In Re Enns v. Town of Indian Head., [1938-39] CTC 229

TURGEON, C.J.S. :—For several years before May 1, 1937, the town of Indian Head, like other towns, was governed by ch. 104 of the Revised Statutes of Saskatchewan, 1930, known as The Town Act. Sees. 462, 468 and 464 of this statute dealt with the subject of a poll tax. They provided that, saving certain exempted classes, every male person of the age of 21 years or upwards who had been a resident of the town for at least three months during the then current year prior to October 31, and who was not assessed upon the last revised assessment roll, should be liable to pay a poll tax of $2. The statute went on to say that the said poll tax might be collected at any time after June 1. But it was further provided that a town might, by resolution passed at any time previous to June 1 in any year, determine that the poll tax should not be imposed for that year. The effect of these provisions was to make the tax payable on the demand of the town authorities at any time after June 1, each year, provided the council had not previously adopted a resolution dispensing with the impost.

This ch. 104 of the Revised Statutes was repealed in 1937 by ch. 28 of the statutes of that year, which came into force on May 1, one month before the time had come for the collection of the tax imposed by the repealed statute, and also one month before the time had elapsed during which the council might have decided not to collect the tax that year. It follows therefore that the repeal of the old statute and the coming into force of the new one took place one month before the tax provided by the former had become payable by any person.

The new statute, The Town Act, 1937, now in force, contains provisions for the imposition of a poll tax which are of a different character from those of the repealed statute. It is now provided (see. 477) that the council of any town "‘may by bylaw require that every person of the age of twenty- one years and upward [with certain exemptions] who has been a resident of the town for at least six months during the then current year prior to the first day of October, and who is not on the last revised assessment roll, shall pay a poll tax of $5.’’

On August 2, 1937, the town of Indian Head, purporting to act under the authority of the new statute, passed a by-law imposing this poll tax of $5 for the current year of 1937. The respondent Cornelius Enns, a resident of the town of the class affected by this by-law, if it is validly enacted, refused to pay the tax, on the ground that the town had no power to make the by-law applicable to 1937, but only to future years. Action was taken against him by way of summary proceed- ings before a justice of the peace (sec. 480). Enns was convicted and ordered to pay the tax and also the costs amounting to $4.20. It was further ordered that in default of payment of the fine and costs he be imprisoned for seven days.

Enns then applied to a Judge of King’s Bench in Chambers for an order of certiorari with a view to having the conviction quashed. He was successful in his application and an order was granted quashing the conviction. The learned Judge in a short written judgment said that in granting this order he was following the decision in the Alberta case of Hardy v. Edmonton [1924] 3 W.W.R. 936.

I think, with great deference, that the facts before the Alberta Court in the case referred to were so different from those before us here as to make the two cases readily distinguishable from each other. The tax in question in Alberta was known as the “service” tax. By virtue of The Edmonton Charter, 1913, ch. 23, and of a by-law passed under its authority in 1921 and continuing in force from year to year, a service tax of $100 for the year 1924 (the maximum allowed) became due and payable on January 1 of that year. By a statutory amendment which became law on April 12, 1924, the city was authorized to increase the maximum service tax to $250. The city, purporting to act under the authority of this amendment, passed a by-law on May 5, 1924, increasing the tax to $250 for the then current year and making it collectible on August 1. Walsh, J. held that it was not the intention of the Alberta Legislature, in adopting the amendment of April 12, 1924, to authorize the increase of a tax already assessed for that year. He said :

“I do not think that it gave the right to increase a tax which had already been imposed and which had then been due and payable for more than three months.”

it appears therefore that the Edmonton by-law affected a class of people against whom a similar tax had already been imposed for the same year. The Indian Head by-law had no such effect because no poll tax under the old statute ever became payable in the town in 1937. This is the real distinction between the two cases. I am not called upon to say whether upon facts similar to those before the Alberta Court I should have come to the same conclusion as the learned Judge of that Court. It is only necessary here to point out that the reasons for his decision have no application to our case. In answer to an argument respecting the retrospective effect of the by-law Walsh, J. said:

"‘It is urged for the plaintiff that this by-law imposes a retrospective rate and for that reason it is bad. A retrospective rate, however, is not necessarily illegal for the Legislature may have expressly or impliedly authorized it. Keg. v. All Saints, Wigan, Churchwardens (1876) 1 App. Cas. 611, 35 L.T. 381, 25 W.R. 128. The question is whether or not the amending Act of 1924 warrants the imposition for the current year of the increased service tax thereby authorized. In my opinion it does not.’’

The argument of retrospectivity, which was addressed to us, is, in my opinion, of no application to the facts of the case we are now concerned with. It is contended on behalf of the respondent Enns that the authority given to the town of Indian Head by the new Town Act of 1937 must be read as being applicable only to future years. This is on the proposition, which I cannot accept for the reasons I have given, of a double liability falling, otherwise, upon the taxpayers in 1937. I think, on the contrary, that the result of such an interpretation of the statute would be that the town could collect no poll tax at all for 1937, because its right to claim payment under the old Act did not arise until June 1 in each year, and then only if the council had not, in the meantime, passed a resolution dispensing with it, and the incidence of liability for the tax ran on until October 31, as I have shown. I can find nothing in the statute of 1937 or in sec. 42 of The Interpretation Act, R.S.S., 1930, ch. 1, which was relied upon by counsel, to provide for the continuing of the old poll-tax machinery in Indian Head after May 1, 1937, the date of the coming into force of the present statute. In my opinion, it was the intention of the Legislature to do away with the old scheme of poll taxation at once and to make the new scheme immediately applicable. I do not think the statute is capable of any other reasonable construction.

I think, therefore, with great deference, that the appeal should be allowed, the order appealed from set aside, and the conviction confirmed.

A question arose as to the power of the justice of the peace to impose the penalty of seven days’ imprisonment in default of payment of the tax and costs. The objection is based upon the wording of sec. 480(1) of The Town Act, 1937. This section provides proceedings to be taken, in case of necessity, against two different people, the taxpayer and his employer. The taxpayer is dealt with first, and in his case it is provided that, as an alternative to other remedies, the tax "‘may be re- covered on summary conviction with costs.’’ This language, in the absence of any qualifying provision, allows for the imposition of imprisonment in default of payment for a term not exceeding three months: The Magistrates Act, R.S.S., 1930, ch. 77, sec. 8; the Criminal Code, R.S.C., 1927, ch. 36, sec. 739 (b); Rex (or Cowan) v. Schilling (1914) 8 Sask. L.R. 70, 7 W.W.R. 1112, 23 C.C.C. 380. Further on in the same section, and the same subsection, provision is made for collecting the tax through the taxpayer’s employer. The employer may be required to deduct the amount of the tax from the employees’ (the taxpayers’) wages and to pay it to the collector. The section provides that in case of the employer’s default in this respect, he "‘may on summary conviction be ordered to pay the same together with costs, and in default of payment to be imprisoned for a period not exceeding ten days.” It is suggested that the express mention of imprisonment in the one case excludes its imposition in the other. The rule i( expressio unius est exclusio alterius’’ is referred to. But I think that the suggestion would stretch the rule too far. There is nothing incompatible in the law being left to its usual operation in the case of the taxpayer himself but modified so as to provide for a shorter maximum term of imprisonment in the case of the employer who is only liable vicariously.

Costs to the appellant throughout.

Martin, J.A.:—The respondent Enns, a resident of the town of Indian Head, was charged before one Harry Keeble, a justice of the peace in and for the province of Saskatchewan, on the information of one Joseph W. England for failing to pay the sum of $5 prescribed as a poll tax under a by-law enacted by the council of the said town. The complaint was heard by the justice of the peace on April 11, 1938, and the respondent was ordered to pay the amount of the poll tax and costs amounting to $4.20, and in default of payment on or before April 25 to serve seven days’ imprisonment in the gaol at Regina.

The respondent applied to a King’s Bench Judge in Chambers for an order quashing the conviction without the actual issue of a writ of certiorari and in the alternative for the issue of a writ of certiorari for the removal of the conviction into the Court of King’s Bench for the purpose of having the same quashed. The application was heard by Knowles J., who, on April 29, 1938, quashed the conviction with costs to be paid by the town of Indian Head. From this decision the town has now appealed to this Court.

The by-law in question was passed by the council of the town on August 2, 1937, and was enacted pursuant to the provisions of. see. 477 of The Town Act, 1937, ch. 28. Subsection (1) of sec. 477 is as follows:

"(1) Subject to subsections (2), (3) and (4), the council may by by-law require that every person of the age of twenty- one years and upwards who has been a resident of the town for at least six months during the then current year prior to the first day of October and who is not assessed upon the last revised assessment roll shall pay a poll tax of $5.”’

Subsees. (2), (3) and (4) provide for certain exceptions which are not here material, and subsee. (9) provides that the poll tax may be collected at any time after July 1. By sec. 480 it is enacted that a poll tax may be collected in the same manner as other municipal taxes or may be recovered on summary conviction with costs against the person neglecting or refusing to pay the same. Ch. 28 of the statutes of 1937 is a new consolidated Town Act and by sec. 609 The Town Act then in force, namely, ch. 104, R.S.S. 1930, together with amendments thereto, was repealed; by sec. 610 the new Act came into force on May Il, 1937. Sees. 462 to 464 inclusive of ch. 104, R.S.S. 1930, contain provisions with respect to the levy of a poll tax. These provisions were to the effect that every male person (with certain stated exceptions) of the age of 21 years and upwards, and who had resided in the town at least three months during the then current year and who was not assessed on the last revised assessment roll, should pay a poll tax of $2; but it was also provided that the council of any town might by resolution, passed at any time prior to June 1 in any year, determine that the poll tax should not be imposed for that year.

As before stated the by-law under which the respondent was convicted was passed by the council of the town on August 2, 1937. It provided in part as follows :

"‘1. That every person of the age of twenty-one years and upwards who has been a resident of the town of Indian Head for at least six months during the current year prior to the first day of October and who is not assessed upon the last revised assessment roll shall pay a poll tax of $5.00, excepting the following persons * * *,’’

Then follow the exceptions which are provided for in subsecs. (2), (3) and (4) of sec. 477 of The Town Act, 1937, and sec. 4 of the by-law provides that the poll tax may be collected in the same manner as other municipal taxes, or may be recovered on summary conviction with costs against the person neglecting or refusing to pay the same following the language of sec. 480 of the Act.

Counsel for the respondent contends that the council of the town had no power under the provisions of sec. 477 to pass a by-law providing for the imposition of the tax for the year 1937 because to so construe the section would be to give the words a retrospective operation. The words of the section are, however, very plain; it is enacted that the council may, by by-law, require a certain class of persons who have resided in the town for at least six months ‘‘during the then current year” prior to October 1, and who are not assessed on the last revised assessment roll, to pay a poll tax of $5. The power conferred upon the council is limited to the passing of a by-law applicable to ‘‘the then current year’’ and there is no date fixed by the section before which the power must be exercised. The residence period is six months in the current year prior to October 1 ; residence after October 1 cannot be counted to make up the period of six months; a person, however, who is resident in the town from January 1 to July 1 completes the necessary period and therefore becomes liable for the tax; it is no doubt for this reason that it is provided by subsec. (5) that the tax may be collected at any time after July 1. If power to pass the by-law applicable to the current year is denied the provisions of sec. 477 are rendered nugatory. I cannot see that any question as to the restrospective operation of the statute or the by-law is involved in the interpretation of the section, for there can be no doubt as to the meaning of the language used in the statute, and the by-law is framed strictly within the power conferred.

It was suggested that some importance should be attached to the provisions of sec. 462 to 464 of The Town Act, RSS. 1930, ch. 104, which was repealed on May 1, 1937, because under that statute the requirement of residence is only three months and persons who had resided in the town for three months prior to May 1 in the year 1937 may have paid the poll tax of $2; and moreover the council may have exercised its right to pass a resolution to the effect that no poll tax would be levied for 1937. There is no evidence either that the respondent or any other person paid a poll tax under the old Act or that the council had exercised its right prior to May 1, 1937, to pass the resolution; but even if there were evidence to this effect I cannot conclude that it would have any effect on the plain meaning of the words of sec. 477 of the new Act. The case relied upon by the learned Chamber Judge, Hardy V. Edmonton [1924] 3 W.W.R. 936, is clearly distinguishable. In that case it was held that there was no legislative authority to enact a by-law applicable to the year 1924, which was the year of the enactment in question. whereas in the present case the only authority conferred upon the council is to enact the by-law for the current year.

It was suggested that the magistrate had no power to impose a term of imprisonment in default of payment of the poll tax and costs. Sec. 480 of The Town Act, 1937, provides only that the tax may be recovered on summary conviction with costs. Sec. 31 of The Interpretation Act, R.S.S. 1930, ch. 1, however provides that unless therein otherwise specially provided proceedings for the imposition of punishment by fine, penalty or imprisonment for enforcing an Act or municipal by-law may be brought summarily before a justice of the peace under Part XV of the Criminal Code, R.S.C., 1927, ch. 36, and the words "‘sum- mary conviction’’ wherever they occur in an Act or by-law shall refer to and mean ‘‘under and by virtue of Part XV aforesaid.’’ By sec. 739, Part XV of the Criminal Code, it is provided that whenever a conviction adjudges a pecuniary penalty or compensation to be paid or an order requires the payment of a sum of money, whether the Act or law authorizing the conviction does or does not provide a mode of raising or levying the penalty, compensation, or sum of money or of enforcing the payment thereof, the justice, by the conviction or order, may order and adjudge, (a) that in default of payment thereof forthwith or within a limited time the penalty or sum of money and costs, if the conviction or order is made with costs, shall be levied by distress and sale of the goods and chattels of the defendant, and if sufficient distress cannot be found, that the defendant be imprisoned in the manner and for the time directed by the Act or law authorizing the conviction or order, or for any period not exceeding three months if the Act or law authorizing the conviction or order does not specify any term of imprisonment, or (&) that in default of payment forthwith or within a limited time, the defendant be imprisoned in the manner and for the time specified in the Act or law or for any period not exceeding three months if the Act or law authorizing the conviction or order does not specify any term of imprisonment. Clause (a) of sec. 739 provides for distress in default of payment and for imprisonment if sufficient distress cannot be found; and clause (b) provides for imprisonment in default of payment and without distress. A magistrate trying a case under the summary conviction clause of the Code may therefore under 739 (b) award imprisonment in default of payment of a fine or sum of money without directing that distress shall first be made upon the defendant’s goods and chattels: Ex parte Gorman (1898) 34 N.B.R. 397, 4 C.C.C. 305; Ex parte Casson (1898) 34 N.B.R. 331.

Reading sec. 480 of The Town Act, 1937, along with sec. 31 of The Interpretation Act and with sec. 739 of the Criminal Code, I am of the opinion that the magistrate had power to order the imprisonment of the respondent in default of payment of the poll tax and costs within the time limited: hex (or Cowan) v. Schilling (1914) 8 Sask. L.R. 70, 7 W.W.R. 1112, 23 C.C.C. 380.

The order of the King’s Bench Judge in Chambers should be set aside and the order of the magistrate restored. The appellant is entitled to its costs both here and in King’s Bench Chambers.

MACKENZIE, J.A. [after stating the facts leading to the appeal] :—It has been authoritatively stated that:

"‘Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect of transactions or considerations already past, must be deemed retrospective:’’ [Per Story, J., in Society for Propagation of the Gospel v. Wheeler, 2 Gallison (U.S.) 105, 139, 12 Corpus Juris, 1084.]

It has further been held that while it is obviously competent for the Legislature in its wisdom to make the provisions of the Act of Parliament retrospective, such a construction should not be given unless it either appear very clearly in the terms of the Act or arise by necessary and distinct interpretation : Per Lord Ashbourne in Smith v. Callander [1901] A.C. 297, at 305.

It is by an application of the principles so enunciated that the respondent’s counsel seeks to have this appeal dismissed. He points out, as the fact is, that there is nothing in The Town Act, 1937, expressly making its provisions retrospective, and contends that if the Legislature had intended to make it so it would have specifically said so, as it did in other similar legislation passed at the same time. Consequently he maintains that if the conviction be held valid it will be to give sec. 477 of the Act, as well as the by-law, a retrospective effect contrary to the intention of the Legislature.

One argument he uses in support of such statement is that when the by-law in question was passed the respondent was already liable under sec. 462 of the former Act to pay a poll tax of $2 for the year 1937, since the obligations which had accrued under that Act, though subsequently repealed, must be deemed to have been continued by sec. 42 of The Interpretation Act, R.S.S. 1930, ch. 1. I do not find this argument well founded. It is true that the respondent had resided long enough in the town during the first part of the year 1937 to become liable for the tax under the former Act, but it must be recalled that such a tax would not have been collectible until June 1, 1937, and that until then it was also subject to a possible defeasance. Meantime that Act, as already stated, had been repealed on May 1, 1937. Hence it seems clear that the respondent never became liable for it.

Another argument, put forward by counsel to show that the conviction, if upheld, would give the enactment a retrospective effect and so violate the intention of the Legislature, is that some part of the period of six months’ residence during the year 1937 requisite to the respondent’s liability must have elapsed before the by-law was passed. I fail to find substance an this argument either. It does not seem to me to matter how long his period of residence commenced before the passage of the by-law so long as it was completed prior to October 1, 1937. It may be remarked that another condition precedent to such a person’s liability is that he be 21 years of age. If such an argument were tenable it might be urged that to properly be held liable the date of the by-law should antedate that of his birth, which of course would be absurd. In any event, it seems to me that this argument is fully met by Lord Denman’s observation in Reg. v. St. Mary (Whitechapel) (1848) 12 Q.B. 120, 116 E.R. 811, at 814, where he is reported to have said:

4 It [a statute] is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing.”

As I see it, neither the by-law nor the enactment under which it was passed has anything to do with vested rights or past transactions but is only concerned prospectively with the imposition of a tax upon a class of persons ascertainable after the date of its passage. For such reasons I do not think that the Act must be held retrospective in order to sustain the by-law.

But even if it were so held it seems to me that the language of the by-law distinctly confers authority upon the town to impose and collect the tax in question. Thus it is dated August 2, 1987, and specifically requires every person of prescribed age and resident for the period therein mentioned ‘‘during the current year’’ to pay the tax. In this respect it accurately complies with the power contained in sec. 477 of The Town Act, 1937, which enables the council of a town to require by by-law every person of such age, who has been resident of the town for such period "‘during the then current year’’ to pay such a tax. The language so quoted to my mind clearly predicates the conclusion that such a by-law is only good for one year and that is the year during which its passage takes place. Hence the by-law in question can only be deemed authority for the collection of a poll tax in the year 1937 and no other.

In quashing the conviction the learned Chamber Judge cited as authority the case of Hardy v. Edmonton [1924] 3 W.W.R. 936. That was a case where the defendant city, had, in the year 1921, passed a by-law authorizing the imposition of a service tax which was payable on January 1 in each year. On May 5, 1924, the city repealed the by-law and substituted a new one materially increasing the amount of the tax. In an action by the plaintiff for a declaration to avoid the by-law the Court held that in the absence, from the legislation upon which it was founded, of anything either expressly or impliedly giving it a retrospective effect, it did not give the city the right to increase a tax which had already been imposed and which had then been due and payable for more than four months. The by-law was, accordingly, declared ineffective to render the plaintiff liable for the increased tax.

Assuming that this case is well decided, as to which I express no opinion, I think that it is readily distinguishable from the present one, for as I have already said the appellant never became liable for poll tax under the former Town Act since it was not collectible until June 1, 1987, and by that time the Act had already been repealed, and since, moreover, under the terms of the statute and by-law itself, the tax in question can only be recoverable for the year 1937.

The respondent further objects that the by-law is bad because it does not specify anyone (person or corporation) to whom it shall be payable. Having regard, however, to the passage of the by-law itself and to the nature of the authority of the Act under which it was passed, I think it must be implied that the tax is payable to the town.

Another objection to the conviction is that the information should have been laid under sec. 480 of The Town Act, 1937, and not under the by-law. It seems obvious, however, that the passage of a by-law providing for the imposition of a tax is essential to its collection. Consequently no charge can arise until there has been a breach of the by-law to support it. To be properly laid therefore the information must allege an infraction of the by-law.

The respondent’s final objection to the conviction is that the by-law does not authorize imprisonment on default of payment. It is to be observed, however, that under sec. 480 of The Town Act, 1937, it is provided that a poll tax may be recovered ‘‘on summary conviction,’’ with costs against the person neglecting to pay it and that see. 31(1) of The Interpretation Act, R.S.S. 1930, ch. 1, says that unless otherwise provided the words ‘‘on summary conviction’’ wherever they occur in any Act or by-law shall refer to and mean under and by virtue of Part XV of the Criminal Code, while sec. 8 of The Magistrates Act, R.S.S. 1930, ch. 77, enacts that Part XV and Part XXVII of the Code shall apply to all proceedings before justices of the peace under and by virtue of any municipal by-laws. By these enactments see. 739 of the Code was made applicable to this case, which provides that whenever an order requires the payment of a sum of money but does not (as here) provide a mode for raising the same, the justice by his conviction may order that in default of payment thereof the defendant may be imprisoned for any period not exceeding three months. In view of these provisions I do not think that there can be any doubt that the justice had authority to order the imprisonment of the defendant on default of payment.

I have, therefore, come to the conclusion that the appeal must be allowed with costs and that the order of the magistrate must be restored. The appellant will also have its costs of the respondent’s appeal to the Chamber Judge.

Gorpon, J.A. concurs with Mackenzie, J.A.

Appeal allowed.