SPECIAL EXAMINER WITNESS.
On an appeal from an award of arbitrators under the Railway Act, 1906.
the arbitrators cannot be examined on oath for the purpose of obtaining
their reasons for the award for the information of the Court: and an
appointment issued by a special examiner without leave of the Court
for the examination of one of them as a witness, as on a pending motion,
was set aside with costs.
Clarkson ( Lloyd i v. Campbellford. Lake Ontario 4 Western Ry. Co.,
21 Can. Ry. Cas. 330, 35 Oi.R. 345.
SCOPE OF APPEAL.
It is competent for the Court, apart from the jurisdiction given by
the Railway Act, 1906. to act upon its own view of the evidence taken
by the arbitrators in expropriation proceedings upon an appeal taken
from the award. [Re Macpherson and Toronto. 26 O.R. 55S. followed.]
Re Muir and Lake Erie 4 Xorthern Ry. Co., 19 Can. Ry. Cas. 107, 20
D.L.R. 687.
[Reversed in 21 Can. Ry. Cas. 350.]
20 APPEALS.
CONCI.USIVENESS OF AWARD AMOUNT.
The Appellate Court will not interfere with the award of arbitrators
who have had the advantage of viewing the property, on a mere matter
of valuation, unless it is evident that they have acted on a wrong
principle in making the award. [Re Muir and Lake Erie & Northern Ry.
Co., 32 O.L.R. 150, 19 Can. Ry. Cas. 107, reversed; Cedars Rapids Co.
v. Lacoste, [1914] A.C. 569 at p. 576; Can. Northern Ry. Co. v. Billings, 19
Can. Ry. Cas. 193 at p. 200 followed.]
Lake" Erie & Northern Ry. Co. v. Muir, 21 Can. Ry. Cas. 350, 32 D.L.R.
252.
INCREASING AMOUNT OF ARHITRATOKS' AWARD.
Upon an appeal from the award of arbitrators made under the Railway
Act, 1906, the Appellate Court may increase the amount of the award,
upon consideration of the evidence given before the arbitrators.
Lake Erie & Northern Ry. Co. v. Brantford Golf & Country Club, 21
Can. Ry. Cas. 360, 32 D.L.R. 219.
RKVIEW OF AWARD.
The award of arbitrators under s. 209 of the Railway Act, 1906, is
similar to the judgment of a trial Judge. An appeal, upon law and fact,
is always open. But an appeal Court will not interfere with the decision,
unless there is good and special reason for doubting the soundness of the
award.
Ruddy v. Toronto Eastern Ry. Co.. 21 Can. Ry. Cas. 377, 33 D.L.R. 193.
[Applied in Noble v. Campbellford etc., Ry. Co., 21 Can. Ry. Cas. 380.]
AWARD VARIED "Gooo AND SPECIAL" REASONS AMOUNT.
An award of arbitrators under the Railway Act, 1906, will not be varied
by an Appellate Court upon a mere question of valuation except for "good
and special" reasons, even when the Appellate Court is of opinion that
the amount awarded is very excessive or very inadequate. [Ruddy v.
Toronto Eastern Ry. Co., 21 Can. Ry. Cas. p. 377 applied.]
Noble v. Campbellford, Lake Ontario & Western Ry. Co., 21 Can. Ry. Cas.
380.
POWER TO REMIT AWARD COMPENSATION MINING RIGHTS.
Where, in an arbitration under the Railway Act, 1906, the arbi-
trators refused, for legal reasons to entertain a claim, an Appellate Court
on appeal therefrom, has power to remit the case to the arbitrators, to
be dealt with by them on the merits; the question of compensation if any
to be paid for a mining right under a coal lease is one of fact for the
arbitrators. [Can. Northern Western Ry. Co. v. Moore, 21 Can. Ry. Cas.
112, 53 Can. S.C.R. 519, 31 D.L.R. 456, followed; Davies v. James Bay
Ry. Co., 19 Can. Ry. Cas. 86, [1914] A.C. 1043, 26 D.L.R. 450, considered.]
Re Nash & Williams and Edmonton. Dunvegan & British Columbia Ry.
Co., 21 Can. Ry. Cas. 399, 36 D.L.R. 601.
SUPERIOR COURT MEANING OF INTERPRETATION ACT.
According to the Interpretation Act (R.S.C. 1906, c. 1, s. 34 (26)), the
Superior Court to which an appeal may be taken in British Columbia
against an award of arbitrators under the Railway Act 1906, s. 209, is
the Supreme Court of British Columbia: there is no further appeal from
such Court to the Court of Appeal.
Re Kitsilano Arbitration, 23 Can. Rv. Cas. 324, 41 D.L.R. 170.
APPEALS. 27
REVIEW or FACTS IMPBOPEB ADMISSION or EVIDENCE.
Wheie the arbitrators admitted as evidence of value, nutters which
the Court on appeal decided were inadmissible and which may ha**-
materially affected the arbitrators* finding, the Court bearing an appeal
from the award is not bound under & 114 of the Railway Act. Alta. 1907.
e. 8 to decide the question of fart raised by the appeal as in a ease of
ig'nil jurisdiction: it is only where there is nothing but a question
of fart involved that the Court is bound under s. 114 to decide the
same upon the evidence taken before the arbitrators instead of setting
aside the award or remitting th- east-. [Atlantic and X.W.R. Co. v.
Wood, [1895] A.C. 257: Cedars Rapids Mfg. Co. v. Lacoste. 16 D.I_R. IfiS.
83 LJ.P.C. 162. considered.]
Can. Northern Western Ry. Co. v. Moore, 23 D.L.R. fc46. S Alta. 379.
JrwsDicnox TO SET ASIDE OB REMIT.
The Court hearing an appeal from an award under s. 114 of the Rail
war Art, Alta.. 1907. e. 8. has jurisdiction on setting aside the award and
remitting the case to the arbitrators to dispose of the costs of the abortive
arbitration proceeding-. {Cedars Rapids Mfg. Co. v. Lacoste. 16 D.LJR.
168, 83 LJF.P.C. 162. referred to.]
Ca Xorthern Western Ry. Co. v. Moore. 23 D.LR. ft4. S Alta. LR.
379.
PRACTICE ADDING XEW EVIDENCE ox APPEAL
It not being the practice in the Superior Court of Quebec on an appeal
from an inferior Court to permit further evidence to be given on the ap-
peal and no general rule having been made to that end. new evidence is
not admissible on an appeal under s. 209 to the Superior Court from the
award of arbitrators in an expropriation under the Railway Act. 1906.
Lachine. Jacques-Cart ier. etc.. Ry. Co. v. Kelly. 20 DJLJR. 587.
QCESTIOX or LAW OK FACT WUTTEA XOTICE.
An appeal from the arbitrators* award under s. 209 of the Railway Act.
1906. upon any question of law or fact, as distinguished from a motion
to set aside an award, is too late if taken more than one month after
the other party to the proceedings had served a writ and petition in ap-
peal therefrom under the Quebec law. although no "written notice** had
been given by any of the arbitrators of the making of the award.
Lachine, Jacques-Cart ier. etc., Ry. Co. v. KeDy, 20 D.L.R. 587.
APPEAL TO SCPEKIOB Cor*T (QUEBEC- REVISION JCMSIMCTIOX or Corrr
op REVIEW.
Lefebvre T. Lachine. Jacques. Cart ier. etc.. Ry. Co.. 16 D.LR. 858.
APPORTIONMENT OF COSTS.
See Highway Crossings: Railway Crossings: Wires and Poles: Farm
Crossing*,
ARBITRATION AND AWARD.
Arbitration of railway construction contracts, see Contracts: Govern-
ient Railways.
See Appeals; Expropriation.
28 ASSESSMENT AND TAXATION.
ARREST.
See False Arrest.
ASSAULTS ON PASSENGERS.
See Carriers of Passengers.
ASSESSMENT AND TAXATION.
See Customs Duties.
Annotation.
Assessment and taxation of railway lands and superstructure, 2 Can. Ry.
Gas. 233.
RAILWAY BRIDGE AND RAILWAY TRACK.
( 1 ) The portion of the railway bridge built over the Richelieu river, and
the railway track belonging to appellant's company within the limits of
the town of St. Johns, are exempt from taxation under ss. 326, 327 of 40
Viet. c. 29 (Que. ), although no return had been made to the council by
the company of the actual value of their real estate in the municipality.
(2) That a warrant to levy the rates upon such property for the years
1880-1883, is illegal and void, and that a writ of injunction is a proper
remedy to enjoin the corporation to desist from all proceedings to enforce
the same. As to whether the clause in the Act of incorporation of the
town of St. Johns (Que.), extending the limits of said town to the middle
of the Richelieu, a navigable river, is intra vires of the legislature of the
Province of Quebec, the Supreme Court of Caiiada aflirmed the holding of
the Court below that it was intra vires. [Judgment of the Court of
Queen's Bench for Lower Canada, reversed.] (Fournier and Taschereau,
JJ., dissenting.)
Central Vermont Ry. Co. v. St. Johns, 14 Can. S.C.R. 288.
[In this case leave to appeal was granted by the Privy Council. After
argument the judgment of the Supreme Court was affirmed, 14 App. Cases
590. Considered in Re Can. Pac. Ry. Co. and Macleod, 2 Can. Ry. Gas.
203, 5 Terr. L.R. 194; distinguished in Dominion Express Co. v. Brandon.
19 Man. L.R. 258; referred to in Hurdman v. Thompson, 4 Que. Q.B. 452.]
FRANCHISE INTERNATIONAL BRIDGE.
In assessing for the purpose of taxation that part of a bridge crossing the
Niagara River, lying within a township in Canada, regard cannot be had
to its value in proportion to the value of the franchise or of the whole
bridge, or to the cost of construction, but only to the actual cash price
obtainable for the land and materials, situate within the township. [Ro
Bell Telephone Co. Assessment (1895), 25 A.R. 351, and Re London Street
Ry. Co. Assessment (1897), 27 A.R. (Ont.) 83, applied.]
Re Queenston Heights Bridge Assessment, 1 O.L.R. 114.
[Applied in Re Stratford Waterworks Co., 21 C.L.T. 479; distinguished
in International Bridge Co. v. Bridgeburg, 12 O.L.R. 314; followed in
Belleville Bridge Co. v. Ameliasburg, 15 O.L.R. 174, 10 O.W.R. 571.]
TAX ON TELEGRAPH COMPANIES COMPANIES INCORPORATED BY PARLIAMENT
INTERPROVINCIAL LINES.
(1) The Quebec Act, imposing an annual tax of $2,000 on all telegraph
companies having a paid-up capital exceeding $50,000, and operating lines of
telegraph for the use of the public within the province, and doing Business
ASSESS3IEXT AXD TAXATION. 29
there, n intra. Tires of the Legislature. 2i Tie telegraph company, ap-
pellaat, although incorporated by Parliament and operating interpronn-
eial lines of IllliaEBBii, that is to say, in all the prormees of Canada, except
British Colombia and Prince Edward Island, having a paid-up capital ex-
ceeding $50,000, is liable for this annual tax of $2.000. inasmuch as it
carries OB business in the Province of Quebec and operates a put of its
lines of telegraph therein for domestic despatches, that is to saj, for
* fall hi i. sent from one point to another within the province. (s" The
action of the collector of revenue in his capacity as such for the reeoverv
of the tax is presumed to be managed and directed by the Attorney-
General, who is dominns litis thereof, and. consequently, "the intervention
of the Attorney-General for the purpose of sustaining the constitution-
ality of the statute is a useless and superfluous proceeding, in respect
of which, under the circumstances, he cannot be given costs. (4 1 The
Court of Appeal will not take into consideration objections more to
the form than to the merits of the case, which hare not been taken in
the Court of first instance.
Great Xorth-West Telegraph Co. T. Fortier. 1* Que. KJB. 4O5.
LAXDS OF THE CJP. ET. Co. EXEMPTIONS FBOM TAXATION.
By the charter of the CJ>. Ry. Co. the lands of the company in the Xorth-
West Territories, until they are either sold or occupied, are exempt from
Dominion, provincial or municipal taxation for twenty years after the
grant thereof from the Crown: Held, affirming the judgment of the Court
below, that lands which the company have agreed to sell and as to which
the conditions of sale have not been fulfilled are not hinds "sold" under
this charter. Held, further, that the exemption attaches t* lands allotted
to the company before the patent is granted by the Crown. Lands
which were in the X.W.T. when allotted to the company did not lose their
exemption on becoming, afterwards, a part of the Province of Manitoba.
Cornwallis T. Can. Pac. Ry. Cou 19 Can. S.CJB. 702.
[Considered in Ruddell T. Georgeson. 9 Man. LJEL 415: discussed in
Rnddell T. Georgeson. 9 Man. I_R_ -56: distinguished in Water Commission-
ers of Windsor T. Canada Southern Ry. Co.. 20 A.R. (Ont. 388; referred
to in R. T. Victoria Lumber and Mfg. Co.. 5 B.C.R. 302: South Xorfolk v.
Warren, 8 Man. L.R. 489: relied on in Balgonie Protestant School v. Can.
Pae. Ry. Co., 5 Terr. LR- 131: Xorth Cypress T. Can. Pae. Ry. Co., 35
Can. S.CJL 558.]
TAXATION OF KAH.WAT Povnots OF ASSESSORS DHArrrsF_
By the assessment law of the city of St. John, 53 Viet. e, 27. s. 125
(X.B.), the agent or manager of any joint stock company or corporation
established abroad or out of the limits of the province may he rated and
assessed upon the gross and total income received for such company or
corporation, deducting only therefrom reasonable cost of management, etc.,
and such agent or manager is required to furnish to the assessors each
year a statement under oath in a prescribed form showing the gross
income and the deductions of the various classes allowed, the balance to
be the income to be assessed: and. in case of neglect to furnish such state-
ment, the assessors are to fix the amount of such income to be Assessed
according to their best judgment, and there shall be no appeal from such
assessment. The Atlantic division of the C.P.R- runs from Megantie. in
the Province of Quebec, through the State of Maine into Xew Brunswick.
On entering Xew Brunswick it runs over a line leased from a X.B. Co. to
the western side of the river S(L John, and then over a bridge into the
city, where it takes the I.C.R. road. The general superintendent has an
30 ASSESSMENT AND TAXATION.
office in the city, but all moneys received there are sent to the head office
in Montreal. The superintendent was furnished with a printed form to be
filled up for the assessors, as required by said Act, which was as follows:
"Gross and total income received for company during the fiscal year of
, next preceding the first day of April. This amount has not been re-
duced or offset by any losses, etc." This latter clause the superintendent
struck out and filled in, in the first place, by stating that no income had
been received by the company, the remainder of the form, consisting of
details of the deductions, was not filled in. This was given to the as-
sessors as the statement called for, and they disregarded it, assessing the
company on an income of $140,000, without making any inquiries of the
superintendent, as the Act authorized them to do. A rule for a certiorari
to quash this assessment was obtained, but discharged by the Court on the
ground that the superintendent had so far departed from the prescribed
form that he had in effect failed to furnish a statement as required by the
Act, and the assessment against him was final: Held, reversing the de-
cision of the Supreme Court of New Brunswick, .Fournier and Taschereau,
JJ., dissenting, that the superintendent had a right to modify the form
prescribed to enable him to shew the true facts as to the business of the
company in St. John, and the assessors had no right to arbitrarily fix
an amount assessable against him without taking any steps to inform
themselves of the truth or falsity of the statement furnished: Held, also,
that the provision that there should be no appeal from the assessment
where no statement is furnished, relates only to an appeal against over-
valuation under C.S.N.B. c. 100, s. 60, and does not abridge the power of
the Court to do justice if the assessors assess arbitrarily or upon a wrong
principle or no principle at all: Held, per (rwynne and Patterson, JJ.,
that the assessment law of St. John does not apply to railway companies,
there being no provision made for ascertaining the amount of business done
in the city as proportioned to the whole business of the company. Appeal
allowed with costs.
Timmerman v. St. John (1893), 21 Can. S.C.R. 691.
TAX ON RAILWAY EXEMPTION RAILWAY INCIDENT TO MINING.
By R.S.N.S. (5th Ser.), c. 53, s. 9, subs. 30, the roadbed, etc., of all
railway companies in the Province is exempt from local taxation. By s. 1
the first part of the Act from s. 5 to 33 inclusive, applies to every railway
constructed and in operation, or thereafter to be constructed under the
authority of any Act of the Legislature, and by s. 4, part 2 applies to all
railways constructed or to be constructed under the authority of any special
Act, and to all companies incorporated for their construction and work-
ing. By s. 5, subs. 15, the expression "the company" in the Act means the
company or party authorized by the special Act to construct the rail-
way: Held, reversing the decision of the Supreme Court of Nova Scotia,
G Wynne, J., dissenting, that part one of this Act applies to all railways
constructed under provincial statutes and is not exclusive of those men-
tioned in part two; that a company incorporated by an Act of the Legis-
lature as a mining company, with power "to construct and make such
railroads and branch tracks as might be necessary for the transportation
of coals from the mines to the place of shipment, and all other business
necessary and usually performed on railroads," and with other powers
connected with the working of mines "and operation of railways," and
empowered by another Act (49 Viet. c. 45, N.S. ) to hold and work the
railway for general traffic, and the conveyance of passengers and freight
for hire, as well as for all purposes and operations connected with said
ASSESSMENT AND TAXATION. 31
miae* in accordance with and ?nl.jert to the provisions of pan serd of
e_ 53. RJ&X.S. 3th Ser.i. entitled -Of Railways." fe a railway company
within the meaning of the Act : an-1 that the reference in 49 v'iet. e. 14-i
s. 1. to part two. does not prevent said railway from earning under the
operation of the first part of the Art.
International Coal Co. T. Cape Breton. 22 lan. S.C.R. 305.
MCXICTPAI. ASsessnEXT or STBEET BAU.WAT REPAIB or BOADWAT _ LOCAJL
A street railway company in Toronto was to be assessed in respect of
repairs to the roadway traversed by the railway, as for local improvements,
which, by the Municipal Act. constitute a lien upon the property ass*->**d.
but not a personal liability npna owners or occupiers after they ha*c
ceased to he such: Held, that after the termination of its franchise, the
company was not liable for these rates.
Toronto v. Toronto Street Ry. Co.. 23 Can. S.C.R. 198.
TAXATION or HOBSE CABS.
By a by-law of the city of Montreal a tax of ftL50 was imposed upon
each working horse in the city. By s. 16 of the appellant's charter it is
stipulated that each car employed by the company shall be licenced an-1
numbered, etc- for which the company shall pay -over and above all other
taxes the sum of $20 for each tan-hone car. and #10 for each one-hor-e
car": Held, affirming the judgment of the Court below, that the company
was liable for the tax of $i5rt on each and every one of its horses. 2 Que.
Q. B. 391 affirmed.
Montreal Street Rv. Co. v. Montreal. 23 Can. S.C.R. 59.
TAX ox BUSINESS rscLrorsG BAH.WAT.
The statute. 29 Viet. c. 57 (Can.1. consolHiatai; and amending the Act*
and Ordinances incorporating the city of Quebec, by subs. 4 of s. 21. au-
thorizes the making of by-laws to impose taxes on persons exercising certain
callings. ~and generally on all trades, manufactories, occupations, business,
art*, profession* or means of profit, livelihood or gain, whether hereinbe-
fore enumerated or not. which now or may hereafter be carried on. exercised
or in operation in the city : and all persons by whom the same are or may
be carried on. exercised or put in operation therein, either on their own
account or as agents for others: and on the premises wherein or whereon
the same are or may be carried on. exercised or put in operation*": Held,
that the general words of the statute quoted are sufficiently .comprehensive
to authorize the imposition of a business tax upon railway companies: and.
further, that the power thus conferred might be validry exercised by the
passing of a by-law to impose the tax in the same general terms as those
expressed in the statute: Held, per Strong. CJF-. that where taxes have
hen paid to a municipal corporation voluntarily and with knowledge of the
state of the law and the circumstances under which the tax was imposed.
no action can lie to recover the money so paid from the municipality.
[Judgment of the Court of Queen's Bench. * Qne. Q.B. 246. affirmed.]
Can. Pae. Ry. Co. T. Quebec. 3fl Can. S.C.R. 73.
SCHOOL TAXES EXXMFTIOX raov MFXICIFAL BATES.
By-law Xo. 1*3 of the city of Winnipeg, passed in 1 SSI.. exempted for
ew the C-P-R. Co. from -all municipal taxes, rates and levies and assess-
ments of every nature and kind": Held, reversing the judgment of the
Court of Queen's Bench. 12 Man. L.R. 581. 1M> C-A. Dig. 326. that the c\
emption included school taxes. The by-law also provided for the borne
32 ASSESSMENT AKD TAXATION.
of debentures to the company, and by an Act of the Legislature.
46 & 47 Viet. c. 64, it is provided that by-law 348 authorizing tln>
issue of debentures granting by way of bonus to the C.P.R. Co. the
sum of $200,000 in consideration of certain undertakings on the part
of the said company; and by-law 195 amending by-law No. 148 and ex-
tending the time for the completion of the undertaking ... be
and the same are hereby declared legal, binding and valid. . . . :
Held, that, notwithstanding the description of the by-law in the Act was
confined to the portion relating to the issue of debentures, the whole by-law,
including the exemption from taxation, was validated. 12 Man. L.R.
381, reversed.
Can. Pac. Ry. Co. v. Winnipeg, 30 Can. S.C.R. 558.
[Considered in Balgonie Prot. School v. Can. Pac. Ry. Co., 5 Terr. L.R.
132; discussed in Re Toronto School Board & Toronto, 2 O.L.R. 727;
distinguished in Pringle v. Stratford, 20 O.L.R. 246; followed in North
Cypress v. Can. Pac. Ry. Co., 35 Can. S.C.R. 556; referred to in Toronto
School Board v. Toronto, 4 O.L.R. 468.]
EXEMPTIONS OF MORTGAGES RAILWAY BONDS SECURED BY MORTGAGE.
The whole of an estate of a deceased person, liable to be assessed in the
city of St. John, may be rated in the names of the resident trustees,
under 52 Viet. c. 27, s. 135, though one of the three trustees in whom it
is vested is resident abroad. Railway bonds, secured by a mortgage, are
not mortgages within the meaning of s. 121, as amended by 63 Viet. c.
43, and are not exempt from taxation.
The King v. Sharp ; Ex parte Lewin, 35 N.B.R. 476.
INCOME ASSESSMENT DIVIDENDS ON SHARES IN OTTAWA ELECTRIC RY. Co.
AGREEMENTS BETWEEN COMPANY AND CITY CORPORATION EXEMP-
TIONS.
By an agreement dated the 28th June, 1893, between the corporation
of the city of Ottawa and the two companies which were amalgamated
under the name of the Ottawa Electric Railway Company, by statutes
which confirmed the agreement, it was provided, inter alia, that "the cor-
poration shall grant to the said companies exemption from taxation and
all other municipal rates ... on the income of the companies earned
from the working of the said railway": Held, that the plaintiff's income
from dividends upon shares of the capital stock of the Ottawa Electric
Ry. Co. was not, by reason of the agreement in part above recited, nor by
reason of an earlier agreement, exempt from municipal taxation: Held,
also, that the Ottawa Electric Ry. Co. is not a company which would, but
for the agreements mentioned, be liable to be assessed for income under
the provisions of the Assessment Act, 1904 ; and, therefore, s. 5, subs.
17, does not apply to exempt dividends or income from the stock. The
Assessment Act does not confer upon the shareholders of a company which
is not liable to income assessment, but is liable to business assessment,
an exemption from assessment upon their dividends from stock in the
company, except as contained in s. 10, subs. 7.
Goodwin v. Ottawa, 12 O.L.R. 236.
[Leave to appeal refused, 12 O.L.R. 603.]
BOOK DEBTS RAILWAY BONDS MORTGAGES.
Book debts are assessable in the city of St. John, under s. 121 of 52
Viet. c. 27, as amended by 63 Viet. c. 43. Railway bonds secured by a
mortgage are not exempt under the said Acts.
The King v. Sharp ; Ex parte Turnbull, 35 N.B.R. 477.
ASSESSMENT AXD TAXATION. 33
REVISION OF VALUATION BOLL AKT. 746A, M.C.
The terms of Art. 746m. Municipal Code, so far as regards the revision
of the valuation roll ''in the months of June or July," are directory only,
and the municipal council charged by law with the duty of revision' is not
divested of authority to make such revision where the time specified in
the article has expired before the duty has been performed.
Can. Pac. Ry. Co. v. Allan. 19 Que! S.C. 57 (Curran. J.).
ASSESSMENT OF RAILWAY ~LANDS."
The buildings of a railway company are assessable under s, 3 of the Or-
dinance respecting the assessment of railways, the word "lands" therein