Harvey, C.J.A.:—This is an appeal by the Registrar from an order of Ewing, J., made upon a reference to him under the Land Titles Act, R.S.A. 1922, c. 133.
The question involved relates to the payment of a tax under the Unearned Increment Tax Act, R.S.A. 1922, c. 32, upon the registration of a transfer.
It is the first transfer of the land presented for registration after the Unearned Increment Tax Act was passed in 1913 that gives rise to the difficulty.
The transfer is of. land in the City of Edmonton and is from the Canada Life Assurance Co., the registered owner since before 1913, to the respondent Northern Agency Ltd. It was presented for registration along with another transfer of the same land from the respondent to S. S. Kresge Co. Ltd., on July 19, 1937.
The first transfer is given in pursuance of an agreement for sale of the land made in 1925 for a purchase-price of $90,000 with interest as in the agreement of sale specified.
It does not appear when either of the transfers is dated but the former is stated to be accompanied by affidavits of the transferor and the transferee, meaning no doubt an officer or agent thereof, dated July 3, 1937, each stating the consideration for the transfer to be $146,270 being made up of the $90,000 and interest paid under the agreement for sale. The second transfer was accompanied by affidavits made on the 2nd and 19th of July, 1937, showing the then value of the land as $112,000. Section 3(1) of the Unearned Increment Tax Act provides that :—
" " There shall be payable upon the registration under The Land Titles Act of any transfer of land a tax of five per cent. on the increase in value at the time of registration of the said land over and above the value thereof according to the last preceding value for the purposes of this Act, excluding in all cases the cost of improvements or of development work actually made or done upon or in connection with the said land. ‘ ‘
The Act further provides that for the first registration after the Act came into force in respect to urban property ; ‘‘the last preceding value for the purposes of the Act’’ shall be the assessed value for the year 1913. That value as regards this land was $147,000 so that clearly there was no increase in value upon which a tax could be imposed at the time when the transfers were presented for registration, for the Registrar accepted as he was probably bound to do, the valuations sworn to on the second transfer as determining the value of the land at that time, but in order to impose a tax he fixed the value of the land for the purposes of the first transfer at $85,000, being the $90,000 of the agreement of sale less $5,000 the sworn value of the improvements. In this way he found an increase in value in the two minutes between the registration of the two transfers of $27,000 upon which he demanded as tax the sum of $1,350 being 5% of the amount of such increase.
The reference is for the purpose of determining whether he was within his statutory right in so doing, which the Judge appealed from held he was not.
•
I am in accord with the conclusions reached by the learned Judge and with the reasons therefor, but as arguments were presented before us which were not dealt with by him, it seems desirable to add something more.
Subsections (2) and (4) of s. 142 of the Land Titles Act, provides that:—
"‘(2) The value of land and improvements for the purpose of this Act and of The Unearned Increment Tax Act may be ascertained by the oaths or affirmation of the transferor and transferee of such land or of such other person or persons on behalf of either or both of them as the Registrar believes to be acquainted with the value of the land and whose oath or affirmation he is willing to accept.’’
(4) If the value of the land or of the improvements as set out in the affidavit sworn by or on behalf of the transferor and transferee respectively are not the same, or if for any other reason the valuations are unsatisfactory to the Registrar he may cause a valuation to be made by an Inspector of Transfers and such valuation shall be taken to be the value of such land or improvements and shall bind the parties to the transfer, or at his option the valuation may be fixed at the amount of the consideration for the transfer.’’
It.is claimed that under the provisions of s-s. (4) the Registrar has authority to fix a value based on the consideration and that $90,000 was the consideration for the first transfer.
It seems that if both the transferor and transferee make affidavits of value which do not differ that settles the value but in the absence of that if the Registrar is not satisfied he may cause a valuation to be made or at his option fix the valuation at the amount of the consideration. It may be observed that the valuation and also the affidavits would fix the value at the time they are made while a consideration for a sale might be no guide whatever to the value at the time of registration which might be, and in the present case was, many years after.
This seems to lend some force to the argument for the respondent that if the Registrar is going to resort to the amount of the consideration he must include the interest paid as well. The Act does not say " " purchase-price ‘ ‘ or ‘‘consideration for the sale” but " consideration for the transfer,’’ and of course the transferee did not get the transfer until he had paid not merely the principal but the interest as well. But then over and above all that the Unearned Increment Tax Act itself, as the quoted section states, requires the value ‘‘at the time of registration” to be taken for the purpose of determining whether there has been any increase in value since the last preceding value. Those words were not in the statute when this Court decided Bredin v. C.N. Town Properties Ltd. (1918), 13 A.L.R. 225, it which it was held that even in their absence that was the meaning of the statute.
Mr. Gray points out that it was shortly after that decision that the Registrar was given the option to determine the value by reference to the consideration and that it was apparently intended to meet the decision in the Bredin case but the words were then as now ‘‘consideration for the transfer. ‘ ‘ But whether it was intended to have any reference to the Bredin decision is of no consequence for the statute now makes the definite provision, and as the decision appealed from points out no machinery provided for the carrying out of a provision of a statute can be intended to be used in such way as to defeat or nullify the provision. It is indeed difficult to understand what the Legislature exactly meant when it provided that the Registrar might ‘‘fix’’ not ‘‘ascertain’’ the valuation ‘‘at the amount of the consideration for the transfer.’’ But the statute as interpreted by the Court in the Bredin case definitely held that the value from which the preceding value for the purposes of the
Act is to be subtracted to determine the amount, if any, of increase. • 1S the value at the time of registration, and the statute itself, n so provides.
It woula . ot be in accord with the usual rules of interpretation to hold that it was intended merely by the granting of the option to the Registrar which is really adjective law to repeal or qualify the substantive provision in s. 3(1), and there was plenty of scope for operation of the added method of determining value without in any way qualifying the substantive provision.
With regard to many transfers the consideration for the sale is a cash one and there would be no difference in that case between consideration for the sale and consideration for the transfer and if the transfer were presented for registration promptly it would in most cases be a proper representation of the actual value at the time of registration, and in such cases - the Registrar could safely adopt it to determine the value at
that time. It frequently happens that proof of execution of documents as required by ss. 139 and 140 is defective and that in some cases it might be impossible, and in many cases inconvenient, to get the defect remedied. The Act by a proviso to s. 140 permits the Registrar to accept in lieu of the affidavits prescribed by the Act, a certificate of a Judge that he has been satisfied that the document was duly executed. It may well be that this amendment giving the Registrar the right to take the amount of the consideration for the valuation, was intended to meet such cases of inconvenience to which effect could be given without qualifying the substantive provision that the value must be that of the time of registration. That seems a much more reasonable view than that the intention was to give the Registrar the right to make fictitious values for the purpose of imposing taxes not otherwise payable.
It may also be pointed out that if there is any difference between the provision of either s. 3(1) of the Unearned Increment Tax Act and s. 142(4) of the Land Titles Act before and after the revision in 1922, the revised Act must govern as definitely provided by s. 11(2) of ec. 49 of 1922, the Revised Statutes of Alberta Act, 1922.
It is to be noted also that no method whatever is provided for the Registrar ascertaining the amount of the consideration.
In the present case the consideration stated in the transfer is $1 and other good and valuable consideration’’ which would not be much assistance. He has, however, two sworn affidavits both stating the consideration the same, but quite different from what he finds it to be.
In the absence of some definite authority for him to find the consideration different from that stated in the transfer itself or as sworn to by affidavit it would not seem proper to hold that such finding could be upheld. The foregoing view seems to be in accord with the view expressed by the judgment of this Division in Wallbridge v. Registrar of Land Titles, 25 A.L.R. 90, [1930] 4 D.L.R. 768, which dismissed an appeal from Ford, J., [1930] 3 D.L.R. 752, for the reasons given by him for his decision.
At p. 754 he says, speaking of a first transfer after the passing of the Act, "‘The Registrar . . . must find the value of the land at the time of the transfer presented for registration,” which clearly means "'at the time the transfer is presented for registration’’ as is abundantly clear from the statement on p. 754:—
"For the purposes of ascertaining the tax payable on the second transfer presented after the passing of the Taxing Act the Registrar will then act under s. 142 of the Land Titles Act and will find the then value of the land; and if that value is more than the value ascertained at the time of the presentation of the first ‘transfer he will collect the tax on the difference between these two values and so on with respect to subsequent transfers. ‘ ‘
The appeal should therefore be dismissed with costs.
Ford, J.A.:—The reference made by the Registrar under s. 159 of the Land Titles Act, R.S.A. 1922, c. 133, which gives rise to this appeal, is set out in full in the reasons for judgment of Ewing, J., who answered the questions asked adversely to the ruling or contention of the Registrar who now appeals.
The relevant section of the Unearned Increment Tax Act as it appears in ¢c. 32 of the Revised Statutes of Alberta, 1922, is as follows :—
”3(1) There shall be payable upon the registration under The Land Titles Act of any transfer of land a tax of five per cent. on the increase in value at the time of registration of the said land over and above the value thereof according to last preceding value for the purposes of this Act, excluding in all cases the cost of improvements or of development work actually made or done upon or in connection with the said land.”
In the view I take of what the Registrar has done or left undone the ‘‘last preceding value for the purposes of the Act” was the amount of the assessment of the land for 1913, namely, $147,000. He has properly fixed or ascertained the value at the time of the registration of the transfer from Northern Agency Ltd. to S. S. Kresge Co. Ltd. in respect of which the tax is claimed, at $112,000. Not having, as I think he has not, fixed or ascertained any intermediate value for the purposes of the tax and there being no increase from the last preceding value, no tax is payable.
The machinery for the ascertainment of the value for the purpose of the Unearned Increment Tax Act are contained in s-ss. (2), (3) and (4) of s. 142 of the Land Titles Act, and are as follows :—
“142(2) The value of land and improvements for the purpose of this Act and of The Unearned Increment Tax Act may be ascertained by the oaths or affirmations of the transferor and transferee of such land or of such other person or persons on behalf of either or both of them as the Registrar believes to be acquainted with the value of the land and whose oath or affirmation he is willing to accept.
° (3) Such oaths or affirmations may be in form KK in the schedule of this Act, and shall be necessary in all cases where any new duplicate certificate of title is required to be issued whether or not any fees are payable in respect to such land under the provisions of this section or of The Unearned Increment Tax Act.
(4) If the value of the land or of the improvements as set out in the affidavit sworn by or on behalf of the transferor and transferee respectively are not the same, or if for any other reason the valuations are unsatisfactory to the Registrar he may cause a valuation to be made by an Inspector of Transfers and such valuation shall be taken to be the value of such land or improvements and shall bind the parties to the transfer, or at his option the valuation may be fixed at the amount of the consideration for the transfer.’’
One of the material parts of Form KK provides for the transferor and transferee or their agents making oath or affirming that :—
“3. The land alone, without improvements, is of the fair value of . . . dollars, the total value of the lands, with improvements, being at the date hereof . . . dollars.’’
As I construe these provisions, the Registrar must require an affidavit or affidavits of value to be furnished, by or on behalf of both transferor or transferee and it is only where the value given by or on behalf of one differs from that given by or on behalf of the other or, it may be, where the valuations, though the same, are not satisfactory, that he can cause a valuation to be made by an Inspector of Transfers or, alternatively, to such valuation by an Inspector, at his option fix the valuation at the amount of the consideration for the transfer, no matter what effect must be given to this last provision.
As stated in the reference no affidavits of value were attached to the transfer from the Canada Life Ass’ce Co. to Northern Ageney Ltd. The Registrar, instead of requiring any affidavit or affidavits of value appears to have asked for and received affidavits purporting to give the “consideration” for the transfer and in view of what appeared in an affidavit made by someone on behalf of the transferee, a corporation, he proceeded to make enquiries from the solicitor for the transferee, as a result of which he then, as he relates, ‘‘fixed the value of the land alone for the purposes of The Unearned Increment Tax Act’’ at $85,000, being the amount of the purchase-price of the land under the agreement for sale made in 1925 between the Canada Life Ass’ce Co. and the predecessor of Northern Agency Ltd. less $5,000 the value of the improvements.
No assistance could be obtained from the transfer as the consideration expressed therein was ‘‘one dollar and other good and valuable considerations.” There are no means provided by either statute for the Registrar to take evidence. It may be that if transferor and transferee agreed as to what the consideration was and that that should be taken as the value, and the Registrar was satisfied, no difficulty would arise, but even then I doubt whether the Registrar would have the right to act upon the information so given to him. Here, however, there is a real dispute as to what the consideration for the transfer was.
It follows that when the transfer from Northern Agency Ltd. to S. S. Kresge Co. in respect of which the tax is claimed, the only value which had ever been properly fixed, was higher than the value which was accepted by the Registrar as satisfactory.
It is now too late for the Registrar to start over and require affidavits of value to be furnished and then to have a valuation made by an Inspector of Transfers. Even if it were not too late it is unthinkable that an Inspector would make a valuation at a lesser amount than the Registrar has accepted as being the proper value as of the same day and hour if not the same minute or second.
But it is argued on behalf of the Registrar that s. 142 of the Land Titles Act must be construed as giving the Registrar an absolute discretion to fix the value at the amount of the consideration for the sale of the land by the Canada Life Ass’ce Co. to the predecessor in equitable title of the Northern Agency Ltd.
This argument is based upon s. 9 of the Revised Statutes of Alberta Act, 1922, being ec. 49 of the Statutes of 1922. The appellant’s factum puts the argument as follows :—
"‘In the Unearned Increment Tax Act this power to fix the value at the consideration stood by itself and independent of the other provisions of the former s. 117 of the Land Titles Act and the incorporation of the provisions dealing with consideration in s. 142 does not change their meaning and, it is submitted, they must be construed as giving the Registrar an absolute discretion to fix the value in this way as he clearly had before the revision.”
The contention is that, in ascertaining a new ‘‘last preceding value,” which would determine, not only whether any tax was payable on the incident transfer, but would form the basis for ascertaining the liability to taxation with respect to future transfers whenever presented for registration, or even as here already presented for registration, the Registrar may entirely disregard all question of real or actual value and arbitrarily and, as the result of enquiries unprovided for, ‘fix” as the “value” something having no relation to the then value of the land.
I am not prepared to assent to the view that the law as it stood before the revision clearly gave the Registrar an absolute discretion to fix the value at the consideration. If for instance the consideration were higher and the value lower than the last value for the purposes of the Act, I doubt whether the Act as it stood before the revision gave this arbitrary power. There was, I think, such ambiguity between the section imposing the tax and the words of s. 9a added to the Unearned Increment Tax Act by 1918 (Alta.), c. 4, s. 56(4), that the ambiguity should be resolved in favour of the subject as against the taxing power, (See O f Brien v. Cogswell (1889), 17 S.C.R. 420, and Segal v. Montreal, [1931] 4 D.L.R. 603, at p. 608, 56 Can. C.C. 114, at pp. 119-20). There was ample scope for the operation of the provision relied upon without construing it as qualifying the terms of the section imposing the tax which made the value of the land at the time of the presentation of the transfer for registration the determining factor as to the imposition of the tax. (See Wallbridge v. Registrar of Land Titles, 25 A.L.R. 90; [1930] 3 D.L.R. 752; [1930] 4 D.L.R. 768. Throughout the relevant provisions of both the taxing Act and the Land Titles Act it is and was ‘‘value’’ that is the criterion, and “value” at the time of registration.
In the present instance the Registrar was satisfied that at the time of the presentation of both transfers the then value was $112,000. It is not suggested that it was then only $85,000.
If, however, the amendment of 1918 had the effect contended for and if it did give the Registrar the power in his discretion to fix an artificial or fictitious value by doing what he has endeavored to do, I am of the opinion that the provisions of s. 142 of the Land Titles Act as it now stands in the Revised Statutes are not in effect the same as the repealed provision and that, therefore, the provisions of the Revised Statutes prevail. See s. 11(2) of the Revised Statutes of Alberta Act.
I therefore answer both questions in the negative and would dismiss the appeal with costs.
LUNNEY, J.A. :—I agree in the dismissal of the appeal.
It is unnecessary in the present case to dispose of the contention of respondent that the sum of $56,270. paid by way of interest should be taken into consideration in arriving at the valuation as set out in the affidavit of the transferor and I am of opinion that this argument is still open in a case where it might become of importance for the disposition of an application. As the learned trial Judge points out in his judgment "‘In my view I take it not necessary to decide that question. ‘‘
MCGILLIVRAY, J.A. (dissenting) :—This is an appeal from a judgment of Ewing, J., on a reference made by the Deputy Registrar of the North Alberta Land Registration District under the authority of s. 159 of the Land Titles Act.
The reference reads as follows:—
"‘REFERENCE BY REGISTRAR to a JUDGE, PURSUANT to SECTION 159 or THE LAND Titles ACT.
" North ALBERTA LAND REGISTRATION DISTRICT, EDMONTON
“October 28th, 1937.
‘“In the matter of the registration of a transfer of the northerly sixty (60) feet of lots twenty-two (22) and twenty-three
(23) of River Lot Six (6) of the Edmonton settlement as shown on a plan of the said River Lot of record in the Land Titles Office for the North Alberta Land Registration District as Plan F, from the Canada Life Assurance Company to Northern Agency Limited, registered on the 19th day of July, A.D. 1937 at 2.42 o’clock P.M. as No. 3182 F.A. And in the matter of the registration of a transfer of the said lands from Northern Agency Limited to S. S. Kresge Company Limited registered on the said 19th day of July A.D. 1937, at 2.44 o’clock P.M. as No. 3183 F.A. and in the matter of the Unearned Increment Tax Act.
"‘The Registrar, under Section 159 of the Land Titles Act, hereby refers the following matter to a Judge of the Supreme Court, to wit:
"The first above mentioned transfer was submitted to me for registration, the consideration as stated in the transfer being $1.00 and other good and valuable consideration.
"‘The affidavit of the Transferee was sworn on the 3rd day of July, A.D. 1937, and is in part as follows:
"1*4. I know the circumstances of the within transfer and the true consideration passing between the parties thereto is as follows:
‘* * $146,270.00.
*5. The consideration herein of $146,270.00 is fairly apportioned between land and improvements as follows:
| ‘Land | $141,270.00 |
| ‘“ ‘ Improvements | 5,000.00 |
| "‘Total | $146,270.00’ |
"‘The affidavit of the Transferor was sworn on the 3rd day of July, A.D. 1937, and is in part as follows :—
"1*4. I know the circumstances of the within transfer and the true consideration passing between the parties thereto is as follows: Sold this property to Central Agencies Ltd. in 1925 for a consideration of $90,000.00, this amount having been paid plus $56,270.00 in interest, making a total of $146,270.00.
1'5. The consideration herein of $146,270.00 is fairly apportioned between land and improvements as follows :
| :: ‘Land | $141,270.00 |
| ‘“ ‘Improvements | 5,000.00 |
| u ‘Total | $146,270.00’ |
"1'6. The Transferor sold the within land to Central Agencies Limited, which Company assigned the agreement to Northern Investment Agency Limited, which Company further assigned the agreement to the Transferee herein.’
This was the first transfer of the said lands since the passing of the said Act so that the previous value for the purposes of the said Act was the amount of the 1913 assessment, namely, $147,000.00.
"I have ascertained from the solicitor of the transferee that the lands in question were sold by the Canada Life Assurance Company in 1925 to .Central Agencies Limited by Agreement of Sale at a price of $90,000.00, payable in deferred instalments with interest at 8% per annum, which was latterly reduced to 6% per annum, and that said Agreement of Sale was assigned in the year 1929 by Central Agencies Limited to Northern Investment Agency Limited, which Company further assigned the said Agreement of Sale in the year 1932 to the transferee.
4 No affidavits of value were attached to the first above mentioned transfer but the second above mentioned transfer was submitted to me for registration at the same time and was accompanied by affidavits in accordance with Form KK to Section 142 of the Land Titles Act, sworn on the 2nd and the 19th days of July, 1937, which showed that the then value of the land was $112,000.00, and showing that the consideration for the second transfer was $119,000.00 and that there were subsequent improvements of $2,000.00.
"‘I registered the first above mentioned transfer and claiming authority under Section 142 of the Land Titles Act fixed the value of the land alone for the purposes of the Unearned Increment Tax Act at $85,000.00, being the sum of $90,000.00 above mentioned, less the value of the improvements, namely, $5,000.00.
“I registered the second above mentioned transfer immediately following the first transfer and fixed the value of the land alone at the sum of $112,000.00 above mentioned.
"‘I charged no increment tax on the registration of the first transfer but I charged an increment tax of $1,350.00 on the registration of the second transfer, being 5% of the difference between $85,000.00 and $112,000.00, namely $27,000.
Had I authority to collect the increment tax of $1,350.00 on the registration of the second transfer ?
Had I authority to fix the value of the land at $85,000 for the purpose of the registration of the first transfer?
4 The parties interested, so far as I know or have been informed, are the Attorney General and the Northern Agency Limited.
A. G. KINNAIRD
Deputy Registrar, North Alberta Land Registration District.”
The learned trial Judge answered both of the questions referred, in the negative and the Deputy Registrar now appeals.
The only question argued before this Court was as to whether or not the Deputy Registrar was in law entitled to fix the value of the land described in the first of the two transfers registered on July 19, 1937, at $85,000 and to fix the value of the same land described in the second transfer which was registered two minutes after the registration of the first transfer at $112,000.
Section 3(1) of the Unearned Increment Tax Act reads as follows :—
"‘There shall be payable upon the registration under The Land Titles Act of any transfer of land a tax of five per cent. on the increase in value at the time of registration of the said land over and above the value thereof according to the last preceding value for the purposes of this Act, excluding in all cases the cost of improvements or of development work actually made or done upon or in connection with the said land.’’
If this section stood alone it would be clear that the tax to be imposed is "‘on the increase in value at the time of registration ‘ ‘ and that no unearned increment tax could be collected on the registration of the second transfer. But it is contended by counsel for the appellant that the Deputy Registrar is empowered by s. 142 of the Land Titles Act to fix the value of the land described in any transfer at the amount of the consideration for the transfer, regardless of the value of the land at the time of registration of the transfer.
The pertinent parts of s. 142 of the Land Titles Act, read as follows :—
“(2) The value of land and improvements for the purpose of this Act and of The Unearned Increment Tax Act may be ascertained by the oaths or affirmations of the transferor and transferee of such land or of such other person or persons on behalf of either or both of them as the Registrar believes to be acquainted with the value of the land and whose oath or affirmation he is willing to accept.
“(3) Such oaths or affirmations may be in form KK in the schedule of this Act, and shall be necessary in all cases where any new duplicate certificate of title is required to be issued whether or not any fees are payable in respect to such land under the provisions of this section or of The Unearned Increment Tax Act.
° (4) If the value of the land or of the improvements as set out in the affidavit sworn by or on behalf of the transferor and transferee respectively are not the same, or if for any other reason the valuations are unsatisfactory to the Registrar he may cause a valuation to be made by an Inspector of Transfers and such valuation shall be taken to be the value of such land or improvements and shall bind the parties to the transfer, or at his option the valuation may be fixed at the amount of the consideration for the transfer.’’
It thus appears that in the Unearned Increment Tax Act the Legislature has enacted that the tax shall be upon the increase in value of land at the time of registration and that in the Land Titles Act the Legislature has enacted that the Registrar may at his option fix the value at the amount of the consideration for the transfer which sum may be wholly different from the value of the land at the time of registration.
There being then two seemingly inconsistent enactments in the Revised Statutes dealing with the same subject-matter, it is the first duty of the Court to see if one cannot be read as a qualification of the other: Ebbs v. Boulnois (1875), L.R. 10 Ch. 479, at p. 484 and Imray v. Oakshette, [1897] 2 Q.B. 218, at p. 223.
The learned trial Judge treats all of the subsections of s. 142 of the Land Titles Act above quoted as mere methods of ascertaining value and quite subordinate to what he declares to be the overruling principle of the Unearned Increment Tax Act, namely, that the tax is to be imposed on the increase in value of land at the time of registration, but in view of the fact that the concluding words of s-s. (4) above quoted, authorize the Registrar to look to the consideration for the transfer not as a method of ascertaining value but for an amount at which he may fix the value of the land regardless of whether or not this amount is wholly different from the actual value of the land at the time of the registration of the transfer, it seems to me with great respect that the questions referred cannot be disposed of so easily.
Having regard to s. 9 of the Revised Statutes Act, 1922, to which I shall have occasion to refer and having regard to the ambiguity created by the language of the enactments referred to, it seems not only proper but necessary for the Court to look at the state of the law prior to the 1922 Revision in order to properly interpret and if possible harmonize these provisions as to value for taxation purposes. See Ouellette v. C.P.R., [1925] 2 D.L.R. 677, 30 C.R.C. 207.
The Unearned Increment Tax Act was passed in the year 1913 (2nd Sess.) and is c. 10 of the statutes of that year. Section 3(1), then read as follows :—
" There shall be payable upon the registration under The Land Titles Act of any transfer of land a tax of five per cent. on the increased value of the said land over and above the value thereof according to the last preceding value for the purposes of this Act, excluding in all cases the cost of improvements or of development work actually made or done upon or in connection with the said land.’’
It will be noted that the words ‘"at the time of registration,’’ now appearing in s. 3(1) of the Unearned Increment Tax Act in the Revised Statutes were not then included in this section.
By s. 9 of c. 2 of the Statutes of 1913, the Land Titles Act was amended by repealing the former s. 117(2), and substituting therefor the following :—
(2) The value of land and improvements for the purpose of this Act and of The Unearned Increment Tax Act shall be ascertained by the oaths or affirmations of the transferor and transferee of such land or of such other person or persons on behalf of either or both of them as the registrar believes to be acquainted with the value of the land and whose oath or affirmation he is willing to accept.
"‘(3) Such oaths or affirmations may be in form 11 in the schedule of this Act, and shall be necessary in all cases when any new duplicate certificate of title is required to be issued whether or not any fees are payable in respect to such land under the provisions of this section or of The Unearned Increment Tax Act.
(4) If the value of the land or of the improvements as set out in the affidavit sworn by or on behalf of the transferor and transferee respectively are not the same, or if for any other reason the valuations are unsatisfactory to the registrar he shall cause a valuation to be made by an inspector of transfers and such valuation shall be taken to be the value of such land or improvements and shall bind the parties to the transfer.”
It will be noticed that there is no mention of the Registrar at his option fixing the valuation at the amount of the consideration for the transfer. It will also be noticed that in this 1913 amendment it was provided that the value of the land ‘‘shall’’ be ascertained from the oaths or affirmations of the transferor or transferee or the Registrar "‘shall’’ cause a valuation to be made; whereas under the provisions in the Revised Statutes before quoted the word ‘‘shall’’ is changed to the word ‘‘may.’’ It will also be noticed that affidavits are required where a new certificate is to be issued just as in the revision.
These 1913 enactments above quoted were examined by the Court in the. case of Bredin v. C.N. Town Properties Lid., 13 A.L.R. 225. In that case this Division decided in February, 1918, that the 1913 provisions of the Unearned Increment Tax Act and the Land Titles Act before quoted showed a clear intention of limiting the Registrar to fixing the value of the land as at the date of the registration of the transfer. My Lord the Chief Justice who delivered the judgment of the Court in this case stressed the fact that the statutory form of affidavit required the transferor and transferee not to make oath as to what the value was but what it is at the time of registration. It was also pointed out in this case that a valuation by an inspector must necessarily be a valuation at the time of making valuation, that is to say, at the time that the transfer is offered for registration.
The state of the law as declared by the Courts in February, 1918, then being that the value of the land must be ascertained by one of two methods as at the date of the Registration of the Transfer, it seems to me significant that about two months thereafter the Legislature saw fit to amend the Unearned Increment Tax Act by the Statutes of 1918, c. 4, s. 56(4) as follows:—
4 'By adding as subsection 9(a) thereof, the following:
" " ‘9a. Upon any transfer the value of land and improvements for the purpose of this Act may be ascertained as provided for in section 117 of The Land Titles Act, or at the option of the registrar may be fixed at the consideration given for such transfer/ ‘ ‘
Now the Legislature must be deemed to have known the state of the law as declared in the Bredin case at the time of the passage of the last quoted enactment. See Young & Co. v. Mayor, etc., of Royal Leamington Spa (1883), 8 App. Cas. 517, at p. 526, yet the Legislature saw fit to give to the Registrar an entirely new power beyond that which he had at the time of the Bredin decision, namely to fix the value of the land at the consideration given for the transfer.
It is worthy of notice that the power so granted was placed in the Unearned Increment Tax Act and not as an amendment to s. 117 of the Land Titles Act as it stood after the 1913 amendment.
In my opinion it is clear that the Legislature by this 1918 amendment to the Unearned Increment Tax Act provided a new foundation upon which the Registrar might in his uncontrolled discretion rest a tax under this Act.
If I am right in this view the next question is as to whether or not the Revised Statutes of 1922 have effected a change in the law with regard to the Registrar’s powers as fixed by the Legislature in 1918.
In the Revision of 1922, as stated the words ‘‘at the time of registration” appear for the first time in s. 3 of the Unearned Increment Tax Act, and the option to the Registrar provided for in the amendment to the Unearned Increment Tax Act of 1918 is taken out of the Unearned Increment Tax Act and made a part of the present s. 142(4) of the Land Titles Act, and in which the word ‘‘may’’ is substituted for the word ‘‘shall’’ in connection with the Registrar’s ascertainment of value.
In this connection the following enactments with respect to the revision. should be noticed :—
Section 9 of the Revised Statutes Act, 1922, reads as follows :—
“9. The said revised Statutes of Alberta, 1922, shall not be held to operate as new laws, but shall be construed and have effect as a consolidation of the law as contained in the Acts and Ordinances and parts thereof so repealed and for which the Revised Statutes of Alberta, 1922, are substituted.’’
Subsection 2 of s. 11 of the Revised Statutes Act, 1922, reads as follows :—
(2) If upon any point the provisions of the Revised Statutes of Alberta, 1922, are not in effect the same as those of the repealed Acts and Ordinances and parts thereof for which they are substituted, then as respects all transactions, matters and things subsequent to the time when the Revised Statutes of Alberta, 1922, take effect, the provisions contained in them shall prevail, but as respects all transactions, matters and things anterior to the said time, the repealed Acts and Ordinances and parts thereof shall prevail.’’
In the case (Re Layzell & Parr, Re Creditors’ Relief Act) Cedar Rapids Savings Bk. v. Dominion Purebred Stock Co. (1923), 19 A.L.R. 800, at pp. 808-9, Stewart, J.A., after quoting s. 9 of the Revised Statutes Act, said :—
“I think that we ought undoubtedly, in view of this enactment, to act on the presumption that no change of meaning is intended by the consolidation. It is true that sec. 11, subsec. 2 of The Revised Statutes of Alberta Act does contemplate the case of there being on some ‘point’ a change in the ‘effect’ of the new wording and it makes a special provision for such a ease. But I think the presence of that section, which was obviously put in for the sake of caution, only strengthens the view that there should be a strong presumption, owing to the contents of sec. 9, against any change in meaning. I, therefore, think, where the new wording is reasonably capable of being interpreted as meaning the same as the old wording that the same interpretation should be retained. I think that is what sec. 9 is intended to enact.”
Now bearing in mind that although a change in the law may be made by a revision there is a strong presumption that "‘no change in meaning is intended by the consolidation.’’ I cannot think that the effect to be given to the new words 4 ‘at the time of Registration’’ inserted in s. 3 of the revision of the Unearned Increment Tax Act is to override the option given to the Registrar in the 1918 amendment to this Act. If the 1918 amendment to this Act had been dropped in the 1922 revision it would of course be clear that a change had been effected in the revision by the insertion of these words in s. 3, and that the law under the 1913 Act as stated in the Bredin case had been re-established, but far from being dropped, this 1918 amendment to the Unearned Increment Tax Act is retained and now appears in the revision as stated as part of s. 142 of the Land Titles Act in which section the word “may” is substituted for the word “shall,” so that this 1918 amendment would be effective in its new setting.
In my view these sections of the Unearned Increment Tax Act and the Land Titles Act as they now appear in the Revised Statutes may be reconciled by so interpreting them as to hold that in all cases in which the Registrar elects to ascertain the true value of the land for the purposes of the Act, then the affidavit of the transferor and the transferee should set forth the value of the land at the time of registration and that if the Registrar is not satisfied he may require an inspector of transfers to make a valuation of the land which valuation shall be as at the time of the registration^ but that over and above these methods of ascertaining value at the time of registration the Registrar is given an option to do something else namely to fix the value at the amount of the consideration for the transfer. This interpretation gives full effect to the words added to s. 3 of the Unearned Increment Tax Act as being a restatement of the law as it stood under the 1913 Act as interpreted by this Division in the Bredin case and at the same time preserves the additional power granted the Registrar under the 1918 Act and saves the concluding words of s-s. (4) of s. 142 in the revision of the Land Titles Act by which the 1918 Act is restated, from being treated as entirely meaningless in all cases in which the amount of the consideration for the transfer and the amount of the value of the land at the time of the registration of the transfer are not the same. It seems to me clear that the Legis- lature could not have intended that in any circumstances this re-enacted s-s. (4) of s. 142 should be treated as a nullity.
In the case Salmon v. Duncombe (1886), 11 App. Cas. 627, at p. 634, Lord Hobhouse in delivering the judgment of the Judicial Committee, said :—
“It is, however, a very serious matter to hold that when the main object of a statute is clear, it shall be reduced to a nullity by the draftsman’s unskilfulness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, but their Lordships hold that nothing can justify it except necessity or the absolute intractability of the language used.’’
It was argued by counsel for the respondent, that even if the view which I have expressed should prevail, the consideration for the transfer is something quite different from the consideration for the land, and that even if $85,000 was the consideration for the land mentioned in the first transfer, the consideration for the transfer was this sum plus all interest money paid in respect of deferred instalments, namely $146,270; in my view the consideration for the transfer was the amount of the purchaseprice of the land, and the interest payable in respect of the deferred instalments was interest in the sense in which that word is ordinarily used, namely money paid for the use of money which the purchaser wished to withhold for his own use instead of making payment in full.
It was also argued that whatever method was adopted by the Registrar in arriving at the valuation of the land mentioned in a transfer presented for registration, that in dealing with a second transfer presented for registration within two minutes of the first, he could not either in good conscience or good law arrive at a different valuation. As to this it seems to me that the Legislature has empowered the Registrar to ascertain value of land in one of two ways, or at his option to fix the value of land in one way and that this applies to each and every transfer as and when presented. It is said that such a construction leads to an absurdity as land cannot have two values at one time. As to this it is probably enough to say that if so the concluding words of s-s. (4) of s. 142 of the Land Titles Act, being unambiguous, it is for the Legislature and not for the Court to do away with the absurdity. But I may add as said by Lord Bramwell in Hill v. East c West India Dock Co. (1884), 9 App. Cas. 448, at pp. 464-5, and quoted with approval by Lord Macmillan in the case Altrincham Electric Supply Ltd. v. Sale Urban District Council (1936), 154 L.T. 379, at p. 388:—
"‘I should like to have a good definition of what is such an absurdity that you are to disregard the plain words of an Act of Parliament. It is to be remembered that what seems absurd to one man does not seem absurd to another. ’ ‘ ‘
For my part I can see that it would be more absurd to say that although expressly authorized so to do by statute the Registrar cannot elect to fix value according to the consideration for the transfer in each of two transfers covering the same land presented for registration within two seconds of each other, and yet the result would be two entirely different values if the consideration for the one transfer was more or less than the consideration for the other.
It is not to be assumed that Registrars will exercise their powers in an unreasonable manner but if this should prove to be the case the curtailment of these powers is for the legislative body that conferred them and not for the Court.
Since writing the foregoing I have had the privilege of reading the judgment which My Lord the Chief Justice has written and so I desire to add with great respect that in my opinion neither the enactment, the 1918 amendment to the Unearned Increment Tax Act, nor the re-enactment of the same in the 1922 revision, may be treated as adjective law in the sense of being procedure for the ascertainment of value. I see a great difference between the Registrar being provided with a new method for ascertaining value and his being given, as I think he is, a new right to arbitrarily fix the value at the amount of the consideration for the transfer. It is'I think to be remembered that the Act under consideration is not an Act for the fixing of the value of land but an Act for the raising of money by taxation and so it is not surprising that the Registrar is given power to fix an artficial value for the purposes of the Act.
•
I may also add with deference with respect to my Lord’s conclusion " " that if both the transferor and the transferee make affidavits of value which do not differ that settles the value but in the absence of that if the Registrar is not satisfied he may cause a valuation to be made or at his option fix the valuation at the amount of the consideration,’’ that in my opinion such an interpretation does not give due weight to the statutory background of the revision nor to the provisions of s. 9 of the Revised Statutes Act, 1922, nor does it permit of the proper emphasis being put upon the difference between the Registrar ascertaining the value and ‘‘at his option’’ fixing the value, nor does it give the slightest effect to the words "‘or if for any other reason the valuations are unsatisfactory.’’
If by the revision the Legislature had intended to take away from the Registrar the untrammelled option which he enjoyed in 1918, it is not I think to be expected that it would have done so in a vague or uncertain manner.
As to the case of Wallbridge v. Registrar of Land Titles (1930), 25 A.L.R. 90, to which my Lord has referred, I think that it in no wise decides the point that falls to be decided in this case and so I feel quite free to say that in my opinion the Registrar should succeed in his appeal.
For the reasons given I would allow the appeal and answer each of the questions put forward by the Registrar, in the affirmative. I would not allow costs in the Court below but as the respondent vigorously resisted the Deputy Registrar ‘s appeal I am of the opinion that the appellant should have the costs of the appeal if asked for.
SHEPHERD, J., concurs with Harvey, C.J.A.
Appeal dismissed.