Martin,
J.A.:—The
plaintiff
is
a
company
engaged
in
the
manufacture
and
sale
of
lumber.
Its
head
office
is
located
in
the
city
of
Winnipeg,
in
the
province
of
Manitoba,
but
it
has
a
licence
to
carry
on
business
in
the
province
of
Saskatchewan,
and
does
carry
on
business
at
Peesane,
in
this
province.
In
the
years
1923
and
1924,
a
firm
known
as
Turnbull
&
Barnum
carried
on
the
business
of
lumber
manufacturers
at
Peesane,
and
sold
their
entire
product
to
the
plaintiff
company.
In
these
years
Turnbull
&
Barnum
were
taxed
in
the
sum
of
$81,
in
each
year
by
the
defendant
municipality,
on
their
"sawmills
and
business’’.
Late
in
the
year
1924,
Turnbull
&
Barnum
leased
their
sawmills
at
Peesane,
together
with
all
equipment,
and
lands
upon
which
the
same
were
situated,
to
the
plaintiff.
The
taxes
assessed
for
the
years
1923
and
1924
were
not
paid
by
Turnbull
&
Barnum,
and
in
the
year
1925,
while
the
plaintiff
was
in
occupation
of
the
sawmill
and
equipment,
the
defendant
municipality
distrained
for
the
sum
of
$241.25
which
included
the
taxes
in
arrears
for
1923
and
1924,
together
with
penalties
and
costs
of
distress.
As
the
seizure
seriously
-interfered
with
the
operations
of
the
plaintiff,
the
manager
at
Peesane
paid
the
secretary-treasurer
of
the
municipality
the
amount,
in
order
to
have
the
seizure
released.
The
cheque
given
in
payment
contained
on
the
front
thereof
the
written
words,
""In
payment
of
taxes
paid
under
protest.’’
The
circumstances
under
which
this
payment
was
made
by
the
plaintiff
will
be
more
particularly
referred
to
hereinafter.
In
the
years
1925
and
1926,
the
plaintiff
operated
the
sawmill
and
planing
mill
in
the
manufacture
of
lumber,
and
it
appears
that
the
lumber
produced
at
Peesane
was
sold,
under
the
direction
of
the
head
office
at
Winnipeg,
to
lumber
dealers
in
Western
Canada
and
the
United
States.
In
both
years
1925
and
1926
the
defendant
municipality
assessed
the
plaintiff
in
respect
of
"‘stock
in
trade’’,
which
was
valued
for
taxation
purposes
at
$15,000.
The
amount
of
taxes
levied
in
the
year
1925
was
$400,
and
for
1926,
$381.75.
These
assessments
were
made
under
the
provisions
of
The
Rural
Municipality
Act,
R.S.S.
1920,
c.
89,
and
amendments
thereto.
The
plaintiff
refused
to
pay
the
taxes
levied
in
these
years,
and
in
the
month
of
August,
1927,
the
defendant
caused
to
be
seized
7,500
feet
of
lumber
in
and
around
the
sawmill,
which
lumber
appears
to
have
been
valued
at
$1,900.
The
amount
of
distress,
including
taxes,
penalties
and
costs,
was
$891.92.
The
plaintiff
then
commenced
this
action,
claiming
a
return
of
the
lumber,
or
payment
of
its
value,
and
also
repayment
of
the
sum
of
$241.25,
paid
for
the
taxes
levied
against
Turnbull
&
Barnum
in
the
years
1923
and
1924.
No
claim
is
made
for
excessive
distress.
A
writ
of
replevin
was
obtained,
and
the
lumber
seized
was
restored
to
the
plaintiff.
The
learned
trial
Judge
gave
judgment
for
the
plaintiff
for
the
return
of
the
lumber,
and
directed
repayment
to
the
plaintiff
of
the
sum
of
$241.25,
and
interest
thereon
at
the
rate
of
5
per
cent
per
annum
from
July
7,
1925,
together
with
the
costs
of
the
action.
From
this
judgment
the
defendant
has
appealed.
The
provisions
of
The
Rural
Municipality
Act
applicable
and
in
force
at
the
time
the
assessments
were
made
in
1923
and
1924,
are
contained
in
secs.
228,
229,
232
and
233,
of
the
Act
and
certain
amendments
thereto.
Secs.
228
and
229
were
amended
by
e.
39
of
the
Statutes
of
1921-22.
Sees.
15
and
16,
and
as
amended
are
as
follows
:
“15.
Section
228
is
repealed
and
the
following
substituted
therefor
:
“
‘228.
Subject
to
the
provisions
hereinafter
contained,
the
municipal
taxes
shall
be
levied
upon
land,
buildings
and
stock
in
trade.’
‘16.
Paragraph
9
of
section
229
is
repealed
and
the
following
substituted
therefor
:
"‘9.
Stock
in
trade
of
a
mercantile
business
carried
on
in
the
municipality,
to
the
extent
of
$300.’
‘‘
Sec.
232
is
amended
as
follows:
“As
soon
as
may
be
in
each
year
but
not
later
than
the
first
day.
of
July,
the
assessor
shall
assess
either
the
owner
or
occupant
of
every
parcel
of
land
in
the
municipality
and
every
person
who
is
engaged
in
mercantile
business
in
the
municipality
and
is
owner
of
a
stock
in
trade
liable
to
assessment,
and
shall
prepare
an
assessment
roll
in
which
shall
be
set
out
as
accurately
as
may
be
”’
And
sec.
233,
subsec.
(7),
is
as
follows:
‘“Wherever
One-
or
more
persons
are
engaged
in
mercantile
business
in
the
municipality
the
stock
in
trade
of
such
business
shall
be
assessed
at
sixty
per
cent.
of
its
fair
actual
value
and
the
name
of
each
such
person
shall
be
entered
on
the
assessment
roll
in
respect
of
his
share
or
interest
in
the
business;
but
grain
in
an
elevator
shall
not
be
assessed
as
stock
in
trade.”
In
1923
and
1924,
Turnbull
&
Barnum,
according
to
the
assessment
roll,
were
assessed
for
"‘sawmills
and
business’?
at
a
valuation
of
$9,000,
the
taxes
in
each
year
being
$81.
Under
sec.
228
of
the
Act,
taxes
are
to
be
levied
on
"‘land,
buildings
and
stock
in
trade’’,
and
sec.
232
provides
that
the
assessor.
shall
assess
every
person
who
is
either
the
owner
or
occupant
of
land
in
the
municipality,
or
is
engaged
in
mercantile
business
in
the
municipality
and
is
the
owner
of
a
stock
in
trade
liable
to
assessment.
The
assessment
levied
against
the
business
of
Turnbull
&
Barnum
in
1923
had
no
foundation
in
the
Act,
was
without
jurisdiction,
and
was,
therefore,
void
ab
initio.
The
assessment
of
the
sawmills,
in
my
opinion,
was
authorized
by
the
statute,
as
prima
facie
a
sawmill
falls
within
the
meaning
of
the
word
“buildings”.
It
is
not
necessary,
however,
in
the
view
I
take
of
the
claim
of
the
plaintiff
to
recover
the
sum
of
$241.25,
to
pursue
the
question
further,
because
the
payment
in
question
was,
according
to
the
evidence,
made
by
the
plaintiff
as
agent
of
and
on
behalf
of
Turnbull
&
Barnum,
and
the
plaintiff
has
no
status
to
ask
for
the
recovery
of
the
amount.
The
secretary-treasurer
of
the
municipality
was
present
on
the
occasion
when
payment
was
made
by
one
Sanderson,
the
manager
of
the
plaintiff
at
Peesane,
and
received
the
cheque
from
him.
In
his
evidence
he
states
that
Turnbull,
one
of
the
firm
of
Turnbull
&
Barnum,
was
present,
and
that
Sanderson
advised
him
(Turnbull)
to
pay
the
taxes,
and
that
Turnbull
said
that
he
did
not
have
the
money
to
pay.
Sanderson
then
stated
to
Turnbull
that
he
would
pay
the
taxes,
if
he
(Turnbull)
would
repay
the
amount,
and
Turnbull
promised
that
he
would.
On
receiving
this
assurance,
Sanderson
prepared
a
cheque
and
handed
the
same
to
the
secretary-treasurer,
with
the
result,
of
course,
that
the
seizre
of
the
municipality
on
the
equipment
of
the
sawmill
was
released.
This
evidence
is
not
contradicted,
and
it
would
appear
from
it
that,
if
any
one
has
a
right
of
action
against
the
municipality
for
the
recovery
of
the
sum,
it
is
Turnbull
&
Barnum
who
were
the
principals
in
the
transaction.
An
agent
has
no
cause
of.action
upon
a
contract
made
by
him
merely
in
his
representative
capacity,
except
where
he
is
entitled
to
a
lien
upon,
or
has
a
specific
property
in
the
subject-matter
of
the
contract,
or
has
some
beneficial
interest
in
the
completion
thereof.
On
the
hearing
of
the
appeal,
defendant’s
counsel
asked
leave
to
plead
sec.
73
of
The
Arrears
of
Taxes
Act,
1926,
ce.
25
of
the
Statutes
of
1925-26.
This
section
provides
that
no
action
for
the
return
by
the
municipality
of
moneys
paid
to
it,
either
under
protest
or
otherwise,
on
account
of
a
claim,
whether
valid
or
invalid,
made
by
the
municipality
for
taxes,
shall
be
commenced
after
the
expiration
of
six
months
after
the
payment
of
such
moneys.
In
view
of
the
conclusion
I
have
reached,
to
the
effect
that
the
plaintiff
has
no’status
to
ask
for
the
return
of
the
amount
of
$241.25,
it
is
not
necessary
to
consider
the
application
made
to
amend
the
statement
of
defence
by
setting
up
the
section
of
The
Arrears
of
Taxes
Act,
1926.
The
assessment
made
against
the
plaintiff
in
the
year
1925
was
on
"
1
stock
in
trade’’,
valued
at
$15,000.
While,
under
the.
provisions
of
sec.
228,
taxes
are
to
be
levied
on
‘‘lands,
buildings
and
stock
in
trade”,
sec.
232
provides
that
the
assessor
shall,
not
later
than
July
1,
assess
every
person
who
“is
engaged
in
mercantile
business
and
j
is
the
owner
of
a
stock
in
trade
liable
to
assessment’’.
It
is
only
a
person,
therefore,
who
carries
on
a
mercantile
‘business
whose
stock
in
trade
is
liable
to
assessment,
and
under
the
provisions
of
sec.
229,
subsec.
(9),
as
amended
by
sec.
16
of
ce.
39
of
the
Statutes
of
1921-22,
such
stock
in
trade
is
exempt
to
the
extent
of
$300.
The
plaintiff,
therefore,
was
assessable
for
its
stock
in
trade,
consisting
of
lumber,
if
engaged
in
“mercantile
business’’.:
As
pointed
out
above,
the
plaintiff
was
carrying
on
the
manufacture
of
lumber
out
of
logs,
procured
by
it
in
the
vicinity,
and
the
lumber
so
manufactured
was
sold
to
dealers
throughout
Western
Canada
and
the
United
States.
There
is
no
evidence
that
the
plaintiff
was
engaged
in
retailing
lumber
to
persons
residing
in
the
vicinity
of
Peesane,
where
the
sawmill
was
located.
In
Murray
f
s
New
English
Dictionary,
vol.
6,
the
word
"‘mer-
e’’
is
defined
as
follows:
"‘Of
or
belonging
to
merchants
or
their
trade;
concerned
with
the
exchange
of
merchandise;
of
or
pertaining
to
trade
or
commerce,
commercial
;
engaged
in
trade
or
commerce
having
trade
or
gain
as
a
motive.’
And
the
word
"
merchant
‘
‘
is
defined
as:
‘‘One
whose
occupation
is
the
purchase
and
sale
of
marketable
commodities
for
profit,
originally
applied
to
any
trader
in
goods
not
manufactured
or
produced
by
himself
;
but
from
an
early
period
restricted
to
wholesale
traders,
and
especially
to
those
having
dealings
with
foreign
countries.’’
See
also
Corpus
Juris,
vol.
9,
p.
1106,
and
vol.
40,
pp.
634
and
635.
I
do
not
think
that
the
words
‘‘mercantile
business’’
can
be
held
to
include
the
business
which
was
being
carried
on
by
the
plaintiff
in
the
year
1925.
According
to
the
evidence,
the
plaintiff
was
engaged
in
the
purchase
of
logs,
manufacturing
the
logs
into
lumber,
and
distributing
the
product
to
the
trade.
In
construing
a
statute,
the
grammatical
and
ordinary
sense
of
the
words
is
to
be
used,
unless
this
leads
to
absurdity,
or
some
repugnancy
or
inconsistency
(Maxwell’s
Interpretation
of
Statutes,
6th
ed.,
p.
4).
Moreover,
the
provisions
in
question
impose
taxation
upon
the
subject,
and
such
enactments
are
strictly
construed.
In
order
to
justify
taxation,
the
subject
of
assessment
must
fall
clearly
within
the
provisions
of
the
enact-
ment.
(Tennant
v.
Smith
[1892].
A.C.
150,
at
154,
61
L.J.P.C.
11,
66
L.T.
327,
56
J.P.
596;
Ottawa
v.
Egan
[1923]
S.C.R.
304,
at
312;
Maxwell’
s
Interpretation
of
Statutes,
6th
ed.,
pp.
223
and
504).
The
plaintiff,
in
my
opinion,
was
not
liable
to
be
assessed
for
“stock
in
trade’’
in
1925;
there
was
no
jurisdiction
in
the
municipality
to
make
the
assessment,
and
it
was
therefore
void
ab
initio
(London
v.
Watt
6'-
Sons
(1893)
22
S.C.R.
300;
Toronto
Ry.
v.
Toronto
Corp.
[1904]
A.C.
809,
73
L.J.P.C.
120;
North
Battleford
v.
Brehaut,
13
Sask.
L.R.
202,
[1920]
1
W.W.R.
1053;
Chant
v.
Regina,
19
Sask.
L.R.
188,
[1925]
1
W.W.R.
65,
at
75).
As
to
the
assessment
of
the
stock
in
trade
in
1926,
sec.
228
of
the
Act
was
amended
by
c.
21
of
the
Statutes
of
1925-1926,
sec.
12,
which
came
into
force
on
April
1,
1926.
The
section
as
amended
is
as
follows
:.
"Subject
to
the
provisions
hereinafter
contained,
the
municipal
taxes
shall
be
levied
upon
land,
buildings
and
business.
‘
‘
And
sec.
232
was
amended
in
the
same
year
by
e.
26,
sec.
14,
and
reads
as
follows
:
"As
soon
as
may
be
in
each
year
but
not
later
than
the
first
day
of
July
the
assessor
shall
assess
either
the
owner
or
the
occupant
of
every
parcel
of
land
in
the
municipality
and
every
person
who
is
engaged
in
mercantile,
professional
or
any
other
business
in
the
municipality
save
that
of
a
farmer,
stock
raiser
or
person
otherwise
engaged
in
agricultural
pursuits,
and
shall
prepare
an
assessment
roll
in
which
shall
be
set
out
as
accurately
as
may
be
..
.”’
Under
these
provisions,
"‘stock
in
trade’’
is
not
assessable,
and
instead
of
an
assessment
of
stock
in
trade
an
assessment
on
‘‘business’’
is
provided.
The
assessment
of
the
plaintiff’
S
stock
in
trade
for
the
year
1926
was
made
under
the
provisions
of
the
sections
as
amended,
and
as
stock
in
trade
was
not
assessable
under
these
provisions,
there
was
no
Jurisdiction
in
the
municipality
to
make
such
assessment
and
it
was
therefore
void
ab
initio.
In
the
result,
the
judgment
below
should:
be
varied
by
dismissing
the
claim
of
the
plaintiff
for
the
sum
of
$241.25.
In
other
respects
the
judgment
should
be
affirmed.
The
defendant
is
entitled
to
the
costs
of
the
appeal,
and
there
should
be
a
set-off.
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