City of Montreal v. Dupré

City of Montreal v. Dupré
Collection
Supreme Court Judgments
Date
1924-04-22
Report
[1924] SCR 246
Judges
Idington, John; Duff, Lyman Poore; Mignault, Pierre-Basile; Malouin, Arthur Cyrille Albert; Maclean
On appeal from
Quebec
Subjects
Municipal law
Decision Content
Supreme Court of Canada
City of Montreal v. Dupré, [1924] S.C.R. 246
Date: 1924-04-22
The City of Montreal Appellant;
and
J. E. Dupre Respondent.
1924: February 13, 14; 1924: April 22.
Present: Idington, Duff, Mignault and Malouin JJ. and Maclean J. ad hoc.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Municipal corporation—Exemption of taxes—Resolution of council—By-law—Approval of electors—Existing industry—(Q.) 34 Vict., c. 18— (Q.) 34 Vict., c. 68, s. 943—(Q.) 40 Vict., c. 29, ss. 229, 231, 366—(Q.) 44-45 Vict., c. 20, (Q.) 62 Vict., c. 39, s. 1—R.S.Q. (1888) ss. 4004, 4005, 4006, 4559, 4642, 4643—R.S.Q. (1909) s. 5775—Charter of Maisonneuve, 61 Vict., c. 57, s. 65; 63 Vict., c. 53, s. 19.
A town corporation governed by the provisions of the "Cities and Towns Act" (R.S.Q. (1888) Title XI) cannot by a mere resolution of its council exempt from the payment of municipal taxes a party not actually carrying on an industry within its limits; but such exemption must be granted by a by-law brought before the council at two different meetings. Duff and Maclean JJ. contra. Corporation of Chambly v. Lamoureux (19 Rev. Leg. 312) discussed.
Per Idington and Mignault JJ.—Such a by-law does not require the approval of the municipal electors who are proprietors. Malouin J. contra.
Judgment of the Court of King's Bench (Q.R. 35 K.B. 43) reversed, Duff and Maclean JJ. dissenting. APPEAL from the decision of the Court of King's Bench, Appeal Side, province of Quebec[1] reversing the judgment of the Superior Court (1) and maintaining the respondent's opposition to a seizure of immovables made by the appellant.
The respondent, in 1911, obtained from the town of Maisonneuve, then a suburb of Montreal and now a part of the city, a ten years' exemption from taxation for a manufactory which he proposed to establish therein. After being granted this exemption, he fulfilled all its conditions, and as between the town of Maisonneuve and himself the alleged contract was faithfully observed. But the city of Montreal, having in 1918 annexed the town of Maisonneuve, disputed the legality of this exemption, which, at the time the proceedings were initiated, had almost run out. There were, however, some years of taxation unpaid since the date of the annexation, and it is as to this liability that the contest arose. The trial judge decided the case in favour of the city, but his judgment was reversed by the Court of King's Bench, Mr. Justice Rivard dissenting. The city now appeals.
The exemption was granted in April, 1911, by a mere resolution adopted by the town council. It is urged that a by-law was necessary and further that such a by-law required the approval of the municipal electors who were proprietors.
Laurendeau K.C. and Parent for the appellant.
Geoffrion K.C. and J albert K.C. for the respondent.
Idington J.—Having, after I had perused and considered the several judgments of the respective judges in the courts below, availed myself of the opportunity of perusing the judgment of my brother Mignault, I have come to the conclusion that the reasoning adopted by him is correct and, agreeing therewith, I think this appeal should be allowed with costs herein and in the court appealed from, and the formal judgment of the Superior Court be restored. Duff J. (dissenting) —This is an appeal from a judgment of the Court of King's Bench reversing a judgment of Mr. Justice Mercier. The point in controversy concerns the validity of a resolution of the town of Maisonneuve of the 19th April, 1911, purporting to exempt from taxes for ten years the property of the Dominion Die Company on certain specified conditions. "The Dominion Die Company" was a trade name under which the respondent carried on business, in which he alone was interested. At the time of the passing of the resolution the respondent was not carrying on any business in Maisonneuve. The sole question for consideration on the appeal is the validity of the resolution mentioned.
Maisonneuve, by 8 Geo. V, c. 84, was annexed to Montreal, but by paragraph (b) of section 1 of that statute it was provided that the resolutions of the annexed municipality should remain in force, notwithstanding the annexation. It is admitted that the resolution in dispute was, down to the time of the annexation, recognized as valid by Maisonneuve. The charter of the town was consolidated in 1898, previous to the granting of the exemption, by 61 Vict., c. 57, and subject to special provisions of the charter the municipality came under the operation of the "Cities and Towns Act."
The respondent invokes in support of the resolution sections 4559, 4642 and 4643, R.S.Q., 1888. On behalf of the appellant municipality it is contended that the first mentioned section authorizes exemptions only in favour of persons who at the time of the passing of the resolution are carrying on the industry, trade or enterprise in respect of which the exemption or commutation authorized by the section is granted; and as regards the two last mentioned of these sections, it is said that by force of other enactments of the Revised Statutes, and especially of sections 4404 and 4406, the exemption thereby authorized can only be effectively granted after the submission to the ratepayers of a by-law creating such exemption; and subsidiarily, that by the express terms of sections 4642 and 4643, the exemption must be embodied in a by-law which before the passing of it has been twice considered at separate meetings of the council The attempt, it is therefore argued, to execute the power given by these two sections by a simple resolution was merely inoperative.
The language of section 4559, read without reference to other provisions of the Revised Statutes, seems to be sufficiently clear; the relevant paragraph is in these words:
4559. The council may, by a resolution exempt from the payment of municipal taxes, for a period not exceeding twenty years, any person who carries on any industry, trade or enterprise whatsoever, as well as the land used for such industry, trade or enterprise.
The adjectival clauses,
who carries on any industry, trade or enterprise whatsoever
and
used for such industry, trade or enterprise,
contemplate the state of affairs to exist during the currency of the exemption granted, and import the conditions upon which the grantee is to be relieved from taxation, which relief is to be operative, obviously, only while the conditions are fulfilled.
That is the natural reading of the language, which is not ambiguous, and the authority conferred seems to be exerciseable in favour of persons who are about to establish a business or industry, as well as in favour of those who are carrying on an established one. The distinction now made between established industries and industries to be established is not to be found in the language which the legislature has employed in this section to express its meaning.
The appellant municipality advances the view that notwithstanding the language of section 4559, an inference is to be drawn from sections 4404 and 4642 making this construction of section 4559 inadmissible. When these sections are read together, the legislative policy said to be revealed is that two separate and mutually exclusive systems of relief from taxation are to be in operation side by side, the one system being operative for the benefit of newly established industries, and the other for the benefit of existing industries alone.
For the purpose of examining this argument it is more convenient, I think, to deal with these sections historically; and it is well to observe at the outset that it is of cardinal importance to notice that the statute bringing in force the Revised Statutes of 1888 contains this clause (50 Vict., c. 5): 8. The said Revised Statutes shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the said acts and parts of acts so repealed, and for which the said Revised Statutes are substituted.
Sections 4559 and 4642 were both originally enacted in the year 1870: they are found in separate statutes. Section 4559 reproduces in slightly modified form (and with an extension of the period of exemption from five to twenty years) section 943 of c. 68 of the statutes of that year, which brought into force for the first time the Municipal Code of the province. Section 943 applies to local municipalities, and local municipalities include parishes, villages, and towns to which the Municipal Code applies; that is to say, towns not incorporated by special charter. Towns so incorporated, and all cities, are excluded from the ambit of the code. The code is what its name imports a code of the laws governing the municipalities, as municipalities, to which the enactment applies. Effect must therefore be given to the enactments of section 943 according to their terms, in the absence of any qualifying context in the provisions of the code itself and of any clearly expressed overriding enactment to be found elsewhere. Section 943, in so far as material, is in these words:
943. The council of every local municipality may, by a resolution, exempt from the payment of municipal taxes, for a period not exceeding five years, any person who carries on any business, trade or mining or manufacturing enterprise whatsoever, as well as the land used for such enterprise * * *.
There is nothing in the code itself which is referred to as a qualifying context, and there can, I think, be little room for controversy that this provision, considered in itself, was sufficient to authorize (for the period of five years) such an exemption as was granted to the respondent by the town of Maisonneuve.
In the same year the statute was passed which appears later as sections 4642 and 4643 R.S.Q., 1888. That enactment was entitled, "An Act to encourage the introduction and establishment of new manufactories in the province." It was stated in the recitals that the introduction and establishment of such manufactories would tend to develop the productive resources of the province and increase its prosperity; and the enactment proceeded to authorize municipal corporations, including cities, towns and villages, to grant exemptions for ten years from taxation. The contention advanced on behalf of the appellant is that the enactment of this legislation involved by necessary implication a qualification of the language of section 943 of the Municipal Code enacted in the same year, by which section 943 was restricted in its scope to businesses, trades and enterprises already existing at the time of the passing of the resolution.
Section 943 and chapter 18 are, it is said, complementary enactments; the one providing for the exemption of industries to be established, and the other for the exemption of something already established.
This argument fails when the two enactments, in point of scope and practical effect, are considered and compared. The Municipal Code applies to townships, villages and towns not incorporated by special charter; while chapter 18 applies to all cities and all towns, as well as to villages. The Municipal Code authorizes exemptions for five years; chapter 18 authorizes exemptions for ten years. Chapter 18, moreover, by section 3, makes special provision for granting exemptions to established industries, indicating, and this was probably the fact, that the municipalities which were considered most likely to avail themselves of its provisions were municipalities of a class to which the Municipal Code did not apply; that is to say, cities and towns incorporated by special Act. To all this may be added a distinction of great significance, which seems to have been overlooked in the argument on behalf of the appellant, that chapter 18 authorizes the exemption of manufactories only, while under the provisions of the Municipal Code the exemptions granted may affect any business, trade or mining or manufacturing enterprise.
It is indeed difficult to perceive any good reason for ascribing to the legislature by a non-natural reading of the words of section 943 the intention to limit the operation of that section to businesses and enterprises already established and to exclude from its ambit those to be established in the future. As already observed, chapter 18 authorizes the exemption of manufactories only, and on the construction contended for, no business, trade or enterprise not a manufactory could be exempted by any municipality, unless it was already established at the time of the passing of the resolution creating the exemption. If exemption of such establishments was to be permitted, it seems singular, to say the least, that a municipality should be disabled from creating an exemption for the purpose of encouraging new trades and industries as well as assisting those already in operation; and I can think of no justification for departing from the normal reading of section 943 for the purpose of giving it such effect.
It is difficult to think of any definite policy in relation to manufactories which could be supposed to have inspired the enactments of c. 18 as well as that of section 943 of the Municipal Code; in truth we seem to have here two independent chapters of legislation which accidentally overlap, an occurrence neither startling nor uncommon.
The next stage in the history of the legislation is the enactment in 1876 of the "Town Corporations General Clauses Act," which was chapter 29 of the statutes of that year, 40 Vict. By sections 1 and 2, the provisions of that Act were made applicable to every town corporation or municipality to be thereafter established by the legislature of the province; and it was declared that they should constitute part of the special Act unless expressly excluded by the terms of that Act. By section 366 of the Act of 1876 the provision of section 943, slightly changed (but ipsissimis verbis in so far as pertinent to the questions in controversy on this appeal), was re-enacted, the changes being that for "business, trade, mining or manufacturing enterprise," were substituted "industry, trade or enterprise," and the period of five years was replaced by twenty years. Here, again, it is to be observed that this statute of 1876 is in form and effect a municipal code for the municipalities governed by it; and prima facie its provisions are to take effect according to the proper construction of the words in which they are expressed, read in light of other parts of the code and without regard to the provisions of other statutes. This statute contains nothing which qualifies the language of section 366.
The next stage in the progress of the law is marked by the enactment of the Revised Statutes of Quebec of 1888, in which the provisions under discussion are, as already mentioned, reproduced, section 366 of the Act of 1876 appearing as section 4559 and c. 18 of 1870 as sections 4642 and 4643; and in construing them they are, by the express direction quoted above, to be read precisely as they should have been read before they were brought into the revision.
The next step, and it is one of very considerable importance, is a decision of the Court of Queen's Bench affirming the decision of the Circuit Court in 1890, in Chambly v. Lamoureux[2]. The controversy arose in respect of a resolution passed by the council of the appellant municipality on the 3rd January, 1881. The resolution is expressed to be in conformity with section 943 of the Municipal Code, and it provides that one Samuel T. Willett should be exempt for a period of twenty years on his new factory and outbuildings, and then proceeded to grant a general exemption, not only to Willett and his legal representatives, but to others, on "all buildings to be erected" within the limits of the municipality, for the purpose of industry or trade, and for the land used for such purposes; the exemption to be granted from the date the factory and outbuildings should be put into operation. The defendants, who were sued for taxes, had after the passing of the resolution established and put into operation a brewery, and in respect of this brewery they claimed exemption under the terms of the resolution. Taschereau J., in the Circuit Court, held that the exemption was not ultra vires. The municipality appealed to the Court of Queen's Bench, and the argument as reported is in substance the same as the argument addressed to us on this appeal, with the additional contention that the resolution, in so far as it purported to grant a general exemption to persons establishing industries after the passing of the resolution, was beyond the intendment of section 943, which had contemplated not a general regulation on the subject, but resolutions dealing with particular cases. This argument was rejected and the judgment of the Circuit Court was unanimously confirmed by the Court of Queen's Bench. The decision of the Court of Queen's Bench is necessarily a decision on the points raised on behalf of the appellant municipality which, as I have already said, were in substance points now urged in criticism of the judgment appealed from. There can be no doubt that the Court of Queen's Bench (Dorion C.J., Tessier, Cross, Bossé, Doherty JJ.) dealt with the merits of the question of the validity of the resolution, although according to the report an argument seems to have been advanced on behalf of the respondent touching the competency of the appeal. This is made quite plain by the formal judgment, a certified copy of which has been furnished us.
By the judgment of the Circuit Court it was, as I have mentioned, formally declared that
le dit règlement n'est pas ultra vires;
and the judgment of the Court of Queen's Bench is in these words:
La cour, après avoir entendu les parties, par leurs avocats, sur le mérite, examiné le dossier de la procédure en cour de première instance, le requête d'appel et sur le tout mûrement délibéré: Considérant qu'il n'y a pas mal jugé dans le jugement rendu par la Cour de Circuit pour le Bas Canada, siégeant à Montréal, le dix-huitième jour de février mil huit cent quatre-vingt-neuf et dont est appel, confirme le dit jugement avec dépens contre l'appelante en faveur des dits intimés.
The series of reports in which this case is reported was edited by Mr. Justice Mathieu of the Superior Court, and the case itself is cited in that learned judge's edition of the Municipal Code published in 1894, in these terms:
Une corporation municipale peut, sous les dispositions de cet article, exempter des taxes municipales, non seulement les manufactures spécialement mentionnées dans une resolution passée à cet effet, mais encore toutes les industries nouvelles, qui s'établiront à l'avenir dans les limites de la municipalité, et cette exemption comprend les taxes spéciales imposées pour aider à la construction d'un chemin de fer. (La corporation de village du canton de Chambly et Lamoureux et al, C.B.R., Montreal, 23 mai 1890, Dorion J. en C. Tessier J., Cross J., Bossé J., et Doherty J., confirmant le jugement de C.S., Montreal, 18 février, 1889, Taschereau J., 19 R.L., p. 312.)
In 1898 the decision is cited by Mr. Bédard K.C., in the first edition of his book on the Municipal Code published in that year, and again in the second edition, published in 1905, as authority for the same proposition. The Municipal Code continued unamended in this respect down to 1916, when it was re-enacted in amended form, and the authority to grant exemptions of every description was abrogated. The next step to be noticed is the re-enactment of the "Towns Corporations Act," in 1909. Section 4559 of the revision of 1888 is reproduced as section 5775, which is in form identical with the earlier section except in this, that it is expressed to be subject to sections 5929 and following. Now it is important to observe that section 5929 deals with bonuses to manufactories to be established, as distinguished from manufactories already established. As the distinction seems to be clearly drawn throughout these statutes between exemption from taxation and bonuses, although in effect exemption from taxation is necessarily a subsidy, it is difficult to say what application these sections can have to the subject dealt with by section 5775. The reference to section 5929, however, which deals only with industries to be established, certainly gives no countenance to the construction contended for on behalf of the appellant municipality. Subject to that, the legislation is re-enacted in the form in which it appeared in the "Towns Corporations Act" of 1876, and in substance in the same words as those which were the subject of the judgment of the Court of Queen's Bench in Chambly v. Lamoureux[3].
The authority of decided cases, it is needless to say, in the province of Quebec stands upon a footing which is not the same as that upon which it is based in the law of England. Nevertheless, the central idea of stare decisis has not often been better expressed than in the sentence of Paul:
Minime sunt mutanda ea quae interpretationem certam semper habuerunt. D. 1.3.23;
and the importance of adhering to an interpretation of a statute given in an authoritative decision which has been accepted for many years without challenge is recognized by writers on the French law; for example, 1 B.L., section 261. It is impossible to suppose that the legal advisers of municipalities governed by the "Towns Act" and of municipalities governed by the Municipal Code have not been familiar, since the appearance of the report, with the decision in Chambly v. Lamoureux3, or that they have failed to treat it as an authoritative exposition of section 943 in the sense ascribed to the decision by Mr. Justice Mathieu in the note quoted above; I cannot doubt that it must have been acted upon in this sense. Certainly the municipality of Maisonneuve assumed, in passing the resolution now in dispute, the existence of the authority under section 4559 which municipalities were held by the Court of Queen's Bench to possess under section 943 of the Municipal Code; and I cannot suppose that this was an isolated case. This, taken together with the circumstance that in 1909 section 4559 was re-enacted without material alteration in the Revised Statutes of that year, convinces me that the decision in 1890 is a decision which ought not now to be departed from, even if there were better reasons than have been adduced on this appeal for disagreeing with the decision in so far as it is relevant here.
As to section 4404, that section in the main is a reproduction of section 229 of the "Towns Corporation General Clauses Act," 40 Vict., c. 29, which provided for aiding in certain ways, not including exemption from taxation, the construction of public works by incorporated companies and by the provincial government. Later this was amended by adding industrial undertakings to the enterprises to which aid might be granted under that section, but still authority was withheld to give aid in the form of exemption from taxation. It was not until the revision of 1888 that a sub-paragraph was added—sub-paragraph (4)— which authorizes aid,
by exemption from the payment of municipal taxes, assessments and dues, certain industrial establishments, according to the provisions of
section 4642 of the Revised Statutes and following. This reference, which was introduced into section 4404 by the revisers to the provisions of sections 4642 and following cannot legitimately be regarded as affecting the construction of section 4559 when the provision of the statute under which the revision took place is kept in view, which has already been referred to, that the Revised Statutes
shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law
in the statutes for which the Revised Statutes are substituted.
Counsel for the respondent also supports the resolution under the authority of section 4642. Two answers to this contention are put forward: First, it is said that by force of section 4643 an exemption under section 4642 can only take effect when embodied in a by-law passed after consideration at two meetings of the council; and second, it is said that by force of section 4406 the by-law is inoperative unless sanctioned by the approval of a vote of ratepayers. The first of these answers is met by the respondent with a reference to section 65 of the Charter of Maisonneuve, 61 Viet., c. 57, which provides that except as regards bylaws other than those which must be submitted for the approval of the electors, the town council may exercise its powers by by-law or resolution. It is answered that this is a general provision, which can have no application to special powers given by special enactment, which in explicit terms require that they shall be exercised by by-law. Now it is to be noted that this provision does except the particular case of by-laws which must be submitted for the approval of the electors, an exception which, apart from special mention, would naturally be implied if any exception was to be implied; and I find it a little difficult, in face of this explicit exception, to imply an exception merely because it is required that a given power shall be exercised by a by-law passed after it has been considered at two separate meetings of the council. On the whole I think this objection fails.
As to the second objection, I am inclined to think it may fairly be affirmed that a by-law passed under the authority given by section 4642 is not a by-law passed in virtue of section 4404, and therefore that section 4406 does not apply to it.
The appeal should be dismissed with costs.
Mignault J.—Were it not for the rather unskillful draftsmanship of the Quebec Revised Statutes of 1888, this case would give rise to but little difficulty. But the compilers of the revision introduced therein overlapping and what at first sight might appear irreconcileable provisions, and the dispute between the parties is as to which set of enactments should be applied. In my consideration of this question, I have not been a little aided by the memorandum of statutes filed by the parties at our request.
The respondent, in 1911, obtained from the town of Maisonneuve, then a suburb of Montreal and now a part of the city, a ten years exemption from taxation for a manu- factory which he proposed to establish therein, employing sixty or seventy hands. After being granted this exemption, he fulfilled all its conditions, and as between the town and himself the alleged contract was faithfully observed. But the city of Montreal having, in 1918, annexed the town of Maisonneuve, and with it its many liabilities, disputes the legality of this exemption, which, at the time the proceedings were initiated, had almost run out. There were, however, some years of taxation unpaid since the date of the annexation, and it is as to this liability that the contest arose. The trial judge decided the case in favour of the city, but his judgment was reversed by the Court of King's Bench, Mr. Justice Rivard dissenting. The city now appeals.
The exemption was granted in April, 1911, by a mere resolution adopted by the town council. It is urged that a by-law was necessary and further that such a by-law required the approval of the municipal electors who were proprietors.
We have been referred to no less than three sets of enactments as to exemption from municipal taxation in the Revised Statutes of 1888 by which this case is governed.
First there is article 4559, the first paragraph of which reads as follows:
The council may, by a resolution, exempt from the payment of municipal taxes, for a period not exceeding twenty years, any person who carries on any industry, trade or enterprise whatsoever, as well as the land used for such industry, trade or enterprise, or agree with such person for a fixed sum of money payable annually for any period not exceeding twenty years, in commutation of all municipal taxes.
This article allows the granting of the exemption by a resolution of the municipal council. It is, however, argued that it applies only to an existing industry, not to one to be established, and this is said to result from the words "who carries on any industry," etc., in the French version "qui exerce une industrie." As to new manufactories, it is contended, resort must be had to other provisions. This brings us to the second and third sets of enactments which must be considered together.
Taking them in their order, I will first give the text of articles 4404, 4405 and 4406 of the same Revised Statutes. These sections are among those which deal with the powers of the town council exerciseable by by-law.
4404. To aid in the construction of any bridge, causeway, pier, wharf, slide, macadamized or paved road, railroad, or other public works, or any manufacturing establishments situated in whole or in part within the municipality or in its vicinity, undertaken and built by any incorporated company, or by the Provincial Government:
1. By taking and subscribing for shares in any company formed for such purpose;
2. By giving or lending money to such company or to the Provincial Government;
3. By guaranteeing by endorsation or otherwise any sum of money borrowed by such company;
4. By exempting from the payment of municipal taxes, assessments and dues certain industrial establishments according to the provisions of section sixth of chapter second of this title.
4405. To subscribe for or hold stock in any company formed for the purpose of constructing electric telegraph lines.
4406. Every by-law, passed in virtue of the two preceding articles, before coming into force and effect, shall be approved by the electors of the municipality who are proprietors, in the manner prescribed in articles 4531 and following to article 4535 inclusively.
The reference in the last paragraph of article 4404 to "section sixth of chapter second of this title" brings us to the third set of enactments which we find in articles 4642 and 4643.
These latter articles, preceded by the title "Exemption of new manufactories from municipal taxes," are as follows:—
4642. For the purpose of encouraging the introduction and establishment of new manufactories within their limits, it is lawful for any city, town, or village municipality to exempt from all taxes, assessments and municipal imposts whatsoever, for a space of time not exceeding ten years, any manufactory, not being a flour-mill, gas-works, or distillery, which any individual, commercial firm, or corporation may have undertaken, or may undertake to establish.
2. Such exemption shall extend, not only to the buildings and grounds used by such manufactory, but also to all the moveables and machines employed in such manufactory, as well as to all articles manufactured therein.
3. In any case in which the exemption from taxes as hereinabove mentioned, in favour of a new manufactory, would prejudice the interests of any manufactory already established, or would create an undue privilege against the latter, it shall be lawful for the municipal authorities to grant the same, or a proportionate exemption to every such pre-existing manufactory.
4643. Any person, desiring to establish a manufactory as aforesaid, is obliged to ask the permission of the municipal council and state the nature of the manufacture, its locality, the extent of the intended site, and whether he intends to use steam power. Such permission shall not be given unless previous notice be given by the person applying therefor to the council, and the council may make a by-law for the purpose, which by-law must be brought before the council at two different meetings thereof, and when the by-law is agreed to, it shall be equivalent to a contract in favor of the proprietors of the manufactory therein mentioned, their heirs and assigns, for all the time specified in such resolution.
The first point to be considered in connection with all these enactments is the distinction between existing and new manufactories. It is argued that the language of article 4559 is wide enough to comprise both, but the special provisions of the second and third sets of enactments cannot be ignored, and both refer to industries to be established or new industries.
To test whether the distinction is a real one, it will be useful to consider the history of this legislation, and for this purpose the memorandum of statutes to which I have referred is most helpful.
Going back to the consolidated statutes of Lower Canada of 1860, chapter 24, section 57, we see that it was provided that the municipal council might by agreement
with any person carrying on, or proposing to undertake any mining or manufacturing business,
wholly exempt any such business from assessment during a period of not more than five years.
The distinction between an existing and a proposed business is expressed here, but the same rule is applied to each. We will find however that, while maintaining this distinction, each class was afterwards differently dealt with. This brings us to the legislation adopted in 1870.
In that year, the legislature adopted, by chapter 68 of 34 Victoria, the municipal code of the province of Quebec which came into force by proclamation on the 2nd of November 1871. On the day it was sanctioned, 24th of December, 1870, Royal assent was given to the statute, 34 Victoria, chapter 18, intituled "An Act to encourage the introduction and establishment of new manufactories in this province," and which in substance was to the same effect as articles 4642 and 4643 above quoted, the exemption period being also ten years.
And article 943 of the municipal code adopted at the same session allowed the exemption from municipal taxes for a period not exceeding five years (subsequently extended to twenty years) of any person
who carries on any business, trade, or manufacturing enterprise what soever, etc.
The municipal code applied to all the territory of the province, excepting cities and towns incorporated by special statutes, and 34 Victoria, chapter 18, was made applicable to any incorporated city, town or village. It would, therefore, seem that at least as to the latter—and it is not necessary to consider any other municipalities—and as to the scope of article 943 of the municipal code, the distinction between existing and new enterprises was preserved, the exemption period however not being the same in both cases.
We now come to the enactment, in 1876, by 40 Victoria, c. 29, of the Town Corporations General Clauses Act.
In section 366 of this statute we find a provision to the same effect as article 943 of the municipal code, as amended.
The exemption period is twenty years, the mode of granting it is by a resolution and the exemption can be made in favour of
any person who carries on any industry, trade, or enterprise whatsoever.
This section was included in the revision of 1888 as article 4559 above quoted.
Section 229 of the same statute empowered the town corporation
to aid in the construction of any bridge, causeway, pier, wharf, slide, macadamized or paved road, railroad or other public work situated in whole or in part within the municipality or in its vicinity, undertaken and built by any incorporated company, or by the provincial government:—
1. By taking and subscribing for shares in any company formed for such purpose;
2. By giving or lending money to such company or to the provincial government;
3. By guaranteeing by endorsation or otherwise any sum of money borrowed by such company.
By section 230 the council was authorized to subscribe for or hold stock in any company formed for the purpose of constructing electric telegraph lines.
Finally section 231 provided that every by-law passed in virtue of the two preceding sections, before coming into force and effect, should be approved by the electors of the municipality who are proprietors in the manner prescribed in sections 356 and the following to section 360 inclusive.
In 1881, by 44-45 Victoria, chapter 20, section 229 was amended by adding after the words "public work" in the first paragraph the words "or any manufacturing establishment."
With this amendment, the council could by by-law—for section 229 was among the sections describing the powers of the council exerciseable by by-law (section 223)—aid in the construction of any manufacturing establishment by the means enumerated in subparagraphs 1, 2 and 3 above mentioned.
It seems clear that to aid in the construction of any manufacturing establishment means to aid a new or not yet established industry, so that we find here the same distinction between existing and new establishments which is further emphasized by article 4642 cited above.
When the revision of 1888 was effected, a new and fourth paragraph was added to section 229 which became article 4404 of the Revised Statutes. There was no warrant for this addition in previous legislation, and it is difficult to say why the Commissioners who prepared the revision inserted it here, for they had provided for the exemption from taxation in article 4559 and articles 4642 and 4643 of the revision, to the latter of which indeed they refer. This fourth paragraph, the principal cause of the controversy which has arisen in this case, reads as follows:—
4. By exempting from the payment of municipal taxes, assessments and dues certain industrial establishments, according to the provisions of section sixth of chapter second of this title.
The words I have italicized refer to articles 4642 and 4643, the text of which I have given above. It is to be remarked that under articles 4642 and 4643 a by-law is sufficient, provided it be brought before the council at two different meetings, to form a contract in favour of the proprietor of the manufactory therein mentioned, his heirs and assigns, for all the time specified in such by-law. The addition of paragraph 4 to article 4404, the appellant argues, shews that not only must the exemption by-law be thus brought before the council at two different meetings, but that it must also, before coming into force and effect, be approved by the electors of the municipality who are proprietors. I will examine this contention in a moment. To complete the review of the pertinent enactments, I may say that, in 1899, by 62 Victoria, chapter 39, section 1, the first paragraph of article 4404 was amended so as to permit the council to grant the contemplated aid to a person as well as to a company or to the provincial government.
Before attempting to place a construction on these articles, reference must be made to some provisions of the charter of the town of Maisonneuve, 61 Victoria, chapter 57, passed in 1898.
Section 60 states that notwithstanding article 4404 of the Revised Statutes and in the spirit of that article, permission is granted to the town to grant aid to any railway, manufactory, brewery, distillery, or other industrial or commercial establishment now established or which may wish to establish themselves within the limits of the town by giving or undertaking to give them land for their buildings and operations. And some bonuses and privileges already granted are confirmed.
By section 65 of the same statute it is stated that with the exception of the by-laws which must be submitted to the approval of the proprietors who are municipal electors, the town council may exercise its powers by by-law or resolution.
Finally in 1900 the charter of Maisonneuve was further amended by 63 Victoria, chapter 53, section 19, by adding thereto section 60a which declares that the town may exercise all the pow