RICHARDS,
U.J.:—The
Dexter
Construction
Company,
Limited,
is
a
company
incorporated
under
the
laws
of
the
province
of
New
Brunswick.
Its
head
office
is
at
Fairville
in
the
county
of
the
city
and
county
of
Saint
John.
It
is
engaged
in
highway
construction
under
contract
with
the
province
of
New
Brunswick.
During
the
years
1947
and
1948
the
company
had
a
contract
for
the
construction
of
the
main
highway
extending
from
the
town
of
Bathurst,
through
the
parish
of
Bathurst,
to
Douglas-
town
in
the
county
of
Northumberland.
The
contract
provided
for
the
grading,
gravelling
and
paving
of
the
road.
This
work
necessarily
required
the
employment
of
a
substantial
quantity
of
machinery
and
equipment.
The
grading
work
on
the
portion
of
the
road
in
the
parish
of
Bathurst
was
completed
during
the
year
1947
and
the
paving
was
completed
in
1948.
The
company
also
owns
some
59
acres
of
land
in
the
parish
of
Bathurst.
In
the
spring
of
1948
the
assessors
of
the
parish
of
Bathurst
placed
a
valuation
of
$600,000
upon
the
personal
property
and
a
value
of
$11,000
upon
the
real
estate
of
the
company,
and
taxes
‘were
levied
upon
the
company’s
property,
including
both
real
and
personal
estate,
to
the
amount
of
$10,316.40.
Presumably
the
assessment
was
made
under
the
authority
of
ss.
20
and
25
of
The
kates
and
Taxes
Act,
c.
190,
R.S.N.B.
1927.
The
relative
provisions
of
s.
20
are
as
follows
:
<4
2O.
(1)
All
personal
property
within
or
without
the
Province,
owned
by
an
inhabitant
of
the
Province,
shall
be
assessed
to
the
owner
in
the
parish
where
he
resides,
subject
to
the
following
exemptions:
(a)
Where
any
person
has
a
shop,
factory,
office
or
place
of
business
in
a
parish
other
than
that
in
which
he
resides,
or
in
which
shop,
factory,
office
or
place
of
business
he
carries
on
his
trade,
profession,
calling
or
business,
all
his
personal
property
connected
with
or
employed
in
his
trade,
profession,
calling
or
business
so
carried
on,
shall
be
assessed
to
him
in
the
parish
where
he
has
such
shop,
factory,
office
or
place
of
business;
(b)
Where
any
person
has
two
or
more
shops,
offices,
factories,
or
other
places
of
business
situate
in
different
parishes,
at
which
he
earries
on
his
trade,
profession,
calling
or
business,
he
shall
be
assessed
in
each
parish
for
the
portion
of
his
personal
property
connected
with,
or
employed
in
the
business
carried
on
thereat,
and
in
such
cases,
and
in
the
cases
mentioned
in
clause
(a)
such
person
shall,
if
required,
give
to
the
assessors
of
each
of
the
parishes
where
he
is
liable
to
be
assessed,
including
the
parish
in
which
he
resides,
a
statement
of
his
entire
personal
property
wherever
employed
or
situate,
and
of
his
entire
indebtedness,
and
if
required,
shall
make
oath
thereto,
and
in
such
statement
he
shall
designate
the
property
liable
to
be
rated
in
each
of
the
said
parishes.
(2)
Notwithstanding
anything
in
the
foregoing
exceptions
contained,
all
the
personal
property
not
connected
with
or
employed
in
any
trade,
profession,
calling
or
business
as
aforesaid,
shall
be
assessed
in
the
parish
where
the
owner
resides.
”’
Under
the
provisions
of
s.
78
of
The
Rates
and
Taxes
Act
an
appeal
was
taken
by
the
company
to
His
Honour
J.
L.
Ryan,
Judge
of
the
county
court
for
the
county
of
Gloucester,
on
the
following
grounds:
(1)
That
the
company
was
not
liable
for
assessment
in
respect
of
personal
property
in
the
county
of
Gloucester
;
(2)
That
in
the
alternative,
certain
items
of
said
personal
property
in
respect
of
which
a
return
was
made
to
the
assessors
were
not
liable
to
assessment
in
the
county
of
Gloucester
;
(3)
That
in
the
further
alternative
and
in
any
event,
if
the
company
was
liable
to
assessment
in
respect
of
personal
property
in
the
county
of
Gloucester,
the
valuation
upon
such
personal
property
by
the
assessors
was
excessive
and
should
be
reduced.
The
judgment
of
the
county
court
judge,
delivered
on
February
13,
1950,
confirmed
the
claim
of
the
assessors
as
to
the
right
of
assessment
upon
the
personal
property
of
the
Dexter
Company,
but
reduced
the
valuation
of
such
personal
property
from
$600,000
to
$275,000.
On
February
24,
1950,
on
application
of
the
company,
I
granted
an
order
for
a
writ
of
certiorari
and
a
rule
nisi
for
the
removal
into
this
court
of
the
said
assessment,
judgment
and
order,
and
for
the
said
board
of
assessors
to
shew
cause
why
the
said
assessment
and
judgment
should
not
be
quashed
and
set
aside.
The
rule
was
based
upon
a
number
of
grounds
relating:
First,
to
the
question
as
to
the
liability
of
the
company
to
taxation
in
respect
of
its
personal
property
located
in
the
parish
of
Bathurst
and
used
in
connection
with
its
road
construction
contract;
and,
secondly,
the
matter
of
over-valuation
of
the
said
personal
property.
In
my
view
of
the
ease
it
is
necessary
to
refer
only
to
the
first
of
these
two
features.
In
my
opinion
this
case
is
exactly
similar
to
the
case
of
The
King
v.
Dickinson,
Ex
parte
Armstrong
Bros.,
recently
before
this
Court,
and
in
which
judgment
was
given
on
June
7,
1949.
(24
M.P.R.
151).
In
that
case
the
partnership
firm
of
Armstrong
Bros.,
in
1947-8
had
a
similar
contract
for
the
construction
of
the
highway
from
Long’s
Creek,
in
the
parish
of
Prince
William,
in
the
county
of
York,
through
the
parish
of
Manners-Sutton
to
a
point
near
the
village
of
McAdam,
a
distance
of
some
35
miles.
They
set
up
headquarters
at
Harvey,
in
the
parish
of
Manners-Sutton,
where
they
had
an
"‘office’’,
so-called,
and
other
buildings.
Time
sheets
and
other
daily
records
were
kept
at
this
"‘office’’
and
the
necessary
staff
for
doing
this
work.
They
had
a
substantial
quantity
of
road
machinery,
including
bulldozers,
graders,
a
rock
crusher,
a
mixing
plant,
etc.
This
head
office
was
at
Perth,
in
the
county
of
Victoria.
The
permanent
records
of
the
company
were
kept
at
their
head
office
at
Perth,
the
banking
was
done
there,
the
general
staff
was
there
and
instructions
for
the
work
were
issued
from
that
office,
cheques
were
also
issued
there.
The
company
had
contracts
in
other
sections
of
the
province
and
the
records
in
respect
of
those
contracts
were
also
kept
at
Perth.
In
the
spring
of
1948
they
were
assessed
on
personal
property
in
the
parish
of
Manners-Sutton
in
the
amount
of
$200,000,
with
a
tax
of
$3,379.20.
The
company
paid
this
tax
under
protest.
They
then
applied
under
authority
of
s.
78
of
The
Rates
and
Taxes
Act
to
His
Honour
J.
B.
Dickson,
judge
of
the
county
court
for
the
county
of
York.
The
appeal
was
allowed
and
direction
was
given
that
the
payments
made
should
be
returned
to
the
company.
The
assessors
then
by
writ
of
certiorari
brought
the
matter
before
this
court.
It
was
held
that
the
firm
of
Armstrong
Bros.
had
no
office,
shop,
factory
or
place
of
business
within
the
meaning
of
s.
20
of
the
Act
and
the
rule
was
discharged.
Coming
then
to
the
present
case,
it
is
clear
that
the
character
of
the
work
covered
by
the
contract
is
the
same
as
in
the
Armstrong
ease.
Generally
the
same
type
of
buildings,
machinery
and
equipment
were
in
use.
The
buildings
were
of
temporary
construction.
The
machinery
included
bulldozers,
graders,
erushers
and
an
asphalt
mixing
plant,
ete.
The
work
was
carried
on
during
the
same
yeriod.
The
mileage
in
the
present
case
may
have
been
slightly
bigger
than
in
the
Armstrong
case,
but
here
it
may
be
noted
that
in
each
case
the
contract
extended
beyond
the
parish
in
which
the
assessment
was
made,
and
at
times
the
equipment
would
be
in
use
beyond
the
parish
levying
the
tax.
As
in
the
Armstrong
case,
the
company
had
a
permanent
head
office
apart
from
the
locality
where
the
work
was
being
done.
There
the
directors
and
officers
of
the
company
resided.
The
permanent
records
were
kept
there.
The
only
bank
account
of
the
company
was
at
the
city
of
Saint
John,
cheques
were
issued
from
that
office.
At
the
"‘office’’,
so-called,
at
Bathurst
there
was
some
office
equipment
necessary
for
the
keeping
of
daily
records
such
as
time
sheets,
quantities
of
material,
etc.
In
the
present
case
it
appears
that
the
pay
cheques
were
also
issued
at
Bathurst
instead
of
at
the
head
office,
though
as
above
stated
payments
were
made
from
Fairville.
This
is
the
only
material
feature
differing
from
the
arrangement
in
the
Armstrong
case.
In
both
cases
the
companies
had
contracts
in
other
sections
of
the
province
and
the
records
and
accounts
were
all
kept
at
their
head
office.
Counsel
for
the
assessors
contended
strongly
that
the
set-up
at
Bathurst
was
"
greatly
different’’
from
that
in
the
Armstrong
ease.
They
emphasized
the
following
features:
(1)
Size
of
the
‘‘office’’
building
at
Bathurst.
This
building
was
48
feet
by
16
feet
making
768
square
feet.
The
evidence
in
the
Armstrong
case
is
that
the
‘‘
office
‘
‘
was
24
feet
by
30
feet
making
720
square
feet.
A
difference
of
only
48
square
feet.
(2)
That
the
company
own
5914
acres
of
land
at
Bathurst
and
that
the
‘‘office’’
was
on
one
of
these
lots.
That
is
true,
but
that
does
not
affect
the
character
of
the
work
done
in
the
office
or
the
general
character
of
the
whole
undertaking.
The
company
is
obviously
responsible
for
the
proper
tax
upon
any
real
estate
it
may
own
in
the
parish
of
Bathurst.
Also
the
evidence
shows
that
the
office
building
is
built
in
eight-foot
wide
sections
and
is
portable,
so
that
it
may
be
fitted
on
a
flat-bottom
truck.
(3)
The
assessment
of
$600,000
on
the
personal
property.
That
is
a
value
placed
upon
the
personal
property
by
the
assessors.
The
evidence
is
that
the
cost
value
was
only
$341,255.94,
and
that
much
of
the
equipment
was
old.
The
company
gave
the
assessors
a
statement
showing
the
value
of
the
personal
property,
$202,380.
Judge
Ryan
reduced
the
assessed
value
of
$600,000
to
$275,000.
In
the
Armstrong
case
the
assessors
placed
a
value
of
$200,000
on
the
personal
property.
From
this
it
will
be
seen
that
the
difference
in
the
value
of
the
equipment
of
the
two
companies
is
not
as
great
as
suggested.
(4)
The
term
“office”.
The
use
of
the
word
“office”
is
not
sufficient
to
give
a
general
character
to
the
building.
The
use
was
for
the
keeping
of
daily
records.
The
complete
and
permanent
records
were
kept
at
Fairville.
(5)
The
asphalt
plant.
This
was
referred
to
as
being
in
the
nature
of
a
factory.
Certainly
it
cannot
be
regarded
as
a
factory,
for
the
material
produced
was
used
by
the
company
itself
in
its
own
construction
work.
This
would
be
in
exactly
the
same
character
as
a
rock
crusher
plant
in
the
Armstrong
case.
I
think
perhaps
it
is
fair
to
say
that
the
set
up
at
Bathurst
was
somewhat
more
extensive
than
that
at
Harvey;
I
cannot
agree
with
the
view
that
it
was
"‘greatly
different’’.
But
the
size
of
the
operation
is
not
material,
it
is
the
character
of
the
operation
that
is
material.
In
that
respect
they
are
identical.
Only
in
one
small
feature
does
any
real
difference
appear:
in
the
present
case
the
pay
cheques
were
issued
at
Bathurst,
and
not
at
the
head
office
as
in
the
Armstrong
case.
That
feature
in
itself
is
hardly
sufficient
to
affect
the
result.
The
learned
judge
of
the
county
court
in
his
judgment
on
the
appeal
before
him
seemed
to
be
impressed
with
the
contention
of
the
assessors
as
to
the
size
of
the
company’s
"‘office’’.
He
says:
"‘I
feel
the
setup
was
greatly
different
from
the
camp
office
as
described
in
the
Armstrong
Bros.
case.’’
He
refers
to
an
exhibit
showing
a
photograph
of
the
office,
and
the
fact
that
there
were
typewriters
and
filing
cabinets
in
the
office.
There
were
no
photographs
in
the
Armstrong
case,
but
there
seems
to
have
been
a
difference
of
only
48
square
feet
in
the
size
of
the
two
buildings.
There
was
also
a
typewriter
and
some
other
office
equipment
in
the
Armstrong
building.
But,
as
indicated
above,
it
is
not
the
physical
dimensions
of
buildings
or
the
quantity
of
equipment
that
is
material,
it
is
the
character
of
the
work
that
is
being
done.
In
that
respect
there
is
no
substantial
difference
between
the
two
cases.
It
is
relevant
to
note
that
the
county
court
judge
in
his
judgment
on
the
appeal
before
him
did
not
make
any
specific
finding
on
this
point,
that
is
the
liability
of
the
company
to
taxation
on
its
personal
property.
Judge
Ryan
states
in
his
judgment
:
"Throughout
the
hearing
and
from
careful
study
of
the
brief
filed
on
behalf
of
the
company,
I
am
convinced
that
the
position
of
the
company
is
not
in
its
final
analysis
that
they
should
not
be
assessed
in
the
parish
of
Bathurst
on
their
personal
property
for
1948,
but
that
the
value
fixed
on
said
property
is
excessive.’’
This
statement
seems
to
indicate
quite
definitely
that.
little,
if
any,
consideration
was
given
to
the
question
as
to
the
company’s
liability
to
taxation
on
its
personal
property.
The
interpretation
to
be
applied
to
the
term
‘‘carrying
on
business’’
as
used
in
s.
2
of
The
Rates
and
Taxes
Act
was
considered
by
this
court
in
the
Municipality
of
Restigouche
v.
New
Brunswick
International
Paper
Company
(1947),
20
M.P.R.
142,
and
the
court
in
that
case
adopted
the
principles
set
forth
in
De
Beers
Consolidated
Mines
Ltd.
v.
Howe,
[1906]
A.C.
455,
and
Kirkwood
v.
Gadd,
[1910]
A.C.
422.
In
the
De
Beers
case
the
company
was
a
mining
company
incorporated
in
South
Africa,
its
head
office
was
at
Kimberley,
general
meetings
were
held
there,
some
of
the
directors
lived
there.
But
a
majority
of
the
directors
lived
in
London,
and
it
was
established
that
it
was
at
the
directors’
meetings
in
London
where
the
real
control
was
exercised
in
all
the
important
meetings
of
the
company,
except
in
connection
with
mining
operations.
It
was
held
by
the
Commissioners
and
approved
by
the
House
of
Lords
:
(1)
That
the
trade
or
business
of
the
appellant
company
constituted
one
trade
or
business,
and
was
carried
on
and
exercised
by
the
appellant
company
within
the
United
Kingdom
at
their
London
office.
(2)
That
the
head
and
seat
and
directing
power
of
the
affairs
of
the
appellant
company
were
at
the
office
in
London,
from
whence
the
chief
operations
of
the
company,
both
in
the
United
Kingdom
and
elsewhere,
were,
in
fact,
controlled,
managed
and
directed.
Counsel
for
the
assessors
contended
that
this
case
was
not
applicable
as
it
related
to
the
matter
of
income
tax.
But
it
is
a
clear
statement
of
the
general
principle
as
to
determining
the
place
where
a
trade
or
business
is
carried
on.
Again
in
Kirkwood
v.
Gadd,
[1910]
A.C.
422,
the
term
"carrying
on
business’’
is
clearly
defined.
Lord
Atkinson
said,
at
p.
433:
‘Without
attempting
to
fully
define
the
meaning
of
the
phrase
(carrying
on
business)
I
may
say
that
I
think
the
place
at
which
a
merchant
or
trader
must
be
understood
to
carry
on
his
business
is
the
headquarters,
as
it
were,
of
the
business,
or
the
headquarters
of
a
particular
branch
of
it,
in
which
the
conduct
of
the
business,
or
of
the
branch,
is
regulated,
directed
and
controlled,
and
the
transactions
which
constituted
it
are
recorded.’’
and
Lord
Mersey
said,
p.
438
and
p.
439:
"‘A
man’s
business
is
carried
on
at
the
shop
or
office
where
he
keeps
his
books,
his
stock,
and
his
cash,
and
to
which
he,
his
servants
or
clerks
resort,
either
to
work
or
to
receive
directions
as
to
their
work,
some
of
the
work
may
be
of
necessity
or
for
convenience
be
done
away
from
the
shop
or
office,
but
the
business
is
none
the
less
carried
on
at
the
office
or
shop.”
See
also
other
cases
cited
in
the
report
of
the
Armstrong
ease.
In
my
view,
the
defendant
company
has
no
office,
factory,
shop
or
place
of
business
within
the
meaning
of
s.
20
of
The
Rates
and
Taxes
Act
and
is
not
liable
for
assessment
on
its
personal
property
used
in
connection
with
the
contract
in
question.
It
appears
that
no
exception
was
taken
to
the
assessment
on
the
real
estate.
The
order
of
the
court,
therefore,
should
be
for
a
rule
absolute
to
quash
the
assessment
by
the
board
of
assessors
of
the
parish
of
Bathurst
upon
the
personal
property
of
the
Dexter
Construction
Company,
Limited,
with
costs.
HARRISON,
J.,
concurred
with
RICHARDS,
C.J.
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