HAULTAIN, C.J.S.:—I agree with my brother Martin that the plaintiff is not entitled to the repayment of the amount of $241, which was paid at the request of Turnbull & Barnum on account of the 1923 and 1924 taxes.
As to the assessment of the plaintiff’s stock 111 trade for the years 1925 and 1926 :
For the reasons given in my judgment in the case of Pearse & Edworthy (post, p. 12) against the present defendant municipality, on precisely similar facts, I am of the opinion that the assessment for 1926 was illegal and void, but that the plaintiff was properly assessed in respect of its stock in trade for the year 1925. As part of the taxes distrained for, namely, the 1925 taxes, were due, the distress in question was not illegal, and the plaintiff had no right of action for recovery of the goods seized. No excessive distress was alleged, and no damages were claimed, and on the authorities cited in my judgment in the case above mentioned, an action will not lie for merely distraining for more taxes than are in arrear. See especially Stevenson v. Newnham (1858) 13 C.B. 285, 22 L.J.C.P. 110, 138 E.R. 1208.
I would therefore allow the appeal with costs. The judgment below should be set aside, and judgment should be entered for the defendant dismissing the action with costs, but I would allow no costs of the counterclaim.
McKay, J.A. agrees with Haultain, C.J.S.
Martin, J.A.:—The plaintiff is a company engaged in the manufacture and sale of lumber. Its head office is located in the city of Winnipeg, in the province of Manitoba, but it has a licence to carry on business in the province of Saskatchewan, and does carry on business at Peesane, in this province.
In the years 1923 and 1924, a firm known as Turnbull & Barnum carried on the business of lumber manufacturers at Peesane, and sold their entire product to the plaintiff company. In these years Turnbull & Barnum were taxed in the sum of $81, in each year by the defendant municipality, on their "sawmills and business’’. Late in the year 1924, Turnbull & Barnum leased their sawmills at Peesane, together with all equipment, and lands upon which the same were situated, to the plaintiff. The taxes assessed for the years 1923 and 1924 were not paid by Turnbull & Barnum, and in the year 1925, while the plaintiff was in occupation of the sawmill and equipment, the defendant municipality distrained for the sum of $241.25 which included the taxes in arrears for 1923 and 1924, together with penalties and costs of distress. As the seizure seriously -interfered with the operations of the plaintiff, the manager at Peesane paid the secretary-treasurer of the municipality the amount, in order to have the seizure released. The cheque given in payment contained on the front thereof the written words, ""In payment of taxes paid under protest.’’ The circumstances under which this payment was made by the plaintiff will be more particularly referred to hereinafter.
In the years 1925 and 1926, the plaintiff operated the sawmill and planing mill in the manufacture of lumber, and it appears that the lumber produced at Peesane was sold, under the direction of the head office at Winnipeg, to lumber dealers in Western Canada and the United States. In both years 1925 and 1926 the defendant municipality assessed the plaintiff in respect of "‘stock in trade’’, which was valued for taxation purposes at $15,000. The amount of taxes levied in the year 1925 was $400, and for 1926, $381.75. These assessments were made under the provisions of The Rural Municipality Act, R.S.S. 1920, c. 89, and amendments thereto. The plaintiff refused to pay the taxes levied in these years, and in the month of August, 1927, the defendant caused to be seized 7,500 feet of lumber in and around the sawmill, which lumber appears to have been valued at $1,900. The amount of distress, including taxes, penalties and costs, was $891.92. The plaintiff then commenced this action, claiming a return of the lumber, or payment of its value, and also repayment of the sum of $241.25, paid for the taxes levied against Turnbull & Barnum in the years 1923 and 1924. No claim is made for excessive distress. A writ of replevin was obtained, and the lumber seized was restored to the plaintiff. The learned trial Judge gave judgment for the plaintiff for the return of the lumber, and directed repayment to the plaintiff of the sum of $241.25, and interest thereon at the rate of 5 per cent per annum from July 7, 1925, together with the costs of the action. From this judgment the defendant has appealed.
The provisions of The Rural Municipality Act applicable and in force at the time the assessments were made in 1923 and 1924, are contained in secs. 228, 229, 232 and 233, of the Act and certain amendments thereto.
Secs. 228 and 229 were amended by e. 39 of the Statutes of 1921-22. Sees. 15 and 16, and as amended are as follows :
“15. Section 228 is repealed and the following substituted therefor :
“ ‘228. Subject to the provisions hereinafter contained, the municipal taxes shall be levied upon land, buildings and stock in trade.’
‘16. Paragraph 9 of section 229 is repealed and the following substituted therefor :
"‘9. Stock in trade of a mercantile business carried on in the municipality, to the extent of $300.’ ‘‘
Sec. 232 is amended as follows:
“As soon as may be in each year but not later than the first day. of July, the assessor shall assess either the owner or occupant of every parcel of land in the municipality and every person who is engaged in mercantile business in the municipality and is owner of a stock in trade liable to assessment, and shall prepare an assessment roll in which shall be set out as accurately as may be ”’
And sec. 233, subsec. (7), is as follows:
‘“Wherever One- or more persons are engaged in mercantile business in the municipality the stock in trade of such business shall be assessed at sixty per cent. of its fair actual value and the name of each such person shall be entered on the assessment roll in respect of his share or interest in the business; but grain in an elevator shall not be assessed as stock in trade.”
In 1923 and 1924, Turnbull & Barnum, according to the assessment roll, were assessed for "‘sawmills and business’? at a valuation of $9,000, the taxes in each year being $81. Under sec. 228 of the Act, taxes are to be levied on "‘land, buildings and stock in trade’’, and sec. 232 provides that the assessor. shall assess every person who is either the owner or occupant of land in the municipality, or is engaged in mercantile business in the municipality and is the owner of a stock in trade liable to assessment. The assessment levied against the business of Turnbull & Barnum in 1923 had no foundation in the Act, was without jurisdiction, and was, therefore, void ab initio. The assessment of the sawmills, in my opinion, was authorized by the statute, as prima facie a sawmill falls within the meaning of the word “buildings”.
It is not necessary, however, in the view I take of the claim of the plaintiff to recover the sum of $241.25, to pursue the question further, because the payment in question was, according to the evidence, made by the plaintiff as agent of and on behalf of Turnbull & Barnum, and the plaintiff has no status to ask for the recovery of the amount. The secretary-treasurer of the municipality was present on the occasion when payment was made by one Sanderson, the manager of the plaintiff at Peesane, and received the cheque from him. In his evidence he states that Turnbull, one of the firm of Turnbull & Barnum, was present, and that Sanderson advised him (Turnbull) to pay the taxes, and that Turnbull said that he did not have the money to pay. Sanderson then stated to Turnbull that he would pay the taxes, if he (Turnbull) would repay the amount, and Turnbull promised that he would. On receiving this assurance, Sanderson prepared a cheque and handed the same to the secretary-treasurer, with the result, of course, that the seizre of the municipality on the equipment of the sawmill was released. This evidence is not contradicted, and it would appear from it that, if any one has a right of action against the municipality for the recovery of the sum, it is Turnbull & Barnum who were the principals in the transaction. An agent has no cause of.action upon a contract made by him merely in his representative capacity, except where he is entitled to a lien upon, or has a specific property in the subject-matter of the contract, or has some beneficial interest in the completion thereof.
On the hearing of the appeal, defendant’s counsel asked leave to plead sec. 73 of The Arrears of Taxes Act, 1926, ce. 25 of the Statutes of 1925-26. This section provides that no action for the return by the municipality of moneys paid to it, either under protest or otherwise, on account of a claim, whether valid or invalid, made by the municipality for taxes, shall be commenced after the expiration of six months after the payment of such moneys. In view of the conclusion I have reached, to the effect that the plaintiff has no’status to ask for the return of the amount of $241.25, it is not necessary to consider the application made to amend the statement of defence by setting up the section of The Arrears of Taxes Act, 1926.
The assessment made against the plaintiff in the year 1925 was on " 1 stock in trade’’, valued at $15,000. While, under the. provisions of sec. 228, taxes are to be levied on ‘‘lands, buildings and stock in trade”, sec. 232 provides that the assessor shall, not later than July 1, assess every person who “is engaged in mercantile business and j is the owner of a stock in trade liable to assessment’’. It is only a person, therefore, who carries on a mercantile ‘business whose stock in trade is liable to assessment, and under the provisions of sec. 229, subsec. (9), as amended by sec. 16 of ce. 39 of the Statutes of 1921-22, such stock in trade is exempt to the extent of $300. The plaintiff, therefore, was assessable for its stock in trade, consisting of lumber, if engaged in “mercantile business’’.: As pointed out above, the plaintiff was carrying on the manufacture of lumber out of logs, procured by it in the vicinity, and the lumber so manufactured was sold to dealers throughout Western Canada and the United States. There is no evidence that the plaintiff was engaged in retailing lumber to persons residing in the vicinity of Peesane, where the sawmill was located.
In Murray f s New English Dictionary, vol. 6, the word "‘mer- e’’ is defined as follows:
"‘Of or belonging to merchants or their trade; concerned with the exchange of merchandise; of or pertaining to trade or commerce, commercial ; engaged in trade or commerce having trade or gain as a motive.’
And the word " merchant ‘ ‘ is defined as:
‘‘One whose occupation is the purchase and sale of marketable commodities for profit, originally applied to any trader in goods not manufactured or produced by himself ; but from an early period restricted to wholesale traders, and especially to those having dealings with foreign countries.’’
See also Corpus Juris, vol. 9, p. 1106, and vol. 40, pp. 634 and 635.
I do not think that the words ‘‘mercantile business’’ can be held to include the business which was being carried on by the plaintiff in the year 1925. According to the evidence, the plaintiff was engaged in the purchase of logs, manufacturing the logs into lumber, and distributing the product to the trade. In construing a statute, the grammatical and ordinary sense of the words is to be used, unless this leads to absurdity, or some repugnancy or inconsistency (Maxwell’s Interpretation of Statutes, 6th ed., p. 4). Moreover, the provisions in question impose taxation upon the subject, and such enactments are strictly construed. In order to justify taxation, the subject of assessment must fall clearly within the provisions of the enact- ment. (Tennant v. Smith [1892]. A.C. 150, at 154, 61 L.J.P.C. 11, 66 L.T. 327, 56 J.P. 596; Ottawa v. Egan [1923] S.C.R. 304, at 312; Maxwell’ s Interpretation of Statutes, 6th ed., pp. 223 and 504).
The plaintiff, in my opinion, was not liable to be assessed for “stock in trade’’ in 1925; there was no jurisdiction in the municipality to make the assessment, and it was therefore void ab initio (London v. Watt 6'- Sons (1893) 22 S.C.R. 300; Toronto Ry. v. Toronto Corp. [1904] A.C. 809, 73 L.J.P.C. 120; North Battleford v. Brehaut, 13 Sask. L.R. 202, [1920] 1 W.W.R. 1053; Chant v. Regina, 19 Sask. L.R. 188, [1925] 1 W.W.R. 65, at 75).
As to the assessment of the stock in trade in 1926, sec. 228 of the Act was amended by c. 21 of the Statutes of 1925-1926, sec. 12, which came into force on April 1, 1926. The section as amended is as follows :.
"Subject to the provisions hereinafter contained, the municipal taxes shall be levied upon land, buildings and business. ‘ ‘
And sec. 232 was amended in the same year by e. 26, sec. 14, and reads as follows :
"As soon as may be in each year but not later than the first day of July the assessor shall assess either the owner or the occupant of every parcel of land in the municipality and every person who is engaged in mercantile, professional or any other business in the municipality save that of a farmer, stock raiser or person otherwise engaged in agricultural pursuits, and shall prepare an assessment roll in which shall be set out as accurately as may be .. .”’
Under these provisions, "‘stock in trade’’ is not assessable, and instead of an assessment of stock in trade an assessment on ‘‘business’’ is provided. The assessment of the plaintiff’ S stock in trade for the year 1926 was made under the provisions of the sections as amended, and as stock in trade was not assessable under these provisions, there was no Jurisdiction in the municipality to make such assessment and it was therefore void ab initio.
In the result, the judgment below should: be varied by dismissing the claim of the plaintiff for the sum of $241.25. In other respects the judgment should be affirmed. The defendant is entitled to the costs of the appeal, and there should be a set-off.
MAOKENZIE, J.A.:—It seems to me that the business, which the plaintiffs were carrying on in the defendant municipality, was essentially a manufacturing business. The fact that they sent out their manufactured product, which was sold to the trade elsewhere, undoubtedly gave the business a mercantile feature, but I cannot bring myself to hold that such a feature should without more overcome its essential character and cause it to be classed for assessment purposes in 1925 in the defendant municipality as a ‘‘person engaged in mercantile business’’ in the meaning of the provisions of The Rural Municipality Act, R.S.S. 1920, c. 89, as they then stood. Bearing in mind that the imposition of a tax by statutory enactment’ requires clear words and that in interpreting it the Court must stick to the letter of the statute (In re Micklethwaite (1855) 11 Ex. 452, at 456, 25 L.J. Ex. 19: ; Atty. -Gen. v. Milne [1914] A.C. 765, at 772. 83 L. J.K.B. 1083) I do not think that the defendant had any right to assess the plaintiff for stock in trade that year. In this, and other respects, I concur in the judgment of my brother Martin.