The Security Export Co. v. Hetherington

The Security Export Co. v. Hetherington
Collection
Supreme Court Judgments
Date
1923-12-31
Report
[1923] SCR 539
Judges
Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe; Mignault, Pierre-Basile
On appeal from
New Brunswick
Subjects
Prerogative writs
Decision Content
Supreme Court of Canada
The Security Export Co. v. Hetherington, [1923] S.C.R. 539
Date: 1923-12-31
The Security Export Company Appellant;
and
The Honourable J. E. Hetherington, Provincial Secretary-Treasurer of the Province op New Brunswick Respondent
1923:
Present: Idington, Duff, Anglin. Brodeur and Mignault JJ.
ON APPEAL FROM THE APPEAL DIVISION OF THE SUPREME COURT OF NEW BRUNSWICK
Certiorari—Collection of tax—Distress—Secretary-Treasurer of Province—Judicial or ministerial Act—Tax on liquor for export—Direct or indirect taxation—B.N.A. Act s. 92 (2)—12 Geo. V, c. 3 (N.B.), Liquor Exporters' Taxation Act.
By section 3 of the Liquor Exporters' Taxation Act of New Brunswick (12 Geo. V, c. 3), every person who has liquor for export from the province shall pay to the Crown a tax thereon at a specified rate and, by section 4, within a specified time ; by section 6 in default of payment the amount of the tax may be levied by distress under a warrant signed by the Provincial Secretary-Treasurer, or (section 7) the Secretary-Treasurer may bring an action to recover it; and section 9 authorizes the Lieutenant-Governor in. Council to make regulations for, inter alia, "the fixing and determining of the amount of the said tax." In a case of distress under these provisions it was not shown how the amount had been determined.
Held, Anglin and Mignault JJ. dissenting, that the act of the Secretary-Treasurer in signing the warrant is judicial and not ministerial merely and that certiorari will lie to bring the proceedings before the Supreme Court of the province for review.
Held also, Anglin and Mignault JJ. expressing no opinion, that the imposition of a tax on liquor kept for export is indirect taxation and ultra vires of the provincial legislature.
APPEAL from a decision of the Appeal Division of the Supreme Court of New Brunswick quashing a writ of certiorari obtained by the appellant to have the proceedings on distress of its goods reviewed.
Two questions were raised on the appeal, namely, whether or not certiorari lies under the circumstances set out in the head-note and secondly, whether or not the Liquor Exporters' Taxation Act of New Brunswick was intra vires of the legislature of the province. The Appeal Division held that certiorari does not lie in such a case which made unnecessary any decision, as to the validity of the Act. Geoffrion K.C. and Fred. R. Taylor K.C. for the appellant. The Secretary-Treasurer in signing the distress warrant performs a judicial act.
For the contrary proposition the respondent and Mr. Justice White in the Appeal Division rely on Ex parte Taunton[1]. That case merely decides that the issuing of a distress warrant under 43 Eliz., c. 2, is a ministerial act but is no authority on its issue under other conditions. A much earlier case Harper v. Carr[2], not referred to in Ex parte Taunton1, was such a case. There the issue of the warrant was held to be judicial.
In Painter v. Liverpool Gas Light Co.[3] the issue of a warrant without first hearing the parties was held to be illegal. This is one test of the ministerial or judicial character of the act. Another test is given in Staverton v. Ashburton[4] where Wightman J. said: "Were not the justices under the statute 43 Eliz., c. 2, entitled to withhold their assent if they thought fit? That is the test as to whether the act is ministerial or judicial." This test was adopted by Allen C.J. in The Queen v. Simpson[5] at page 474.
The modern judicial tendency is towards giving to the term "judicial act" a very broad scope "including many acts that would not ordinarily be termed judicial." Per Fletcher-Moulton L.J. in Rex v. Woodhouse[6].
The tax on liquor held for export is indirect taxation and the act imposing it is ultra vires. See Bank of Toronto v. Lambe[7] ; Attorney General for Quebec v. Queen Ins. Co.[8].
Byrne K.C., Attorney-General of New Brunswick for the respondent. The court below in quashing the writ exercised a discretion which should not be interfered with on appeal. Moreover the judgment appealed from is not final and this court has no jurisdiction. Faucher v. Compagnie du St. Louis[9]. As to the character of the Provincial Secretary's act we rely on the opinion of Mr. Justice White. And see also The Queen v. Shurman[10].
The validity of the Liquor Exporters' Taxation Act in question in proceedings is pending in the Supreme Court of New Brunswick.
Geoffrion K.C. and Fred. R. Taylor K.C. for the appellant.
Byrne K.C., Attorney-General of New Brunswick for the respondent.
Idington J.—The Chief Justice of the province of New Brunswick granted, on the application of the appellant, on the 31st of August last, an order absolute for the issue of a writ of certiorari directed to the respondent, and a rule nisi to quash a distress warrant which he had, in his quality of Provincial Secretary-Treasurer pretending to act under the Liquor Exporters' Taxation Act, being 12 Geo. V, c. 3 of the said province, issued against the goods of appellant directing the sheriff of the city and county of St. John, in said province, to levy thereon the sum of $62,042.
The return of the said respondent to the said writ was as follows:—
I, J. E. Hetherington, Provincial Secretary-Treasurer of the province of New Brunswick, do hereby certify that before the coming of the writ of our said Lord the King to me directed and to this schedule annexed, I did, as Provincial Secretary-Treasurer of the province of New Brunswick, on the 10th day of August, A.D. 1922, sign and issue a distress warrant, and on the 12th day of August, A.D. 1922, deliver the said distress warrant to Amon A. Wilson, Esq., which distress warrant is in the words and figures following:
"Amon A. Wilson, Esq.,
High Sheriff of the city and county of St. John.
Sir: Under and by virtue of section 6 of the Act of Assembly 12 George V, chapter 3, cited as "The Liquor Exporters Taxation Act," default having been made by the Security Export Company, Limited, of the tax imposed upon it by the said act within the time limited for payment. Therefore, I do hereby authorize and require you the said Sheriff to distrain the goods and chattels of the Security Export Company, Limited, wherever found within the province of New Brunswick and levy by distress upon the goods and chattels of the said Security Export Company, Limited, the sum of sixty-two thousand and forty-two dollars, being the amount of the tax due to the Crown for use of His Majesty in right of the province of New Brunswick by the said Security Export Company, Limited, upon forty-nine thousand six hundred and forty-two gallons of liquor, which the said Security Export Company, Limited, owns, now has, keeps or has property rights in, within the province of New Brunswick for export to a place outside of the province of New Brunswick, and you the said Sheriff shall levy the said sum of sixty-two thousand and forty-two dollars aforesaid and all costs of sale of the goods and chattels of the said Security Export Company, Limited, or so much thereof as may be necessary to satisfy the said tax and the costs of the said distress.
Dated this 10th day of August, A.D. 1922.
J. E. HETHERINGTON,
Provincial Secretary-Treasurer, of the province of New Brunswick."
That the said warrant of distress is now, I verily believe, in the possession of the said Amos A. Wilson, Esq., High Sheriff of the city and county of St. John, aforesaid, and was so in his possession at the time of the receipt of the said writ by me, and I have not now, nor did I have at the time, nor at any time since the receipt of the said writ, the said distress warrant in my custody or keeping.
And this is my return to the said writ.
Dated this 9th day of September, A.D. 1922.
J. E. HETHERINGTON,
Provincial Secretary-Treasurer of the province of New Brunswick.
The said writ was granted by the said Chief Justice upon the following grounds:—
1. That the Provincial Secretary-Treasurer has no jurisdiction to issue the distress warrant or execution whereon the levy was made on the goods of the Security Export Company, Limited.
2. That the Liquor Exporters' Taxation Act is ultra vires of the Legislature of the province of New Brunswick and in violation of the British North America Act.
3. That the document in this case purporting to be a distress warrant is irregular in that it is not a formal warrant directing the Sheriff to levy the said tax with costs, but merely a letter of direction to the Sheriff to levy the said tax.
The appellant being, as seems to be admitted, lawfully engaged in the export of liquor, in course of such business stored in the King's bonded warehouse in St. John about 49,642 gallons of liquor for export to places outside the said province, upon which said Sheriff, on the 14th of August, 1922, levied by virtue of the said distress warrant.
The Appeal Division of the Supreme Court of New Brunswick having heard the questions raised upon the return of said rule nisi according to the practice provided by the Judicature Act, 1909, and order 62 thereunder, discharged said rule nisi, holding that the act of respondent in issuing said warrant was a mere ministerial act and in no sense a judicial act.
The court in so holding seems to rely upon section 9 of the said Act, which provides as follows:— 9. The Lieutenant-Governor in Council may, notwithstanding anything contained in this Act, and in so far as it is within the jurisdiction of the province so to do, make regulations, and the same repeal and amend from time to time, regarding the premises and kind of premises in which liquor shall be kept for export purposes, inspection of the said premises and the liquor kept therein, the kind and quality of liquor so kept, the marking and labelling of packages for exportation, the fixing and determining of the amount of the said tax, the cost to be allowed to the Sheriff executing any warrant of distress, the providing for the registration of all persons, firms, associations, companies and corporations carrying on a liquor export business or having liquor stored for export, and the returns to be made by them or their agents of liquor received, sold, exported and on hand, and generally all such matters and things incidental to or in any way connected with the liquor export business and the method and manner of conducting the same.
(1) Such regulations, or such parts thereof as the Lieutenant-Governor in Council shall determine, shall be published in the Royal Gazette, and, when so published, shall have the same force and effect as if incorporated as provisions of this Act, and the violation of or failure to comply with any such regulations shall constitute an offence and subject the offender thereof to the penalty hereinafter mentioned.
Counsel for appellant herein in the course of his argument produced a copy of the publication of such regulations; stated that same were published in the local Royal Gazette of the 7th of June, 1922, and that no others ever had been published; and submitted, as I think correctly, that the court could take judicial notice thereof.
The Attorney-General for New Brunswick, who appeared as counsel for respondent herein, neither pretended to deny said statements nor to challenge said submission.
He suggested mildly that the Lieutenant-Governor in Council could legally alter same from time to time as to each parcel of goods happening to come into store for exportation, and vary the tax as advised, without publication in the Royal Gazette.
I cannot assent thereto as a correct interpretation and construction of the Act, or of said section.
On the contrary I hold that until publication in the Royal Gazette such changes of regulations could have no legal effect.
I have taken the liberty of reading the said publication therein and cannot find, either that it changes the rate of taxation, or pretends to assign to any one the determination of the amount due by any exporter in respect thereof. It provides for the appointments of an inspector and assistant to give certain receipts and in many ways check exporters thereby from infringing the law. In course thereof he is to keep books and do many things, but, not in a single sentence nor altogether, is he assigned the duty of declaring anything due upon or in request of which a warrant of distress may be issued.
The fair inference to be drawn from sections 4, 6 and 7, which read as follows,—
4. The tax imposed by this Act in respect of all liquor had or kept as aforesaid at the time of the passing of this Act shall be paid to the Provincial Secretary-Treasurer within one month from the date at which said Act shall come into force, and on all liquor subsequently acquired, kept, sold or shipped as aforesaid, said tax shall be paid to the Provincial Secretary-Treasurer within fifteen days from the date when such liquor is acquired, kept, sold or shipped.
6. In default of payment within the time limited of any tax by this Act imposed, the same may be levied, with costs, by distress upon the goods and chattels, wherever found, of the person, firm, association, company or corporation liable therefor, under a warrant signed by the Provincial Secretary-Treasurer, directed to the Sheriff of any county, and the sheriff to whom the same is directed shall levy the tax and all costs, by sale of the goods and chattels of the person, firm, association, company or corporation in default, or so much thereof as may be necessary to satisfy the tax and the costs of said distress.
7. Any tax imposed by this Act may, at the option of the Provincial Secretary-Treasurer, be recovered by and in the name of the Provincial Secretary-Treasurer, by action in any court of competent jurisdiction,
coupled with the preamble reciting that the purpose of the Act was to assign to a department of the Government the control of liquor export business, is that the respondent, or he filling that office which he then filled, should decide and determine what the amount demanded should be, and, incidentally thereto, should decide when to issue a warrant of distress. In course of doing so he certainly would require to have the evidence before him to enable him to so determine and ought to act judicially in regard thereto, and he has not pretended, in his reply, above quoted, aught else, or that any one else had so decided or had the duty to decide. I infer that he might use the inspector's books and other material, as well as the bank account of his own department and record of his receipts thereby, as proper means of determining what was due from any exporter. Evidently the respondent's was the department to which the control as recited was intended to be assigned. I am for these reasons, as well as from the bare act of deciding the truth of what is recited by him in the warrant, of the opinion that he was not in what he did or should have done, limited to discharging mere ministerial functions.
I therefore cannot agree with the court below in holding otherwise.
After reading many of the cases cited in argument and many more, I am inclined to agree with Mr. Justice White that it is almost impossible to reconcile all the cases in question, but much of the apparent conflict is due to many changes in the law governing certiorari.
And much, of all that, is cleared up by the reasoning in the modern cases to which I will presently refer, or cite.
Meantime I may point out that the learned justice speaking for the court seems to rest the decision of the court now appealed from, almost entirely upon the authority of the case of Ex parte Taunton[11], arising out of and resting upon what 43 Elizabeth, c. 2, section 4, provided for in regard to two Justices of the Peace issuing a distress warrant to levy the amount assessed and declared due, by the mode described in a full and amply detailed manner in previous sections of the Act.
Judgment had thereby been definitely declared and the amount due clearly ascertained. How that furnishes any analogy for what we have herein to deal with, I respectfully submit, passes my understanding. At best it was the decision of a judge in the Practice Court. Here we have no such declaration of any finding of the amount due except in this warrant of distress issued by the respondent and presumably determined by him on such material as he was ex parte furnished with. It seemingly combines judgment and warrant of distress in one document.
It seems rather an irregular method but that is what is complained of.
The case of The Overseers of Staverton v. The Overseers of Ashburton[12], is also referred to by Mr. Justice White, as if it turned upon the same section of said Act of Elizabeth, which it does not, as Ex parte Taunton11. Instead it turned upon section 5, which deals with an entirely different subject matter, relative to the question of apprenticeship. The judgment therein is, however, very valuable for our purpose, inasmuch as it has to deal with the distinctions between what is the discharge of a judicial duty and a ministerial duty.
It was attempted therein in appeal to uphold the judgment of a court appealed from that the mere assent of two justices was a ministerial act and could not be held or called the discharge of a judicial duty.
The contention there seemed quite as plausible as that which respondent herein so successfully set up below. It was overruled therein and the court appealed from reversed and seems to point our duty to do likewise herein.
It also upheld the decision in the case of The King v. Hamstall Ridware[13], which had turned upon a like narrow distinction between what was a judicial, though contended to have been only a ministerial duty.
The counsel for appellant calls attention to the following note on page 21 of Paley on Summary Convictions, 8th ed.,
In general the issuing of a warrant of distress or commitment is a judicial act as the party against whom it is sought should have an opportunity of showing that he has obeyed the order or conviction which the warrant is intended to enforce.
Of those cited by Paley counsel for appellant selects Rex v. Benn[14] ; Harper v. Can[15] ; Painter v. Liverpool Gas Co.[16], and Hammond v. Bendy she[17].
Numerous others are cited by Paley in said note but none, though distinguishing many from those just cited, which seem to help respondent herein.
The cases cited by either side herein have all been fully considered save a number of American decisions and others that would not bind us. I find that the American cases cited for the most part rest on local statutes.
The sole question that has given me most trouble was that which the court below proceeded upon. And upon that the only case respondent's counsel cites which, if still law, could bind us, is the case of Reg. v. Sharman; Ex parte Denton[18], which as counsel for appellant points out, was expressly overruled by The King v. Woodhouse[19]. And I find that this latter was in turn reversed by the House of Lords in Leeds Corporation v. Ryder[20]. What is the result in neat law? I find much to interest as well as help in the reasoning of many judges, but nothing decisive of the case in hand.
I am quite satisfied on the foregoing cases and many others I have looked at that the act of the respondent was judicial and not ministerial and that certiorari would lie herein.
As an illustration of how wide the range of the authority of the court given the jurisdiction to issue a writ of certiorari extends, I may refer to the case of Reg. v. Coles[21].
Counsel for respondent argued that this writ of certiorari in question herein was against the Crown.
I fail to see how on the facts I have dealt with.
It certainly is against a servant of the Crown and so is every other directed to a justice of the peace, or to the Quarter Sessions, or any other inferior jurisdiction.
The Attorney-General on behalf of the respondent seemed to hint or suggest that the Lieutenant-Governor in Council in fact had directed all that was done herein.
I hope not. But if so, such fact was not proven or relied on in any way in the return made by the respondent, who responded as if he and his department were in control as much as any justice of the peace or other officer subject to the supervision of the court having the powers implied in its power to issue a writ of certiorari.
I come now to the question of the validity of the legislation.
The Provincial Legislature, according to my reading of the British North America Act, never had the power to impose either import or export duties except under and by virtue of a special reservation relative to timber and lumber, provided for by section 124 of the Act in favour of New Brunswick. That demonstrates how completely all concerned in framing the Act looked upon other export duties as without foundation, within the B.N.A. Act.
The exceptional privilege was cancelled by an agreement between New Brunswick and the Dominion at a price of $150,000 a year, as evidenced by the Dominion Statute 36 Vict., c. 41.
In the Attorney General's factum herein for respondent he makes no allusion to the contention set up, as the second of the grounds upon which the Chief Justice had ordered the issue of the writ and rule nisi, namely the invalidity of the said legislation in question herein by reason of its being ultra vires.
Yet he sets up as a reason in said factum that there is some other litigation pending which would decide the question of ultra vires.
Numerous cases can be found where parties have exhibited the like perversity of pursuing two different paths to find the law, when the shortest would have sufficed.
Sometimes the pursuer of both remedies found one had been taken away by legislation, but in other cases he found both had been left open, and that is so in this case, because the legislature failed to take away the writ of certiorari, though evidently quite willing to go very far.
The appellant's counsel relies upon our decision in Martinello v. McCormick[22], which, if we had in this record evidence of what is meant by the King's shop, where the liquor was stored, might in itself be conclusive against respondent.
Many other reasons might be assigned to shew how completely ultra vires this legislation is which seems to be quite regardless of the limits of power existent in the legislature.
I am of the opinion that this appeal should succeed and the appeal be allowed with costs here and in the Appeal Division below; the warrant quashed, and the course made clear, according to local practice, for pursuing any other remedies those concerned have resorted to or may desire to pursue. There is some question raised in my mind as to the effect of recent legislation taking away the right of appeal in cases of certiorari and making the amount involved the only test unless where leave of appeal given.
Having considered the question and seeing no point made of it by respondent, I conclude that, the amount involved far exceeding the $2,000 limit, the appeal lies.
No leave to appeal here appears in the record and I assume therefore no leave asked for.
Duff J.—The statute under which the Secretary-Treasurer proceeded is entitled "The Liquor Exporters' Taxation Act," and the relevant enactments provide that (section 3) any person
who now has or keeps or has property rights in * * * liquors for export to any place outside the said province or who in the said province sells or ships liquors to be delivered at any place outside the said province
shall pay to the Crown a specified tax, calculated according to the quantity of liquor
now or hereafter had or kept within the province * * * or sold or shipped * * * for delivery outside
of the province; (section 4),
the tax * * * in respect of all liquor had or kept * * * at the time of the passing of this Act shall be paid * * * within one month
from the coming in force of the Act,
and on all liquor subsequently acquired, kept, sold or shipped as aforesaid
within fifteen days
from the date when such liquor is acquired, kept, sold or shipped ;
the tax is to be a first lien and charge upon all the property in the province of any person liable to pay it; and by section 6, in default of payment within the time limited, the tax may be levied by distress upon the goods of the person liable
under a warrant signed by the Provincial Secretary-Treasurer, directed to the Sheriff of any county, and the Sheriff * * * shall levy the tax and all costs by sale of the goods * * * of the person in default.
I think it is quite clear that there is no duty and no authority to adjudicate in the sense of giving a binding decision as to the conditions under which the statute authorizes the issue of a warrant.
The general rule touching the office of the writ of certiorari is usually expressed by saying that it lies to remove acts of inferior courts and judicial acts of bodies possessing statutory jurisdiction, but it does not lie to remove acts which are merely ministerial. Obviously the application of the rule turns upon the scope of the words "judicial" and "ministerial." In applying the rule in particular cases, some judges have found the criteria of removability by developing the scope of "judicial" used in this sense, and others by considering the scope of "ministerial." What is "judicial" is not, for the purposes of the rule, "ministerial"; what is "ministerial" is not, for the purposes of the rule, "judicial."
As White J., who delivered the judgment of the New Brunswick Court of Appeal, observes, it is, perhaps, impossible to reconcile all the cases, but fortunately the subject has been discussed in modern times in judgments which have illuminated it, from which, I think, a criterion may be adduced which is sufficient to determine the question arising on this appeal.
In a case of prohibition Reg. v. Local Government Board[23], Brett L.J. (Lord Esher) said:
Whenever the legislature entrusts to any body of persons, other than the Superior Courts, the power of imposing an obligation on individuals, the courts ought to exercise as widely as they can the power of controlling those bodies of persons, if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament.
And May C.J., said, in The Queen v. Corporation of Dublin[24] :
For the purpose of this question, a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances, and imposing liability or affecting the rights of others.
The judgment containing the most valuable exposition of the subject is that of Fletcher Moulton L.J., (as he then was) in Rex v. Woodhouse[25]. The Lord Justice there points out that while certiorari is often said to be applicable only to "judicial acts," the cases by which this limitation is supposed to be established shew that the words "judicial act" must be taken in a very wide sense, including many acts that would not ordinarily be termed "judicial," and his conclusion is this: The true view of the limitation would seem to be that the term "judicial act" is used in contrast with purely ministerial acts * * * in short, there must be the exercise of some right or duty to decide in order to provide scope for a writ of certiorari at common law.
There is no conflict, I think, between this modern statement of the rule and that cited by Mr. Taylor from Rex v. Glamorganshire[26]:
This court will examine the proceedings of all jurisdictions erected by Act of Parliament and if they under pretence of such Act proceed to encroach jurisdiction to themselves greater than the Act warrants, this court will send a certiorari to them to have their proceedings returned here to the end that this court may see that they keep themselves within their jurisdiction and if they exceed it to restrain them, and the examination of such matters is more proper for this court.
My conclusion is that the issuing of a warrant of distress by the Secretary-Treasurer in exercise of the authority given by the Act or in assumed exercise of such authority is not an act which can be described as merely ministerial. Assuming the conditions of authority to be fulfilled, he has the right and duty to decide, and the statute leaves it to his discretion, whether taxes shall be collected by means of distress or not, and the effect of his decision, the formal expression of which is the issue of the warrant, is that, always assuming the conditions of authority to exist, the person liable to pay the tax becomes subject to the additional liability to have his goods distrained and sold for the payment of what is due without previous judicial ascertainment of it. He is no mere passive instrument of the law. The liability to distress is a liability resulting from the determination of the Secretary-Treasurer that a distress warrant shall issue.
A question which will require discussion, namely, whether there is anything in the statute itself, in the terms in which the authority is given, in the special nature of the subject matter with which the statute deals, showing that the authority given the Secretary-Treasurer ought not to be regarded as judicial for our present purpose, may conveniently be postponed for a brief examination of the grounds on which the court below proceeded in holding that the warrant of the Secretary-Treasurer is not removable by certiorari. The Appeal Division followed the previous decision of the Supreme Court of New Brunswick in The Queen v. Simpson[27], in which a County Treasurer's warrant for the collection of taxes was under consideration, which proceeded largely on the authority of the decision in Ex parte Taunton[28], in which it was held that a warrant issued by justices for the collection of a poor-rate under the statute of Elizabeth was not removable. Ex parte Taunton28 has never been expressly overruled, and no case has been referred to in which such a warrant has been held to be removable, and, moreover, no decision was cited that is necessarily inconsistent with it; and I have been unable to find any such decision prior, at least, to the year 1910. There are, moreover, decisions and weighty dicta which lend it support. In The Queen v. Webber[29], Ridley J., and Darling J., both express the opinion that the distress warrant in question in that case was a merely ministerial act. The passage cited above from the judgment of May C.J., is preceded by this sentence:
It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant.
This judgment of May C.J., had the approval of Lord Fitzgerald at the time, and the sentence I have just quoted, together with the passage quoted before, are reproduced with approval in the judgment of Palles C.B. in Reg. v. Local Government Board the Wexford Case[30], which had the concurrence of Walker L.J., and Holmes L.J.; and Fletcher Moulton L.J., at p. 535 of the judgment already referred to, observes that
the process of certiorari does not apply * * * to the issue of a warrant to enforce a poor-rate.
An early case, Rex v. Lediard[31], in which a warrant issued under the authority of statute was held not to be removable, on the ground that the issuing of it was a ministerial act merely, was followed in a subsequent case, Rex v. Lloyd[32]. Mr. Taylor vigorously assailed the judgment in Ex parte Taunton[33], but I do not think it is necessary to decide, for the purposes of this appeal, whether or not the question, if it had arisen in more recent times as touching a warrant for collection of a poor-rate, would have been the same. What we are really concerned about is whether or not the decision in Ex parte Taunton33 and other cognate decisions and the dicta to which I have referred furnish any rule or principle for our guidance in relation to the question now before us.
There is a most important distinction between the act of magistrates in issuing a warrant for the collection of a poor-rate and the act of the Secretary-Treasurer in issuing a warrant for the collection of the liquor tax. The jurisdiction of justices in proceedings for the recovery of a poor-rate under the Act of Elizabeth was a very peculiar one. It is quite true that it was the duty of the justices not to issue a warrant without calling upon the party whose goods it was proposed to distrain to shew cause against it; that is decided in a number of cases cited by Mr. Taylor, most of which will be found at pp. 21-22 of Paley's Summary Convictions. It is sufficient to refer to two of them: Rex v. Benn[34]; Harper v. Carr[35]. But while it was the duty of the justices to hear what the party affected had to say for the purpose of shewing that the rate was not a valid rate, as, for example, that though rated as an occupier, he was not an occupier, or that the land was outside the territorial jurisdiction of the rating authority, or that he was not liable to pay because he had already paid, the decision of the justices upon these points, as Parke B., points out in Newbould v. Coltman[36], was not a judicial decision, the inquiry into these matters not being a judicial inquiry, in the sense that their decision upon it was binding upon anybody and a party whose goods were distrained being consequently entitled afterwards to raise in an action the very matters which he had brought before the justices in answer to the summons, if it appeared either that the rate was an invalid rate or that the plaintiff was not liable to pay. Another striking feature of this proceeding was that if it appeared that the magistrates had jurisdiction, mandamus would lie to compel them to issue the warrant. The Queen v. Bradshaw[37] ; Church Wardens of Birmingham v. Shaw[38]; Reg. v. Marsham[39]. In Bradshaw's Case (1) and Marsham's Case (3) it was laid down in terms that the duty of the magistrates, their jurisdiction being unquestioned, was purely ministerial and having regard to the practice and the course of decision it is indisputable that, assuming the conditions of authority to exist, the magistrates in issuing such a warrant had no discretion, had no authority or duty to decide, and were mere passive instruments of the law; while any inquiry they might make as to the conditions of authority was not a judicial inquiry, and any conclusion they might reach had not the conclusive quality which is the attribute of a judicial decision. There is, indeed, a decision of a Divisional Court in the year 1910 (Lord Alverstone L.C.J., Channel and Coleridge JJ.) which suggests that the modern tendency is to regard as judicial for the relevant purpose the issue of such a warrant on the ground, perhaps, that the duty of the magistrates to inquire into the question of non-payment of the rate, for example, is a circumstance which marks the proceeding a judicial one. In the case referred to, The King v. Doherty[40], the application was to remove a warrant of commitment under a conviction which had adjudged that the defendant should be committed in default of payment of a fine, arid in default of sufficient distress the fine, unknown to the defendant, had in fact been paid, and that circumstance not having been brought to the attention of the magistrate, a warrant of commitment had issued. The warrant was removed and quashed, Lord Alverstone observing,
it is now too late for this court to hold that a warrant of commitment is not a judicial act.
It would not be easy to distinguish between a warrant of commitment under this conviction and a warrant of distress under the same conviction; nor, perhaps, is it easy to find a distinction between such a warrant of distress and a warrant of distress to enforce a poor-rate. The judgment illustrates, I think, a modern tendency to enlarge the scope of certiorari. See the observations of Vaughan Williams L.J., in Reg. v. Nicholson[41].
It is useful, I think, to contrast the act of magistrates issuing a warrant for the collection of a poor-rate and the act of magistrates in assenting to the indenture of pauper apprentices under the Statute of Elizabeth. In Staver v. Ashburton[42] this latter act was held to be a judicial act. Wightman J., in the course of the argument, suggested that the true test for distinguishing between judicial acts and merely ministerial acts was to be found in the answer to the inquiry whether or not mandamus would lie. If the magistrates, assuming, of course, the conditions of their authority to exist, were entitled to withhold their hand or to act in their discretion, then mandamus would not lie, and the act would not be said to be ministerial merely.
These considerations convince me that Ex parte Taunton[43] and decisions like it do not afford a satisfactory guide for passing upon the point now before us. But another important question remains, and that is whether the act of the Secretary-Treasurer is an act which for the want of a better term I shall describe as "administrative" and outside the scope of certiorari. The authority given by the Act is not an authority conferred upon the Crown; it is given to the Secretary-Treasurer by his title of office, and, moreover, when the tax is sued for the action is to be brought in the name of the Secretary-Treasurer. I think it is clear that the Secretary-Treasurer acts in exercise of an authority given to him as Secretary-Treasurer by the statute. There are two decisions to which I think reference should be made in this connection. The first is the case of Degge v. Hitchcock[44], a decision of the Supreme Court of the United States. The question was whether certiorari would lie to bring up a "fraud order" made by the Postmaster General in effect prohibiting the persons against whom it was directed from using the mails. It was held that this order was not removable on two grounds: first, that as regards the conditions of the Postmaster General's authority or any suggestion of arbitrary and therefore unauthorized exercise of statutory power, no decision of the Postmaster General on such points could be conclusive, and that the parties affected might resort to equitable process for the purpose of correcting any excess of jurisdiction or abuse of authority, and assuming jurisdiction to exist, the authority of the Postmaster General was held primarily intended to be exercised for the protection of the public, and therefore falling within a class of acts in exercise of governmental functions which under the description "administrative" had been held to be outside the scope of the remedy invoked. The other case is a decision of the High Court of Australia in The King v. Arndel[45]. The question arose there in relation to an order made by the Postmaster General similar to that which came before the Supreme Court of the United States eight years later in the case just referred to. The opinion which prevailed as expressed in the judgment of Griffith C.J., at page 572, was that the order was not judicial in its character because, having regard to the nature of the subject with which the legislature was dealing and to the terms in which the authority was conferred, he drew the inference that the legislature contemplated the exercise of a duty in circumstances of emergency, and consequently without notice to the parties who might be affected. He drew the conclusion from this that the authority given by the statute could not consistently with the terms and the object of the statute be treated as "judicial" for the purpose of certiorari proceedings.
It is not without interest to observe, as appears from the report of Degge v. Hitchcock[46], that in exercising a jurisdiction of the same type the Postmaster General of the United States would be amenable to restraint by equitable process for arbitrary exercise of