Supreme Court of Canada
City of Halifax v. The McLaughlin Carriage Co., (1907) 39 S.C.R. 174
Date: 1907-06-24
The City of Halifax (Plaintiff) Appellant;
and
The Mclaughlin Carriage Co. (Defendants) Respondents.
Present: Fitzpatrick C.J. and Davies, Idington, Maclennan and Duff JJ.
1907: May 8; 1907: June 24.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.
Appeal—Stated case—Provincial legislation—Assessment—Municipal tax—Foreign company—"Doing business in Halifax"
An Ontario company resisted the imposition of a license fee for "doing business in the City of Halifax" and a case was stated and submitted to the Supreme Court of Nova Scotia for an opinion as to such liability. On appeal from the decision of the said court to the Supreme Court of Canada council for the City of Halifax contended that the proceedings were really an appeal against an assessment under the city charter, that no appeal lay therefrom to the Supreme Court of the Province, and, therefore, and because the proceedings did not originate in a superior court, the appeal to the Supreme Court of Canada did not lie.
Held, per Fitzpatrick C.J. and Duff J., that as the appeal was from the final judgment of the court of last resort in the Province, this court had jurisdiction under the provisions of the Supreme Court Act and it could not be taken away by provincial legislation.
Per Davies J.—Provincial legislation cannot impair the jurisdiction conferred on this court by the Supreme Court Act. In this case the Supreme Court of Nova Scotia had jurisdiction under Order XXXIII., Rule 1 of the Judicature Act.
Per Idington J.—If the case was stated under the Judicature Act Rules the appeal would lie but not if it was a submission under the charter for a reference to a judge at request of a ratepayer.
By sec. 313 of the said charter (54 Vict. ch. 58) as amended by 60 Vict. ch. 44, "Every insurance company or association, accident and guarantee company, established in the City of Halifax, or having any branch office, office or agency therein shall * * *
[Page 175]
pay an annual license fee as hereinafter mentioned. * * * Every other company, corporation, association or agency doing business in the City of Halifax (banks, insurance companies or associations, etc., excepted) shall * * * pay an annual license fee of one hundred dollars."
Held, that the words "every other company" in the last clause were not subject to the operation of the ejusdem generis rule but applied to any company doing business in the city. Judgment appealed from overruled on this point.
A carriage company agreed with a dealer in Halifax to supply him with their goods and give him the sole right to sell the same, in a territory named, on commission, all monies and securities given on any sale to be the property of the company and goods not sold within a certain time to be returned. The goods were supplied and the dealer assessed for the same as his personal property.
Held, Davies and Maclennan JJ. dissenting, that the company was not "doing business in the City of Halifax" within the meaning of sec. 313 of the charter and not liable for the license fee of one hundred dollars thereunder.
Judgment of the Supreme Court of Nova Scotia (39 N.S. Rep. 403) affirmed, but reasons overruled.
APPEAL from a decision of the Supreme Court of Nova Scotia in favour of the defendants on a stated case.
The case stated and submitted to the Supreme Court of Nova Scotia was in the following terms:
"Stated Case.
"In re The Assessment of The McLaughlin Carriage Company, Limited, by The City of Halifax.
"The McLaughlin Carriage Company, Limited, an Ontario corporation entered into the following recited agreement with one A. L. Melvin, of Halifax:
"Dealer's Contract.
"This Agreement, made (in duplicate) between McLaughlin Carriage Company, Limited, of Oshawa,
[Page 176]
Ontario, hereinafter called "The Company," and A. L. Melvin of Halifax in the County of Halifax, Province of Nova. Scotia, hereinafter called "The Dealer."
"Witnesseth, that it is agreed and understood by and between the parties hereto:—
"1st—This agreement is not operative until signed by both of the parties hereto.
"2nd.—In cases where a previous agreement of a similar nature has been in existence between the parties hereto, or their predecessors, all goods under the dealer's care at the time of the execution hereof are to continue the property of the company under the conditions of this agreement.
"3rd.—This agreement may be cancelled by the said company at any time with or without notice, and in case of such concellation the said dealer agrees to settle forthwith by notes or cash for all goods sold by him, up to the time of such concellation, and to hand over to the company, free of incumbrance and in good condition, all goods unsold under his care that have been shipped to him and which are not settled for as aforesaid, but this agreement is to be deemed as existing between the parties hereto until cancelled by one or the other of them.
"4th.—In case of the company's inability to furnish the dealer with goods, or in case the dealer through sickness is unable to canvass the said territory, neither of the parties hereto is to look to the other for damages, and both the company and the dealer are free to make other arrangements re sale or supply of vehicles temporarily till such inability ceases.
"5th.—Each wheeled vehicle not sold and settled for by the dealer within six months (or, in case of
[Page 177]
cutters four months) after the vehicle was shipped by the company shall be returned to the company at the expense of the dealer, unless otherwise agreed in writing by the company.
"6th.—The company will allow a discount of five per cent, off the wholesale price of all vehicles on all sales for which they shall receive the cash from the dealer within one month after the shipment of the vehicle and on all sales for which cash shall be sent after thirty days, but within six months after shipment (or four months in case of cutters) a discount at the rate of seven per cent. per annum shall be allowed the said dealer. In case any vehicle so shipped shall not be returned, re-shipped, or sold and settled for in full within six months after the time of shipment, the dealer agrees to allow out of his commission an amount sufficient to pay interest at seven per cent. on the wholesale price of all vehicles unsold, or, if sold, on the balance remaining unsettled after the expiration of said six months until the same shall be fully paid.
"7th.—The said company is not to be held responsible or liable for any charges express freight telegrams, or any other expenses whatever, except as authorized by the said company or traceable to their negligence or errors. And for and notwithstanding any matter or thing herein contained, that nothing herein contained shall be held or construed as a sale of any goods whatever by the company to the dealer, but that, on the contrary, the property in any goods that may be shipped or delivered by the company to the dealer shall be and remain, until bonà fide sale to a customer, the absolute property of the company and only in the dealer's hands for sale according to the
[Page 178]
terms and conditions hereof, and to be accounted for by the dealer. And that the company or its agent may enter into or upon any lands, buildings or enclosures and use such force as may be necessary for that purpose, for the purpose of taking and removing any of such goods at any time, in case from any cause or reason they see fit to do so.
"8th.—All monies, notes, or other securities that the dealer may take and receive by way of payment, or on account of any goods of the company sold by him or received for or on account of the company, are the property of the company and shall be taken in name of company payable to the company's order and are and shall be received by the dealer only in trust for the company and not otherwise howsoever.
"9th.—In case of default by the dealer the company have to recover damages by civil process.
"10th.—In no case except when permission is obtained from the company are goods to be sold on longer time than 18 months, and terms are always to be short as possible.
"The Company Agrees:—
"1st.—-To reserve (for the sale of their finished vehicles) to the said dealer, subject to the conditions of this agreement the following territory:—Halifax city and county, except Hubbard's Cove and Musquo-doboit Harbour districts, and to grant the privilege to sell in the vicinity thereof.
"2nd.—To supply said dealer, to the best of their ability, with their vehicles for sale on commission.
"3rd.—To pay the said dealer as commission in full a sum of money equivalent to the amount by which the proceeds received on sales effected by said dealer shall exceed the regular wholesale prices
[Page 179]
charged by the company for vehicles such as those for which said proceeds are received; such payments of commission, however, is to be made pro rata as the company receives cash from proceeds forwarded to them by the dealer, and to be subject to additions or reductions for interest, etc., as herein provided.
"31/2.—To allow for rent for first year fifty dollars on 3 per cent. of business done, if it is more than $50.00.
"4th.—To reserve the option of rejecting any order should they consider it advisable to do so.
"5th.—To deliver free on cars at Oshawa station all goods shipped by them to the said dealer, and to make no charge for packing or crating the same.
"The said Dealer Agrees:—
"1st.—To accept all the foregoing as binding on him and as forming a part of this agreement.
"2nd.—To thoroughly canvass or cause to be canvassed the territory herein mentioned; to judiciously distribute all printed matter furnished by the company; to see that every vehicle is properly set up and delivered to the party to whom it is sold, and not to become interested either directly or indirectly in the sale of any other vehicle similar to those described in the company's catalogue for the current season.
"3rd.—To take all notes for vehicles sold on blanks supplied by the company, such notes to be made payable at the company's office, in St. John, N.B., or at some agency of a chartered bank, express or post office, and not elsewhere; to fill in all blanks in such notes carefully in ink before they are signed, and the said dealer hereby guarantees the payment of said notes when due and is liable for the same until fully paid, hereby waiving notice of presentation or non-
[Page 180]
payment and protest on the same. And it is agreed that in case any debtor pays the dealer any amount on account of such notes, it can only be received by : the dealer as agent for the maker of the note, and shall not be considered a payment to said company until actually received by them.
"4th.—To obtain from the purchaser of each vehicle, on delivery thereof, settlement for same and to forward the same to the company immediately as follows:—
"(a) If cash, a sufficient portion thereof to pay invoiced price of vehicle sold.
"(b) If notes, to forward all of them to company.
"(c) If both notes and cash be received, all notes and one-half of the cash, if that amount is sufficient to pay the balance of the wholesale price, and if not, then such amount of cash as shall be sufficient for that purpose. In no case, however, shall the amount of cash paid the company be less than one-half the amount received, and if that is more than the balance of the wholesale price the excess shall be held by the company until the notes are paid, as security therefor, and shall then be refunded to the dealer.
"(d) If any portion of settlement be taken in live stock, merchandise, etc., in trade or barter, details to be reported to company, and when same are sold proceeds to go to company as per above paragraphs, a, b, c.
"5th.—To carefully store and keep insured, free of charge to the company all vehicles under his care, and in any event of loss or depreciation in value occasioned by neglect or exposure, to become responsible for the same, and at the termination of contract to continue to store the then stock free of charge to
[Page 181]
the company for sixty days, if company cannot sooner re-ship same.
"6th.—To sell all vehicles subject to the printed warranty of the company only, and to promptly report to the company whenever requested on any matter pertaining to their business, and mail them on the 15th day of each month, memo. of their goods on hand not sold.
"7th.—To pay all freight and cartage charges on vehicles shipped to him or his order, and to sell all goods at a fair margin above wholesale prices and on terms in accordance with this agreement.
"8th.—To crate and deliver free on board cars at the nearest railway station any vehicles he may have undisposed of after the 15th day of October next, provided the company requests him so to do.
"9th.—To pay $2.00 on every vehicle sold by him for which returns have not been made to the company by or before the expiry of the first sixty days after delivery of the same to the purchaser.
"10th.—To carefully keep in a book provided by the company an accurate statement of all the carriages or property delivered to him under this agreement, with the numbers and other particulars respecting the same and a full account of the manner in which the same shall be disposed of and the price received therefor, and the portion of the same received in notes and cash, and such other particulars as shall be required by the company from time to time, or as the book shall provide for. The said book to remain and continue the property of the company and to be open to the inspection of the company, its servants and agents, at all times upon request, and to
[Page 182]
be delivered to the said company, its servants and agents upon request at any time.
"We have carefully read the articles of this agreement, and hereby respectively grant and accept an agency and agree to be bound by all the articles and provisions contained herein.
"Signed this fourth day of March, 1903.
"Witness to the signature of the company,
McLaughlin Carriage Co., Ltd.,
Per W. J. McAlary,
"The Company."
"Witness to the signature of the dealer,.
A. L. Melvin,
"The Dealer."
"In pursuance of the terms of such agreement the company shipped a number of carriages to said Melvin, who was a dealer in agricultural implements, etc., with premises on Bedford Bow, Halifax, and while some of said carriages were on Melvin's premises, the same were assessed, together with other property on the premises, at the regular rate as private property of Mr. Melvin.
"Melvin had no other relation to the company than that created by the recited contract, but he exhibited a sign over his door, "The McLaughlin Carriage Company's Carriages."
"Besides assessing the stock as aforesaid, to Melvin, the, assessors have imposed upon the company a special tax of $100, as a company doing business within the city. The company objects to pay such $100 special tax. The question for the court is, "Is the
[Page 183]
company liable, under any Act or ordinance, to pay it"?
Dated, Halifax, N.S., March 19th, 1906.
F. H. Bell, Acting City Recorder, City of Halifax.
W. F. O'Connor, Solicitor for McLaughlin Carriage Co., Ltd."
The Act under which the license fee of f 100 was imposed is sufficiently set out in the above head-note. The court below held that the "Every other company, etc., doing business in the City of Halifax" meant a company of the same kind as insurance companies previously mentioned in the Act and the McLaughlin Co. not being ejusdem generis was not liable to pay it.
F. H. Bell for the appellants.
Newcombe K.C. for the respondents.
The Chief Justice.—The facts of this case are stated fully in the notes of Sir Louis Davies.
The preliminary objection to the jurisdiction must be dismissed. The Legislature of Nova Scotia, with respect to this court, has no power to limit the right of appeal any more than it can confer jurisdiction. The only question to be considered by us is as to whether or not the judgment appealed from is the final judgment of the highest court of final resort in the province on a special case. If the case comes within the terms of our "Supreme Court Act," as we hold it does, there the matter ends. Clarkson v. Ryan.
[Page 184]
I agree with Sir Louis Davies that the doctrine of ejusdem generis has no application in the present case because the intention of the legislature is made abundantly clear by the language used. It is undoubtedly a general rule for the interpretation of statutes that, where particular words are followed by general words, the generality of the latter should be limited by reference to the former, but when the language used leaves no doubt as to the intention of the legislature, I see no reason why we should introduce a rule of construction to cut down the plain meaning of the words used in the statute. Section 313 of the city charter provides, in the first place, for the assessment of the real estate and personal property owned by insurance companies or associations, accident and guarantee companies established in the City of Halifax, or having any branch office or agency there, and for the payment, in addition, of an annual license fee which varies according to the nature of the business done by the company. The same section provides, in addition, for the assessment of the real estate and personal property owned by other companies, corporations, associations or agencies (excepting insurance companies or associations;) which are assessed under the first part of the section, and for the payment, in addition, of a license fee which differs from that imposed on the excepted companies.
Clearly the intention of the legislature was to distinguish the different classes of companies and make different provision for each class. That, is, in my opinion, the plain meaning of the statute and, if this construction is correct, the doctrine of ejusdem generis, as I said before, has no application.
The next question is as to whether or not the
[Page 185]
company was doing business in Halifax within the meaning of the section. It is to be borne in mind that, on this appeal, the question to be decided is whether or not the respondent company was obliged, in the circumstances, to pay an annual license fee of one hundred dollars. To decide this question, it is not necessary to consider whether or not the company was exercising a trade or carrying on a business for profit which would bring it within the cases decided as to the meaning of the Income Tax Acts.
The special case on which this appeal comes before us, after setting out in full the agreement between the respondent company and Melvin, the dealer at Halifax, contains the following paragraphs:—
In pursuance of the terms of such agreement, the company shipped a number of carriages to said Melvin, who was a dealer in agricultural implements, etc., with premises on Bedford Row, Halifax, and while some of said carriages were on Melvin's premises, the same were assessed, together with other property on the premises, at the regular rate as private property of Mr. Melvin.
Melvin had no other relation to the company than that created by the recited contract, but he exhibited a sign over his door, "The McLaughlin's Carriage Company's Carriages."
Besides assessing the stock as aforesaid to Melvin, the assessors have imposed upon the company a special tax of $100, as a company doing business within the city. The company objects to pay such $100 special tax. The question for the court is,—Is the company liable, under any Act or ordinance, to pay it?
It does not appear that anything was ever sold by the respondents or that any business was ever done by them in the City of Halifax.
The facts, as disclosed by the agreement, briefly are:—1st. That Melvin, who is called the dealer, was appointed to sell, or rather solicit orders for the sale of, the finished vehicles of the company within the limite of the City and County of Halifax.
2ndly. Orders were to be sent by the dealer to the
[Page 186]
office of the company, at Oshawa, in Ontario, where they might be filled or rejected at the option of the company.
3rdly. When the orders were accepted, the goods were delivered free on the cars at Oshawa station:—
4thly. All goods shipped by the company to the dealer direct were to remain the absolute property of the company;
5thly. The. dealer was paid by a commission equivalent to the difference between the wholesale price charged by the company and the retail price at which the vehicles were sold by the dealer who guaranteed all the sales;
6thly. It does not appear that the goods in Melvin;s store were there for sale or merely as samples, or that they were intended to be delivered on sales entered into at the City of Halifax or on sales made in the county ;
7thly. The company allowed the dealer for rent for the first year $50, or three per cent. of the business done, if it was more than $50.
Under these circumstances, it cannot be said that the company rented any definite portion of Melvin's premises or that they did or that they contemplated doing business in Halifax so as to come under the obligation to pay the license fee.
To send property into Halifax for the purpose of filling orders received at Oshawa or to execute orders received from purchasers in the county, is not doing business in Halifax within the meaning of section 313.
Municipal corporations cannot be allowed to impose burdens unless the authority to do so is clearly given them by law.
Melvin was doing business in Halifax and part
[Page 187]
of the business for which he was taxed was the selling of respondents' carriages and, by the special case, it appears that he was assessed as owner of the carriages which he had in his possession.
It cannot be said that the company was obliged to take out a license to authorize Melvin to sell carriages for which he was assessed as owner. On the facts as stated in the special case, all that can be said is that Melvin was appointed to solicit orders, but I do not think it can be reasonably held that the company exercised or carried on business in the City of Halifax.
I would dismiss the appeal with costs.
Davies J. (dissenting).—This was an appeal from the judgment of the Supreme Court of Nova Scotia in a special case submitted to it by the parties in which judgment it was determined that the question asked as to the liability of the respondent company to pay a special annual tax or license fee as being a company doing business within the City of Halifax, should be answered in the negative and that the appellant should pay the costs.
A preliminary objection was taken at the argument to our jurisdiction to hear the appeal but, after hearing counsel on the point and considering the rule of the "Nova Scotia Judicature Act under which the special case was submitted a majority of this court was clearly of the opinion that the. objection must be disallowed and the case heard upon its merits.
Our jurisdiction to hear appeals depends, of course, upon the "Supreme Court Act" and its amendments, and no legislation of the provincial legislatures could impair that jurisdiction. It did not
[Page 188]
seem to us, however, after reading order xxxiii, rule I., of the "Judicature Act," that any reasonable doubt existed as to the power of the Supreme Court of Nova Scotia to hear and determine the question submitted to them on the facts of this special case, nor in fact was any such doubt suggested by the court below.
The decision appealed from was based entirely upon the application to the construction of section 313, as it now stands amended, of the charter of the City of Halifax, of the rule of construction sometimes applied to Acts of Parliament of doubtful meaning and known as the doctrine of ejusdem generis.
I have carefully read and considered the section of the charter in question and am bound to say that I cannot understand how the rule of construction referred to can be invoked or applied with regard to that section so as to exclude the company, respondents, sought to be charged with this license fee.
The rule, when applicable at all, operates to cut clown and limit the otherwise plain meaning of general terms by reference to the terms and language of their immediate context. If the language of the statute had been "every bank, fire insurance, life insurance or marine insurance company or other company doing business in the city shall pay a license fee of one hundred dollars" it might, under the authorities, reasonably be contended that the rule of construction adopted by the court below applied and that the "other companies" to be subjected to the tax must be construed to be other companies of the same class as those enumerated if a common class was capable of being ascertained.
But the section is not framed in any such way, but
[Page 189]
in a way which, to my mind, prohibits the application of the ejusdem generis rule of construction altogether. In the first place, the annual license fees imposed upon marine or fire insurance companies is four times greater than that imposed upon life assurance, accident or guarantee companies or associations. Banks are dealt with in another section, 316, and are expressly exempted from this as are also other companies at the time of the enactment of the section "exempt from taxation." Provision is made in the case of companies engaged in more than one branch of insurance business that they shall pay license fees for the two branches of insurance for which licenses are imposed, and exempting them altogether for the period of time when they are only winding up their business in Halifax and not doing any new business.
Then follows the general independent sentence, now in controversy, relating to "every other company" specially exempting from its operation banks which are dealt with in a subsequent section, insurance companies previously dealt with and other companies "exempt from taxation."
I am utterly unable to accept the argument that, in such a clause and with reference to such general words so used their plain meaning could be cut down and limited by the arbitrary application of the doctrine of idem genus. The argument does not commend itself to me as reasonable and no authority was or could be cited in its support.
Then respondents relied upon the contention that, under the special case as submitted, they could not be held to be a company "doing business" in Halifax within the section. I do not suppose there can be any difference between "doing business," as used in
[Page 190]
this section, and "carrying on business." The authorities seem to me conclusive against the respondents as I understand the facts and construe the special case. I have carefully read all the cases cited before us. All these cases before that of Grainger & Son v. Gough, in the House of Lords, were cited and reviewed in the decision of that case and the true principle which must be invoked as a .test to determine whether, in any case, a person or company can be said to be "carrying on business" laid down and acted upon. I think that principle is embodied clearly in the head-note to that case, which reads as follows :—
A foreign merchant, who canvasses through agents in the United Kingdom for orders for the sale of his merchandise to customers in the United Kingdom, does not exercise a trade in the United Kingdom within the meaning of the Income Tax Acts, so long as all contracts for the sale and all deliveries of the merchandise to customers are made in a foreign country.
As Lord Herschell says, at page 335:
In all previous cases contracts have been habitually made in this country. Indeed this seems to have been regarded as the principal test.
And he then quotes with approval the rule as stated by the then Master of the Rolls, in Erichsen v. Last.
Whenever profitable contracts are habitually made in England, by or for foreigners with persons in England because they are in England to do something for or supply something to those persons, such foreigners are exercising a profitable trade in England, even though everything to be done by them in order to fulfil the contracts is done abroad.
Lord Watson, in his judgment, pages 339-340, says:—
[Page 191]
In Werle & Co. v. Colquhoun, the decision of the Court of Appeal was based upon the express ground that the foreign wine merchant exercised his trade in England by making contracts there for the sale of his champagnes through his English agent. Erichsen v. Last, although it did not relate to the wine trade, was a decision of the same class.
Lord Davey, concurring with the majority of the law lords in their judgment, says, at page 346,
that all Mr. Roederer's sales to this English customers are made at Rheims for delivery in that place, and the goods sold are, in fact, delivered to the customers in Rheims,
and further on he says he forbears commenting on the earlier cases because
they all differ in the vital respects that sales of goods were in those cases made in England.
The case cited in our court of The City of London v. Watt & Sons seems to have been decided on the same principle and reasoning.
Now, applying that principle to the facts of this case, I cannot see that there can be any doubt on the facts of the special case that the carriages, etc., sent by the respondents to their agent in Halifax were so sent for the purpose of being sold and delivered by that agent in such city to the purchasers there. The goods of the respondents were, by the very terms of the agreement, placed with their agent in Halifax for the purpose of sale and delivery by him, they retaining the property in the goods until sale, contributing towards the rent of the premises their agent occupied and providing that any sale made by the agent was to be made for the company respondent and any note
[Page 192]
for the price taken in their name and sent to them. The agent was to receive a commission only and every provision of the agreement goes to satisfy my mind that it was the respondent company which was carrying on business, it was their goods that were being sold and delivered in Halifax, it was there the contract was made and there delivery took place to the purchaser and it was there the purchase money was collected for them.
An objection was taken that the special case did not specifically state that any carriages had actually been sold and delivered by the agent. But the company were surely carrying on business just as much while their agent was engaged in the act of selling as they were a moment afterwards when the contract was completed. The goods of the respondents were in their agent's shop in Halifax, exposed for sale with the sign over the door, "The McLaughlin Carriage Company's Carriages" inviting the public to enter and buy, and it would, to my mind, be an unfair refinement upon the meaning of words to hold that, although they had sent their stock to their agent in Halifax to sell and he had entered into an agreement with them to sell the goods for them and actually exposed for sale with public notice over his door that they were respondents' carriages there was no carrying on of business until some purchaser had positively purchased one of the carriages. There is a carrying on of business, in my opinion, when the goods are exposed for sale in a business shop or store by a servant or agent authorized for the purpose and the public invited to buy. Some observations of Lord Herschell in the case of Grainger & Son v. Gough
[Page 193]
above cited, at page 332, are pertinent. Speaking of the language used by one of the judges of the court of appeal, in that case, he says:—
Another member of the court seems to have regarded the finding" in the case that "the appellants are agents in Great Britain for the sale of Roederer's wine" as invoking a finding that sales by Roederer took place in this country. Standing by itself, the finding would probably have this meaning.
It is true that he finds that the whole facts of that case, when considered, shewed that the finding did not have such meaning. But, in this case, I cannot entertain any doubt, on the whole case, that the language of the case, read in the light of the agreement which forms part of it, justifies the finding that respondents were "doing business" in Halifax within the meaning of these words in the section of the charter before referred to.
I would therefore reverse the finding of the court below, answer the question put in the affirmative and allow the appeal with costs in this court and the court below.
Idington J.—This is an appeal from a judgment of the Supreme Court of Nova Scotia on what is said to be a stated case.
The so-called stated case is so meagre in what it presents as a case that I feel at a loss in dealing with it.
It is headed, as follows :
Stated Case.
In re, The Assessment of the McLaughlin Carriage Company, Limited, by the City of Halifax.
Then follows, without note or remark of any kind, a copy of a long agreement between the respondents
[Page 194]
and one Melvin in relation to the terms upon which he agrees to sell goods of respondents' making. Then there follows:
In pursuance of the terms of such agreement, the company shipped a number of carriages to said Melvin, who was a dealer in agricultural’ implements, etc., with premises on Bedford Row, Halifax, and, while some of said carriages were on Melvin's premises, the same were assessed, together with other property on the premises, at the regular rate as private property of Mr. Melvin.
Melvin had no other relation to the company than that created by the recited contract, but he exhibited a sign over his door, "The McLaughlin Carriage Company's Carriages."
Besides assessing the stock to Melvin, the assessors have imposed upon the company a special tax of $100, as a company doing business within the city. The company objects to pay such $100 special tax. The question for the court is,—"Is the company liable, under any Act or ordinance, to pay it?"
Dated, Halifax, N.S., March 19th, 1906.
F. H. Bell,
Acting City Recorder, City of Halifax.
W. F. O'Connor,
Solicitor for McLaughlin Carriage Co., Limited.
That is what is called the stated case which we are expected to pass upon.
It so happens that the Nova Scotia statutes of 1891, ch. 58 sec. 313, called "An Act to consolidate and amend the Acts relating to the City of Halifax" provide for a stated case being submitted by the Assessment Court of Appeal which hears ratepayers' appeals from their assessments.
Counsel for the respondents would, I think, have been right in his objections that the appeal would not lie if it had been, as he supposed, a submission under those provisions for referring at the request of a ratepayer to a judge. It would have fallen within the same class as The James Bay Railway Go. v.
[Page 195]
Armstrong, which we refused to hear last March. Assuming, as appellant's counsel shewed, that the statutory case was framed pursuant to order 33, Rule 1, of the Rules of the Supreme Court of Nova Scotia/ the appeal may lie. The majority of this court have held so. I should have preferred further consideration of the matter. I think the stated case ought to have shewn upon its face clearly the authority for the court before which it is submitted to hear such a case in order that the very foundation of our jurisdiction and theirs should appear.
If the reference by the stated case were something in the nature of making the court, without authority, co-assessors of the City of Halifax, I should not hear it.
If, however, it was intended to raise some question, such as appears in the cases of The City of London v. Watt & Son, and The Toronto Railway Company v. The City of Toronto approving the former and cases cited in both, it would be a proper case to submit, and for us to hear on appeal from the judgment thereon.
So long as the officers and courts specially designated to make and adjust assessments are, as they generally are, independent of, and as they ought to be, free from influence or direction by the municipal council, such a corporation has no right to interfere and, generally speaking, cannot be impleaded in any matter arising from a due discharge of the duty to be done by these special courts and officers.
In the meagre statement of this case, it is impossible to say how it came about, at what stage in the
[Page 196]
assessment proceedings, or in, or for what year, or at what time of the year the assessment in question was made, or if the city assessors or city had imposed the $100 as a rating, or city claims it in any way as a license fee, or raises the question of the right to assess a company, or corporation, or an agency, or because the company has an agency in Halifax or, in either case, is submitting an actual concrete case or merely an academic one.
The part of the sub-section 313 to which we have been referred and which we have to interpret, when amended, is as follows:—
Every other company, corporation, association or agency doing business in the City of Halifax (banks, insurance companies or associations and other corporations now exempt from taxation excepted) shall be assessed in respect of the real estate and personal property owned by said company, corporation or association, in the same way as the other, ratepayers of the City of Halifax are assessed, and shall, in addition thereto, pay an annual license fee of one hundred dollars. If the amount of such assessment should exceed a sum equal to one per cent. on the paid-up capital of any such company or corporation, it shall be reduced to an amount equal to one per cent. on such paid-up capital, which sum shall include the license fee. Every plate-glass insurance company, and the boiler inspection and insurance company of Toronto, shall only pay, under this section, a license of twenty-five dollars.
With respect, I cannot think the ejusdem generis rule has anything to do with interpreting this part of section 313, which evidently was, or ought to have been, intended for an independent sub-section. I do not discard, however, the rest of the section or other sections in that part of the Act, as amended, in trying to get at the meaning of the part I have quoted.
If a license fee is what we have to deal with, why should it be called, in the stated case, a tax? Why should it have been mixed up with the assessment? A license may be referred to as a tax, but every tax
[Page 197]
by way of assessment is not necessarily a license fee. The legislation blending these subject matters together is objectionable and makes the statute obscure. That obscurity is not removed but increased by the mode the case is framed.
I agree with Mr. Justice Russell that the statute imposing a tax must be construed strictly and should be expressed by clear and explicit language.
Do the words "agency" and "doing business" in the City of Halifax mean such a business as Mr. Melvin seems to carry on, or something else? He seems a sort of general agent and selling carriages is only one of the many things his agency business covers. I cannot help reading the word "agency" here as being applicable to that sort of agency Mr. Melvin himself is carrying on. Yet, I cannot imagine that he is the kind of party the City of Halifax is in pursuit of.
It is quite likely that when the city induced the legislature to frame this section as it is, the intention was to reach companies outside of Halifax, which had agencies engaged solely, or substantially only doing business for them in the City of Halifax.
Clearly, if this latter was, as I imagine, what was intended, the intention has not been expressed, and I have no right to interpret by my imagination but by what is said.
Again, the license fee is to be "in addition" to other rates imposed and seems to imply that it is applicable to such company or agency as may have such a footing in Halifax as to be assessed for some property. I think the test of whether the company to be reached was doing business of that substantial character as to be possessed of assessable property may well be considered.
[Page 198]
The company here in question does not seem ever to have had any property in Halifax to be assessed. The carriages have been assessed to Mr. Melvin, as the case shews.
For these reasons alone, I would be unable to find that the company in question came within the meaning of the Act.
Again, if we take the words "doing business" literallly, any company owning and assessed for a small lot in Halifax and getting a horse shod in that city might be accused of "doing business" there and require a license of $100 for the privilege of thus "doing business."
If these suggested interpretations be supposed fanciful, I can only say they are no more so than that which the appellant asks us to adopt. We are not, as in some cases, bound to find the true meaning. If we cannot find that this remarkable section means in law what the appellant claims, the matter ends.
Let us turn to the agreement and assume that the words "doing business" were intended to cover the case of a company carrying on business in Halifax, either as having its home and head-quarters there, or by establishing a business that might reasonably be treated as a branch or agency of a home business elsewhere. The agreement provides a means of selling goods to Mr. Melvin of Halifax, at Oshawa, to be by him re-sold in Halifax City or the County of Halifax, and, at the same time, securing payment therefor. Such seems to me the end of the transaction. He sells for such prices as he sees fit, for cash, or on credit, as he sees fit; but, if on credit, he must take notes to be approved of, and of a specific character, as security to the company; for he remains
[Page 199]
liable for the prices named to him. He can make such sales where he sees fit, in such shop, or out of shop, as he seems fit. He binds himself to sell at reasonable prices and not to sell other carriages as long as the company supply him with their make and must thoroughly canvass the assigned territory. He must pay freight and expenses as a purchaser would, where, as often happens, for security sake, the title remains in the company.
The company rents no premises, pays no rent, hires nobody, fixes no hours of labour, in short, controls nothing in the way of doing business except retaining, as security, the title to the goods. For the first year, which ended, 4th March, 1904, by way of provision for encouraging energetic work, something was to be allowed, and it was expressed, to help to pay rent. It might as well have been expressed for money spent on cigars during the first year. We are not shewn it had anything to do with tax or license fee for the year now in question. . The so-called commission might have been put as a discount for cash when paid.
I cannot find that a business which is so little under the control of the company, and carried on as I describe, can be said to be within the meaning of the words "doing business" in Halifax, and, looked at as meaning carrying on business there. I fear the appropriate illustration, respondents' counsel gave, of the methods by which sales are made of proprietary medicines, would not be the only instance to be found wherein the business community would be surprised, if such a "supplying of goods to another man as this company does to Melvin, would be interpreted as establishing an agency or carrying on business within
[Page 200]
a city elsewhere than at their home, within the meaning of this and similar statutes.
The company are manufacturers who do not seem desirous of becoming merchants as well. I have not failed to read appellant's factum, which asserts how:
that in practice the assessors of the city have confined this tax almost entirely to foreign companies doing a considerable business in the city without the possession in the city of much taxable property.
If the City of Halifax has, as this statement indicates, entrusted a discriminating option, in the making of the assessments, to the assessors, the zeal to tax foreign companies has outrun both law and discretion. If the legislature desires to prohibit anybody doing business in Halifax and has power to do so, it would be simpler to say so, and add the condition, "unless $100 first paid."
The reference in the agreement to Melvin as an agent suggests the case of Ex parte White, Re Nevill wherein, though in an entirely different connection, but on an analogous agreement, observations are made that have a pertinent application.
I think the appeal should be dismissed with costs.
Maclennan J. (dissenting).—I am of opinion that the appeal should be allowed.
I think the facts clearly establish that the defendants are a company doing business in the City of Halifax.
That being so, the only remaining question is whether section 313 of the city charter applies to them and I think it does.
[Page 201]
I think the words "every other company, corporation, etc.," cannot be held to mean companies ejusdem generis as those previously enumerated, that is, of the same nature as insurance and guarantee companies.
That is apparent from the express exception of banks, and corporations exempt from taxation, from those other companies which are made subject to the $100 tax.
In my opinion the respondents are subject to the $100 tax, and the appeal should be allowed with costs.
Duff J. concurred with the Chief Justice.
Appeal dismissed with costs.
Solicitor for the appellants: F. H. Bell.
Solicitor for the respondents: William F. O'Connor.
Email this Content