Canadian Pacific Railway Co. v. City of Quebec, (1899) 30 SCR 73

Supreme Court of Canada

Canadian Pacific Railway Company v. City of Quebec; Grand Trunk Railway Company v. City of Quebec, (1899) 30 SCR 73

Date: 1899-06-05

THE CANADIAN PACIFIC RAILWAY COMPANY (PLAINTIFF)

Appellant;

And

THE CITY OF QUEBEC (DEFENDANT)

Respondent.

THE GRAND TRUNK RAILWAY COMPANY OF CANADA (PLAINTIFF)

Appellant;

And

THE CITY OF QUEBEC (DEFENDANT)

Respondent.

1899: May 16; 1899: June 5

PRESENT:—Sir Henry Strong C.J. and Taschereau, Gwynne, King and Girouard. JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA, APPEAL SIDE.

Municipal corporation —Railways—Taxation—By-laws—Construction of statute—Voluntary payment—Action en répétition—29V. c. 57 s, 21 (Can.)—29 & 30 V. c. 57 (Can.)

The statute, 29 Vict. ch. 57, (Can.), consolidating and amending the Acts and Ordinances incorporating the City of Quebec, by subsection 4 of section 21, authorises the making of by-laws to impose taxes on persons exercising certain callings, a and generally on all trades, manufactories, occupations, business, arts, professions or means of profit, livelihood or gain, whether hereinbefore enumerated or not which now or may hereafter be carried on exercised or in operation in the city; and all persons by whom the same are or may be carried on, exercised or put in operation therein, either on their own account or as agents for others; and on the premises wherein or whereon the same are or may be carried on, exercised or put in operation."

Held, that the general words of the statute quoted are sufficiently comprehensive to authorise the imposition of a business tax upon railway companies; and, further that the power thus conferred might be validly exercised by the passing of a by-law to impose the tax in the same general terms as those expressed in the statute.

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Held, per Strong C. J., that where taxes have been paid to a municipal corporation voluntarily and with knowledge of the state of the law and the circumstances under which the tax was imposed no action can lie to recover the money so paid from the municipality,

Judgment of the Court of Queen's Bench (Q. R. 8 Q. B. 246) affirmed.

APPEALS from the judgments of the Court of Queen's Bench for Lower Canada, appeal side ([1]), reversing the decisions of the Superior Court, District of Quebec and dismissing the respective actions with costs.

The Act consolidating the statutes respecting the incorporation of the City of Quebec ([2]) by its twenty-first section empowers the city council to levy taxes on persons and companies exercising a number of trades, occupations and callings which are specially enumerated in the fourth sub-section of the section referred to, and also, g generally on all trades, manufactories, occupations, business, arts, professions or means of profit livelihood or gain " whether therein-before enumerated or not, which might at the time of the passing of the Act or thereafter "be carried on exercised or in operation in the city; on all persons by whom the same are or may be carried on exercised or put in operation therein either on their own account or as agents for others, and on the premises wherein or Whereon the same are or may be carried on exercised or put in operation." The city council passed a by-law under the provisions of the Act imposing taxes upon the various callings therein enumerated, and also, in general terms, using the phraseology of the Act as quoted, on all trades, manufactures, occupations, business, arts and professions which then or thereafter might be carried on or exercised in the city. At that time there were no railways within the city limits, but the Grand Trunk Railway Company occupied

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within the city certain wharves and premises for the purpose of receiving and delivering freight, issuing passenger tickets and receiving and delivering bag-gage, and the Canadian Pacific Railway Company subsequently entered the city and carried on business there in the usual manner. Although railway companies were not mentioned in the by-law the companies were, from the time they commenced to do business in the city included in the assessment rolls as liable for the business tax imposed by the by-law and, upon the advice of counsel the companies paid the taxes so imposed for a number of years. They now seek to recover the taxes so paid as moneys illegally collected by the city and paid by them under misapprehension and without cause,

The companies respectively recovered judgments against the city in the Superior Court, but these judgments were reversed upon appeal by the Court of Queen's Bench, and the present appeals ask for the restoration of the judgments rendered in the trial court.

The appeals were heard together by consent of parties.

Stuart Q.C. for the appellants. The statute, 29 Vict. ch. 57 does not authorise the imposition of any tax on railway companies, which are not to be found in the enumeration of sub-section 4 of sec. 21 nor can they be included, by any sound rule of interpretation, in the general expressions which follow such enumeration. None of the subsequent statutes amending the above or ratifying what was done under it, conferred this power,

Even if the City of Quebec had had the power, it did not in the by-law impose a business tax on the railway companies neither of which were then being operated within the city limits. A municipality

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cannot tax a specific business, nor any class of citizens in any but express language, clearly designating it. Words of general purport will not suffice. See Cooley on Taxation, pp. 887 and 574, as to municipal powers to tax; Acer v. DeMontigny ([3]); McManamy v. City of Sherbrooke ([4]).

The payment to the city treasurer was made through error and was not due. The case is stronger than condiclio indebiti it is conduction sine causâ. The assessments were not only voidable, they were radically and absolutely null and void. On the appellants right to recover see arts. 1047 1140 C. C.; arts. 1235 1376 C. N.; 4 Aubry & Rau, pp. 727, 739 (442, 442 bis); Pothier, Obligations, n. 42; Leprohon v. Le Maire, etc., de Montréal ([5]); Les Ursulines des Trois Rivières v Commissaires d'Ecoles de la Rivière du Loup ([6]); Baylis v. Mayor, etc., of Montreal ([7]); Rohdt v. Gagnon ([8]) city of Montreal v. Walker ([9]); corporation of Quebec v. Caron ([10]); Dubois v. Corporation d'Acton-Vale ([11]); Bell Telephone Co. v. Town of Summerlea ([12]).

Sir A. P. Pelletier Q.C. for the respondent. The omission of any specific reference to railway cornpones in the statutes, as well as in the by-law may be accounted for by the fact well known to all parties that there were then no railways entering the city, but the general words used both in the statutes and in the by-law are wide enough to include companies carrying on the business of railway carriers, and contain no exceptions in their favour The statutes passed by the old Province of Canada are clearly intra vires and sufficient to authorise the business tax" levied and the by-law validly imposes the tax by using the

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general terms of the Act, verbatim. The railway companies suffered no injustice. The same business tax is imposed upon all other traders, who might complain if the appellants were not taxed. The appellants have no right to exemption or discrimination in their favour. As to the payment, it was voluntarily made with full knowledge of the facts and there was no mistake of law. The evidence shows that both appelants paid the tax because their legal advisers had certified it as correct according to the by-law and the law authorising it and considered the tax legally imposed and due. The action en répétition lies only in case of payment sine causâ. Pothier (ed. Bugnet) vol 5, no. 142, 157; Bain v. City of Montreal ([13]); Grantham V. City of Toronto ([14]); Beach on Corporations, nos. 230, 231, 234, 235, 1190, 1191, 1636; Dillon on Corporations, nos. 940-947; Lee v. Templeton ([15]); Rolland de Vil-largues, Rep. Jur., vo. " Répétition de lindu," no. 54; 20 Laurent, no. 353.

The judgment of the court was delivered by:

The Chief Justice.—We are all of opinion that

there is no error in the judgment of the Court of Queen's Bench, and that this appeal must be dismissed.

The general words of the 4th subsection of section

21 of 29 Vict. cap. 57 are sufficiently comprehensive to authorise the city to impose the tax known as “the business tax” upon railway companies, although such companies are not specifically mentioned in the enactment.

The French version of the Act is as follows:

Et généralement sur tous commerces, manufactures, occupations, affaires, arts, professions, ou moyens de profit ou de subsistance, qu'ils-soient énumérés ci-dessus ou non qui sont maintenant ou qui seront.

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par la suite faits, exercés ou en opération dans Ia dite cite, pour eux-mêmes ou comme agents pour d'autres, et sur toutes personnes par qui ils peuvent être ou seront faits, exercés ou mis en opération dans la dite cite au taux de trentes piastres par cheque quatre cents piastres de la valeur annuellement cotisée du local occupé par toute telle personne ou société de personnes pour les fins susmentionnées, et à raison du même taux pour chaque somme plus grande ou plus petite de la valeur estimée comme susdit Pourvu que nulle personne ou société de personnes ne sera sujette à la taxe ci-dessus spécifiée pour une occupation ou affaire déjà assujettie à la taxation en vertu de présent règlement, ou pour ou à raison de laquelle la dite personne ou société de personnes est déjà spécialement taxée ou cotisée en vertu de ce règlement.

These general words are manifestly not intended to be interpreted narrowly, and on the principle of the maxim “noscitur a socials “restricted to trades occupations and business analogous to such as be specifically mentioned. The words " qu'ils soient enumeres cidessus on non " indicate this very plainly. The object was to make the law as comprehensive as possible so as to include any business or occupation which might thereafter he established in the City of Quebec, though at the date of the statute unknown there or indeed not followed anywhere. So soon as a new business was established in the city then the power to tax it was to apply. The law would otherwise have been grossly unfair for its effect would have been to exempt persons and companies carrying on a new line of business not expressly mentioned and whose introduction could not have been foreseen. At the time the Act was passed, in 1866, there was no railway company carrying on business in the City of Quebec.

Then it is further objected that the by-law No. 200 passed on the 27th March, 1867, was illegal by reason of the generality of its terms which are an exact trans-script of those of the statute. It would be sufficient to say in answer to this that if the statute authorised the city to tax railway companies by the general terms

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used, the city council sufficiently exercised that power when by the same general words they imposed the Lax.

However that may be, the amending Act 29 & 30 Vict. cap. 57, although it leaves the question of the interpretation of the original statute just as it was, and does not furnish any assistance in determining whether railway corporations were included in its general terms; does certainly remove any objection to the bylaw founded on the generality of the terms in which it was expressed.

The question therefore is just reduced to the single one whether railway companies were included in the general terms of section 2 of the Act of 1866. As already stated we think they were so included.

Speaking for myself alone I am further of opinion that even if the points on the construction of the statute and as to the validity of the by-law were to be decided favourably to the appellant we should still have no alternative but to dismiss the appeal inasmuch as the payments of the taxes of which répétition is sought by this action were purely voluntary, made as appears from the depositions in the record with a full knowledge of the state of the law and of all the facts According to my view of the law money so paid for taxes or assessments to municipal corporations cannot be recovered back

The appeal is dismissed with costs.

N0te.Thss judgment also applies to the similar appeal in the case of The Grand Trunk Railway Co v. City of Quebec.

Appeals dismissd with costs.

Solicitors for the appellants: Caron, Pentland & Stuart.

Solicitors for the respondent: Pelletier & Chouinard.