Judgment of the Court
JUSTICE.-I am of opinion that this appeal must be dismissed.
First, I agree with the Court of Appeal in holding that the 65th section of the Ontario Assessment Act (R. S. 0 ch. 193) does not make the roll, as finally passed by the Court of Revision, conclusive as regards question of jurisdiction. If there is no power conferred by the statute to make the assessment it must be wholly illegal and void ab initio and confirmation by the Court of Revision cannot validate it.
To this effect were the decisions in Scragg v. City of London ; Nickle v. Douglas ; Nicholls v. Cumming Several other Ontario cases might be cited to the same effect. All these cases were founded on principles laid down in English decisions of the highest authority.
Q.
Q.
I cannot assent to Mr. Meredith's argument that McCarrall v. Watkins has any application to the present case.
The distinction is that the property assessed in McCarrall v. Watkins was real estate, in which case the property itself is the subject of assessment; here the property is personal in which case not the property but the owner is assessed.
I adhere to Justice. what is said in Nickle v. Doug"las to this distinction.
Then if the roll was not conclusive the only question remaining can be whether the case of the respondents comes within the 15th section of the Assessment Act which provides that- It is not disputed that the personal property-merchandise consisting of sugar-assessed in the present case was actually in a warehouse within the appellant municipality at the time it was assessed; nor can it be disputed that the respondents are residents of the city of Brantford and do not reside in the city of London. The sole question is, therefore, whether upon the evidence it can be said that they carried on business in London.
The proof upon this head is that the sugar was stored in a public warehouse kept by a Mr. Slater in the city of London; that this warehouse was used for bonded as well as for unbonded goods, and by other persons as well as by the respondents; and that the respondents paid Slater the usual warehouse charges upon these goods.
It further appears that they. had no clerk or agent in charge the goods, but that when they made sales of sugar they gave a delivery order which Slater acted upon; that once a week or so their commercial traveller, who resided in London, attended there to take orders for goods, including sugar. but that the sales of sugar out of the stock in Mr. Slater's warehouse were not confined to transactions entered into at London.
- I am of opinion that this does not show that the Justice.
respondents carried on business at London.
It only shows that some of their stock in trade incidental to the business they carried on at Brantford was stored in a warehouse in London. The proper presumption is, therefore, that they were assessed for this same sugar at Bran tford where they exclusively carried on business. To maintain this assessment at London would therefore be to impose upon the respondents a double tax upon the same property which would be illegal and oppressive.
The case of Kingston v. Canada Life Assurance Company which appears to me to have been properly decided, is an authority for the respondents as is also Ex parte Charles referred to in the judgment Mr. Justice Osler in the Court of Appeal.
The appeal must be dismissed with costs.
Appeal dismissed with costs.