Congrégation du Très Saint Rédempteur v. School Trustees of the Municipality of the Town of Aylmer

Congrégation du Très Saint Rédempteur v. School Trustees of the Municipality of the Town of Aylmer
Collection
Supreme Court Judgments
Date
1945-06-22
Report
[1945] SCR 685
Judges
Rinfret, Thibaudeau; Hudson, Albert Blellock; Taschereau, Robert; Rand, Ivan Cleveland; Estey, James Wilfred
On appeal from
Quebec
Subjects
Education law
Decision Content
Supreme Court of Canada
Congrégation du Très Saint Rédempteur v. School Trustees of the Municipality of the Town of Aylmer, [1945] S.C.R. 685
Date: 1945-06-22
La Congrégation Du Très Saint Rédempteur (Defendant) Appellant;
and
The School Trustees for the Municipality of the Town of Aylmer (Plaintiffs) Respondents.
1944: November 8, 9, 10; 1945: March 23; 1945: April 24, 25 26; 1945: June 22.
Present: Rinfret C.J. and Hudson, Taschereau, Rand and Estey JJ.
School law—Assessment and taxation—Building of a dissentient school—Borrowing of moneys by trustees—Bonds or debentures issued—Resolution adopted by Trustees under section 244 of the Education Act—Stipulating that a special tax "shall be levied annually"—Whether wording of resolution sufficient to create a tax—Whether resolution otherwise legal and regular—Privilege on immovable for school assessment—Property owned by dissentient when taxed and later sold to a Roman Catholic—Scope of the tax exemption granted to religious corporations under sections 251 (3) and 424—Issue of bonds or debentures authorized under section 246—Whether both the bonds or debentures and the resolution providing for their issue are validated thereby—The Education Act, R.S.Q., 1925, c. 133, now R.S.Q., 1941, c. 59.
The respondents trustees, in 1925, passed a resolution to borrow a sum of $25,000 through an issue of bonds or debentures payable in thirty years, the purpose of the loan being the rebuilding of a school recently destroyed by fire. The resolution stipulated inter alia that "to provide for the annual interest and sinking fund of these debentures, a special tax * * * shall be levied annually upon all taxable property on the collection roll of the school trustees of this municipality at present in force * * * and on any other taxable property that may come under the control of the said school trustees during the term of these debentures; and all lands subject to the said tax now entered on the said roll * * * shall be bound and liable for the special tax, until the full and final payment and discharge of the said debt." At the time the resolution was adopted, the property, on which it is claimed special taxes are due, belonged to one Wright, a dissentient, subject to the jurisdiction of the respondents. In 1937, the property was sold to the appellant, a Roman Catholic institution, exempt from the payment of school assessments by force of sections 251 (3) and 424 of the Education Act. In 1938, 1939 and 1940, the respondents trustees passed resolutions by which the appellant's property was assessed at $51.91, $52.09 and $904.47, the increase in the last assessment being the result of improvements and the construction of buildings for an amount exceeding $500,000. In 1941, the respondents brought against the appellant an hypothecary action for $1,016, representing the above mentioned assessments and interest. The Superior Court dismissed the action; but the appellate court reversed that judgment and maintained the action as brought. On the appeal before this Court:
The Chief Justice and Taschereau J. were of the opinion that the appeal should be allowed in full, Hudson and Estey JJ. were of the opinion that the appeal should be dismissed and Rand J. was of the opinion that the respondents trustees were entitled to succeed, in part, in their action. As a result, it was
Held that the appeal should be allowed in part and the judgment of the appellate court be modified so that the amount of the taxes awarded to the respondents be reduced to accord with the value of the property as it appeared on the valuation and collection rolls in force in 1925.
Per The Chief Justice: The respondents' action is an hypothecary action, i.e. an action to enforce an alleged hypothec or privilege, and they have failed to show that the resolution of 1925, nearly all of its clauses being illegal and ultra vires, was effective for the purpose of creating a privilege upon the immovable property then owned by Wright, which privilege would have followed the property into the hands of the appellant.
Per The Chief Justice and Taschereau and Estey JJ: The resolution of 1925 was not passed in conformity with the imperative provisions of sections 244 (1) of the Education Act. Under that section, "no issue of bonds may be made * * * unless * * * there be imposed * * * an annual tax * * *." The resolution does not impose a tax immediately: it only states that a tax shall be imposed each year: "shall be levied annually." A resolution providing for the imposition of a tax in the future does not meet the requirements of that section and is ineffective to operate a valid issue of bonds. The School Commissioners of St. Adelphe v. Charest ([1944] S.C.R. 391) followed.
Per Estey J: Such contention would have been available to the appellant, if it had been made before the approval of the resolution by order in council under section 246, the existence of this approval distinguishing this case from the above decision. (Section 246 is further commented below.)
Per Hudson J.: The principle of that decision is not applicable to this case: in the Charest case, there was no definite imposition but rather a promise to do so in the future, while, in this case, there was an immediate burden imposed to be satisfied in a definite way; moreover, there was not in that case an issue and sale of bonds approved by order in council under section 246.
Per Rand J.: Although, in the resolution, there is no express imposition and the future tense is used in the expression "shall be levied", the paragraph providing for the taxation should nevertheless be read to imply in fact a present imposition sufficient for the purposes of section 244. The rule of the Charest case should not be extended beyond the precise words that were there dealt with.
Per The Chief Justice: The resolution of 1925 declared that the "special tax *. * * shall be levied annually upon all taxable property on the collection roll * * * at present in force." The appellant's action was not based upon the collection roll of 1925-1926 and the amounts for which the Trustees claimed a privilege result from the collection rolls of 1938-1939-1940, at a time when the appellant's property was not taxable. The respondents' claim is therefore contrary to the text of the 1925 resolution.
Per The Chief Justice: The 1925 resolution cannot be reconciled with subsection (3) of section 244. The valuation of the property having been fixed once and for all on the collection roll of 1925, it would be contrary to the text of the resolution, and therefore illegal, for the secretary-treasurer to assess that property for a different amount in collection rolls prepared by him under instructions given to him by subsequent resolutions.—The resolution contains also another illegality: there is no provision, either in the Education Act or in the Civil Code, which authorizes the creation of a privilege upon future property.
Per The Chief Justice and Taschereau J.: The privilege for school assessments is not immediately created at the time of the adoption of the loan resolution, but comes into existence only after the collection roll comes into force. Per The Chief Justice: Such privilege, at the time it thus comes into existence, cannot be related back to the date of the original resolution, at least so far as the privilege or hypothecary claim is concerned.
Per Hudson J.: The language of the 1925 resolution is clear and definite. The property therein described was "bound and liable for the special tax (in each year) until the * * * final payment of the debt." The levy sought by the present action is merely the maturing of the tax obligation imposed by the original resolution. The charge operates from the time the bonds are sold until they are finally paid in full. The purchasers of the bonds relied on the terms of the resolution and subsequent purchasers took with implied or express notice of them. Any withdrawal of property from the taxable area so defined would throw on the remaining properties a greater burden than was assumed by the property owners when the resolution was passed and it would deprive the bond holders of security assured to them when they bought the bonds. Under the circumstances, the Court would not be justified in refusing to give effect to the resolution unless compelled to do so by clear and definite mandate.
Per Taschereau J.: There must be necessarily a personal debtor bound to pay a tax. It cannot be conceived that a tax imposed solely on an immovable could exist without a person having the legal obligation to pay it and against whom it could be legally claimed. Personal liability is from the beginning fastened on the owner of the immovable, because he is then under the jurisdiction of the school commissioners or trustees and the immovable is taxable because he owns it. Such personal liability ceased to exist when the owner originally liable has sold the property "in respect of which" he has been taxed; the liability is then incumbent on the purchaser, whatever his religion may be.
Per Estey J.: The school tax is primarily a property tax, but the Education Act, when read as a whole, contemplates a personal liability upon the owner. Therefore there would be a personal liability within the meaning of the Act upon the appellant. Per Taschereau J.: When a tax is "imposed" by virtue of a loan resolution under section 244, the immovables subjected to the jurisdiction of the Trustees are from that time determined in advance as bound to be later charged with a privilege for the annual tax in consequence of the combined effect of the original resolution and of the collection roll duly homologated, and such immovables cannot be withdrawn from the payment of the tax notwithstanding the fact that they become the property of another person and even if the latter is entitled to the exemption granted by the Education Act.
Per Taschereau and Estey JJ.: The religious communities cannot claim the exemption granted to them by sections 251 (3) and 424, if they were not owners of the immovable at the time the tax has been originally imposed.
Per Rand J.: The language of section 244 should be constructed to mean that an "annual tax",—annual in relation to the years of the terms, for instance, of a bond issue—, carrying inplicitly the characteristic of a specific amount in relation to each separate parcel of land is declared, and that it is en marche to become definitive as a realizable exaction as each year is reached, and as it is extended on a collection roll. It is as if the resolution in 1925 were in the words: a tax of $30 on property "A" is now imposed for the year 1940, and as if it were repeated in 1940. An annual resolution is passed in advance: it describes a taxing effect to be attained in future. But the declaration of a potential tax in a certain amount in respect of each taxable immovable for each year during the currency of the obligation, as a specific imposition, can be made only by reference to the valuation or assessment roll, at the time of the resolution, in force. When the tax becomes levied in each year as the collection roll is completed, the time of payment is determined, but whether there is determined also personal liability for each year's tax, there is no need to enquire. The resolution, then, fixes as of its date the amount of the annual levy, the lands to be taxed, and the property valuations. Section 391 provides for the homologation of the collection roll, and after the period for payment has expired the taxes become a special hypothecary charge upon the property taxed. Even if that section does not apply to a special assessment, the taxes, upon default of payment, would become a privilege upon the immovables under article 2009 and 2011 of the Civil Code.
An order in council was passed, in pursuance of section 246 of the Education Act, stating that the Minister of Municipal Affairs had reported favourably that the Trustees be authorized to borrow moneys in conformity with the resolution of 1925, that all the formalities required by the law had been fulfilled and that accordingly authorization to borrow should be granted. Section 246 enacts that "every bond or debenture issued in virtue of a resolution (so) approved * * * shall be valid, and its validity shall not be contested for any reason whatsoever".
Held that, under that section, not only the bond or debenture is validated, but the resolution providing for their issue must also be deemed to have been passed in conformity with section 244. The Chief Justice and Taschereau J. contra. Per The Chief Justice and Taschereau J.: The intention of the legislature in enacting section 246 has been to put the validity of the bonds and debentures beyond all discussion so that the bondholders would have an absolute guarantee of the legality of the bond itself, notwithstanding the invalidity or illegality of the proceedings leading to its issue. But the section cannot be invoked in favour of a resolution which would be null and void. Any issue that may arise between the Commissioners or the Trustees and a ratepayer is in no way affected thereby. Otherwise the result would be that the Lieutenant Governor in Council would be made a judge of the validity and legality of all the loan resolutions adopted by the former and that the courts would be entirely ousted of their jurisdiction in the matter.
Per Hudson J.: The prohibition against the issue of bonds, in section 244 (1), ceased to have any application here once the resolution to borrow had been approved as being adequate for the purposes of the section and the bonds certified, as they were, under section 246. When sold they created a legal obligation. The resolution and the order in council were duly registered. The purchasers of bonds were entitled to accept the certificates as conclusive. The appellant itself cannot complain of lack of notice when it bought the property.
Per Rand J.: The bonds in this case, bearing the requisite certificate are admittedly valid, but there is created under section 246 more than a valid debt. The whole object of the section is to conclude such questions as those in the present case. The purchaser of a bond is entitled to the security he would have had if every preliminary or conditional step had been taken in exact accordance with the provisions of the statute and the purchaser cannot be told later that the condition essential to that validity did not in fact or in law exist. The special assessment is for the sole benefit of the bondholders. They are the beneficiaries of that power to tax and the sufficiency of the resolution must be deemed concluded not only in relation to the bond as a debt, but also to the taxation intended to be appropriated exclusively to the payment of that debt.
Per Estey J.: The language used by the legislature in enacting section 246 is clear and definite and, when read and construed with the other relevant sections of the Act and particularly section 244, its meaning is that the approval therein provided for applies to the validity of the resolution and includes both the validity of the bonds and the existence of the security.
Comments upon the decision of this Court in Canadian Allis-Chalmers Limited v. The City of Lachine ([1934] S.C.R. 445).
APPEAL from the judgment of the Court of King's Bench, Appeal Side, province of Quebec, reversing the judgment of the Superior Court, Trahan J.[1] and maintaining the respondents' action. The material facts of the case and the questions in issue are stated in the above head-note and in the judgments now reported.
Fernand Choquette K.C. and Eugene Marquis K.C. for the appellant.
John A. Aylen K.C. for the respondents.
The Chief Justice.—This is an hypothecary action, that is to say, an action to enforce an alleged hypothec or privilege. It means, therefore, that the respondents were bound to show that, in the premises, a privilege has been created upon the immoveable property of the appellant as a charge for the payment of certain special taxes imposed by the respondents in connection with a loan by means of an issue of bonds under a resolution adopted by the respondents on the 19th of August, 1925.
At the time when the resolution was adopted the property, on which it is claimed a privilege exists, belonged to one R. H. Wright, a dissentient, subject to the jurisdiction of the respondents. Later the appellant acquired the property from Mr. Wright and, at the material dates, it was the owner in possession of the property in question. The price of the sale from Wright to the appellant was $22,925, but, as a result of improvements and the construction of buildings, the total value of the property in 1940 had reached the sum of $500,000.
It is admitted that the appellant is exempt from the payment of school assessments by force of section 251 of The Education Act (Chap. 133 of R.S.Q. 1925, as amended).
The Superior Court dismissed the respondents' action, but the Court of King's Bench (Appeal Side) reversed that judgment and maintained the action as brought.
The point at issue is whether the resolution of the 19th of August, 1925 has immediately affected by privilege for the amount of the special tax the property then belonging to Wright in such a way that the appellant who purchased it now holds the property subject to the alleged privilege.
Some subsidiary points were raised at the argument as to the right of the respondents to bring action for the purposes herein, and also as to whether, if the privilege is held to exist, it extends to the improvements and new buildings added by the appellant to the property purchased from Wright, but, in the view I take of the litigation, these subsidiary points are immaterial.
With regard to this last point concerning the improvements and additional buildings, it is sufficient to say that a privilege, as clearly stated in article 2017 of the Civil Code, being only an accessory and subsisting no longer than the obligation which it secures, necessarily requires the existence of a third party as debtor of the personal obligation. In the present case, as it is impossible under the law that the appellant could be the personal debtor, it follows that Mr. Wright, or his successors, must be the personal debtor, and it is hardly to be suggested that the latter's personal debt could have been increased as a consequence of the construction and improvements made by the appellant.
We have in the record the collection rolls respectively for the year 1926, immediately following the adoption of the resolution, and for the years 1938, 1939 and 1940, upon which the present claim of the respondents is based. In 1926 all the properties belonging to Wright appeared on the roll as being valued at about $47,000 and it is not certain that this valuation includes certain properties of Wright which he did not sell to the appellant. At that time the total special tax assessed against Wright for the year ending on the 30th June, 1926 amounted only to $69.92, while the tax which is now claimed hypothecarily from the appellant for the years 1938, 1939 and 1940 amounts to $1,016, being $51.91 for the year 1938 and $52.09 for the year 1939, the improvements and constructions not having been then made on the property, and $904.47 for the year 1940, after the improvements and constructions were made. One can only surmise what would be the surprise of Mr. Wright, or of his successors, if the respondents proceeded to claim from him or from them, as a personal obligation, the sum of $904.47, which represents the special tax for 1940. It is not likely that he or they could be called upon to pay such a sum; and, if the personal obligation for that sum of $904.47 does not exist against Wright or his heirs, it cannot be pretended that the accessory privilege can exist for that sum on the property of the appellant as security for a personal obligation which has no existence. One need only suggest the objection to show that it repudiates itself.
The present action stands to be decided not on what the Trustees might have done under The Education Act, but upon what they have in fact done. This Court is not called upon to give an opinion upon the relevant sections of The Education Act, but upon the proceedings and resolutions that the respondents adopted for the purpose of the loan. We have only to decide whether the resolutions which are now before us were effective for the purpose of creating a privilege on Wright's property, which privilege followed the property when it came into the hands of the appellant. With respect, that is precisely what appears to have been lost sight of in the judgment from which the appeal is brought to this Court.
The resolution of the 19th of August, 1925, begins by stating that the Trustees have decided to petition His Honour, the Lieutenant Governor of Quebec, to grant to them authorization to borrow the sum of $25,000, said amount to be secured by an issue of debentures payable thirty years from the first day of September, 1925, such debentures to bear interest at the rate of five per centum per annum, payable half yearly on the first day of March and September in each year, and to be of the denomination of $500 each, there being attached to each debenture coupons for the amount of each payment of interest and to be made payable at the Royal Bank of Canada in Aylmer, Que. Then comes the important clause, which must be reproduced in full in view of the fact that the whole contention of the Trustees relied on it:—
To provide for the annual interest and sinking fund of these debentures, a special tax, sufficient for the payment of interest and sinking fund, as hereinafter provided, shall be levied annually upon all taxable property on the collection roll of the school trustees of this municipality at present in force, and on the said school trustees proportion of all taxable property belonging to incorporated companies, and on any other taxable property that may come under the control of the said school trustees during the term of these debentures; and all lands subject to the said tax now entered on the said rolls, together with the buildings and improvements thereon made or erected or which may be made or erected thereon during the term of these debentures, shall be bound and liable for the said special tax, until the full and final payment and discharge of the said debt.
To provide for the payment of these debentures when due, a sinking fund shall be provided in which shall be deposited each year and shall remain deposited with accrued interest during the term of these debentures, an amount of 2 1/10 per cent. of the amount of debentures sold.
The first point to be noticed about the above clause is that, contrary to the imperative provisions of section 244, subsection (1), of The Education Act, there is not in that resolution imposed upon the taxable property held for the payment of the loan an annual tax sufficient for the payment of the interest each year and at least one per cent. of the amount of the loan, besides the interest, to create a sinking-fund for the extinction of the debt. The resolution states:—
A special tax * * * shall be levied annually * * *
The decision with respect to the tax is expressed in the future. It does not impose a tax immediately; it only states that a tax shall later be provided for—"shall be levied annually". That is very clear; the imposition will be made only each year in the future. Moreover, according to the text of the resolution, the special tax shall be levied annually upon the taxable property on the collection roll "at present in force". Further, the special tax shall be levied annually not only on the taxable property then under the jurisdiction of the Trustees, but also
on any other taxable property that may come under the control of the said school trustees during the term of these debentures * * * until the full and final payment and discharge of the said debt.
Now the present action is not based upon the collection roll of 1925-1926. The amounts for which the Trustees claimed a privile
ge on the appellant's property result from the collection rolls of 1938-1939-1940. That alone would be sufficient to declare that the respondent's claim is irregular and illegal and contrary to the very text of the resolution of 1925; but the fundamental illegality is evidently that the resolution of 1925 was not adopted in conformity with section 244, subsection (1), of The Education Act. On that point this Court is bound by its own judgment in the case of The School Commissioners of St. Adelphe v. Charest and Douville[2], where it was decided that a resolution in similar terms, that is to say, providing for the imposition of a tax only in the future, does not meet the requirements of section 244 and is ineffective to operate a valid issue of bonds. That is what the Court of King's Bench (Appeal Side) of Quebec decided in that case[3] and which was affirmed in this Court.
The learned counsel for the respondents, notwithstanding his ingenious argument, has not succeeded in convincing me that any distinction whatever can be made between the St. Adelphe case (1) and the present case.
But, in addition to this fundamental illegality, the 1925 resolution contains many other illegalities, inter alia: First, it is impossible to reconcile that resolution with subsection (3) of section 244. That subsection enacts that:—
It shall be the duty of the Secretary-Treasurer to make, every year until the payment of the loan or the redemption of the bonds, a special collection roll, apportioning, upon the taxable immoveable property liable for the payment of such loan or such bonds, the amount of the tax imposed on each one for the payment of the interest and the annual payment into the sinking-fund.
It has already been pointed out that the resolution stipulates that the special tax shall be levied annually upon all taxable property on the collection roll "at present in force". Incidentally, that appears to me to be the intention of the law expressed in subsection (1) of section 244. But, in such a case, the valuation of the taxable property held for the payment of the debentures being fixed, once and for all, as it appears on the collection roll of 1925, it would evidently be contrary to the text of the resolution and, therefore, illegal for the Secretary-Treasurer to make each year a new collection roll assessing against the taxable immoveable property liable for the payment of the loan a different amount based on the collection roll of each of those years. One can see in the present case the anomalous result of such a practice. While Mr. Wright's special tax in 1925 amounted to $69.92, it is now claimed by the respondents, as a result of the collection roll of 1940, that Mr. Wright's personal obligation would amount for that year alone to the extraordinary sum of $904.47; and, of course, the consequence of such a contention is that the privilege now sought to be enforced against the appellant's property instead of being only $69.92 is $904.47 for the year 1940.
It may be that subsection (3) of section 244 is incompatible with the true construction to be put on subsection (1). It is not easy to reconcile subsections (1) and (3) of section 244, for, if subsection (1) be interpreted in the sense that seems to be not only likely but imperative, the result would be that subsection (3) is merely surplusage and that, in order to conform with the requirements of subsection (1) (and incidentally to the clear provision of the 1925 resolution) the special collection roll could only be and ought to have been a mere repetition from year to year until the payment of the loan or the redemption of the bonds. Instead of that, we have here collection rolls assessing varying amounts for the years 1938, 1939 and 1940, which are made the bases of the action and which in each case are different from the amount appearing on the collection roll of 1926. That is contrary to the provisions of the 1925 resolution; and, moreover, it shows beyond doubt that the claim of the respondent is not based on the resolution of 1925 but is necessarily based on the resolutions of the years 1938, 1939 and 1940.
All that the Secretary-Treasurer of the respondents had to do in order to obey the instructions contained in the resolution of 1925 was to repeat each year in the collection roll prepared by him, against each property liable for the payment of the loan, the amount fixed in 1925 and based on the valuation roll of that year. He did not require any fresh permission or order from the Trustees to act in such a way. Subsection (3) made it his "duty" without it being necessary that he should receive new instructions to that effect.
But such was not the method adopted by the respondents. Each of the resolutions adopted by them, and alleged in the declaration in the present case, on the 6th December, 1938, the 13th November, 1939, and on the 26th November, 1940, confirms the interpretation now given to the resolution of 1925, and which is that no tax was actually imposed in 1925, that the resolution contains only the expression of the intention to impose a tax later, that the imposition so levied was in fact made only in each year, as appears from the resolutions of 1938, 1939 and 1940, and that indeed the Trustees in this case proceeded exactly in the manner referred to by this Court in its judgment in the St. Adelphe case[4]. In 1925: a declaration of the intention to impose a tax later; and then each subsequent year a resolution imposing a tax, as is more particularly evident in the resolutions of 1938, 1939 and 1940. However, in these later resolutions the Trustees did not limit themselves to giving instructions to their Secretary-Treasurer to prepare a special collection roll in conformity with the resolution of 1925; they actually imposed a tax for each year, as is well shown by the text of the resolutions themselves, as follows:—
December 6th, 1938.
That a tax rate of 10 mills on Aylmer property, and 6½ mills on South Hull Township property be and is hereby levied on all property under the control of the School Trustees, as a general tax for the year 1938-39 and a special tax rate of 1¾ mills be levied on all properties on which we are entitled to collect for the year 1938-39 and also that a discount of 5 per cent. be allowed on all current general school taxes paid on or before January 31st, 1939.
November 13th, 1939.
That a tax rate of 10 mills on the Aylmer property on our collection roll and a tax rate of 6½ mills on our portion of South Hull Township be and is hereby imposed on all property under our control as a general school tax and a special tax rate of 1¾ mills be imposed on our whole school district for the year 1939-40, also that a discount of 5 per cent. be allowed on all current general school taxes paid on or before January 31st, 1940.
November 26th, 1940.
That a tax rate of 10 mills on Town of Aylmer and 6½ mills on our portion of South Hull Township be and is hereby imposed as a general tax on the property under our control for the year 1940-41 and a special tax rate of 1¾ mills be imposed on our whole district for the same year. Also that a discount of 5 per cent. be allowed on current general taxes paid before January 31st, 1941.
There is really no difference in the text of these three resolutions. In 1938 the Trustees used the word "levy", while in 1939 and 1940 they used the word "impose". No doubt the Trustees were of the opinion that the two words are synonymous, or at all events that they have the same effect. In section (1) of The Education Act, subsections (17) and (18), the words "school tax", or "tax", are defined as meaning "all contributions that may be levied in virtue of this Act", and the words "school assessment" as meaning "the tax which is levied on the taxable property of a school municipality". In the French version of the Act, in subsections (17) and (18) of section (1), the word "impose" is used for the word "levy" in the English version. On the other hand, section 244 uses the word "impose" in French and the word "impose" in English in subsection (1) as well as in subsection (3). In section 249 the word "imposé" in French is inserted as the equivalent of the word "levy" in English; and, if one goes through the several sections of the Act, it will be seen that the words "impose" and "levy" are used interchangeably, as well as the words "tax" and "assessment". It is clear, therefore, that the respondent Trustees have really, in each of the years 1938, 1939, and 1940, in order to provide for the payment of the interest and for the sinking-fund in each of those years, as provided for in section 244, imposed or levied a special tax which was only then and there imposed or levied and which was not imposed or levied in 1925. That is the only interpretation which must be given to all those resolutions; that the special tax for which a privilege is now sought to be enforced against the appellant by means of the present hypothecary action was actually imposed in 1938, 1939 and 1940. It is clear that the resolution of 1925 and the three subsequent resolutions cannot exist concurrently and at the same time. The evident intention of the three last resolutions was to complete that of 1925 and that is exactly what is suggested in the judgment of this Court in the St. Adelphe case[5]. It is only in the three resolutions of 1938, 1939 and 1940 that the Secretary-Treasurer could find the authority to prepare the collection rolls which are made the bases of the present action.
Unfortunately, the illegality of the respondent Trustees' resolutions does not stop there. The 1925 resolution enacts that the immovable properties which are to be held for the payment of the loan are those which appear on the collection roll then in force; and, while the resolution of 1938 is ambiguous in that it states that a special tax is levied on all properties on which we are entitled to collect for the year 1938-39,
those of November, 1939 and November, 1940, pretend to impose the special tax "on our whole school district for the year 1939-40" and "on our whole district for the same year" (i.e., 1940-41). Therefore, the resolutions of 1939-40 make the imposition on all the properties which then formed part of the respondents' school district, and that is directly opposite to what was done in the resolution of 1925. In that respect it is impossible to reconcile the two last resolutions with that of 1925. They cannot co-exist because they are contradictory, and the two last resolutions can be held as valid only if they are envisaged as having amended the resolution of 1925. Now, the only authority of the Secretary-Treasurer to prepare the collection rolls for the years 1939-40 and 1940-41, as he has done, can be found only in the resolutions of 1939-40, which brings us to the following dilemma: either the 1925 resolution has really been amended, as just stated, and, therefore, the respondents have illegally modified the bases of the collection of taxes providing for the interest and the sinking-fund of the loan of 1925, or the resolutions of 1939-40 have illegally imposed a personal tax against the appellant which is exempt from taxation.
In the first case, the procedure adopted by the respondents is contrary to the imperative provisions of sections 242 and 244 of The Education Act, for the resolution of 1925 alone has been adopted with the authorization of the Provincial Secretary and the approval of the Minister of Municipal Affairs, Trade and Commerce. It follows that the Trustees had no authority whatever to modify it.
Or, in the second case, the Trustees, in 1939-40, proceeded in virtue of the new resolutions which then and there imposed the special tax, and these two resolutions are doubly inoperative both from the general point of view because they had not received the previous authorization of the Provincial Secretary or the approval of the Lieutenant Governor in Council, or of the Minister of Municipal Affairs, Trade and Commerce; and, moreover, from the particular point of view of the appellant because at the time the tax was then and there imposed the appellant was exempt from taxation and no imposition could validly be made against it.
Furthermore, the 1925 resolution contains another illegality resulting from the fact that it pretends to impose
a special tax * * * on any other taxable property that may come under the control of the said school trustees during the term of these debentures.
There is no provision, either in The Education Act or in the Civil Code of the province of Quebec, which authorizes the creation of a privilege upon future properties, or properties that may come in.
The conclusion is that the so-called resolution of 1925 is illegal and ultra vires from beginning to end, and that is the resolution on which the respondents now pretend to base their claim against the appellant.
Indeed the respondents press their contention much further. They would like the Court, notwithstanding all these illegalities, to regard these illegal and ultra vires clauses of the resolution as if they did not exist, as if they had never been inserted therein, and to proceed to apply the resolution as if it contained only the clauses which are not tainted with illegality and absence of authority. That would really be an absolute novelty in the jurisprudence of the province of Quebec. All that the Courts would have to do would be to strike out what is illegal and ultra vires and to hold the balance of the resolution as being the true resolution which the respondents adopted and which they would now have the right to use as the basis of their hypothecary claim.
The first difficulty which comes to the mind to prevent the courts from adopting that point of view is that, when everything that is illegal and ultra vires is withdrawn from the 1925 resolution, there is nothing left. Moreover, I would be very much surprised if there could be found in the Quebec jurisprudence a single case where a resolution thus tainted with illegality and want of authority, even only in part, was held to be valid for those parts of it which were not found illegal and ultra vires.
Then the Trustees adopted the resolution, as is found in the record, with the conditions therein inserted; and it cannot be assumed that they would have adopted it if these conditions had been eliminated therefrom. In addition to that, they proceeded contrary to the intention expressed in the resolution of 1925, since in 1939-40 they ordered their Secretary-Treasurer to prepare a collection roll affecting not only the properties which were under their jurisdiction in 1925 but equally all those which were under their jurisdiction in 1939 and 1940 ("imposed on our whole school district"). I find it absolutely impossible to admit that such a resolution and such a proceeding can justify a claim for a tax against the appellant, and still less an hypothecary action.
The charge, hypothec, or privilege may result only, as stated in section 249 of The Education Act, from an assessment which specifically designates the immoveable property assessed, which fixes the amount of the tax, and which becomes a special charge only as a result of the failure to pay within twenty days following the homologation of the collection roll: and section 249 is the only section to be found in The Education Act providing for the creation of a special hypothecary charge upon any property. If it cannot be found there, it does no