HAULTAIN, C.J.S.:—The plaintiffs, during each of the years 1925 and 1926, carried on business as lumber manufacturers within the defendant municipality.
In each of the years mentioned, the plaintiffs were assessed by the defendant in respect of their "‘stock in trade’’. No appeal was taken from the assessment either in 1925 or 1926, and the taxes levied were not paid. On August 13, 1927, the defendant distrained for the taxes alleged to be due, and seized a quantity of lumber belonging to the plaintiffs. The plaintiffs thereupon brought this action for the recovery of the lumber, and obtained possession by writ of replevin.
The defendant defended and also counterclaimed for return of the lumber.
On the trial of the action the trial Judge allowed the plaintiffs’ claim, and dismissed the counterclaim with costs, but gave no reasons for his decision.
So far as the 1926 assessment of ‘‘stock in trade’’ is concerned, it was clearly illegal and of no effect.
For some years prior to 1926, the property in a rural municipality subject to taxation under The Rural Municipality Act, R.S.S. 1920, c. 89, and amendments, was "‘land, buildings and stock in trade’’. By the amending Act of 1925-26, c. 21, see. 12, it was provided that, upon the coming into force of the Act on April 1, 1926, the property subject to taxation should be, "‘Land, buildings, and business’’. The business assessment was based on the floor space of buildings used for business purposes, according to certain classifications of business provided in the Act.
The assessment for 1926 was not made until after April 1, consequently the assessment of ‘‘stock in trade” was of no effect, as it affected to tax property which was ‘no longer liable to taxation..
The assessment for 1925 stands on a different footing. In that year, as the law then stood, "‘land, buildings and stock in trade’’ were liable to taxation. "Stock in trade’’ under the Act was stated to be the "‘stock in trade of a mercantile business”, and the assessor was directed to assess every person who was ‘‘engaged in mercantile business’’ in the municipality.
The plaintiffs contend that the business of a manufacturer is not a mereantile business, and, as they. were engaged in a purely manufacturing business, that they were not liable to be assessed in respect of their stock in trade.
The difference between "‘merchant’’ and "‘manufacturer’’ has been dealt with by my brother Martin, and there is ample authority for saying that the word "merchant’’ must generally be construed in its ordinary and common sense, as meaning one "‘who deals in an article by buying and selling it and that there is no ground for construing it as including a manufacturer who confines himself to selling his own manufacture’’. Per Eve, J., in Lovell and Christmas v. Wall (1910) 103 L.T. 988 at 591, 27 T.L.R. 94, approved by the Court of Appeal in S.C. (1911) 104 L.T. 85, 27 T.L.R. 236. See also Josselyn v. Parson (1872) L.R. 7 Ex. 127, 41 L.J. Ex. 60, which was followed by Eve, J. in the case above cited.
While the difference between "‘merchant’! and "‘manufact- urer’’ is well defined by authority, it does not, in my opinion, necessarily follow that that difference must be imported into the construction of the more comprehensive term "‘mercantile’’. In the- cases cited above, the question in each case turned on the construction of a contract in restraint of trade, and for that purpose distinctions between words and phrases depended upon the contract and circumstances in each case. In such cases the meaning to be attached to particular words and phrases, iii the light of the whole agreement, would depend very largely upon ‘whether the business engaged in in alleged. breach of contract was ‘‘so like the other as seriously to compete with it*’ : 27 Halsbury, p. 574. See also Castelli v. Middleton (1901) 17 T.L.R. 373 at 378; Harms v. Parsons (1862) 32 Beav. 328, 32 L.J. Ch. 247, 55 ER. 129; Automobile Carriage Builders V. Sayers (1909) 101 L.T. 419.
The derivative words ‘ mercantile commercial ‘‘and ‘‘mer- chandise”” are all‘broader in their signification than merchant”.
Mercantile law deals with a variety of subjects which have no special relation to ‘‘merchant’’ or the business of a ‘‘merchant’’, in the strict sense of that term, as will be seen by the various matters dealt with in The Mercantile Law Amendment Act ot 1856.
In Grainger and Son v. Gough [1896] A.C. 325, 65 L.J.Q.B. 410, at pp. 413 and 418 ; Lord Herschell said, at p. 413 :
“How does a wine merchant exercise his trade? I take it, by making or buying wine and selling it again with a view to profit.”
Lord Davey in the same case, at p. 418, said :
“Now what does one mean by a trade, or the exercise of a trade? Trade, in its largest sense, is the business of selling, with a view to profit, goods which the trader has either manufactured or himself purchased. ‘‘
Bouvier defines mercantile law as :
"‘That branch of law which defines and enforces the rights, duties and liabilities arising out of mercantile transactions and relations. ‘ ‘ .
Can it then be said that the business of a manufacturer is not a mercantile business, or that the sale of his product by a manufacturer 1 is not a mercantile transa ‘ ?
Lord Herschell, as above quoted, refers to a wine merchant as one who makes or buys wine and sells it again.. In this country a lumber merchant is commonly known and understood to be one who manufactures or buys lumber and sells it again.
I am therefore of the opinion that the plaintiffs were engaged in mercantile business in the municipality, and that their stock in trade was consequently liable to assessment and taxation in the year 1925.
The position, therefore, when the distress was made, was that the defendant was entitled to distrain for a very considerable portion of the taxes for which distress was made. Under those circumstances the distress was not illegal. In the analogous case of distress for rent, if some rent is due levy for more than is due makes the distress probably excessive, but not illegal: Forty v. Imber (1805) 6 East. 484, 102 E.R. 1354; Stevenson v. Newnham (1853) 13 C.B. 285, 22 L.J.C.P. 110, 138, E.R. 1208; White v. Greenish (1861) 11 C.B. (N.S.) 209. 142 E.R. 776. The same rule applies to a levy for taxes: Robertson v. Hopper (1909) 2 Sask. L.R. 365, 368, 12 W.L.R. 5; Smart Hardware Co. v. Melfort, 10 Sask. L.R. 40, [1917] 1 W.W.R. 1184.
Following the cases on landlord and tenant, the defendant municipality was not bound by the amount claimed when the distress was made, and although it claimed for more taxes than were due, it was not liable to an action unless the distress was excessive for the amount actually due: Tancred v. Leyland (1851) 16 Q.B: 669, 20 L.J.Q.B. 316, 117 E.R. 1036; French v. Phillips (1856) 1 H. & N. 564, 26 L.J. Ex. 82, 156 E.R, 1327; Glynn v. Thomas (1856) 11 Ex. 870, 25 L.J. Ex. 125, 156 E.R. 1085.
In the present case the defendants sought their remedy in replevin, but replevin only les where the distress is wholly illegal, and cannot be supported where some rent or taxes are due : Johnson v. Upham (1859)2 El. & El. 250, 28 L.J.Q.B. 292; White v. Greenish, supra.
In the present case the plaintiffs rested their whole case on the ground that the distress in question was illegal, and on the authorities above cited their action wholly failed.
The appeal should therefore be allowed with costs, and the judgment below should be set aside and judgment entered for the defendant. dismissing the action with costs, but I would allow no costs on the counterclaim.
McKay, J.A.:—In my opinion the word "‘mercantile’’ has a wider meaning than the word "‘merchant’’ and as used in sec. 232 of The Rural Municipality Act, R.S.S. 1920, c. 89, it is wide enough to include the business carried on by the plaintiff and I agree in the conclusion arrived at by the learned Chief Justice.
Martin, J.A.:—The plaintiffs are lumber dealers, and are owners of certain timber limits, sawmills, and stock in trade of lumber, in the defendant municipality.
During the years 1925 and 1926 they operated a sawmill at Peesane, within the limits of the municipality. In each of the years 1925 and 1926 the municipality assessed the plain- tiffs in respect of "‘stock in trade’’, the valuation of which was placed at $7,500, the‘total taxes for 1925 being $200, and for 1926, $165.75. The assessment purported to be made under the provisions of The Rural Municipality Act, RS. S. 1920, c. 89, and amendments thereto.
The plaintiffs refused to pay the taxes, on the ground that they are carrying on a manufacturing business, and not a "mercantile business’’, and that they were not owners of a "stock in trade’’ liable to assessment. No appeal was taken to the Court of revision from either assessment, but it is contended by the plaintiffs that the assessments w ere void ab initio. On August 13, 1927, the defendant distrained upon 40,500 feet of lumber owned, by the plaintiffs, and valued at $931.50. to recover the:sum of $445.95, being the taxes in arrears, penalties, and costs. of distress. The plaintiffs then commenced this action, alleging wrongful distress of the lumber, and claiming its return or payment of its value. No claim is made for excessive distress. A writ of replevin was issued, and the plaintiffs recovered possession of the lumber.
The defence of the municipality is that the plaintiffs were properly assessed in accordance with the provisions of The Rural Municipality Act, that the assessment roll of the defendant municipality in each of the years 1925 and 1926 was duly completed, and that, as no complaint or appeal was filed by the plaintiffs, the assessment roll as: completed binds all parties. The learned trial Judge gave the plaintiffs judgment for the return of the lumber, with costs. From this judgment the defendant has appealed.
For the reasons set out in Harris Co. v. B jorkdale R.M., decided at the present sittings of the Court, and in which the appropriate provisions of The Rural Municipality Act are fully Set out, I am of the opinion that the assessment of the stock in trade of the plaintiffs in 1925 was void ab initio. There was no jurisdiction to assess the stock in trade, unless the plaintiffs were carrying on a ‘‘mercantile business’’, and the business of manufacturing lumber does not t fall within the meaning of this term.
In 1926 an amendment contained in c. 21 of the statutes of 1925-1926, sec. 12, was in force, under the terms of which “stock in trade” was no longer assessable, but instead authority was given to assess business ’ ’. There was therefore no jurisdiction in the municipality in 1926 to assess stock. in trade, and such assessment was void ab initio.
As there was no jurisdiction to make the assessments in question in either of the years, confirmation by the Court of revision could not validate them: London v. Watt & Sons (1893) 22 S.C.R. 300; Toronto Ry. v. Toronto Corpn. [1904] A.C. 809, 13 L.J.P.C. 120; North Battleford v. Brehaut, 13 Sask. L.R. 202, [1920] 1 W.W.R. 1053; London v. G. W. Ry. (1859) 17 U.C.Q.B. 262; Chant v. Regina, 19 Sask. L.R. 188, [1925] 1 W.W.R. 65, at 75.
I would dismiss the appeal with costs.
MACKENZIE, J. A.:—For the reasons set out by me in Harris Co. v. Bjorkdale R.M., heard by 11s at the same sitting as this I think that the defendant had no right to tax the plaintiff in 1925 on its stock in trade. In this and other respects I concur in the conclusions .of my brother Martin.