Co.
v.
New
Westminster,
[1917]
A.C,
602,
the
Privy
Council,
in
construing
the
word
‘‘railway’’
as
it
appears
in
the
British
Columbia
Railway
Act,
R.S.B.C.
1911,
c.
194,
s.
2,
differentiated
between
the
physical
property
and
the
whole
undertaking
of
the
Company.
In
the
course
of
the
judgment
it
was
stated:
‘‘The
things
so
brought
by
definition
into
the
term
"
railway
‘
are
all
physical
things,
as
the
railway
itself
is.
The
definition
does
not
bring
into
‘railway’
the
whole
‘undertaking’
of
the
company
.
.
.
It
is
used
in
the
clause
as
denoting
a
physical
thing,
of
which
something
else
can
form
part
and
which
can
be
‘operated’.”
A
similar
distinction
between
the
physical
property
and
the
business
of
the
Company
is
apparent
in
the
language
of
cl.
16.
The
fact
that
the
tax
is
computed
on
the
floor
space
does
not
necessarily
affect
the
character
of
the
tax.
In
Smith
v.
Rur.
Mun.
of
Vermilion
Hills,
[1916]
2
A.C.
569,
the
fact
that
a
tax
was
imposed
of
so
many
cents
per
acre
did
not
make
it
a
land
tax
or
affect
its
true
nature
and
character
as
a
tax
upon
the
occupant.
Moreover,
in
Montreal
v.
A.-G.
Can.,
[1923]
A.C.
136,
the
fact
that
the
tax
was
computed
upon
the
basis
of
1%
on
the
capitalized
value
of
the
property
did
not
destroy
the
nature
and
character
of
the
tax
as
one
imposed
upon
the
occupant.
While,
therefore,
the
computation
of
a
tax
may
well
be
taken
into
consideration
in
determining
its
true
nature
and
character,
it
is
not
conclusive.
The
problem
in
Halifax
v.
Fairbanks,
[1928]
A.C.
117,
was
quite
different
from
that
at
bar.
It
does,
however,
illustrate
the
basis
for
and
the
nature
and
character
of
the
business
tax.
There
the
owner
was
made
liable
by
statute
for
a
business
tax,
though
he
was
not
in
possession
of
the
premises
and
did
not
conduct
the
business.
In
my
opinion,
the
Legislature
of
Saskatchewan
imposed
a
tax
here
upon
the
business
which
is
not
included
in
the
terms
of
the
exemption
provided
for
in
el.
16.
While
Q.
2
suggests
three
bases
for
the
exemption
of
the
business
tax
and
the
Legislature
adopts
but
the
first,
there
is
no
difference
in
principle
involved
and
I
think
the
answer
should
be
the
same
with
respect
to
all
the
three
divisions.
Questions
1
and
3
should
be
answered
as
stated
by
my
brother
Locke.
Question
2
should
be
answered
‘‘no’’
and
Q.
4
‘‘
Yes.’’
I
would
dismiss
the
appeal
with
costs.
The
judgment
of
LOCKE
and
CARTWRIGHT,
JJ.,
was
delivered
by
LOCKE,
J.:—The
answer
to
be
made
to
the
first
question
depends
upon
the
meaning
to
be
assigned
to
the
words
‘
‘
Canadian
Pacific
Railway’’
in
el.
16
of
the
contract
entered
into
between
the
Crown
and
George
Stephen
and
his
associates
dated
October
21,
1880,
the
terms
of
which
were
approved
and
ratified
by
e.
1,
Statutes
of
Canada,
1881.
That
clause
reads:
‘16.
The
Canadian
Pacific
Railway,
and
all
stations
and
station
grounds,
work
shops,
buildings,
yards
and
other
property,
rolling
stock
and
appurtenances
required
and
used
for
the
construction
and
working
thereof,
and
the
capital
stock
of
the
Company,
shall
be
forever
free
from
taxation
by
the
Dominion,
or
by
any
Province
hereafter
to
be
established,
or
by
any
Municipal
Corporation
therein;
and
the
lands
of
the
Company,
in
the
North-West
Territories,
until
they
are
either
sold
or
occupied,
shall
also
be
free
from
such
taxation
for
20
years
after
the
grant
thereof
from
the
Crown.
‘
‘
By
el.
14
of
the
contract
it
was
provided
that
the
Company
should
have
the
right
to
build
branch
lines
of
railway
from
any
point
along
the
main
line
to
any
point
within
the
territory
of
the
Dominion
and
it
is
contended
on
its
behalf
that
branch
lines
built
under
this
authority
in
what
is
now
the
Province
of
Saskatchewan
are
included
in
the
expression
1
"
Canadian
Pacific
Railway’’
and
as
such
entitled
to
the
exemption
provided
by
el.
16.
The
contention
of
the
Attorney-General
is
that
the
exemption
is
restricted
to
the
railway
described
in
An
Act
to
provide
for
the
construction
of
the
Canadian
Pacific
Railway,
Statutes
of
Canada,
1874,
c.
14.
Clause
1
of
the
contract
reads:
‘‘
For
the
better
interpretation
of
this
contract,
it
is
hereby
declared
that
the
portion
of
railway
hereinafter
called
the
Eastern
section,
shall
comprise
that
part
of
the
Canadian
Pacific
Railway
to
be
constructed,
extending
from
the
Western
terminus
of
the
Canada
Central
Railway,
near
the
East
end
of
Lake
Nipissing,
known
as
Callander
Station,
to
a
point
of
junction
with
that
portion
of
the
said
Canadian
Pacific
Railway
now
in
course
of
construction
extending
from
Lake
Superior
to
Selkirk
on
the
East
side
of
Red
River;
which
latter
portion
in
hereinafter
called
the
Lake
Superior
section.
That
the
portion
of
said
railway,
now
partially
in
course
of
construction,
extending
from
Selkirk
to
Kamloops,
is
hereinafter
called
the
Central
section;
and
the
portion
of
said
railway
now
in
course
of
construction,
extending
from
Kamloops
to
Port
Moody,
is
hereinafter
called
the
Western
section.
And
that
the
words
‘the
Canadian
Pacific
Railway,’
are
intended
to
mean
the
entire
railway,
as
described
in
the
Act
37th
Victoria,
chap.
14.
The
individual
parties
hereto,
are
hereinafter
described
as
the
Company;
and
the
Government
of
Canada
is
hereinafter
called
the
Government.’’
By
the
Terms
of
Union
under
which
the
Colony
of
British
Columbia
entered
Confederation
the
Government
of
Canada
undertook
to
secure
the
commencement
within
two
years
from
the
date
of
Union
of
the
construction
of
a
railway
from
the
Pacific
towards
the
Rocky
Mountains,
and
from
such
point
as
it
might
be
selected
east
of
those
mountains
towards
the
Pacific
to
connect
the
seaboard
of
British
Columbia
with
the
railway
system
of
Canada.
The
Statute
of
1874,
after
reciting
this
term
of
the
arrangement
in
the
preamble,
enacted
that
a
railway
to
be
called
the
‘‘Canadian
Pacific
Railway’’
should
be
made
from
a
point
near
to
and
south
of
Lake
Nipissing
to
some
point.
in
British
Columbia
on
the
Pacifie
Ocean,
both
of
such
points
to
be
determined
and
the
course
and
line
of
the
railway
to
be
approved
of
by
the
Governor
in
Council.
The
terms
in
which
the
proposed
railway
were
described
and
the
references
made
to
the
branch
railways
are
of
importance.
They
read:
"2.
The
whole
line
of
the
said
railway,
for
the
purpose
of
its
construction,
shall
be
divided
into
four
sections
;—the
first
section
to
begin
at
a
point
near
to
and
south
of
Lake
Nipissing,
and
to
extend
towards
the
upper
or
western
end
of
Lake
Superior,
to
a
point
where
it
shall
intersect
the
second
section
hereinafter
mentioned
;
the
second
section
to
begin
at
some
point
on
Lake
Superior,
to
be
determined
by
the
Governor
in
Council,
and
connecting
with
the
first
section,
and
to
extend
to
Red
River,
in
the
Province
of
Manitoba;
the
third
section
to
extend
from
Red
River,
in
the
Province
of
Manitoba,
to
some
point
between
Fort
Edmonton
and
the
foot
of
the
Rocky
Mountains,
to
be
determined
by
the
Governor
in
Council;
the
fourth
section
to
extend
from
the
western
terminus
of
the
third
section
to
some
point
in
British
Columbia
on
the
Pacific
Ocean.
“3.
Branches
of
the
said
railway
shall
also
be
constructed
as
follows,
that
is
to
say
:—
First.—A
branch
from
the
point
indicated
as
the
proposed
eastern
terminus
of
the
said
railway
to
some
point
on
the
Georgian
Bay,
both
the
said
points
to
be
determined
by
the
Governor
in
Council.
""
Secondly.—A
branch
from
the
main
line
near
Fort
Garry,
in
the
Province
of
Manitoba,
to
some
point
near
Pembina
on
the
southern
boundary
thereof.
"‘4.
The
branch
railways
above
mentioned
shall,
for
all
intents
and
purposes,
be
considered
as
forming
part
of
the
Canadian
Pacific
Railway,
and
as
so
many
distinct
sections
of
the
said
railway,
and
shall
be
subject
to
all
the
provisions
hereinafter
made
with
respect
to
the
said
Canadian
Pacific
Railway,
except
in
so
far
as
it
may
be
otherwise
provided
for
by
this
Act.’’
In
the
interval
between
the
passing
of
this
Act
and
the
date
of
the
contract
various
efforts
were
made
by
the
Government
of
Canada
to
arrange
for
the
construction
of
the
proposed
railway
by
private
interests
and
all
had
proved
abortive.
The
Government
had
meanwhile
proceeded
with
the
work
of
construction
on
what
was
referred
to
in
the
Statute
of
1874
as
the
second
section,
some
work
had
been
done
in
British
Columbia,
the
branch
from
Emerson
to
Fort
Garry
(referred
to
in
the
proceedings
as
the
Pembina
Branch)
had
been
built
and
a
start
had
been
made
on
the
line
from
Winnipeg
west.
In
addition,
surveys
had
been
made
and
various
decisions
made
regarding
the
route
of
the
line
for
the
Western
section.
By
c.
14
of
the
Statutes
of
1879
the
Canadian
Pacific
Railway
Act
of
1874
was
amended
by
providing
that
a
branch
of
the
railway
should
be
constructed
from
some
point
west
of
the
Red
River
on
that
part
of
the
main
line
running
south
of
Lake
Manitoba
to
the
City
of
Winnipeg,
there
to
connect
with
the
Pembina
Branch,
and
providing
that
all
the
provisions
of
the
Act
of
1874
with
respect
to
branches
of
the
railway
should
apply
to
the
branch
to
be
constructed.
It
was
contemplated
at
this
time
that
the
main
line
of
the
road
would
cross
the
Red
River
at
East
Selkirk,
proceeding
from
there
in
a
general
westerly
and
north-westerly
direction
to
Fort
Edmonton
and
thence
down
through
the
Yellow
Head
Pass
to
Kamloops
and
thence
to
the
Pacifie
Coast.
The
line
from
Selkirk
westerly,
however,
was
not
proceeded
with,
it
being
decided
that
instead
of
proceeding
through
Stonewall
and
the
country
immediately
south
of
Lake
Manitoba
and
thence
west
the
main
line
should
follow
the
line
of
settlement
further
to
the
south,
crossing
the
Red
River
at
Winnipeg
and
proceeding
westerly
a
short
distance
to
the
north
of
the
Assini-
boine
River
through
Portage
la
Prairie
and
thence
west.
The
Act
of
1874
required
the
approval
of
the
Governor
in
Council
to
the
exact
site
of
the
proposed
line
throughout
its
course
and
in
advance
of
the
date
of
the
contract
it
had
been
decided
that
the
Pacific
terminus
of
the
railway
should
be
a
point
on
Bur-
rard
Inlet.
The
decision,
however,
to
alter
the
course
of
the
line
by
proceeding
through
the
Kicking
Horse
Pass
instead
of
the
Yellow
Head
Pass
had
not
been
made
until
after
the
contract
was
made.
The
construction
which
preceded
the
contract
was
of
part
of
the
railway
and
branches
described
generally
in
the
statute
and
the
lines
so
partially
completed
were
ultimately
conveyed
to
the
Company.
For
the
appellant
it
is
urged
that
the
third
sentence
of
cl.
1
above
quoted
is
not
intended
to
define
the
expression
‘*
Canadian
Pacific
Railway’’
in
any
part
of
the
contract
other
than
that
clause.
I
find
difficulty
in
appreciating
the
force
of
this
argument.
Clause
1
is
designed
to
define
certain
terms
and
sentences
1
and
2
define
the
Eastern,
Lake
Superior,
Central
and
Western
sections,
all
of
which
are
thereafter
referred
to
by
these
designations
in
the
succeeding
paragraphs.
The
first
sentence
refers
to
“that
part
of
the
Canadian
Pacific
Railway
to
be
constructed’’,
and
again
to
a
point
of
junction
with
“that
portion
of
the
said
Canadian
Pacific
Railway
now
in
course
of
construction’’,
and
the
meaning
of
the
expression
there
can
only
be
the
railway
the
construction
of
which
is
thereafter
provided
for
in
the
contract.
In
the
second
sentence
it
refers
to
‘‘the
portion
of
said
railway”
referring
back
to
the
Canadian
Pacific
Railway
to
be
constructed
mentioned
in
the
preceding
sentence.
There
appears
then
to
have
been
no
necessity
for
defining
the
words
‘‘the
Canadian
Pacific
Railway”
in
the
construction
of
the
first
two
sentences
and
the
preliminary
words
of
the
third
sentence
indicate
to
me
that
it
is
intended
to
be
read
in
conjunction
with
the
opening
words
of
the
first
sentence.
The
matter
would
be
more
clear
if,
instead
of
the
second
sentence
ending
after
the
words
‘‘
Western
section’’,
it
had
continued
to
the
last
words
of
the
third
sentence,
the
period
after
the
word
‘‘section’’
being
replaced
with
a
comma.
I
think,
however,
the
first
three
sentences
are
to
be
interpreted
as
if
they
read:
‘‘For
the
better
interpretation
of
this
contract
it
is
hereby
declared
that
(the
various
sections
of
the
railway
should
be
as
defined)
and
that
the
words
‘the
Canadian
Pacific
Railway’
are
intended
to
mean
the
entire
railway
as
described
in
the
Act
37
Vict.,
c.
14.”
Unless
this
is
the
true
construction,
I
cannot
understand
why
the
third
sentence
was
included
in
the
clause.
While
the
argument
of
the
appellant
is
that
the
remainder
of
the
contract
indicates
that
this
was
not
intended,
I
have
come
to
a
different
conclusion.
Clause
3
contains
the
first
of
the
obligations
assumed
by
Stephen
ef
al.
(described
for
the
purposes
of
the
contract
in
the
last
sentence
of
cl.
1
as
the
Company)
as
to
the
construction
of
the
road
and
by
that
clause
they
agreed
to
construct
and
equip
the
Eastern
section
and
the
Central
section,
using
the
designations
applied
to
these
respective
parts
of
the
line
in
el.
1
and
by
el.
4
the
times
at
which
this
work
should
be
commenced
and
completed
are
stated.
Clause
7
declares
that
the
railway
constructed
under
the
terms
of
the
agreement
shall
be
the
property
of
the
Company
and
that
pending
the
completion
of
the
Eastern
and
Central
sections
the
Government
u
shall
transfer
to
the
Company
the
possession
and
right
to
work
and
run
the
several
portions
of
the
Canadian
Pacific
Railway
already
constructed
or
as
the
same
shall
be
completed’’,
and
in
the
succeeding
sentence
the
railway,
portions
of
which
had
been
constructed
or
were
to
be
constructed
by
the
Government
and
conveyed
to
the
Company,
is
referred
to
as
the
4
‘Canadian
Pacific
Railway’’.
Here
the
expression
clearly
refers
to
the
portions
of
the
‘‘entire
railway
‘
‘
referred
to
in
the
third
sentence
of
cl.
1
which
had
been
or
was
to
be
constructed
under
the
terms
of
the
contract.
The
last
sentence
of
this
clause:
“And
the
Company
shall
thereafter
and
forever
efficiently
maintain,
work
and
run
the
Canadian
Pacific
Railway,”
is
said
to
indicate
that
the
meaning
of
‘‘Canadian
Pacific
Railway’’
cannot
be
restricted
in
the
manner
defined
in
el.
1,
since
it
cannot
have
been
in
contemplation
that
the
obligation
to
maintain,
work
and
run
the
road
should
be
restricted
to
the
main
line
and
the
branches
referred
to
in
the
Statute
of
1874.
I
do
not
think
that
this
follows.
The
advisers
of
the
Government
who
passed
upon
the
form
of
the
contract
may
well
have
considered
that
when
the
Company
built
branch
lines
under
the
powers
given
by
cl.
14
the
obligation
to
supply
facilities
for
traffic
imposed
by
s.
25(2)
of
the
Consolidated
Railway
Act,
1879
(Can.),
c.
9,
and
the
powers
vested
in
the
Railway
Committee
by
that
statute
would
suffice
to
protect
the
public
interest.
By
cl.
8
the
Company
was
required
to
equip,
maintain
and
efficiently
operate
the
respective
portions
of
the
‘‘Canadian
Pacific
Railway”
which
were
to
be
conveyed
to
it
by
the
Crown.
By
its
very
terms
it
is
manifest
that
the
expression
here
refers
only
to
the
portions
of
the
road
constructed
or
which
were
to
be
constructed
by
the
Crown,
as
required
by
the
contract.
Clause
9
contains
the
obligation
of
the
Crown
to
grant
a
subsidy
of
money
and
land
‘‘for
which
subsidies
the
construction
of
the
Canadian
Pacific
Railway
shall
be
completed”.
Here
the
reference
is
to
the
road
to
be
constructed
in
accordance
with
the
contract.
Clause
10
contains
the
obligation
of
the
Crown
to
grant
to
the
Company
the
lands
required
for
the
right-of-way,
stations,
station
grounds,
workshops,
dock
ground
and
water
frontage
at
the
termini
on
navigable
waters,
buildings,
yards,
and
other
appurtenances
required
for
the
convenient
and
effectual
construction
and
working
of
the
railway,
in
so
far
as
such
land
shall
be
vested
in
the
Government.
The
clause
further
obligated
the
Crown
to
admit
free
of
duty
certain
rails
and
other
material
"‘to
be
used
in
the
original
construction
of
the
railway,
and
of
a
telegraph
line
in
connection
therewith’’.
The
expression
“Canadian
Pacific
Railway’’
does
not
appear
in
this
clause.
However,
the
railway
referred
to
is
that
to
be
constructed
under
the
obligations
imposed
by
the
contract
partly
by
the
Crown
and
partly
by
the
Company
and
not
the
branch
lines
which
the
Company
might
thereafter
undertake,
as
to
which
provision
for
a
grant
of
the
right-of-way
and
other
lands
required
is
made
by
el.
14.
Clause
15
provides
that
within
20
years
from
the
date
of
the
contract
no
line
of
railway
shall
be
authorized
by
the
Dominion
Parliament
to
be
constructed
south
of
the
‘‘Canadian
Pacific
Railway’’
from
any
point
at
or
near
the
Canadian
Pacific
Railway,
except
such
line
as
shall
run
south-west
or
to
the
westward
of
south-west,
nor
to
within
15
miles
of
Latitude
49.
The
expression
here
cannot
mean
the
line
of
railway
to
be
constructed
under
the
terms
of
the
contract
plus
such
branch
lines
as
might
thereafter
be
constructed
under
the
powers
contained
in
el.
14,
in
my
opinion.
It
was
obviously
in
the
contemplation
of
both
parties
to
the
contract
that
branch
lines
would
be
constructed
to
open
up
the
country
to
the
south
of
the
main
line,
some
of
which
would
extend
to
the
international
boundary
and
connect
with
railways
operating
in
the
United
States
and
such
a
branch
line
was
built
in
the
course
of
time
from
Moose
Jaw
to
North
Portal
at
the
boundary.
The
Canadian
terminus
of
this
road
being
on
the
international
boundary,
if
the
expression
“Canadian
Pacific
Railway”
included
the
branch
lines,
any
point
‘‘south
of
the
Canadian
Pacific
Railway”
would
be
in
the
United
States.
Such
a
construction
would
render
the
clause
meaningless.
It
is
by
cl.
16
that
the
exemption
is
provided.
It
is
of
importance
to
note
that
it
is
not
merely
the
stations,
station
grounds,
work
shops,
buildings,
yards
and
other
property,
rolling
stock
and
appurtenances
situate
upon
the
road
to
be
constructed
which
are
exempted
but
these
“required
and
used
for
the
construction
and
working
thereof
‘
‘
:
thus
round
houses
or
machine
shops
required
in
the
operation
of
the
line
to
be
constructed
under
the
terms
of
the
contract
might
well
be
situate
on
a
branch
line
constructed
under
the
powers
granted
by
cl.
14.
I
can
perceive
nothing
in
cl.
16
itself
to
indicate
that
the
definition
contained
in
the
third
sentence
of
cl.
1
is
not
to
apply
to
the
expression
"‘Canadian
Pacific
Railway”.
Clause
17
provides
for
the
deposit
of
certain
of
the
land
grant
bonds
with
the
Government
which
the
Company
was
authorized
to
issue
as
security
for
the
"‘due
performance
of
the
present
contract
in
respect
of
the
maintenance
and
continuous
working
of
the
railway
by
the
Company,
as
herein
agreed,
for
ten
years
after
the
completion
thereof’’.
By
the
third
sentence
it
was
provided
as
to
the
bonds
so
deposited
that
‘‘so
long
as
no
default
shall
occur
in
the
maintenance
and
working
of
the
said
Canadian
Pacific
Railway”
the
Government
shall
not
demand
payment
of
the
coupons
on
the
bonds.
The
words
here
can
have
no
other
meaning
than
the
railway
to
be
constructed
under
the
contract.
If,
as
contended,
it
meant
the
line
to
be
constructed
under
the
contract,
plus
such
lines
as
the
Company
might
at
any
time
in
the
future
choose
to
construct
under
the
powers
contained
in
cl.
14,
the
date
of
the
expiration
of
the
ten-year
period
would
never
be
ascertainable.
Great
stress
is
laid
by
the
appellant
upon
the
language
of
el.
22
providing
that
the
Railway
Act
of
1879,
in
so
far
as
its
provisions
are
applicable
to
the
undertaking
referred
to
in
the
contract
and
are
not
inconsistent
with
the
terms
of
the
agreement
or
contrary
to
the
provisions
of
the
Act
of
incorporation
to
be
granted
to
the
Company,
shall
apply
to
the
"Canadian
Pacific
Railway”.
The
expression
here,
it
is
said,
obviously
refers
to
the
entire
undertaking
including
branch
lines
to
be
thereafter
constructed,
since
it
is
inconceivable
that
the
statute
would
be
made
applicable
to
a
part
of
the
future
railway
system.
I
think,
however,
that
this
section
is
to
be
interpreted
as
providing
that
the
Railway
Act
of
1879,
with
named
exceptions,
should
apply
to
the
operation
of
the
railway
as
defined
in
cl.
1.
The
matter
is
similarly
expressed
in
ss.
2
and
4
of
the
Consolidated
Railway
Act
of
1879
referred
to
in
cl.
22
which
may
well
have
been
in
this
respect
patterned
upon
it.
Section
2
provided
that
ss.
5
to
34
"‘shall
apply
to
the
Intercolonial
Railway”
and
s.
4
says
that
ss.
34
to
98
"‘shall
apply
to
the
Intercolonial
Railway,
in
so
far
as
they
are
not
varied
by,
or
inconsistent
with
the
special
Act
respecting
it,
to
all
railways
constructed
by
the
Government
of
Canada
.
.
.
and
to
all
railways
which
have
been
in
or
since
the
said
year,
or
which
may
be
hereafter
constructed
under
the
authority
of
or
made
subject
to
any
Special
Act
passed
by
the
Parliament
of
Canada,
and
to
all
companies
incorporated
for
their
construction
and
working
‘
The
reference
to
the
Intercolonial
Railway
is
to
the
physical
property
and
to
the
railways
constructed
under
special
Act
by
corporations
both
to
the
physical
property
and
the
companies
operating
them,
and
while
this
latter
reference
was
omitted
in
el.
22
I
think
the
meaning
to
be
no
less
certain.
If
the
Act
was
made
applicable
to
the
Railway
those
operating
it
would
be
bound
to
conform
to
its
terms.
It
is,
however,
further
contended
on
behalf
of
the
appellant
that
the
definition
in
cl.
1
cannot
apply
since
the
railway
to
be
constructed
under
the
terms
of
the
contract
was
not
that
contemplated
in
the
Act
of
1874.
That
statute
which
defined
the
proposed
route
of
the
railway
in
general
terms
as
being
from
a
point
to
the
south
of
Lake
Nipissing
to
extend
to
the
upper
and
western
end
of
Lake
Superior,
thence
to
the
Red
River,
thence
to
some
point
between
Fort
Edmonton
and
the
foot
of
the
Rocky
Mountains,
and
from
there
to
some
point
in
British
Columbia
on
the
Pacific
Ocean,
also
provided
for
the
construction
of
a
branch
from
the
point
indicated
as
the
proposed
Eastern
terminus
of
the
railway
to
some
point
on
Georgian
Bay
and
a
branch
from
the
main
line
near
Fort
Garry
to
some
point
near
Pembina
on
the
southern
boundary.
This
description
of
the
proposed
line
was
of
necessity
vague
since
the
most
desirable
route
had
not
then
been
determined
and
was
accordingly
left
to
be
approved
by
the
Governor
in
Council.
When
the
contract
was
entered
into
in
1880
the
definition
of
the
proposed
Western
line
contained
in
s.
1
was
more
specific,
though
the
final
route
had
not
then
been
decided.
The
line
from
Fort
Garry
to
Pembina
had
been
built
and
while
I
think
it
is
not
entirely
clear
whether
the
extension
from
Fort
Garry
to
Selkirk,
authorized
by
the
amendment
of
1879,
was
then
completed,
the
report
of
Sandford
Fleming
to
Sir
Charles
Tupper
of
April
8,
1881,
shows
the
entire
line
from
Selkirk
to
Emerson
as
under
contract.
The
definition
in
the
third
sentence
of
cl.
1
would
thus
include
the
Pembina
Branch
from
Emerson
to
Fort
Garry
if
the
description
in
the
statute
of
1874
is
taken,
and
the
extension
north
to
Selkirk
if
what
was
intended
was
the
Act
of
1874,
as
amended
by
the
Act
of
1879.
The
so-called
Georgian
Bay
Branch,
however,
it
is
said,
had
been
abandoned
prior
to
the
date
of
the
contract
and
it
is
said
that
this
indicates
clearly
that
the
description
in
cl.
1
of
the
contract
did
not
apply.
On
the
assumption
that
we
are
entitled
to
examine
the
available
evidence,
I
have
read
the
documents
filed
in
support
of
the
contention
that
the
intention
to
construct
the
Georgian
Bay
line
had
been
abandoned
prior
to
the
time
of
the
contract
and
I
am
not
satisfied
that
this
is
so.
A
contract
had
been
let
for
the
line
but,
with
the
exception
of
a
comparatively
insignificant
amount
of
work
done
under
it,
it
was
not
proceeded
with
and
the
Crown
terminated
this
contract.
That
the
project
itself
was
abandoned
was
not,
in
my
opinion,
proven.
It
is
further
said
for
the
appellant
that,
if,
as
contended
on
its
behalf,
it
is
not
clear
that
the
phrase
‘‘Canadian
Pacific
Railway”
in
cl.
16
applies
not
only
to
the
line
to
be
built
under
the
terms
of
the
contract
but
also
to
the
branch
lines
constructed
under
the
powers
contained
in
cl.
14,
then
extrinsic
evidence
is
admissible
to
explain
the
meaning
of
the
term.
A
large
number
of
documents
were
by
consent
filed,
reserving
to
the
Attorney-General
his
right
to
object
to
their
admissibility.
Assuming,
but
without
deciding,
that
any
of
the
documents
filed
are
admissible
as
an
aid
to
construction,
I
have
examined
all
of
them
and
do
not
find
that
doing
so
assists
the
contention
of
the
appellant.
It
must
be
said
on
this
aspect
of
the
matter
that
perhaps
the
strongest
argument
to
be
made
in
favour
of
the
appellant’s
contention
is
that
to
one
familiar
with
Western
Canada
it
seems
highly
improbable
that
those
undertaking
to
construct
this
vast
railway
work
the
success
of
which
would
undoubtedly
depend
upon
the
development
of
the
country
from
a
few
miles
east
of
the
Red
River
to
the
foothills
of
the
Rockies,
which
would
of
necessity
require
the
construction
of
numerous
branch
lines,
would
have
been
satisfied
with
a
tax
exemption
restricted
to
the
main
line
only
and
the
Pembina
and
Georgian
Bay
branches.
It
would
be
apparent
to
anyone
familiar
with
the
country
to
be
traversed
that
very
little
freight
traffic
could
be
expected
to
originate
in
the
territory
lying
between
Lake
Superior
and
the
eastern
limit
of
the
Prairies
in
Manitoba
and
between
the
foothills
of
the
Rockies
and
the
Pacifie
Coast
for
many
years
to
come.
These
are
matters
of
common
knowledge
and,
as
one
would
expect,
the
question
of
tax
exemption
was
brought
up
during
the
early
attempts
to
obtain
the
construction
of
the
road
which
Canada
had
obligated
itself
to
construct
under
the
Terms
of
Union
with
British
Columbia.
Thus
in
1872
two
companies,
the
Inter-Oceanic
Railway
Company
of
Canada
and
the
Canada
Pacific
Railway
Company
were
incorporated,
the
private
Acts
constituting
them
each
containing
a
provision
that
the
buildings,
right-of-way,
permanent
way,
rolling
stock
and
earnings
of
the
Company
and
all
its
properties,
except
the
lands
granted,
should
be
exempt
from
taxation
in
any
Province
thereafter
to
be
constituted
from
the
territory
of
the
Dominion
for
50
years
after
the
completion
of
the
railway
under
any
law,
ordinance,
or
by-law
of
any
provincial,
local
or
municipal
authority.
Neither
of
these
companies
proceeded
with
the
matter
and
in
a
memorandum
transmitted
by
Sir
John
A.
Macdonald
to
Duncan
MacIntyre
which,
we
are
told,
was
prepared
in
the
summer
of
1880,
what
was
called
a
confidential
project
for
the
construction
of
the
Canadian
Pacific
Railway
was
submitted
which
proposed
a
subsidy
of
varying
amounts
per
mile
of
construction
from
Nipissing
to
Thunder
Bay
and
from
Red
River
to
Kamloops,
$20,000,000
in
cash
and
a
land
grant.
MacIntyre
on
behalf
of
himself
and
his
associates
who
included
George
Stephen
and
others
who
finally
became
parties
to
the
contract,
in
an
undated
reply,
addressed
to
Sir
John,
said
in
part:
‘‘Among
the
points
not
referred
to
in
the
memorandum
we
may
mention
that
of
taxation
from
which
we
think
the
proposed
line
should
be
free.’’
Later,
in
a
document
dated
September
14,
1880,
produced
from
the
possession
of
the
Railway
Company
and
called
"Heads
of
Arrangement’’
details
of
a
plan
for
the
construction
of
the
Canadian
Pacific
Railway
are
set
out.
While
these
provided
for
a
subsidy
in
money
of
$25,000,000,
a
land
grant
of
25,000,000
acres,
the
admission
free
of
customs
duties
of
certain
materials
to
be
used
in
the
construction
of
the
road,
no
mention
is
made
of
any
tax
exemption.
In
my
opinion,
if
any
reference
is
to
be
drawn
from
these
documents,
it
is
that
the
matter
of
exempting
the
undertaking
from
taxes
to
be
imposed
by
the
Dominion
and
by
any
Province
to
be
thereafter
constituted
out
of
the
North-
West
Territories,
was
considered
and
deliberately
limited
to
that
part
of
the
line
the
construction
of
which
was
provided
for
by
the
contract
and
those
portions
built
or
to
be
built
by
the
Crown
and
conveyed
to
the
Company.
It
seems
to
me
to
be
impossible
to
draw
any
other
inference
than
that
the
limitation
of
the
exemption
to
the
line
as
defined
in
el.
1
was
the
real
agreement
of
the
parties.
In
a
matter
of
this
moment,
I
cannot
believe
that
the
legal
advisers
of
Stephen
et
al.
who
passed
upon
the
contract
could
have
approved
it
in
its
present
form
if
the
real
agreement
was
that
now
contended
for
by
the
appellant.
We
are
also
referred
to
what
is
an
undoubted
fact
that
in
the
period
between
1880
and
1908
the
respective
Governments
of
the
North-West
Territories
and
of
the
Province
of
Saskatchewan
apparently
considered
that
the
exemption
was
of
both
the
main
line
and
the
branch
lines
constructed
under
el.
14
and
made
no
attempt
to
impose
or
authorize
the
imposition
of
taxation
and
that
the
late
Sir
Frederick
Haultain
and
the
late
Mr.
Walter
Scott
were
of
that
opinion.
However,
neither
the
Legislative
Assembly
of
the
North-West
Territories
or
the
Legislature
of
Saskatchewan
or
that
Province
authorized
the
contract,
nor
were
they
or
their
respective
Governments
parties
to
it
and
their
conduct
cannot
be
relied
upon
as
an
aid
to
construction.
The
first
question
cannot,
in
my
opinion,
be
answered
by
a
simple
affirmative
or
negative.
Clause
16
exempts
the
stations,
station
grounds,
workshops,
buildings,
yards
and
other
property;
rolling
stock
and
appurtenances
required
and
used
for
the
construction
and
working
of
the
Canadian
Pacific
Railway.
Question
1
asks
if
the
same
properties
‘‘used
for
the
working
of
the
branch
lines
of
the
Canadian
Pacific
Railway
situated
in
Saskat-
chewan’’
are
exempt.
There
may
well
be
properties
of
the
description
mentioned
which
are
‘‘required
and
used
for
the
working’’
of
the
main
line
which
are
also
used
in
part
for
the
working
of
the
branch
lines
constructed
under
el.
14.
This
would
undoubtedly
be
so
in
respect
to
the
rolling
stock
and
may
refer
to
a
large
number
of
other
properties
and
works
situate
upon
branch
lines
of
this
description.
No
statement
as
to
this
appears
in
the
reference
which
would
enable
us
to
determine
what
properties
are
in
fact
exempt.
Having
come
to
the
conclusion
that
the
exemption
in
the
Province
of
Saskatchewan
is
restricted
to
the
main
line
and
the
named
branches
the
answer
to
be
made
should
be
qualified
accordingly.
The
second
question
submitted
is
as
to
whether
cl.
16
of
the
contract
exempts
the
Canadian
Pacific
Railway
Company
from
taxation
in
Saskatchewan
in
respect
of
the
business
carried
on
as
a
railway,
based
on
either
the
area
of
the
land
or
the
floor
space
of
buildings
used,
the
rental
value
of
the
land
and
buildings
used
or
their
assessed
value
and
which
is
not
made
a
charge
upon
such
land
or
buildings.
By
s.
24
of
the
Saskatchewan
Act
(4-5
Edw.
VII,
c.
42)
which
constituted
the
Province
it
is
provided:
‘‘The
powers
hereby
granted
to
the
said
province
shall
be
exercised
subject
to
the
provisions
of
section
16
of
the
contract
set
forth
in
the
schedule
to
chapter
1
of
the
statutes
of
1881,
being
an
Act
respecting
the
Canadian
Pacific
Railway
Company.
”
The
language
of
s.
1
of
the
Act
of
1881
is
that
the
contract
“is
hereby
approved
and
ratified,
and
the
Government
is
hereby
authorized
to
perform
and
carry
out
the
conditions
thereof,
according
to
their
purport.’’
The
question
is
thus
not
the
construction
of
a
provision
in
a
statute
but
in
a
contract
to
which
the
Province
was
not
a
party.
The
exemption
granted
by
cl.
16
is
as
to
the
named
properties
‘‘required
and
used
for
the
construction
and
working’
‘
of
the
railway.
The
benefit
of
that
exemption
was
vested
in
the
Canadian
Pacific
Railway
Company
by
s.
4
of
the
letters
patent
of
incorporation
and
remains
in
it
so
long
as
the
company
continues
to
be
the
owner
or
operator
of
the
property
and
uses
it
for
the
defined
purpose.
The
position
adopted
on
behalf
of
the
Province
of
Saskatchewan
put
bluntly
is
this:
That
while
neither
the
physical
property
defined
by
cl.
1
nor
the
Canadian
Pacific
Railway
Company
in
respect
of
its
ownership
of
that
property
is
liable
to
taxation,
so-called
business
taxes
may
be
levied
upon
the
Company
in
respect
of
its
business
of
operating
it.
While
the
language
of
cl.
16
is
that
the
property
shall
be
‘‘forever
free
from
taxation”
by
any
Province
thereafter
to
be
established,
it
is
said
that
to
tax
the
Company
in
respect
to
the
use
of
the
property
(itself
a
term
of
the
exemption),
is
not
to
tax
the
property
and
that
that
alone
is
prohibited.
The
question,
as
submitted,
states
that
the
business
tax
levied
by
any
of
the
three
methods
mentioned
will
not
be
made
a
charge
upon
the
land
or
buildings.
I
cannot
understand
what
possible
difference
this
can
make.
Municipal
taxes
may
be
and
at
times
are
declared
to
be
a
lien
upon
the
property
in
respect
to
which
they
are
levied,
but
this
is
merely
a
provision
to
secure
their
collection
:
in
determining
the
nature
of
this
tax,
the
fact
that
there
is
no
charge
upon
the
land
or
buildings
in
respect
of
it
appears
to
me
irrelevant.
By
the
City
Act,
1947,
the
imposition
of
a
business
tax
was
authorized
and
by
amendments
made
by
the
Statute
of
1948,
C.
33,
this
was
made
to
apply
to
every
Railway
Company
owning
or
operating
a
railway
in
Saskatchewan
(s.
20(2).
Section
443
which
authorized
the
imposition
of
the
tax
was
also
amended
in
that
year
by
the
addition
of
s-s.
(5a)
which
reads:
‘‘
A
railway
company,
whether
its
property
is
liable
to
assesment
and
taxation
or
not,
shall
be
liable
to
assessment
and
taxation
under
this
section
in
respect
of
the
business
carried
on
as
a
railway
and
the
provisions
of
this
section,
except
subsection
(2)
shall
apply.”
The
case
has
been
argued
on
the
footing
that
the
provisions
of
this
statute,
in
so
far
as
they
affect
the
taxation
of
the
business
of
a
railway,
do
not
differ
in
substance
from
like
provisions
in
the
Village
Act,
1946,
the
Rural
Municipalities
Act,
1946,
the
Local
Improvement
Districts
Act,
1946,
and
the
Town
Act,
1947,
all
as
amended,
which
are
referred
to
in
the
fourth
question
and
Qq.
2
and
4,
may
thus
be
dealt
with
together.
The
City
Act,
by
s.
2(4),
defines
the
term
‘‘
business’
as
including
any
trade,
profession,
calling,
occupation
or
employment.
Part
VII
of
the
statute
under
the
heading
‘‘Assessment
and
Taxation’’
provides
by
s.
441
that
not
later
than
a
named
date
the
assessor
shall
assess—‘‘in
respect
to
every
parcel
of
land
in
the
city”,
inter
alia,
the
registered
owner
or
the
owner
under
a
bona
fide
agreement
for
sale.
Subsection
(2)
of
s.
441
requires
the
assessor
to
assess
every
person
engaged
in
mercantile,
professional
or
any
other
business
in
the
city,
with
certain
named
exceptions.
By
s.
442
the
right-of-way
of
a
railway
owned
by
a
railway
company
or
occupied
by
it
if
owned
by
others
and
exempt
from
taxation
is
to
be
assessed
at
an
amount
not
exceeding
$6,000
per
mile.
Section
444
provides
that
no
person
who
is
assessed
in
respect
of
a
business
shall
be
liable
to
pay
a
licence
fee
to
the
city
in
respect
of
the
same
business.
Section
443
which
declares
the
basis
of
the
assessment
for
business
tax
commences:
‘‘Business
shall
be
assessed
in
the
following
manner.”
The
assessor
is
directed
to
fix
a
rate
per
square
foot
of
the
floor
space
of
each
building
used
for
business
purposes
and
if
the
business
is
carried
on
wholly
or
in
part
outside
of
any
building
a
rate
per
square
foot
of
the
yard
space
used.
Subsection
(4)
directs
the
entry
on
the
assessment
roll
of
each
of
the
persons
who
as
partners,
Joint
tenants,
tenants
in
common
or
by
any
other
kind
of
Joint
interest
are
‘‘the
owners
or
occupants
of
real
property
liable
to
taxation
hereunder’’.
Section
479
directs
that
the
municipal
and
school
taxes
of
the
City
shall
be
levied
upon
(1)
lands,
(2)
businesses,
and
(3)
special
franchises.
Section
485
provides
that
the
owner
of
a
building
who
is
liable
to
assessment
in
respect
of
business
carried
on
therein
shall
in
addition
to
his
liability
for
taxes
levied
in
respect
of
the
land
and
building
be
liable
for
the
business
tax
in
respect
of
such
business.
By
s.
504,
the
first
of
a
number
of
sections
which
appear
under
the
heading
44
Taxes”,
the
assessor
is
directed
to
prepare
a
tax
roll
on
or
before
the
1st
day
of
October
in
each
year
which
shall
contain
the
name
of
every
person
assessed
and:
il
(2)
(c)
the
nature
and
description
of
the
property
in
respect
of
which
he
is
assessed.”
While
s.
479
refers
to
the
tax
levies
as
being
upon
lands
and
businesses,
this
must
be
read
together
with
other
sections
of
the
statute
which
in
terms
make
it
clear
that
as
regards
the
owner
of
land
the
tax
is
assessed
against
and
levied
upon
him
and
not
upon
the
land.
As
to
the
business
tax,
while
the
opening
words
of
s.
443
read
that
‘
‘
business”
is
to
be
assessed,
it
is
the
individual
carrying
on
the
business
upon
whom
the
assessment
is
made
and
the
tax
levied
and
the
true
nature
of
the
tax
is
shown
to
be
a
tax
in
respect
of
the
occupation
of
property
for
the
purpose
of
carrying
on
the
business.
Clause
16
of
the
contract
does
not
grant
an
absolute
exemption
of
the
stations,
station
grounds,
buildings
and
other
property
referred
to
but
only
such
as
are
used
for
the
construction
and
working
of
the
railway
and,
in
my
opinion,
if
buildings
which
fell
within
the
description
ceased
to
be
used
by
the
owner
or
operator
of
the
property
for
such
purposes
the
exemption
would
be
lost.
Since,
therefore,
it
is
the
buildings,
station
grounds,
yards
and
other
property
when
used
for
these
purposes
which
are
declared
to
be
forever
free
from
taxation
by
the
Dominion
or
by
any
Province
thereafter
to
be
established,
I
think
it
cannot
be
said
that
a
tax
upon
the
owner
in
respect
of
the
use
of
the
property
for
the
purpose
of
working
the
railway
is
not
squarely
within
the
exemption.
To
construe
the
clause
otherwise
is
to
say
that
the
properties
mentioned
are
exempt
from
all
taxation
when
used
for
the
defined
purpose,
but
if
they
are
so
used
that
the
owner
may
be
taxed
in
respect
of
that
use.
I
am
unable
to
so
construe
the
clause.
The
third
question
relates
to
the
liability
to
assessment
and
taxation
of
the
Canadian
Pacific
Railway
Company
in
respect
of
its
real
estate
situate
upon
its
branch
lines
constructed
under
the
powers
contained
in
el.
14.
While
the
first
question
as
to
the
branch
lines
of
the
railway
speaks
of
these
lines
generally,
we
were
informed
upon
the
argument
that
the
Company
did
not
contend
that
properties
exempted
by
cl.
16
situate
upon
branch
lines
constructed
under
powers
other
than
those
contained
in
el.
14
were
exempt.
I
think
this
admission
was
not
intended
to
extend
to
properties
of
the
kind
referred
to
situate
upon
such
lands
if
they
were
used
either
for
the
construction
or
operation
of
the
main
line.
The
answer
to
the
first
question,
as
thus
restricted,
answers
the
third.
I
would
answer
the
questions
submitted
as
follows:
1.
No,
except
such
properties,
if
any,
real
or
personal,
enumerated
in
el.
16,
situate
upon
the
branch
lines
in
Saskatchewan
as
are
entitled
to
the
benefit
of
the
exemption
from
taxation
as
being
required
and
used
for
the
construction
and
working
of
the
railway
described
in
ss.
1,
2
and
3
of
the
Act
37
Vict.,
e.
14.
2.
Yes,
as
to
the
business
carried
on
as
a
railway
upon
or
in
connection
with
the
railway
as
described
in
ss.
1,
2
and
3
of
the
Act
37
Vict.,
ec.
14,
and
upon
such
other
properties,
if
any,
real
or
personal,
of
the
Company
situate
upon
its
branch
lines
in
Saskatchewan
as
are
entitled
to
the
benefit
of
exemption
from
taxation
under
cl.
16
as
being
required
and
used
for
the
construction
and
working
of
that
portion
of
the
line
referred
to
in
the
said
sections
of
the
statute.
3.
Yes,
except
in
respect
of
such
real
estate,
if
any,
situate
upon
branch
lines
constructed
pursuant
to
cl.
14
of
the
contract
as
is
entitled
to
the
benefit
of
the
exemption
from
taxation
under
cl.
16
as
being
required
and
used
for
the
construction
and
working
of
the
railway
as
described
in
ss.
1,
2
and
3
of
the
Act
37
Viet.,
e.
14.
4.
(a)
No.
(b)
Yes,
subject
to
the
limitation
stated
in
the
answer
to
Q.
2.
I
would
allow
the
appellant
one-half
of
its
costs
of
this
appeal.
Appeal
allowed
in
part.
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