Supreme Court of Canada
Trenton (Town) v. Dyer, 24 S.C.R. 474
Date: 1895-05-06
The Municipal Corporation of
the Town of Trenton (Plaintiff) Appellant;
and
John S. Dyer and Others (Defendants)
Respondents.
1895: April 1; 1895: May 6.
Present: Sir Henry Strong C.J. and Fournier, Taschereau,
Sedgewick and King JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Statute—Directory or imperative requirement—Municipal
corporation—Collection of taxes—Delivery of roll to collector—55 V. c. 48 (O).
By s. 119 of the Ontario Assessment Act (55 V. c. 48)
provision is made for the preparation every year by the clerk of each
municipality of a “collector’s roll” containing a statement of all assessments
to be made for municipal purposes in the year, and s. 120 provides for a
similar roll with respect to taxes payable to the treasurer of the province. At
the end of s. 120 is the following: “The clerk shall deliver the roll,
certified under his hand, to the collector on or before the first day of
October.” * * *
Held, affirming the decision of the Court of Appeal,
that the provision as to delivery of the roll to the collector was imperative
and its non-delivery was a sufficient answer to a suit against the collector
for failure to collect the taxes.
Held also, that such delivery was necessary in the case
of the roll for municipal taxes provided for in the previous section as well as
to that for provincial taxes.
APPEAL from a decision of the Court of Appeal for Ontario,
reversing the judgment at the trial in favour of the plaintiff.
The action in this case was brought by the corporation of the
town of Trenton against the defendant Dyer, collector of taxes for the town,
and his sureties, the other defendants, to recover the amount alleged to be due
the town for taxes which Dyer should have
[Page 475]
collected but failed to do so. The defence was that no
collector’s roll had been delivered to Dyer as required by section 120 of the
Assessment Act, 55 Vic. ch. 48. This section and the construction claimed for
it by the respective parties appear in the judgments given on this appeal.
The case was tried before Armour C.J. who gave judgment in favour
of the corporation, which judgment was reversed by the Court of Appeal. The
corporation then appealed to this court.
Marsh Q.C. and Delaney for the appellant. The provision as
to delivery of the roll is grammatically a part of sec. 120, which deals with
provincial taxes only and by no rule of construction can it be held to apply to
the taxes mentioned in the previous section.
The provision is directory, not imperative. Caldow v. Pixell;
Lewis v. Brady; Parish
v. Golden.
Chute Q.C. and O’Rourke for the respondents sureties of
the collector, and Abbott for the respondent Dyer referred to Welland v. Brown;
Whitby v. Flint,
and Vienna v. Mair, in
support of their contention that the provision as to delivery of the roll was
imperative. They were not required to argue the other point as the court was
satisfied that the provision applied to local as well as provincial taxes.
THE CHIEF JUSTICE.—The only question for decision in this appeal
relates to the proper construction of the concluding paragraph of the 120th
section of the Ontario Assessment Act (now 55 Vic. cap. 48, formerly R.S.O.
1887, cap. 193). The respondent Dyer was in 1891 the collector for the town of
Trenton and his co-respondents were his sureties. This action was
[Page 476]
brought to make him liable for the taxes which it was alleged he
ought to have collected but had failed to collect.
The defence, so far as it is now material on this appeal, was
that he had not been furnished by the town clerk with a properly certified
roll. This action was tried before Chief Justice Armour without a jury, when
judgment was entered for the appellants. On appeal this judgment was reversed
by the Court of Appeal. Mr. Justice Burton dissented from the majority of the
court.
The 120th section is as follows:
All moneys assessed, levied and collected under any Act by
which the same are made payable to the treasurer of this province, or other
public officer for the public uses of the province, or for any special purpose
or use mentioned in the Act, shall be assessed, levied and collected in the
same manner as local rates, and shall be similarly calculated upon the
assessments as finally revised, and shall be entered in the collector’s rolls
in separate columns in the heading whereof shall be designated the purpose of
the rate; and the clerk shall deliver the roll, certified under his hand, to
the collector on or before the 1st day of October, or such other day as may be
prescribed by a by-law of the local municipality.
It was argued before us that this section had no reference to the
roll for purposes of local taxation, and that the requirement that the roll
should be certified by the clerk was only for the purpose of collecting
provincial taxes. This contention we disposed of at the conclusion of the
argument of the learned counsel for the appellant, the court holding that such
was not the true legal construction of the clause in question, but that the requirement
that the roll should be certified under the hand of the clerk applied as well
to municipal as to provincial taxes. The sole question which remains is,
therefore, whether the words “shall deliver the roll certified under his hand
to the collector” are imperative or directory only. The primâ facie
presump-
[Page 477]
tion, as well under the Interpretation Act as without it, is that
they are imperative. It is for the appellant to demonstrate that they are
directory merely. This has not in my opinion been done. I see a great
distinction between the provision as to the time of the delivery of the roll
and that as to the certificate of the clerk. The first may well be directory. A
failure to comply with it is in the power of the municipality to remedy and the
omission does not affect the ratepayers. Such is not the case, in my opinion,
as regards the want of authentication. If the object of requiring a certificate
only concerned the municipality itself and its officer, and could be regarded
as a mere direction to the clerk as to the course he was to pursue in
performing his duty to the municipality, I should have no difficulty in holding
it to be not obligatory. But is this so? Clearly not, for it concerns the
taxpayers that the person to whom they pay their taxes, and who may distrain on
their goods in case of non-payment, should be in possession of, and able to
produce to them, proper authority for those purposes. An unauthenticated list
of taxes, however formally made out in other respects, would not be such an
authority, and if on such a list taxes could be collected the ratepayers might
be called upon by a fraudulent collector to pay money as and for taxes never
legally imposed. The roll in effect operates as a warrant, and usage and
convenience alike require that such a document should bear upon its face some
authentication or certificate to show that it was regular, and that it emanated
from the official who had authority to issue it. I think therefore we must
consider the provision as one introduced for the protection of the ratepayers
and therefore obligatory. The cases of Whitby v. Harrison
and Whitby v. Flint,
referred to in the judgment of the learned Chief Justice of Ontario,
[Page 478]
are both authorities in support of this view, though in neither
of them was the point now raised actually decided. It was, however, decided by
these cases that the authority of the collector to collect the taxes did not
depend on his appointment but on the receipt of such a roll as the statute
requires, and the language of both the Chief Justices who gave the judgments in
those cases certainly implies that they considered that the roll to be valid
should be certified. Then a roll not authenticated by the signature of the
clerk is not such a roll as the statute requires. The case of Vienna v. Marr
was in my opinion well decided, and shows that the collector was not bound to
act under an uncertificated roll. The case of Welland v. Brown,
on which it was determined that the signature of the clerk without any formal certificate
was sufficient, is not in any way inconsistent with this view, but on the
contrary that case also implies that the court considered such a signature to
be necessary. I am compelled with much respect to dissent from the view of Mr.
Justice Burton that the omission of the statute to make some provision for the
case of the incapacity or death of the clerk, which latter event was in the
present case the reason why the omission could not be remedied, is a reason why
we should not hold signing to be imperative. I think we must rather regard that
as casus omissus, and that it is an insufficient reason for holding that
the payment of taxes may be enforced under a roll which upon the prima facie
meaning of the words of the statute is a nullity.
The appeal must be dismissed with costs.
FOURNIER J. concurred.
TASCHEREAU J.—I am of opinion that this appeal should be
dismissed. The reasoning of Hagarty C.J. and
[Page 479]
Maclennan J. in the Court of Appeal is unanswerable. Dyer never
was vested with the right to collect the taxes, for the reason that the clerk
never delivered to him the roll certified under his
hand as required by the statute. He was in the position of a
police officer, bearer of a warrant which is not signed by the magistrate, or
not evidenced by seal where that is required. Archibald v. Hubley;
Cotter v. Sutherland; Morgan
v. Quesnel; Reg.
v. Chapman. I do
not attach much importance to the word “shall” in sec. 120, c. 193 R.S.O. The
definition of the words “shall” and “may” in the Interpretation Act is taken
from the school books.
It is hard case law that though the statute decrees that a
certain thing “shall” be done, it “may” not be done, or need not be done, and
I, for one, will always restrict the application of that law within the narrowest
possible limits.
I do not exactly see, however, that there is here room for the
controversy raised by the parties as to the construction to be given to that
word “shall” in this part of the statute. The words “and the clerk shall
deliver the roll certified under his hand” are clearly imperative. As to the
delivery of the roll that is not questioned, The only question that remains,
then, is: What roll is it that he has to deliver? And to this question the
enactment, to my mind, leaves room but for one answer, that is “the roll
certified under his hand,” under the hand of the clerk. Or, in other words, I
read the clauses 120 and 122 simply as if they said: “The collector, upon
receiving the collector’s roll certified by the clerk, shall proceed to collect
the taxes.” So long as he has not received the roll so certified he is without
authority to act. This roll, whilst in the clerk’s hands, before being so
certified and delivered, is not yet a “roll” as to the collector, a
[Page 480]
completed roll. It is only by the certificate and delivery, that
it becomes efficacious for the purpose of collecting the rates, that it gets
vitality. Before that it is an inchoate document which confers no power
whatever on the collector. And the genuineness of a document of this nature
must be self apparent. It must bear some mark of attestation. Upon general
principles a public officer who, in the name of the law, claims the right to
intrude upon the private rights of his fellow citizens, and the power to force
them to obey his commands, must be prepared, when required, to satisfy them of
his authority. And, to my mind, an unattested document like the one delivered
to Dyer in this case is not intrinsically a voucher of authenticity sufficient
for that purpose in the collector’s hands. It lacks what is called, in the
civil law, the solemnia probantia, necessary to make it what it should
be, probationem probatam.
Great stress was put by Mr. Marsh at the argument on the point,
not raised in the court below I understand, that upon the true construction of
section 120 this enactment as to the roll being certified applies only to cases
in which taxes are being collected for provincial purposes, and not to cases,
as the present one, provided for in the preceding section, where taxes are to
be collected for municipal purposes only, and the appellant’s factum, in a full
historical review of the legislation on this particular part of the Municipal
Act, has apparently established his proposition, that from the introduction of
municipal institutions into the province, down to 1853, the roll was a
sufficient authority for the collector, though not signed or certified by the
clerk. He has failed, however, to convince me that in the statute, as it stands
in the Revised Statutes of 1887, which rules this case, the provision of
section 120, that the roll must be certified under the hand of the collector,
does not apply to the roll mentioned in section 119, that is to say, to the
roll for municipal taxes. There is
[Page 481]
only one roll provided for, not two rolls, one for municipal
taxes and another for provincial taxes, as the appellant’s contention would
import.
It has also been urged for the appellant, though, it seemed to
me, not much relied upon, that as the provision in that same sentence of the
statute as to the time within which the clerk was to deliver the roll to the
collector had been held to be directory,
therefore the provision as to the signature of the clerk should also be treated
merely as a directory one. But I do not see anything in this argument. There is
no objection whatever that I can see in the enacting of two provisions in the
same sentence of a statute, one imperative, and the other directory, though it
may lead to controversy. Here the date is immaterial. What difference does it
make to the rate-payer that the roll be handed over to the collector on the
second of October, instead of on the first?
And the delivery is not a preparatory matter. It is something
that happens after it is completed and signed. Whilst the attestation is, to my
mind, an essential requisite of that document to confer any power on the
collector; it is
a condition precedent to an effectual delivery.
The holdings in the cases of Whitby v. Harrison,
and Whitby v. Flint,
assuming them to be law, do not support the appellant’s case. I would be
inclined to think that, if they bear at all on the case, it is more in the
respondent’s favour than in the appellant’s.
SEDGEWICK and KING JJ. concurred.
Appeal dismissed with costs.
Solicitor for appellant: H.W. Delaney.
Solicitors for respondent Dyer: Ostrom & Abbott.
Solicitor for other respondents: T.A. O’Rourke.
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