SCHWENGER,
J.:—The
late
Paul
J.
Myler
died
on
April
20,
1945.
He
left
a
widow
but
no
children,
and
a
gross
estate
of
approximately
$825,000.
By
his
will,
probate
of
which
was
granted
to
his
executors
and
trustees
therein
named,
the
Toronto
General
Trusts
Corporation,
his
widow
Maude
Lottridge
Myler,
and
John
S.
Martin,
he
devised
all
his
estate
to
his
trustees
upon
certain
trusts.
After
providing
for
the
transfer
to
his
wife
of
certain
personal
property,
and
for
her
right
to
occupy
the
family
domicile
as
long
as
she
lived,
he
provided
that
all
his
debts,
funeral
and
testamentary
expenses,
and
all
succession
duties
and
inheritance
taxes,
be
paid
out
of
the
general
residue
of
his
estate,
as
a
general
debt,
so
that
all
gifts,
legacies,
etc.
would
be
free
of
tax.
The
will
then
provided
that
the
trustees
should
pay
a
number
of
specific
legacies
and
provide
a
life
annuity
of
$750
quarterly
for
the
testator‘s
sister
Julia
Myler
Power.
The
rest
and
residue
of
his
estate,
he
directed,
should
be
held
in
trust
to
pay
his
widow
the
net
annual
income
quarterly
until
her
death,
with
full
power
to
pay
her
in
each
year
during
her
lifetime,
for
her
sole
use
and
benefit,
such
amounts
out
of
the
capital,
not
exceeding
10
per
cent
of
the
capital
of
the
said
residue,
‘‘as
my
wife
may
request’’.
Upon
the
death
of
the
widow
the
residuary
estate
was
to
be
disposed
of,
first
by
paying
certain
further
specific
cash
legacies,
and
then
by
division
of
the
residue
into
two
equal
parts,
one
of
which
should
be
paid
to
his
brother
and
the
other
to
the
three
grandchildren
of
a
deceased
sister,
Callie
M.
Davidson.
The
widow,
Maude
Lottridge
Myler,
died
on
October
13,
1946,
and
the
remaining
two
trustees
proceeded
to
administer
the
estate,
and
then
to
pass
their
accounts
before
me,
at
which
time
certain
objections
were
raised
to
the
accounts
on
behalf
of
the
residuary
legatees,
and
after
hearing
argument
I
reserved
decision
and
the
audit
was
adjourned.
These
objections
related
to
two
matters,
the
one
being
the
manner
of
settlement
of
succession
duties
and
the
other
being
the
question
of
what
amount
was
properly
payable
to
the
widow
as
annual
income
from
the
residue
of
the
estate,
to
which
she
was
entitled
for
life.
Since
the
succession
duties
were
payable
under
the
will
out
of
the
residue
of
the
estate
as
a
general
debt,
the
burden
of
these
duties
falls
upon
the
ultimate
residue
of
the
estate,
divisible
between
the
deceased’s
brother
and
the
three
grandchildren
of
the
deceased’s
sister.
On
their
behalf
objection
is
made
to
the
manner
in
which
succession
duties
were
settled.
On
June
25,
1946,
the
Provincial
Treasurer’s
Department
sent
a
statement
of
duties
(ex.
1),
which
showed
that,
because
a
payment
of
$60,000
had
been
made
on
account
on
November
3,
1945,
there
was
duty
payable
which
with
all
calculations
left
a
refund
due
to
the
executors
of
$2,044.76.
This
statement
was
made
up
on
the
basis
that
when
the
widow
died
a
further
duty
would
be
payable.
On
September
16,
1946,
the
Department
sent
an
amended
statement
(ex.
2),
showing
a
further
refund
of
$85.25,
because
of
a
downward
adjustment
in
the
net
value
of
the
estate,
but
otherwise
on
the
same
basis
as
the
statement
of
June
25.
On
November
17,
1947,
the
widow
having
died
on
October
13,
1946,
the
Provincial
Treasurer’s
Department
sent
a
statement
of
succession
duties
(ex.
3)
based
on
the
passing
of
the
residue
(excepting
the
annuity
payable
to
the
testator’s
sister)
to
those
entitled
in
remainder,
showing
a
further
duty
payable
of
$171,187.96,
on
account
of
which
the
executors
had
paid
the
sums
of
$70,000
and
$40,000
on
January
13,
1947,
and
January
30,
1947,
leaving
a
net
balance
of
$61,187.96.
This
statement
was
based
on
further
duty
being
payable
when
the
sister
died
and
her
annuity
came
to
an
end.
On
July
13,
1950,
the
Provincial
Treasurer’s
Department
sent
a
statement
(ex.
4)
of
further
duties
payable
of
$10,665.77,
since
the
testator’s
sister
Julia
Myler
Power
had
died
on
May
10,
1949.
The
balance
of
$61,187.96
according
to
ex.
3,
and
the
amount
of
$10,665.77
owing
under
ex.
4,
were
paid
by
payments
of
$30,000
on
October
6,
1949,
$51,386.86
on
August
14,
1950,
and
$1,331.37
on
September
6,
1950.
The
difference
between
these
two
exhibits
and
the
total
payments
made
represents
interest
(ex.
5).
The
succession
duties
payable
to
the
Government
of
Canada
were
paid
and
settled
in
full
by
April
1,
1947.
These
were
approximately
$121,000,
including
interest,
and
were
based
on
a
present
commuted
valuation
of
the
interests
of
all
beneficiaries
on
a
final
settlement
basis.
The
amount
of
interest
included
in
the
above
amount
was
$7,132.18.
Included
in
the
amounts
paid
to
the
Treasurer
of
Ontario
in
the
above
amounts
was
a
total
of
approximately
$17,800
for
interest,
of
which
the
sum
of
$11,576.87
accrued
from
October
13,
1946,
to
the
date
of
final
settlement,
September
6,
1950
(see
ex.
5).
On
behalf
of
the
residuary
legatees
it
is
argued
that
the
executors
were
remiss
in
their
duties
in
the
manner
in
which
succession
duties
were
settled;
that
the
executors
should
have
taken
advantage
of
Section
15(3)
of
the
Succession
Duty
Act,
now
R.S.O.
1950,
c.
378;
and
that
approximately
$65,000
was
lost
by
not
taking
advantage
of
this
subsection;
or
that
in
any
event
they
should
have
made
a
deposit
sufficient
to
cover
the
estimated
amount
of
the
succession
duties,
so
that
the
penalties
by
way
of
interest
charges
would
have
been
avoided.
Undoubtedly
the
executors
have
handled
the
matter
of
succession
duties
very
inefficiently,
when
one
considers
the
liquid
nature
of
the
estate
and
the
desirability
of
determining
the
residue
of
the
estate
as
soon
as
possible,
so
that
the
widow’s
income
might
be
established.
There
is,
however,
evidence
of
sufficient
contentious
matters
requiring
to
be
settled,
and
adjustments
to
be
considered,
to
justify
the
executors
in
placing
the
matter
in
the
hands
of
counsel
for
advice
and
direction
as
they
did.
The
death
of
the
widow,
which
precluded
the
operation
of
Section
15(3)
of
the
Act,
could
not
be
anticipated,
and
undoubtedly
the
size
of
the
estate
and
the
numerous
matters
requiring
to
be
determined
to
arrive
at
the
net
estate
would
take
some
time,
and
there
was
real
contention
between
the
succession
duty
authorities
of
Ontario
and
the
executors.
It
may
be
true
that
someone
else
would
have
handled
the
matter
differently,
but
nevertheless
I
feel
that
the
circumstances
are
such
that
the
executors
cannot
be
penalized
for
having
acted
as
they
did,
since
there
is
no
evidence
of
bad
faith
anywhere
in
the
material,
although
they
are
certainly
not
to
be
commended
for
the
result
obtained.
The
same
situation
exists
in
respect
of
the
Dominion
succession
duties,
except
that
these
duties
were
settled
on
a
commuted
basis,
and
the
result
is
more
acceptable
to
the
residuary
legatees.
1
pass
to
a
consideration
of
the
second
objection
raised
on
behalf
of
the
residuary
legatees,
namely,
the
manner
and
amount
of
payment
of
income
from
the
residue
of
the
estate
to
the
widow.
The
revenue
receipts
and
disbursements
are
accounted
for
in
two
sets
of
accounts,
one
covering
the
period
from
the
testator’s
death,
on
April
20,
1945,
to
October
13,
1946,
the
date
on
which
the
life
beneficial
interest
of
the
widow
came
to
an
end,
and
the
other
covering
the
period
from
October
13,
1946,
on.
These
accounts
show
that
during
the
first
period
accounted
for
the
executors
collected
and
paid
to
Mrs.
Myler
the
gross
income
from
all
the
estate,
with
the
exception
of
a
sum
estimated
to
cover
executors’
compensation.
In
fact
the
last
two
payments,
amounting
to
practically
$9,000,
were
paid
to
her
executors
after
her
death,
to
bring
about
the
situation
above
indicated.
On
behalf
of
the
residuary
legatees
it
is
argued
that
the
widow
was
not
entitled
to
more
than
the
income
on
the
net
residue
after
all
the
debts
were
paid.
Since
succession
duties
were
to
be
paid
out
of
the
estate
as
an
ordinary
debt,
it
at
once
becomes
apparent
that
due
to
the
large
amounts
involved
and
the
interest
penalty
for
delayed
payment,
the
net
residue
from
the
estate
would
be
considerably
less
than
the
estate
from
which
gross
income
was
derived
and
paid
to
Mrs.
Myler,
the
life
beneficiary.
During
all
the
period
that
succession
duties
were
in
suspense
unpaid,
the
life
beneficiary
received
the
income
from
that
portion
of
the
estate
that
was
ultimately
used
to
retire
succession
duty
liability.
While,
as
1
have
said,
the
terms
of
the
will
give
the
executors
power
to
encroach
on
capital
to
pay
the
widow
up
to
10
per
cent
per
annum
as
she
may
request,
she
apparently
made
no
such
request;
the
accounts
show
no
such
payments
out
of
capital,
and
on
behalf
of
the
executors
it
is
not
suggested
that
they
ever
paid
the
widow
any
money
under
this
provision
of
the
will.
The
issue
is
placed
squarely
before
me
and
falls
to
be
determined
on
the
answer
to
the
question
as
to
what
portion
of
the
capital
the
widow
is
entitled
to
receive
the
revenue
from.
A
residue
of
personal
estate
means
the
personal
estate
which
remains
after
payment
of
the
testator’s
debts,
funeral
and
testamentary
expenses,
and
the
cost
of
administration
of
the
estate:
Kennedy
et
al.
v.
Protestant
Orphans’
Home
et
al.
(1894),
25
O.R.
235
at
239.
The
income
of
the
estate
during
the
administration
period,
and
before
the
residue
has
been
ascertained,
is
the
income
of
the
executors,
and
not
that
of
the
residuary
beneficiaries:
Corbett
v.
Commissioners
of
Inland
Revenue,
[1938]
1
K.B.
567;
[1937]
4
All
E.R.
700.
I
have
come
to
the
conclusion,
and
would
hold,
that
the
executors
have
erred
in
paying
to
the
widow
the
gross
income
of
the
estate,
and
that
they
should
have
paid
to
her
only
the
income
of
such
residue
as
was
not
required
for
the
payment
of
debts.
I
would
follow
the
basis
of
calculation
laid
down
by
Sargant,
J.,
in
In
re
Wills;
Wills
v.
Hamilton,
[1915]
1
Ch.
769.
On
behalf
of
the
executors
it
is
submitted
that
if
the
executors
have
committed
a
breach
of
trust
by
overpaying
the
widow,
as
I
have
found,
they
should
be
relieved
under
the
provisions
of
Section
34
of
The
Trustee
Act,
R.S.O.
1950,
c.
400.
I
am
of
the
opinion
that
such
relief
is
not
applicable
in
the
present
circumstances
:
National
Trustees
Company
of
Australasia,
Ltd.
v.
General
Finance
Company
of
Australasia,
Ltd.,
[1905]
A.C.
373;
Re
Nicholls
;
Hall
v.
Wildman
(1913),
29
O.L.R.
206;
14
D.L.R.
244;
Whicher
v.
National
Trust
Co.,
Ltd.
(1910),
22
O.L.R.
460,
reversed
sub
nom.
National
Trust
Company,
Ltd.
v.
Whicher,
[1912]
A.C.
377;
5
D.L.R.
32;
C.R.
[1912]
2
A.C.
13;
In
re
Windsor
Steam
Coal
Company
(1901),
Ltd.,
[1929]
1
Ch.
151.
Surcharge
allowed
in
part.
THE
KING
and
RYAN
Ex
parte
DEXTER
CONSTRUCTION
CO.,
LTD.
In
re
Assessors
of
the
Parish
of
Bathurst.
Supreme
Court
of
Canada
(Kerwin,
Rand,
Estey,
Locke
and
Fauteux,
JJ.),
October
2,
1951,
on
appeal
from
the
Supreme
Court
of
New
Brunswick,
Appeal
Division,
reported
[1951]
C.T.C.
123.
Taxation—Municipal—The
Rates
and
Taxes
Act,
R.S.N.B.
1927,
c.
190,
Secs.
11,
20,
25
and
126—Personal
property—Highway
construction
contract—Whether
shop,
factory,
office
or
place
of
business
in
the
parish—Carrying
on
business
in
a
locality—Whether
company’s
personal
property
subject
to
tax—Certiorari.
The
Dexter
Construction
Co.
Ltd.
was
under
contract
with
the
Province
of
New
Brunswick
for
the
construction
of
a
highway
running
through
but
not
limited
to
the
Parish
of
Bathurst.
In
performing
this
work
in
the
Parish
a
substantial
quantity
of
machinery
and
equipment
was
brought
in
during
the
years
1947
and
1948.
The
head
office
of
the
Company
was
outside
the
Parish
but
the
Company
established
an
“office”
in
the
Parish
in
buildings
of
temporary
construction
for
the
purpose
of
keeping
a
stock
record,
employees’
time
records,
paying
wages
and
the
like.
In
1948,
the
Company
was
assessed
by
the
Parish
for
tax
upon
the
real
and
personal
estate
of
the
Company
within
its
territory.
Pursuant
to
the
provisions
of
Section
78
of
The
Rates
and
Taxes
Act
(N.B.)
the
Company
appealed
to
the
judge
of
the
County
Court
who
confirmed
the
right
of
assessment
of
the
personal
property,
although
he
reduced
the
valuation
of
such
property.
The
Company
applied
for
a
writ
of
certiorari
and
a
rule
nisi
quashing
the
assessment
and
judgment.
The
Supreme
Court
of
New
Brunswick,
Appeal
Division,
set
aside
the
assessment
on
the
ground
that
the
company
had
“no
place
of
business”
in
Bathurst
Parish
within
the
meaning
of
Section
20
of
the
Act.
On
appeal
to
the
Supreme
Court
of
Canada,
HELD:
(i)
That
Section
20
of
The
Rates
and
Taxes
Axt
extends
to
businesses
that
are
branch
activities
of
a
central
organization
(Kerwin,
Rand,
Locke
and
Fauteux,
JJ.)
;
(ii)
That
the
assessors
could
properly
find
the
existence
of
a
business
carried
on
at
a
“place”
in
the
parish
(Kerwin,
Rand,
Locke
and
Fauteux,
JJ.)
;
(iii)
That
all
the
equipment
stored
or
repaired
in
the
parish
cannot
be
the
subject
of
the
assessment
to
the
owner
as
being
connected
with
or
employed
in
the
business
in
the
parish
as
the
business
is
what
is
carried
on,
at,
and
from,
the
place
of
business
within
the
parish
(Kerwin,
Rand,
Locke
and
Fauteux,
JJ.)
;
(iv)
That
the
assessment
be
set
aside
and
returned
to
the
assessors
for
a
re-assessment
on
the
principles
laid
down
(Kerwin,
Rand,
Locke
and
Fauteux,
JJ.);
(v)
That
The
Rates
and
Taxes
Act
contemplates
that
personal
property
may
be
taxed
at
a
point
other
than
that
place
from
which
the
direction
and
control
emanate
(Estey,
J.);
(vi)
That
the
assessment
should
be
varied
and
the
appeal
allowed
(Estey,
J.).
EDITORIAL
NOTE:
The
Supreme
Court
of
Canada
has
found
that
the
taxpayer
herein
though
resident
outside
of
the
parish
of
Bathurst,
was
also
conducting
business
at
a
“place
of
business"
in
the
parish
within
Section
20
of
The
Rates
and
Taxes
Act.
In
arriving
at
this
conclusion
on
the
facts
of
the
case
and
apart
from
the
decisions
cited
by
the
respondent,
the
court
has
applied
principles
which
are
not
at
great
variance
with
those
enunciated
in
those
decisions.
For
instance,
Mr.
Justice
Rand
says:
“Once
a
complex
of
repeated
or
systematized
business
operations
becomes
localized
about
a
place
and
presents
its
moveable
property
in
more
than
a
mere
unfixed
or
transient
employment
in
the
parish,
then
the
precise
period
of
its
presence
there
becomes
of
minor
importance.
.
.
.
Here,
for
well
over
a
year,
these
operations
of
preparing
roadbed,
gathering
and
treating
gravel,
making
surfacing
material
and
applying
it
to
the
roads,
storing
and
repairing
the
machines
used,
hiring,
paying
and
discharging
workmen,
employing
truckers
with
their
vehicles,
all
under
an
immediate
superintendence
centralized
at
a
headquarters,
aggregate
to
what
in
the
ordinary
meaning
of
the
words
is
roadmaking
business.
The
business
of
the
company
here
lies
not
in
negotiating
or
making
contracts
but
in
performing
them:
contracts
are
or
may
be
necessary,
no
doubt;
financing
and
account
books,
likewise;
but
these
are
formal
elements
of
the
operating
activities
of
the
company.”
Having
found
that
The
Rates
and
Taxes
Act
contemplates
the
taxation
of
personal
property
other
than
at
the
place
from
which
the
direction
and
control
of
the
taxpayer’s
business
emanate,
the
Court
was
faced
with
the
problem
of
deciding
the
scope
of
the
business
centred
in
the
branch.
The
test
to
be
applied
is
the
personal
property
used
in
the
parish
in
the
direction
of
the
work
carried
on
inside
or
outside
the
parish.
C.
F.
Inches,
K.C.,
for
the
Appellant.
J.
J.
F.
Winslow,
K.C.
and
M.
G.
Teed,
K.C.,
for
the
Respondent.
The
judgment
of
Kerwin,
Rand,
Locke
and
Fauteux,
JJ.,
was
delivered
by
:—
RAND,
J.:—The
respondent
is
a
company
whose
main
business
is
the
construction
of
paved
highways.
Its
head
office
is
at
Fairville,
New
Brunswick,
and
it
is
not
disputed
that
its
residence
in
the
sense
of
the
locus
where
its
central
management
and
control
is
exercised,
is
at
that
place.
During
the
early
part
of
1947
the
company
entered
into
several
contracts
with
the
Government
of
New
Brunswick
for
reconstructing
and
paving
certain
roads
in
Gloucester
County,
including
one
section,
about
50
miles
in
length,
of
the
main
highway
between
Bathurst
and
Douglastown,
in
Northumberland
County,
lying
to
the
south.
To
enable
this
and
any
other
work
in
that
district
of
the
province
awarded
it
to
be
carried
out,
the
company
acquired
about
59
acres
of
land
in
the
parish
of
Bathurst.
On
this
land,
part
of
which
seems
to
have
been
a
gravel
pit,
38
buildings
were
erected
in
the
spring
of
1947.
They
consisted
of
an
office,
23
sleeping
camps,
kitchen,
mess
hall,
storehouse,
oil
house,
shovel
shop,
truck
shop,
machine
shop,
welding
shop,
4
stock
buildings
and
a
paint
shop.
There
were
set
up
also
on
this
land,
an
asphalt
plant
and
a
gravel
crushing
plant.
The
office
was
opened
not
later
than
in
May.
During
the
following
winter
the
units
of
moveable
equipment
used
for
the
road
work
mentioned
as
well
as
other
units
had
been
kept
in
storage
and
repaired
at
this
station
by
a
staff
of
20
men.
For
the
summer
operations
approximately
200
men
were
engaged.
They
included
crews
for
both
the
asphalt
and
the
gravel
crushing
plants
and
the
several
shops,
the
truck
and
machine
operators
and
the
general
road
forces.
A
superintendent
and
gang
foreman
were
in
immediate
charge
of
the
field
operations.
General
instructions
would
be
received
from
the
head
office
or
from
an
executive
field
officer.
In
the
office
at
the
Bathurst
headquarters
three
clerks
were
employed.
From
slips
turned
in
each
night,
they
made
up
the
employees’
time
and
wages
for
which
they
issued
weekly
cheques
drawn
on
a
bank
in
the
City
of
Saint
John.
Records
were
kept
of
the
supplies
of
food,
oil,
gas,
repair
parts
and
other
materials
for
and
used
in
the
several
shops
and
on
the
road
work.
The
moveable
equipment
consisted
of
trucks,
tractors,
loaders,
bulldozers,
shovels
and
graders.
There
were
also
spreaders
and
other
units
forming
part
of
or
used
in
connection
with
the
asphalt
and
crushing
plants,
machines
and
tools
in
the
shops,
and
the
furniture
and
equipment
of
the
office.
The
municipality
claims
to
be
entitled
to
tax
that
property.
The
general
taxing
clause
is
Section
20
of
The
Rates
and
Taxes
Act,
subsections
(1)
and
(2)
of
which
are
as
follows:—
"
"
20.
(1)
All
personal
property
within,
or
without
the
Province,
owned
by
an
inhabitant
of
the
Province,
shall
be
assessed
to
the
owner
in
the
parish
where
he
resides,
subject
to
the
following
exceptions:
(a)
Where
any
person
has
a
shop,
factory,
office
or
place
of
business
in
a
parish
other
than
that
in
which
he
resides,
or
in
which
shop,
factory,
office
or
place
of
business
he
carries
on
his
trade,
profession,
calling
or
business,
all
his
personal
property
connected
with
or
employed
in
his
trade,
profession,
calling
or
business
so
carried
on,
shall
be
assessed
to
him
in
the
parish
where
he
has
such
shop,
factory,
office,
or
place
of
business
;
(b)
Where
any
person
has
two
or
more
shops,
offices,
factories
or
other
places
of
business
situate
in
different
parishes,
at
which
he
carries
on
his
trade,
profession,
calling
or
business,
he
shall
be
assessed
in
each
parish
for
the
portion
of
his
personal
property
connected
with,
or
employed
in
the
business
carried
on
thereat,
.
.
.’’
By
Section
11
:—
"‘For
the
purpose
of
assessment
on
property
or
income,
every
person
carrying
on
business
in
any
parish
shall
be
deemed
to
be
an
inhabitant
thereof.’’
‘“Person’’
includes
any
corporation
liable
to
be
rated.
Section
25,
subsection
(1)
provides
that
personal
estate
belonging
to
a
joint
stock
company
‘‘having
a
place
of
business
within
the
Province,
may
be
assessed
within
the
parish
in
which
it
has
a
place
of
business
in
the
name
of
the
corporation,
or
of
the
president,
manager
or
agent
thereof,
.
.
.’’;
and
subsection
(3)
:—
“Stocks
or
goods
or
any
other
personal
estate,
except
shares
in
ships
or
shipping,
used
in
any
trading
or
mercantile
business
including
any
fur
bearing
animals
kept
in
captivity
for
breeding
purposes
or
in
connection
with
the
business
of
fur
farming,
in
a
city,
town
or
parish,
belonging
to
any
person
or
persons
not
resident
therein,
or
to
any
corporation
not
having
its
principal
place
of
business
therein,
may
be
assessed
in
such
city,
town
or
parish
in
the
name
of
the
owner
or
owners
of
such
business
or
of
the
agent
or
manager
thereof,
in
such
city,
town
or
parish,
and
such
personal
estate
shall
not
be
liable
to
be
rated
or
assessed
against
the
owner
or
owners
thereof
in
the
city,
town
or
parish
where
he
or
they
reside
or
in
the
case
of
a
corporation,
in
the
city,
town
or
parish
where
such
corporation
has
its
principal
place
of
business
.
.
.”
The
language
of
the
statute
has
been
more
or
less
preserved
in
its
earliest
form.
Intended
to
meet
the
usual
and
simpler
modes
of
“business”
and
reflecting
possibly
the
difficulties
in
attributing
characteristics
of
personality
to
corporations,
the
object
of
Section
25
is
not
free
from
doubt,
but
for
the
purposes
of
this
case,
the
essential
requirement
under
both
Sections
20
and
25
is
that
the
company
should
have
had
a
‘‘place
of
business”
at
which
it
carried
on
business
within
the
parish:
and
the
property
to
be
taxed
must
have
been
connected
with
or
employed
in
the
business
so
earried
on.
The
original
assessment
was
on
a
valuation
of
$600,000.
It
was
made,
apparently,
on
an
estimate
little
better
than
a
guess
that
the
company
had
three
times
as
much
equipment
as
that
of
another
company
which
some
workman
‘‘had
heard’
‘
was
valued
around
$250,000.
An
appeal
was
taken
to
the
County
Court
Judge
who
reduced
the
amount
to
$275,000
but
otherwise
confirmed
it.
Neither
the
particulars
of
the
reduction
nor
of
the
amount
confirmed
have
been
given
us
and
we
are
left
in
the
dark
as
to
the
basis
on
which
the
judge
proceeded.
The
proceedings
were
then
brought
by
certiorari
before
the
appeal
Division
of
the
Supreme
Court
and
by
a
unanimous
judgment
(1950-51),
26
M.P.R.
1;
[1951]
C.T.C.
123,
the
entire
assessment
was
set
aside
on
the
ground
that
the
facts
did
not
show
a
business
being
carried
on
as
required
and
that
there
was
consequently
no
jurisdiction
to
make
it.
That
conclusion
was
founded
upon
what
were
considered
to
be
principles
laid
down
in
De
Beers
Consolidated
Mines
Limited
v.
Howe,
[1906]
A.C.
455,
and
Kirkwood
v.
Gadd,
[1910]
A.C.
422,
and
the
first
question
is
whether
the
Court
has
properly
interpreted
these
two
judgments.
Both
of
them
deal
with
the
rather
complicated
provisions
of
the
Income
Tax
Act
of
the
United
Kingdom,
and
it
is
essential
in
deducing
rules
or
conceptions
from
those
cases
that
the
intricacies
of
that
law
be
clearly
appreciated.
In
De
Beers
the
issue
was
whether
a
mining
company,
incorporated
in
South
Africa
and
carrying
on
the
business
of
diamond
mining
there,
was
subject
to
income
tax
in
England.
In
order
to
be
so,
it
was
necessary,
under
Schedule
D
to
the
second
section
of
the
Income
Tax
Act,
1853,
that
it
reside
in
the
United
Kingdom,
and
the
question
was
whether
it
did
or
not.
Following
decisions
in
Calcutta
Jute
Mills
v.
Nicholson
(1876),
1
Ex.
D.
428,
and
Cesena
Sulphur
Co,
v.
Nicholson
(1876),
1
Ex.
D.
428,
the
House
of
Lords
laid
it
down
that
a.
company
is
to
be
deemed
to
reside
where
it
keeps
house
and
does
business,
and
that
it
kept
house
and
did
business
where
its
central
management
and
control
actually
was.
The
majority
of
directors
and
life
governors
of
the
company
lived
in
England,
their
meetings
were
held
in
London,
and
they
exercised
the
real
control
in
all
the
important
activities
of
the
company
except
the
actual
mining
operations.
It
was
found,
therefore
as
a
fact
that
in
London
that
central
management
and
control
did
abide.
From
this
it
followed
that
the
company
resided
in
England
and
carried
on
some
part
of
its
business
there.
As
a
result,
it
came
under
the
charge
of
the
rule
of
Schedule
D
that
rendered
it
liable
to
taxation
on
the
whole
of
its
profits.
But
it
was
never
suggested
that
the
company
was
not
also
carrying
on
business
in
South
Africa;
its
business
extended
to
both
countries.
The
decision
meant
simply
that
for
the
purposes
of
income
tax
in
England
the
company
was
resident
and
doing
business
there
of
a
central
managing
and
controlling
character.
The
language
of
Lord
Loreburn,
"practically
all
the
important
business
of
the
company
except
the
mining
operations’’
implies,
obviously,
that
these
operations
were
themselves
part
of
the
"‘important
business”.
But
no
one
questions
the
fact
here
that
the
company
through
the
same
degree
of
control
is
resident
at
Fairville
;
there
is
no
question
of
residence
at
all
:
it
is
one
of
doing
business
at
a
place
of
business;
and
on
the
authority
of
De
Beers,
that
business
is
being
conducted
both
at
Fairville
and
in
the
parish
of
Bathurst.
In
Kirkwood’s
case,
the
question
was
whether,
under
the
Money-Lenders’
Act,
the
money-lender
was
bound
to
carry
on
every
detail
of
his
business
at
his
registered
address,
and
it
was
held
that
he
was
not.
The
language
of
Lord
Atkinson
must
be
interpreted
in
the
light
of
the
controversy
which
he
was
considering.
The
acts
which
were
in
question
were
the
negotiation
of
the
detailed
terms
of
the
loan
and
the
ascertainment
of
the
items
of
property
by
which
it
was
to
be
secured,
and
it
was
pointed
out
that,
in
order
to
carry
on
the
business,
some
parts
of
the
transactions
must
necessarily
take
place
elsewhere
than
at
the
lender’s
headquarters.
I
am
unable
to
see
that
the
decision
can,
in
the
slightest
way,
assist
in
the
construction
of
the
Rates
Act.
The
case
of
Swedish
Central
Railway
Co.
v.
Thompson,
[1925]
A.C.
495,
is
of
some
interest
in
presenting
another
aspect
of
the
question
decided
in
De
Beers.
There
the
company
was
incorporated
under
the
Companies
Act,
1862
and
1867,
with
the
object
of
constructing
and
working
a
railway
in
Sweden.
The
railway
had
been
leased
for
50
years
at
an
annual
rent.
The
central
control
and
management
of
the
business
originally
in
England
was
later
transferred
to
Sweden,
and
in
that
state
of
things
the
taxation
was
claimed.
A
committee
had
been
appoited
to
transact
formal
administrative
matters
in
the
United
Kingdom,
such
as
the
transfer
of
shares,
affixing
the
seal
to
certificates,
and
signing
cheques
on
the
London
bank
account.
All
dividends
were
declared
in
Sweden
and
the
only
moneys
transmitted
to
the
United
Kingdom
were
for
dividends
to
the
shareholders
living
there.
The
annual
rent
was
paid
to
the
company
in
Sweden.
It
was
held,
notwithstanding
the
central
direction
in
Sweden,
that
there
was
a
sufficient
corporate
activity
in
the
United
Kingdom
to
establish
a
residence
for
the
purposes
of
taxation.
The
clause
of
the
schedule
applied
covered
the
case
where,
the
central
management
and
control
of
the
business
not
being
carried
on
in
whole
or
part
in
the
United
Kingdom,
but
a
residence
for
limited
purposes
being
there,
tax
was
chargeable
on
the
amount
of
profits
actually
received
in
that
country.
What
was
held,
in
short,
was
that
a
company
for
different
categories
of
tax
could
have
two
residences.
In
Mitchell
v.
Egyptian
Hotels
Limited,
[1915]
A.C.
1022,
a
case
of
similar
facts,
Lord
Parker,
at
p.
1037,
in
the
course
of
his
speech,
cited
the
decision
of
the
House
in
San
Paulo
v.
Carter,
[1896]
A.C.
31,
to
the
effect
that
‘‘a
trade
or
business
cannot
be
said
to
be
wholly
carried
on
abroad
if
it
be
under
the
control
and
management
of
persons
resident
in
the
United
Kingdom,
although
such
persons
act
wholly
through
agents
and
messengers
resident
abroad.
Where
the
brain
which
controls
the
operations
from
which
the
profits
and
gains
arise
is
in
this
country,
the
trade
or
business
is,
at
any
rate
partly,
carried
on
in
this
country.
‘
‘
It
is
obvious
that
in
these
cases
there
was
no
thought
that
the
business
in
its
entirety
was
being
carried
on
in
the
United
Kingdom,
and
likewise
it
cannot
be
said
that
because
the
head
office
of
the
company
in
this
appeal
is
in
Fairville,
its
total
business
is
to
be
deemed
concentrated
at
that
point.
Paragraph
(b)
of
Section
20(1)
contemplates
any
number
of
shops,
offices,
factories
or
other
places
of
business
in
different
parishes
which
can
constitute,
in
many
forms,
branches
of
one
provincial
activity,
and
in
interpreting
the
legislation
the
difference
between
ascertaining
the
conditions
upon
which
personal
property
can
be
taxed
by
a
local
administration
and
those
by
which
a
company
with
a
highly
ramified
organization
is
to
be
subject
to
income
tax
must
be
kept
in
mind.
What
Section
20
envisages
is
a
business
localized
at
a
place
in
a
parish
which
attracts
to
itself
certain
personal
property
to
which
it
gives
a
local
habitation:
a
taxation
based
on
the
presence
of
personal
property
in
a
parish
other
than
that
of
the
owner’s
residence
but
associated
with
a
place
of
business.
Carrying
on
a
business
cannot
be
intended
to
include
every
act
of
management
or
related
to
performance
which
affects
it.
A
business
to
be
conducted
in
its
entirety
within
a
specific
local
area
can,
in
these
days,
embrace
only
the
simplest
body
of
simple
transactions.
Section
20
clearly
extends
to
businesses
that
are
branch
activities
of
a
central
organization
:
and
the
facts
here
indicate
that
the
company
has
other
units
of
plant
and
other
groups
of
equipment
elsewhere
in
the
province.
Once
a
complex
of
repeated
or
systematized
business
operations
becomes
local-
ized
about
a
place
and
presents
its
moveable
property
in
more
than
a
mere
unfixed
or
transient
employment
in
the
parish,
then
the
precise
period
of
its
presence
there
becomes
of
minor
importance.
One
can
imagine,
for
example,
a
special
sale
of
a
bankrupt
stock
conducted
in
a
parish,
say,
for
three
months
and
in
premises
rented
for
that
period
only.
How
could
it
be
maintained
that
that
was
not
a
business
carried
on
at
a
shop
or
place
in
the
parish?
Yet
its
duration
would
be
only
a
fraction
of
what
was
involved
in
the
facts
before
us.
The
situation
must
be
visualized
from
the
standpoint
of
the
community.
Here,
for
well
over
a
year,
these
operations
of
preparing
roadbed,
gathering
and
treating
gravel,
making
surfacing
material
and
applying
it
to
the
roads,
storing
and
repairing
the
machines
used,
hiring,
paying
and
discharging
workmen,
employing
truckers
with
their
vehicles,
all
under
an
immediate
superintendence
centralized
at
a
headquarters,
aggregate
to
what
in
the
ordinary
meaning
of
the
words
is
roadmaking
business.
The
business
of
the
company
here
lies
not
in
negotiating
or
making
contracts
but
in
performing
them:
contracts
are
or
may
be
necessary,
no
doubt;
financing
and
account
books,
likewise;
but
these
are
formal
elements
of
the
operation
activities
of
the
company.
The
question
on
certiorari
is
whether
on
the
facts
before
us
the
assessors
could
properly
find
the
existence
of
a
business
carried
on
at
a
‘‘place’’
in
the
parish,
and
in
my
opinion
they
could
have
done
so.
But
a
further
question
arises
of
the
scope
of
the
business
so
centred
at
Bathurst.
It
was
contended
that
only
the
work
done
in
the
parish
could
be
taken
into
account:
but
that
misconceives
the
statute.
The
business
is
what
is
carried
on,
at,
and
from,
the
place
of
business
within
the
parish;
its
reaches
of
operation
are
not
restricted.
There
is
no
evidence,
however,
that
the
work
in
Kent
County
was
directed
from
Bathurst.
The
main
road
from
Bathurst
to
Douglastown
in
Northumberland
County
I
take
to
have
been
under
that
direction.
Local
time
offices
are
stated
to
have
been
kept
in
both
Northumberland
and
Kent
counties
but
it
is
not
clear
whether
in
the
former
there
was
other
work
than
that
of
the
main
road
or
not.
The
fact
that
all
equipment
for
the
three
counties
was
stored
and
put
into
condition
at
Bathurst
during
the
winter
does
not
annex
it,
in
the
sense
of
the
statute,
to
the
business
conducted
in
Bathurst:
in
that
branch
of
the
operations,
only
the
machinery
and
other
property
used
for
repairing
and
storing
purposes
could
be
taken
to
be
"‘connected
with
or
employed
in’’
the
business:
what
is
itself
repaired
or
stored
is
not
within
that
language.
But
the
whole
of
that
property
was
included
in
the
statement
submitted
by
the
officers
of
the
company
and
included
in
the
assessment.
The
latter
was
made,
too,
certainly
in
amount,
as
an
entirety
:
assessed
at
$600,000
by
the
assessors
and
$275,000
by
the
County
Court
Judge,
it
was
a
single
sum
for
the
total
property,
and
not
the
sum
of
individually
valued
items.
This
was
not
a
case
for
such
a
mode
of
valuation:
the
items
are
disparate
and
should
have
been
severally
valued.
The
amount
representing
the
property
used
otherwise
than
for
the
work
carried
on
from
Bathurst
cannot
therefore
be
struck
out
of
the
assessment
;
and
that
it
is
not
of
a
de
minimis
character
is
clear.
The
authority
for
dealing
with
the
appeal
on
certiorari
is
Section
126
of
The
Rates
Act,
subsection
(b)
of
which
reads
:—
“If
the
Supreme
Court,
upon
any
such
hearing,
is
of
opinion
that
any
such
assessment
is
not
good
in
law
for
the
reason
that
the
assessors,
in
making
such
assessment,
proceeded
upon
a
wrong
principle
in
whole
or
in
part,
and
that
a
legal
and
correct
assessment
could
have
been
made
by
such
assessors,
the
Court
shall
remit
the
assessment
to
the
assessors,
and
the
assessors
shall
proceed
de
novo
to
make
a
new
assessment
in
regard
to
the
particular
person
or
company
assessed
in
and
by
the
assessment
so
brought
before
the
Court,
upon
such
correct
principles
as
may
be
set
forth
or
intimated
by
The
Court
on
the
hearing
of
the
matter
under
the
writ
of
certiorari
or
the
judgment
delivered
by
the
court
in
quashing
or
finding
wrong
said
assessment,
which
new
assessment
shall
relate
in
law
to
the
time
when
the
assessment
so
quashed
or
found
wrong,
in
whole
or
part,
was
made,
and
may
be
dealt
with
as
if
made
at
the
time
of
making
the
first
assessment.
and
the
same
shall
stand
as
good
at
law
and
in
fact,
as
the
said
first
assessment
would
have
stood
and
been,
had
it
been
legally
made,
and
said
second
assessment
may
be
enforced
to
the
same
extent,
and
in
like
manner
as
the
first
assessment
could
have
been,
had
it
been
according
to
law.’’
That
the
assessment
proceeded
upon
a
wrong
principle
"in
whole
or
part’’
but
that
"‘a
legal
and
correct
assessment
could
have
been
made
by”
the
assessors
follows
from
the
conclusions
already
expressed.
A
remission
of
the
assessment
to
the
assessors
as
authorized
by
the
subsection
should,
I
think,
have
been
directed
by
the
Appeal
Division
below
and
is
what
this
Court
should
now
direct.
That
was
the
view
taken
by
Duff,
J.
(as
he
was),
in
The
King,
ex
parte
Bank
of
Nova
Scotia
v.
Assessors
of
Woodstock,
[1924]
S.C.R.
457
at
462,
in
which
a
somewhat
similar
error
was
made
in
assessment
principle.
The
appeal
should
be
allowed,
the
assessment
set
aside
and
returned
to
the
assessors
for
a
re-assessment
on
the
principles
laid
down.
The
appellants
will
have
one-half
of
their
costs
in
this
Court
and
the
respondents
their
costs
in
the
Appeal
Division
and
before
the
County
Court
Judge.
ESTEY,
J.:—The
Assessors
of
the
Parish
of
Bathurst,
County
of
Gloucester
in
the
Province
of
New
Brunswick,
imposed,
in
1948,
a
tax
upon
the
real
and
personal
property
of
the
Dexter
Construction
Company
Limited
(hereinafter
referred
to
as
the
Company).
These
taxes
were
imposed
under
the
provisions
of
The
Rates
and
Taxes
Act
(R.S.N.B.
1927,
ce.
190).
The
Company
admits
liability
for
the
tax
upon
its
real
property,
but
contends
that
the
provisions
of
the
statute
do
not
authorize
the
parish
to
impose
a
tax
upon
its
personal
property.
The
assessment
of
the
personal
property
at
$600,000
by
the
assessors
was
reduced
by
the
Judge
of
the
County
Court
to
$275,000.
The
Appellate
Division
of
the
Supreme
Court
held
the
personal
property
of
the
Company
was
not
liable
to
the
imposition
of
a
tax
by
this
parish
(1950-51),
26
M.P-R.
1;
[1951]
C.T.C.
123.
The
Company,
contractors
with
head
office
at
Fairville,
Parish
of
Lancaster
in
the
County
of
Saint
John,
constructed
roads
throughout
New
Brunswick
and,
in
1947,
was
awarded
a
contract
to
construct
and
pave
the
highway
from
Bathurst
to
Douglas-
town,
passing
through
the
Parishes
of
Bathurst
and
Allardville
in
the
County
of
Gloucester,
and
Alnwick
and
Newcastle
in
the
County
of
Northumberland.
The
Company
brought
its
equipment
and
facilities
for
the
execution
of
its
work
under
this
contract
from
either
its
head
office
at
Fairville
or
from
other
parts
of
the
Province
where
it
had
carried
on
construction
work.
The
superintendent,
foremen
and
those
directing
the
work
were
employees
of
the
Company
directed
to
this
work
from
the
head
office
at
Fairville.
Many
of
the
workmen
were
employed
locally.
The
Company,
in
connection
with
this
work,
purchased
a
parcel
of
land
in
the
Parish
of
Bathurst
and
built
thereon
a
building
of
portable
construction,
which
included
an
office
and
sleeping
quarters.
It
was
built
‘‘in
8
ft.
wide
sections,
so
they
will
fit
on
a
flat-bottom
truck
to
take
away.”
There
were
other
buildings
used
for
the
purposes
of
a
kitchen,
mess
hall,
store
house,
oil
house,
shovel
shop,
truck
shop,
machine
shop,
welding
shop,
paint
shop
and
plant
stock.
Neither
the
construction
nor
the
particulars
of
these
buildings
were
given
in
detail,
but
the
case
has
been
presented
upon
the
basis
that
when
the
work
under
this
contract
was
executed
these
buildings
would
either
be
removed
or
no
longer
used.
The
Company
did
purchase
some
material
for
the
road
locally,
as
well
as
certain
camp
supplies.
At
the
camp
office
tally
and
weigh
sheets
of
materials
and
supplies
received
were
kept,
as
well
as
the
men’s
time,
and
the
cheques,
during
the
active
construction
operations,
were
issued
from
that
office
covering
the
men’s
time
and
the
payment
for
the
materials
and
supplies
purchased
locally.
These
were
apparently
the
only
cheques
issued
from
that
office.
They
were
all
drawn
upon
the
Company’s
bank
account
at
Fair
ville
and
daily
reports
were
sent
to
the
head
office
where
the
books
were
kept.
There
was
no
bank
account
in
the
Parish
of
Bathurst
and
no
cheques
were
received
there.
During
the
winter
all
cheques
were
issued
from
head
office.
The
Company
commenced
the
construction
of
this
highway
in
1947.
When
the
cold
weather
came
on
in
November,
1947,
it
stored
and
repaired
its
equipment,
during
the
winter,
in
the
Parish
of
Bathurst,
and
about
May
20,
1948,
resumed
the
work
of
constructing
the
highway.
The
kates
and
Taxes
Act
(R.S.N.B.
1927,
c.
190)
is
generally
"applicable
to
all
parishes,
cities
and
towns’’
in
the
Province.
Under
the
heading
"‘Assessment
of
Personal
Property,’’
Section
20
provides
that,
apart
from
the
exceptions
there
specified,
"All
personal
property
within
or
without
the
Province,
owned
by
an
inhabitant
of
the
Province,
shall
be
assessed
to
the
owner
in
the
parish
where
he
resides.’’
That
the
Company
had
both
its
head
office
and
principal
place
of
business
and,
therefore,
within
the
view
expressed
in
De
Beers
Consolidated
Mines,
Limited
v.
Howe,
[1906]
A.C.
455,
resided
at
Fairville,
Parish
of
Lancaster,
County
of
Saint
John,
within
the
meaning
of
Section
20(1)
(a),
is
not
disputed.
The
Parish
of
Bathurst
contends
that
the
personal
property
comes
within
the
exception
of
Section
20(1)
(a):
“20.
(1)
All
personal
property
within
or
without
the
Province,
owned
by
an
inhabitant
of
the
Province,
shall
be
assessed
to
the
owner
in
the
parish
where
he
resides,
subject
to
the
following
exemptions:
(a)
Where
any
person
has
a
shop,
factory
or
place
of
business
in
a
parish
other
than
that
in
which
he
resides,
or
in
which
shop,
factory,
office
or
place
of
business
he
carries
on
his
trade,
profession,
calling
or
business,
all
his
personal
property
connected
with
or
employed
in
his
trade,
profession,
calling
or
business
so
carried
on,
shall
be
assessed
to
him
in
the
parish
where
he
has
such
shop,
factory,
office
or
place
of
business
;’’
The
word
44
or”
in
this
subsection
(a),
where
it
appears
after
the
word
"‘resides’’
and
before
the
phrase
"‘in
which
shop,”’
in
my
opinion
should
be
read
"‘and.’’
It,
therefore,
follows
that
not
only
must
the
Company
have
a
shop,
factory,
office
or
place
of
business,
but
it
must
therein
carry
on
its
trade
or
business,
and
the
personal
property,
to
be
taxable,
must
be
connected
with,
or
employed
in
its
trade
or
business.
Our
attention
was
directed
to
a
number
of
cases
in
which
phrases
similar
to
"‘he
carries
on
his
trade
.
.
.
or
business”?
were
considered.
In
San
Paulo
(Brazilian)
Ry.
Co.
v.
Carter,
[1896]
A.C.
31,
and
De
Beers
Consolidated
Mines,
Ltd.
v.
Howe,
supra,
the
House
of
Lords
held
that,
as
the
place
from
which
the
direction
and
control
emanated
was
in
England,
the
Company
was
carrying
on
business
there
and
subject
to
income
tax.
Even
in
the
San
Paulo
case
Lord
Davey
stated
at
p.
43:
"‘The
business
is
therefore
in
very
truth
carried
on,
in
and
from
the
United
Kingdom,
although
the
actual
operations
of
the
company
are
in
Brazil,
and
in
that
sense
the
business
is
also
carried
on
in
that
country.”
In
Kirkwood
v.
Gadd,
[1910]
A.C.
422,
it
was
held
that
that
part
of
the
business
of
money-lending
transacted
in
a
place
other
than
the
registered
office
of
the
money-lender
did
not
constitute
a
carrying
on
of
business
within
the
language
of
the
Money-Lenders
Act.
The
Rates
and
Taxes
Act
expressly
contemplates
the
taxation
of
personal
property
at
a
place
of
business
other
than
the
head
office,
the
principal
place
of
business
or
the
place
from
which
direction
and
control
emanate
and,
therefore,
the
considerations
so
important
in
the
foregoing
cases
are
not
conclusive
in
determining
that
other
place
of
business
contemplated
in
Section
20.
The
foregoing
authorities
as
well
as
others,
and,
indeed,
the
cases
decided
in
Canada,
lead
to
the
conclusion
that
to
decide
whether
or
not
a
company
carries
on
business
within
the
meaning
of
a
particular
statute
it
is
first
necessary
to
construe
the
phrase
as
used
in
the
particular
statute
and
then
to
determine,
as
a
question
of
fact,
whether
the
operation
or
activity
in
question
comes
within
the
phrase
so
used
and
construed.
The
business
of
the
Company
is
admittedly
the
construction
of
highways.
The
pertinent
issue
is,
therefore,
granting
the
Company
carried
on
business
in
the
Parish
of
Lancaster
in
the
County
of
Saint
John,
did
it
also
carry
on
business
within
the
Parish
of
Bathurst
within
the
meaning
of
Section
20
?
Section
20
requires
that
three
essentials
be
established
in
order
that
a
tax
upon
personal
property
may
be
imposed.
The
Company
must
have
a
place
of
business
in
the
parish,
at
which
it
carries
on
its
business
and
in
connection
with
which
it
uses
the
personality.
If
these
three
essentials
be
present
then
it
would
seem
that
the
Company
is
carrying
on
business
within
the
meaning
of
that
section.
The
evidence
discloses,
with
great
respect
to
those
who
hold
a
contrary
view,
that
the
Company
had
a
place
of
business,
within
the
meaning
of
Section
20,
at
Bathurst.
Permanent
records
were
not
kept
at
Bathurst,
but
it
was
there
that
the
men’s
time
was
recorded,
their
wages
computed
and
the
cheques
issued
therefor.
It
is
fair
to
assume
that
a
labourer
would
attend
at
that
office
to
complain
of
any
error
in
his
cheque.
The
supplies
purchased
locally
were
recorded
and
vendors
paid
therefor
by
cheques
issued
from
this
place
of
business.
Moreover,
in
connection
with
the
construction
of
this
highway,
it
would
appear
that
those
at
head
office,
as
well
as
those
directing
and
supervising
the
work
of
construction,
treated
the
premises
at
Bathurst
as
a
place
of
business.
It
was
the
place
to
which
at
least
those
associated
with
the
construction
work
and
the
local
people
went
to
deal
with
the
Company.
There
is
no
question
but
that
a
large
amount
of
equipment
was
used
upon
the
highway
and
used
in
connection
with
the
business
that
was
carried
on
at
Bathurst.
It,
therefore,
appears
that
the
three
essentials
required
by
Section
20,
in
order
that
the
tax
might
be
imposed,
are
here
present.
Counsel
tor
the
respondent
pressed
that,
as
the
direction
and
control
of
the
business
emanated
from
the
head
office
in
Fairville,
and
onee
the
contract
was
completed
the
facilities
at
Bathurst
would
be
removed
or
abandoned,
that
within
the
meaning
of
Section
20
it
could
not
be
said
that
the
Company
earried
on
business
in
the
Parish
of
Bathurst.
These
considerations
might
well
be
conclusive
under
another
statute.
The
hates
and
Taxes
Act,
however,
contemplates
that
personal
property
may
be
taxed
at
a
point
other
than
that
place
from
which
the
direction
and
control
emanate.
Moreover,
that
Act
does
not
make
the
imposition
of
the
tax
contingent
upon
the
existence
of
a
permanent
place
of
business;
it
rather
provides
that
if
the
three
essentials
are
present
the
tax
may
be
imposed.
The
assessors,
in
determining
the
amount
of
the
assessment
at
$600,000,
made
no
distinction
between
the
personal
property
connected
with,
or
employed
by
the
Company
in
its
business
at
Bathurst
and
that
present
at
Bathurst
but
used
elsewhere.
Before
the
learned
County
Court
Judge
the
Company
made
this
distinction
very
clear.
Mr.
Russell
Dexter,
with
whose
evidence
the
learned
Trial
Judge
was
favourably
impressed,
stated
that
the
cost
of
all
equipment
at
Bathurst
was
$546,000,
while
the
cost
of
that
used
at
Bathurst
was
$341,255.
He
admitted
that
a
roller
was
omitted
from
this
latter
item,
of
which
he
did
not
have
the
cost.
It
is,
however,
significant
that
the
cost
price
of
the
equipment,
as
given
by
the
expert
Farrell,
was
$348,000.
It
is,
therefore,
a
fair
conclusion
that
the
roller
accounted
for
the
difference.
The
expert
Farrell
then
deposed
that
the
present
worth
of
that
equipment
used
in
connection
with
the
business
at
Bathurst
was
$175,554.92.
The
municipality,
before
the
learned
County
Court
Judge,
did
not
adduce
evidence
to
contradict
or
vary
either
that
given
by
Mr.
Dexter
as
to
the
amount
of
the
equipment
used
at
Bathurst
or
the
valuation
of
the
same
as
fixed
by
Mr.
Farrell.
A
suggestion
that
there
may
be
other
equipment
that
ought
to
have
been
included,
as
used
in
connection
with
business
at
Bathurst,
does
not,
in
the
circumstances,
involve
a
question
of
principle,
but
rather
one
of
additional
items
and
value
thereof
and,
therefore,
not
a
basis
for
remitting
the
matter
to
the
assessors.
The
learned
County
Court
Judge
did
reduce
the
assessment
to
$275,000,
but
did
not
indicate
the
precise
basis
upon
which
he
did
so.
The
matter
was
then
brought
before
the
Appellate
Division
of
the
Supreme
Court
in
certiorari
proceedings
and
I
have
no
doubt
that
had
the
learned
judges
of
that
Court
held
that
the
Company
was
assessable
they
would,
under
the
provisions
of
Section
126(a),
have
struck
from
the
assessment
that
part
which
was
not
supported
by
the
evidence
and
directed
that
the
assessment
should
be
in
the
sum
of
$175,000,
or,
under
Section
126(d),
would
have
directed
that
the
amount
of
the
assessment
should
be
$175,000
and
that
the
assessors
correct
the
assessment
list
to
that
effect.
I
would,
therefore,
vary
the
assessment
accordingly
and
allow
the
appeal.
Appeal
allowed,
assessment
set
aside
and
returned
for
reassessment.
Appellants
to
have
half
their
costs
in
this
Court,
the
respondents
their
costs
in
the
Appeal
Division
and
before
the
County
Court
Judge.
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