DEMERS
J.:—The
following
facts
are
admitted
:
(a)
that
the
plaintiff
is
an
Indian
as
defined
by
the
provisions
of
the
Indian
Act,
R.S.C.
1927,
ce.
98
and
that
he
resides
and
is
domiciled
on
the
Indian
Reservation
situated
in
the
Village
of
Caughnawaga,
in
the
District
of
Montreal,
and
that
he
has
always
claimed
and
still
claims
his
rights
to
such
and
has
never
renounced
the
same
;
(b)
that
the
plaintiff
is
a
householder
and
has
been
furnished
with
electricity
by
the
defendant
Company
for
use
in
his
dwelling;
(c)
that
the
defendant
Company
has
installed
in
the
plaintiff’s
domicile
a
meter
for
the
purpose
of
measuring
the
amount
of
electrical
energy
supplied
for
use
in
his
dwelling,
and
that*
the
defendant
company
is
authorized
by
the
Quebec
Public
Service
Board
to
charge
a
certain
rate
in
the
said
locality,
in
accordance
with
the
tariff
filed
with
the
said
Board
and
duly
approved
by
it,
the
whole
as
provided
by
s.
31,
c.
24
(25-26
Geo.
V)
of
Quebec
and
4
Geo.
VI,
c.
11;
(d)
that
on
September
25,
1939,
an
Order
in
Council
P.C.
2845
was
passed
by
the
Governor
in
Council
(a
copy
of
which
is
attached
to
the
present
‘‘
Admission
of
Facts’’)
and
that
the
defendant
Company
has
demanded
and
received
payment
of
an
additional
charge
of
8%
over
and
above
the
authorized
rates,
relying
on
the
amendment
of
the
Special
War
Revenue
Act
(R.S.C.
1927,
e.
179)
enacted
by
1939
(Can.)
(2nd
Sess.),
ce.
8,
s.
4
(removing
electricity
used
in
dwellings
from
the
schedules
of
items
exempted
from
the
said
sales
tax),
and
also
on
the
said
Order
in
Council
Number
P.C.
2845
passed
in
the
exercise
of
the
powers
conferred
by
the
War
Measures
Act,
R.S.C.
1927,
ce.
206;
(e)
the
said
8%
additional
charge
mentioned
in
para.
(d)
amounts
to
$1.93,
and
was
paid
under
protest
by
the
plaintiff.
In
this
case,
the
defendant
filed
a
declaration
in
evocation
before
the
Superior
Court.
As
the
learned
attorneys
for
the
plaintiff
have
pointed
out
in
their
factum,
this
is
a
test
case
and
all
Indians,
whether
on
the
Reserve
at
Caughnawaga
or
any
other
Reserve
in
Canada,
have
an
interest
in
the
decision.
Plaintiff
contends,
in
his
factum,
‘‘that
he
is
not
obliged
to
pay
the
additional
8%
tax
imposed
by
the
Order
in
Council
of
September
25,
1939,
which
has
just
been
referred
to,
and
de-
clares
that
the
Order
in
Council
applies
to
all
others
except
Indians,
and
since
he
is
an
Indian
within
the
meaning
of
the
Act
contained
in
the
Revised
Statutes
of
Canada,
1927,
he
should
not
be
charged
with
this
excess
tax
of
8%.’’
Plaintiff
relies
on
the
Indian
Act,
R.S.C.
1927,
ce.
98,
s.
102,
which
reads
as
follows:
4
‘No
Indian
or
non-treaty
Indian
shall
be
liable
to
be
taxed
for
any
real
or
personal
property,
unless
he
holds,
in
his
individual
right,
real
estate
under
a
lease
or
in
fee
simple,
or
personal
property
outside
of
the
reserve
or
special
reserve,
in
which
case
he
shall
be
liable
to
be
taxed
for
such
real
or
personal
property
at
the
same
rate
as
other
persons
in
the
locality
in
which
it
is
situate.’’
Plaintiff
argues
as
follows
:
‘‘
Electricity
is
personal
property
;
electricity
may
be
the
subject
of
ownership
or
sale.
As
in
spite
of
its
invisibility
electricity
is
considered
in
law
as
personal
property
subject
to
ownership,
sale
and
disposal
as
inanimate
objects
(See
Curtis,
The
Law
of
Electricity,
p.
7).
In
any
case
the
statute
and
schedule
and
Order-in-Council
all
define
electricity
to
be
goods
subject
to
sales
tax.
Applying
1474
C.C.
the
sale
of
electricity
is
perfected
as
and
when
measured
on
the
meter
on
the
premises
of
the
Plaintiff.
And
as
the
sale
is
only
perfected
after
measurement
from
the
meter,
the
situs
must
be
held
to
be
the
domicile
of
the
Plaintiff.
If,
however,
the
tax
is
looked
upon
as
being
imposed
not
on
the
goods,
but
on
the
sale
price,
it
is,
therefore,
a
tax
on
monies
and
again
the
situs
must
be
considered
to
be
the
domicile
of
the
Plaintiff.
Either
such
monies
has
situs
or
it
has
not,
in
any
case
by
fiction
of
law,
it
must
be
considered
to
be
the
domicile
of
Plaintiff,
mobilia
se-
quuntur
personam.’’
And
he
resumes
his
contention
this
way
:
(a)
that
the
additional
charge
of
8%
is
an
indirect
tax
imposed
on
the
Utility
Company
which
it
is
expected
to
collect
from
the
consumer.
(b)
that
it
is
a
tax
on
the
personal
property
of
plaintiff
because
:
(1)
it
is
either
a
tax
on
electricity
which
he
purchases,
or
(2)
it
is
a
tax
on
his
money,
i.e.,
the
purchase-price
which
he
is
compelled
to
pay.
(c)
that
the
electricity
purchased
is
the
personal
property
of
the
plaintiff.
(d)
that
the
quantity
of
the
electricity
purchased
being
measured
by
the
meter,
it
is
personal
property
on
the
reserve,
or
if
it
is
tax
on
money
its
situs
is
the
domicile
of
plaintiff,
i.e.,
the
reserve.
(e)
that
if
the
8%
additional
charge
is
a
tax
to
which
the
plaintiff
is
not
liable,
then
the
defendant
Company
has
no
right
to
impose
it
as
an
additional
charge
and
he
would
not
then
be
protected
by
the
Order
in
Council
allowing
exemption
for
the
maximum
amount
allowed
by
provincial
statute.
The
Order
in
Council
referred
to
reads
as
follows:
"‘It
shall
be
lawful
for
the
selling
utility
to
add
to
its
regular
charge
to
the
consumer
or
user
and
to
collect
from
such
consumer
or
user
the
amount
of
consumption
or
sales
tax
imposed
by
the
provisions
of
the
Special
War
Revenue
Act
in
respect
to
electricity
and
gas
and
the
amount
so
added
and
collected
for
consumption
or
sales
tax
shall
not
be
deemed
to
be
an
increase
in
the
rate
charged
for
electricity
or
gas
and
such
addition
and
collection
may
be
made
by
the
selling
utility
notwithstanding
the
provisions
of
any
statute
of
Canada
or
of
any
Province
thereof
or
any
regulation
or
order
made
pursuant
thereto
relating
to
or
purporting
to
relate
to
the
rates
to
be
charged
by
such
selling
utility.”
As
we
have
seen
before,
the
plaintiff
does
not
attack
the
validity
of
that
Order
in
Council,
his
contention
being
only
that
it
does
not
apply
to
the
Indians.
The
contention
of
counsel
for
plaintiff
is
that
the
words
‘‘notwithstanding
the
provisions
of
any
Statute
of
Canada’’
do
not
refer
to
the
Indian
Act
but
rather
refers
to
any
statute
existing
which
may
relate
to
the
rate
charged
for
electricity
by
the
selling
Utility.
I
must
admit
that
the
question
is
not
without
doubts.
Of
course,
the
main
object
of
that
disposition
was
to
permit
to
the
electricity
company
to
charge
over
the
rates
fixed
by
the
electricity
Commission
or
statutes,
but
very
likely
the
legislator
at
that
time
did
not
think
of
the
Indians
in
particular,
but
his
main
purpose
after
all
was
to
permit
the
electricity
company
to
collect
that
tax
without
any
obstacle
from
any
law.
But
it
is
not
necessary
to
pronounce
on
this
point,
because
the
Indian
Act
does
not
apply
in
this
ease.
What
does
that
Indian
Act
say?
“No
Indian
or
non-treaty
Indian
shall
be
liable
to
be
taxed
for
any
real
or
personal
property.
I
maintain
that
there
is
no
tax
imposed
on
the
plaintiff.
The
essential
characteristics
of
a
tax,
says
Cooley,
4th
ed.,
para.
3,
p.
68,
are
that
it
is
not
a
voluntary
payment
or
donation,
but
an
enforced
contribution.
The
plaintiff
is
not
bound
to
take
electricity.
People
may
illumine
their
homes
by
other
means.
The
party
who
is
taxed
by
the
Order
in
Council
and
the
law
is
the
defendant
:—nobody
else.
Section
86
of
the
Special
War
Revenue
Act
says
:
(1)
There
shall
be
imposed,
levied
and
collected
a
consumption
or
sales
tax
of
eight
per
cent
on
the
sale
price
of
all
goods,—
(a)
produced
or
manufactured
in
Canada,
payable
by
the
producer
or
manufacturer
at
the
time
of
the
delivery
of
such
goods
to
the
purchaser
thereof.’’
[am.
1936
c.
45,
s.
5]
Then,
as
we
see,
this
tax,
which
evidently
is
an
indirect
tax,
is
imposed
on
the
defendant,
not
on
the
plaintiff.
That
is
what
Cooley,
Taxation,
4th
ed.,
vol.
1,
para.
50,
pp.
141-2,
says:
“Indirect
taxes
are
levied
upon
commodities
before
they
reach
the
consumer,
and
are
paid
by
those
upon
whom
they
ultimately
fall,
not
as
taxes,
but
as
part
of
the
market
price
of
the
commodity.”
It
is
of
that
tax,
as
of
the
Customs
Taxes
or
Excise
Taxes—
all
those
indirect
taxes
are
imposed
on
the
importer
or
on
the
manufacturer.
In
the
end,
it
is
the
consumer
or
buyer
who
must
pay
for
the
increase
of
the
cost
of
the
goods
imported
or
manufactured.
Indians,
when
they
buy
imported
goods
subject
to
Customs
or
Excise
duties,
must,
like
the
others,
pay
higher
prices;
so
they
must
do
for
this
indirect
tax
on
their
electricity,
and
they
cannot
pretend
that
any
tax
is
being
imposed
on
their
real
or
personal
property.
For
these
reasons,
the
action
is
dismissed
with
costs.
Action
dismissed.
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