TRUEMAN, J.A.—The city of Winnipeg, incorporated by ch. 7 of the statutes of Manitoba passed in the 37th year of the reign of Queen Victoria, was continued as a municipal corporation by The Winnipeg Charter, 1918, ch. 120, and The Winnipeg Charter, 1940, ch. 81, and amending Acts.
See. 696 of ch. 120 enacts, inter alia, as follows:
"‘The council may pass a by-law or by-laws to acquire by purchase or by and under the expropriation or arbitration provisions of this Act, or otherwise, a sufficient amount of land for the purposes of a * * * park or parks, a pleasure ground or pleasure grounds, or a public playground or playgrounds * * * within or without the limits of said city; and the council may erect such buildings and make such regulations respecting the same as the council sees fit, and the said council shall have power to issue debentures to pay for such * * * parks, or pleasure grounds, or playgrounds, or site for such exhibition and buildings, and to meet the costs of laying out and improving the same * * * .
"‘(a) The council may pass a by-law or by-laws appointing a commission to administer the public playgrounds of the city.
"‘(b) The council may appropriate and expend on the road or roads leading to such * * * park or parks, or pleasure ground or pleasure grounds * * * a sum * * * for the construction, repair and maintenance of such ’road or roads, whether the same be within or without the limits of the city * * * .”
See. 4 of the Charter provides that:
"‘All lands used for public park purposes or exhibition grounds, now or hereafter owned by the city, which are situate outside the territorial limits of the city, shall be exempt from municipal taxation by any municipality in which such lands are situate.”
This section is re-enacted by sec. 5 of The Winnipeg Charter, 1940, ch. 81.
On May 7, 1924, the city became the owner in fee simple of the Windsor Park Golf Course, comprised of specified lands in St. Boniface, and of the following specified lands in the rural municipality of St. Vital:
“Parcel 1—Lots One to Nineteen, both inclusive, in Block Two, and Lots One to Six, both inclusive, in Block Three, which lots are shewn on a plan of survey of part of Lot 112 of the Parish of Saint Boniface, in Manitoba, in the Winnipeg Land Titles Office as No. 2708.
“Parcel 2—All that portion of River Lot 112 according to the Dominion Government Survey of the Parish of Saint Boniface, in Manitoba, lying to the east of the straight production southerly of the eastern limit of Rue des Meurons as said Rue des Meurons is shewn on a plan of survey registered in the Winnipeg Land Titles office as No. 2708, which lies to the south of the southern limit of the land covered by said Plan No. 2708.”
From May 7, 1924, the Public Parks Board of the city of Winnipeg has operated the golf course for the city as a public golf course open to anyone paying the green fees, whether a resident of the city of Winnipeg or not.
In 1939 and 1940 the rural municipality of St. Vital, the defendant herein, assessed and levied general municipal and school taxes upon the lands described in said parcels No. 1 and No. *2. In September, 1941, the lands were sold by the municipality for non-payment of taxes to the defendant. The plaintiff having refused to redeem said lands, the treasurer of the defendant forwarded to the district registrar of the land titles district a return showing that said lands had been sold to the defendant for non-payment of taxes. On November 20, 1942, the defendant filed an application in the registry office to have said lands registered in its name as owner of the lands. On or about December 30, 1942, the city paid, under protest, to the district registrar said taxes amounting to $1,751.40 and costs.
The action by the city seeks to have it declared that said lands, ever since May 7, 1924, have been exempt from taxation, and for an order that the above sum and costs be ordered to be refunded to the city, with costs, and for such other relief as may be required.
The action was heard by McPherson, C.J.K.B. (as he then was). In a considered judgment he held ([1944] 2 W.W.R. 217) that the land in question is a public park notwithstanding that golf is played thereon and playing fees are required to be paid. He declared the levied taxation void and directed that the sum paid thereunder be repaid to the plaintiff with costs.
Sec 696, supra, includes, inter alia, "‘park or parks, a pleasure ground or pleasure grounds, or a public playground or playgrounds. ‘ ‘ Golf, cricket and analogous outdoor sports are within the provision. See Atty.-Gen. v. Poole Borough Council, 53 T.L.R. 157, [1936] 3 All E.R. 852; affirmed [1938] Ch. 23, 106 L.J. Ch. 319 ; Atty-Gen. v. Teddington Urban Council [1898] 1 Ch. 66, 67 L.J. Ch. 23; Down v. Queensland Atty-Gen. (1905) 2 C.L.R. 639.
The municipality of St. Vital rests its contention on sec. 4 of The Winnipeg Charter, supra. It provides as follows:
"‘All lands used for public park purposes or exhibition grounds, now or hereafter owned by the city, which are situate outside the territorial limits of the city, shall be exempt from municipal taxation by any municipality in which such lands are situate.”
The section was re-enacted in see. 5 of The Winnipeg Charter, 1940. ‘‘ All lands used for public park purposes’’ include public playground or playgrounds had they not been stated in sec. 696, supra, and many other phases and aspects within the definition of a park. Exempli gratia, it embraces in English nomenclature "‘a place of privilege for wild beasts of venery, and other wild beasts of the forest and chase.’’ See Wharton’s Law Lexicon, 13th ed., p. 626. In addition to the above-cited cases see "‘Open Spaces and Recreation Grounds,’’ 24 Halsbury, 2nd ed., included in which are sports, games and recreation (pp. 122-143).
I would dismiss the appeal with costs.
RICHARDS, J.A. concurs in dismissing the appeal.
BERGMAN, J.A.—The facts of this case are not in dispute. They are set out in written admissions agreed on by the solicitors for both parties, which were filed on the trial as Ex. 1. Omitting formal parts and the lengthy legal description of the property here in question, these admissions read as follows:
"‘ADMISSIONS on THE PART OF THE PLAINTIFF AND DEFENDANT
“It is hereby agreed on behalf of the plainiff and the defendant respectively to make the following admissions, and that these admissions and the documents mentioned or referred to herein may be used and read in evidence upon the trial of this action and for all the purposes therefor, that is to say:
"‘1. The plaintiff is a municipal corporation incorporated by Chapter 7 of the Statutes of the Province of Manitoba passed in the 37th year of the reign of Her late Majesty Queen Victoria, and continued as a municipal corporation by virtue of The Winnipeg Charter, The Winnipeg Charter, 1918, and The Winnipeg Charter, 1940, and amending Acts. For the sake of brevity, all or any part of the said Acts are hereinafter referred to as the Charter.
‘2. The defendant is a rural municipality in the Province of Manitoba, incorporated under the provisions of the Municipal Act of the said Province.
"‘3. The plaintiff is now and has been since the 7th day of May, A.D. 1924, the owner of an estate in fee simple in possession of the following lands [here the legal description of the property is set out] which comprise part of what is known as ‘Windsor Park Golf Course,’ which lands were acquired by the plaintiff under the powers contained in The Winnipeg Charter,
“4. The said Golf Course is maintained and operated by the Public Parks Board of the city of Winnipeg for the plaintiff as a public golf course open to anyone paying the green fees and obeying the rules of the Course, whether a resident of Winnipeg or not.
“5. No general municipal and/or school taxes were levied against said lands from the year 1924, when the plaintiff acquired them, until the year 1939.
"16. In the years 1939 and 1940 the defendant assessed and levied general municipal and school taxes against said lands as shewn by the assessment and tax rolls of the defendant.
"7. On or about the 28th day of July, A.D. 1941, the plaintiff by its solicitor notified the defendant that the said lands were not liable for taxes as aforesaid and that the plaintiff would oppose any attempt on the part of the defendant to sell the said lands for said taxes or to give title under any tax sale to any purchaser or to the defendant in default of another purchaser.
"‘8. On the 18th day of September, 1941, the defendant sold the said lands for non-payment of taxes for said years 1939 and 1940, and the defendant purchased said lands at said sale and issued a tax sale certificate to itself as purchaser thereof.
‘ 9. The plaintiff failed to redeem said lands within one year from the day of said sale and the Treasurer of the defendant forwarded to the District Registrar of the Land Titles District of Winnipeg, the district within which the lands lie, a return certified under his hand and the seal of the defendant, Which shewed :
(a) That the said lands were sold at the said sale and had not been redeemed.
(b) That the said lands were sold to the defendant for taxes.
"10. On or about the 25th day of November, 1942, the defendant filed in the Winnipeg Land Titles Office an application to be registered as owner of the said lands by virtue of the sale of same to it for taxes.
"‘11. On or about the 2nd day of December, 1942, and pursuant to the filing of said application mentioned in paragraph 10 hereof the District Registrar for the Winnipeg Land Titles Office issued a notice directed to the plaintiff advising it that unless it redeemed said lands under the provisions of The Municipal Act or filed a caveat or took other proceedings to stop the issue of the Certificate of Title to the defendant within three months from the service of said notice upon it, a Certificate of Title would issue to the defendant, or to Whom it might appoint, and the plaintiff would thereafter be forever estopped and debarred from setting up any claim to or in respect of said lands.
"‘12. The said notice mentioned in paragraph 11 was served upon the plaintiff by the defendant on the 8th day of December, 1942.
"13. On or about the 30th day of December, 1942, the plaintiff paid under protest to the District Registrar for the defendant the sum of $1,751.40, being the amount required to redeem said lands from said tax sale, to prevent a Certificate of Title issuing to the defendant, which said sum included solicitors’ costs in connection with said tax application, and said sum. was duly paid over to and received by the defendant.
‘14. The defendant has refused to return to the plaintiff the said sum or any part thereof.
" Dated this 8th day of January, A.D. 1944.”
I would supplement these admissions by pointing out that the lands here in question comprise only a portion of the Windsor Park Golf Course. The remainder of the said course is situate within the territorial limits of the city of St. Boniface. The city of St. Boniface has always treated as exempt from taxation that portion of the golf course which is within its territorial boundaries.
The present action was brought by the plaintiff asking for a declaration (1) that the property here in question is exempt from taxation; (2) a declaration that the assessments for the years 1939 and 1940 and the tax sale based thereon are illegal, null and void on this ground and by reason of certain technical objections to the said assessments; and (3) judgment for the return of the sum of $1,751.40 paid under protest for the redemption of the said lands from the sale for taxes in 1941.
The city’s claim to exemption from taxation is based on secs. 4 and 700 (14) of The Winnipeg Charter, 1918, ch. 120. Sec. 4 thereof reads as follows:
"‘4. All lands used for public park purposes or exhibition grounds, now or hereafter owned by the city, which are situate outside the territorial limits of the city, shall be exempt from municipal taxation by any municipality in which such lands are situate.’’
This provision has been carried forward unaltered as sec 5 (1) of The Winnipeg Charter, 1940, ch. 81,
See. 700 (14) of the 1918 Charter reads as follows:
" 700. The City may pass by-laws not inconsistent with the provisions of any Dominion or Provincial statutes;
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44 (14) For acquiring and holding, by purchase or otherwise, for the public use of the city, lands situate outside its limits; and such land so acquired shall form part of the city.’’ This provision is now embodied in sec. 490 (2) of The Winnipeg Charter, 1940.
This action was tried before McPherson, C.J.K.B. (now C.J.M.) who in a considered written judgment held ([1944] 2 W.W.R. 217) that the land here in question is a public park and as such exempt from taxation under sec. 4 of the 1918 Charter; that the 1941 tax sale was consequently illegal, null, and void ; and gave judgment for the repayment by the defendant of the sum of $1,751.40 paid by the plaintiff for the redemption of the said lands from the 1941 tax sale. It is from that judgment that this appeal is taken by the defendant.
I have spent considerable time in trying to trace the origin and history of the two statutory provisions here in question. I find that see. 700 (14) of the 1918 Charter goes back much farther in point of time than sec. 4. See. 700 (14) has been part of The Winnipeg Charter only since 1902, but prior to that time, at least as far back as 1886, it was a provision of The Municipal Act applicable to all cities in the province, so that the inclusion of it in The Winnipeg Charter in 1902 did not confer on the city of Winnipeg any new right. The reference at the end of see. 700 (14) shows that it comes from The Winnipeg Charter, 1902, ch. 77, see. 703 (11), which is shown to come from sec. 603 (c) of The Municipal Act, R.S.M., 1892, ch. 100, which is shown to come from The Municipal Act, 1890, 53 Vict., ch. 51, sec. 376 (18), which is shown to come from The Municipal Act, 1886, ch. 52, see 349 (45). It may be of interest to mention that sec. 349 (45) of the 1886 Act, which, so far as I can find, for the first time conferred on a,city or town the power to pass by-laws for acquiring for the public use of the municipality lands situate outside the limits of such city or town, concludes as follows: "‘but such land so acquired shall not form part of the municipality of such city or town, but shall continue and remain as of the municipality where situate. ‘ ‘ This was changed in 1890 by S.M. 1890, 53 Viet., ch. 51, sec. 376 (18), to read: " and such land so acquired shall form part of the municipality of such city, town or village.’’ It was in this latter form that this provision was incorporated in The Winnipeg Charter in 1902 as sec. 703 (11), which provides that "‘such land so acquired shall form part of the City.’’ It was, however, not dropped from The Municipal Act. It was continued as sec. 625 (&) of ch. 116, R.S.M., 1902; it was carried forward as see 574 (b) of ch. 133, R.S.M., 1913; it was amended in 1918 by ch. 48, sec. 14, by inserting the words "‘subject to the provisions of section 11 of ‘The Assessment Act’,’’ after the word
‘shall’? in the fourth line thereof, making sec. 574 (&) of ch. 155, R.S.M., 1913, read:
(b) for aequiring and holding, by purchase or otherwise, for the public use of the municipality, lands situate outside the limits of the municipality; in which case such land so acquired shall, subject to the provisions of section 11 of ‘The Assessment Act,’ form part of the municipality/’
In 1933 The Municipal Act was completely revised and a new Act was passed, being 1933, ch. 57. This provision in amended form was carried forward as see. 385 (b) of that Act and was in turn carried forward unchanged as sec. 393 (b) of R.S.M., 1940, ch. 141. This provision as contained in the 1933 Act reads as follows :
"1385. Every municipal corporation may pass by-laws
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"‘(b) for acquiring and holding, for the use of the corporation, lands situate outside the limits of the corporation; in which case the land so acquired shall be subject to the jurisdiction of the corporation as if it formed part thereof, but may be assessed by the corporation in which it lies.’’
I have already pointed out that when the revised Winnipeg Charter was passed in 1902 there was inserted in it for the first time, as sec. 703 (11), the provision which became sec. 700 (14) of the 1918 Charter. I have also pointed out that when this provision was inserted in The Winnipeg Charter, the corresponding provision was not dropped from The Municipal Act. That, however, is not the whole story. The revised Winnipeg Charter which was passed in 1902 came into force that year. The Revised Statutes of Manitoba, 1902, came into force the following year. In the revision of The Municipal Act contained therein (R.S.M., 1902, ch. 116) two important changes were made which have a bearing on the present problem. These changes expressly excluded the city of Winnipeg from the operation of The Municipal Act and made it inapplicable thereto. Sec. 2 (a) introduced the provision that the expression ‘‘municipality’’ does not include the city of Winnipeg, and sec. 2 (b) provides that the expression "city” does not include the city of Winnipeg. The same change was made at the same time in The Assessment Act, R.S.M., 1902, ch. 117. See sec. 2 (g) and (h) of that Act. In the 1913 revision this provision of The Municipal Act was continued, with some verbal changes, as see 2 (a) of ch. 133, R.S.M., 1913. In the 1933 Act it became sec. 2 (1) (h) and has since been carried forward unchanged as see 2 (1) (j) of ch. 141, R.S.M., 1940. It reads as follows:
"(j) " Municipality means any locality the inhabitants of which are incorporated and continued under the authority of this Act or of some other Act of the Legislature, and includes a rural municipality and an incorporated city, town and village, as well as a suburban municipality, and where the context requires, includes the area comprised in any municipality ;
‘‘Provided that except in the particular cases where it is specially made applicable, this Act shall not apply to the City of Winnipeg or the City of St. Boniface, nor shall a provision of this Act apply to any municipality to which such provision is expressly or impliedly made inapplicable by some other Act of the Legislature specially relating to such municipality.
In my opinion this proviso effectively precludes the defendant from invoking against the city of Winnipeg the power of assessment conferred by see. 385 (b) of the 1933 Municipal Act, as it is not ‘‘speciall made applicable’’ to the city of Winnipeg. If that view is correct, it follows that the provision in sec. 700 (14) of the 1918 Charter, that lands situate outside the limits of the city which are acquired for the public use of the city shall form part of the city, is not qualified in any way or eut down by The Municipal Act. The rural municipality of St. Vital obviously has no right to tax property which forms part of the city of Winnipeg, unless it is given the statutory power to do so. I believe that I have demonstrated that it derives no such power from The Municipal Act.
“The property of a municipality situate in another municipal jurisdiction is generally exempt, even apart from statute, for the intention to charge public property must be clearly expressed:” Manning on Assessment and Rating, 2nd ed., p. 191; In re Orillia (Town) and Matchedash (Twp.) (1904) 7 O.L.R. 389, at 400.
Mr. McDonald makes a twofold answer to the city’s argument based on sec. 700 (14) of the 1918 Charter. He states this in his points for argument as follows:
“Section 700, ss. 14, of The Winnipeg Charter, 1918, cap. 120, if read with the provisions of The Municipal Act and The Municipal Boundaries Act can have no greater meaning than that, if for the public use of the City, such lands shall form part of the City for administrative purposes.
“This section deals with lands acquired by the City for ‘the public use of the City.’ They do not come within that . classification, as being restricted to the use of that part of the public only who play golf and can pay their green fees.”
No authority was cited in support of the first of these contentions, and I have not been able to find any reported case in which this point has been considered. As I see it, the point involved is merely one of statutory construction. Sec. 700 (14) says in language that is not qualified in any way that any lands of the class described "‘shall form part of the city.” Mr. McDonald asks us, in effect, to interpret this provision as if it read ‘‘shall form part of the city for administrative purposes, ‘ ‘ or as if it read ‘‘shall, except for purposes of taxation, form part of the city.” In my opinion it would be pure judicial legislation to read any such qualification into this subsection. If the Legislature had intended to qualify this provision in any way, it would have been a simple matter to insert the approriate qualifying words. We must take the language as we find it, and give effect to it. I must, therefore, reject the argument that sec. 700 (14) means that lands to which it applies are made part of the city merely for administrative purposes—whatever that means.
The second submission has greater substance. Mr. McDonald is correct in stating that sec. 700 (14) applies only to land outside the city which is acquired or held ‘‘for the publie use of the City.’’ His point is that the Windsor Park Golf Course does not come within that classification. This raises the question of the meaning of the expression “public use’’ in sec. 700 (14).
In 50 Corpus Juris it is said:
“The term ‘public use’ is a broad and flexible one, so much so that the courts have found it impossible to frame, as well as inadvisable to attempt to frame, a definition which would absolutely indicate its limits by including everything therein which constitutes a public use and excluding everything which does not [p. 864]. * * * . However, notwithstanding the impossibility of exact definition, various efforts have been made to define it in a general way. In general it may be said that a public use is one which concerns the general public or a portion thereof as distinguished from particular individuals or estates. There are two views as to what constitutes a public use: One is that a use to be public must be a use or right of use on the part of the public or some limited portion thereof; while the other is that a use is public if it is of public benefit, utility, advantage [p. 865] * * * . The character of the use is determined by its nature, and not by the extent to which the public takes advantage of it [p. 866].”
In Zircle v. Southern Ry. Co. (1903) 45 S.E. 802, at 803, the Supreme Court of Appeals of Virginia held, quoting Lewis on Eminent Domain, that public use means the same as use by the public.
In Kansas City v. Bacon (1898) 48 S.W. 860, at 863, the Supreme Court of Missouri held that a public park is a public use.
In Shoemaker v. U.S. (1893) 147 U.S. 282, 37 Law. Ed. 170, the Supreme Court of the United States unanimously held that land taken for a public park was taken for a public use. Mr. Justice Shiras, who deliveed the judgment of the Court, says at p. 297 :
"‘In the memory of men now living, a proposition to take private property, without the consent of its owner, for a publie park, and to assess a proportionate part of the cost upon real estate benefited thereby, would have been regarded as a novel exercise of legislative power.
’Tt is true that, in the case of many of the older cities and towns, there were commons or public grounds, but the purpose of these was not to provide places for exercise and recreation, but places on which the owners of domestic animals might pasture them in common, and they were generally laid out as part of the original plan of the town of city.
"‘It is said, in Johnson f s Cyclopaedia, that the Central Park of New York was the first place deliberately provided for the inhabitants of any city or town in the United States for exclusive use as a pleasure-ground, for rest and exercise in the open air. However, that may be, there is now scarcely a city of any considerable size in the entire country that does not have, or has not projected, such parks.
" " The validity of the legislative acts erecting such parks, and providing for their cost, has been uniformly upheld. It will be sufficient to cite a few of the cases. [Eight cases are cited. I In these and many other cases it was, either directly or in effect, held that land taken in a city for public parks and squares, by authority of law, whether advantageous to the public for recreation, health or business, is taken for a public use. ff
Without attempting a definition of “public use,’’ I have no hesitation in holding that land acquired by the city of Winnipeg for public park purposes is land acquired for the public use of the city within the meaning of sec. 700 (14) of the 1918 Charter; and, for the reasons hereinafter set out in my discussion of sec. 4 of the 1918 Charter, I have no hesitation in holding that the Windsor Park Golf Course is a public park and as such comes within the provisions of sec. 700 (14). I must, therefore, also refuse to accept the submission that the Windsor Park Golf Course is not property acquired for the public use of the city.
I now come to a consideration of The Assessment Act.
So far as I can find, the express power to tax property owned by a municipality, but situate within the bounds of another municipality, was first conferred in 1898 by 8.M. 1898, 61 Vict., ch. 33, see. 2, which enacted this provision as an addition to sec. 9 of ch. 101, R.S.M., 1892, being The Assessment Act. It was carried forward as sec. ,12 of ch. 117, R.S.M., 1902, and again carried forward as sec. 11 of ch. 134, R.S.M., 1915. On the revision of The Assessment Act in 1934, ch. 49, it became sec. 6 of that Act, but with one important change. Up to that time such property was made liable to taxation, unless exempted therefrom by the council of the municipality within which it was situate. In the 1934 Act this was changed to read simply "unless exempted therefrom.’’ In the general revision of the Manitoba statutes in 1940 The Assessment Act as a separate Act was dropped and it was incorporated in The Municipal Act, R.S.M., 1940, ch. 141, at Part XII (secs. 991-1204) thereof. See. 6 of the 1934 Act was carried forward unchanged as sec. 995 of R.S.M., 1940, ch. 141. This provision as contained in sec. 6 of the 1934 Act (and see. 995 of the 1940 Act is verbatim the same) reads as follows :
‘^.-Property owned by a municipality, but situate within the bounds of another municipality, shall, unless exempted therefrom, be liable to assessment and taxation by the latter municipality. ‘ ‘
This provision is not as wide as it appears to be. It dates only from 1913. In The Assessment Act, S.M. 1890, 53 Vict., ch. 53, sec. 3 (2), it was provided that "‘land vested in or held in trust for any municipality’’ should be exempt from taxation. This provision was carried forward as see. 3 (b) of ch. 101, R.S.M., 1890, and again carried forward as see. 5 (b) of ch. 117, R.S.M., 1902. In the 1913 revision the word "the’’ was substituted for "‘any,’’ and this exemption was limited to "‘lands belonging to or held in trust for the municipality.’’ See sec. 4(b) of ch. 134, R.S.M., 1913. It was carried forward as sec. 3 (1) (c) of ch. 49, 1934, and again carried forward as sec. 992 (1) (c) of ch. 141, R.S.M., 1940.
I have, however, already called attention to the fact that in the 1902 revision an amendment was made to The Assessment Act making it inapplicable to the city of Winnipeg. See sec. 2 (g) and (A) of ch. 117, R.S.M., 1902. A correspoding amendment in exactly the same terms was made at the same time to The Municipal Act. See see. 2 (a) and (b) of ch. 116, R.S.M., 1902. In the 1913 revision the language of this provision in The Municipal Act was changed to substantially its present word-' ing, and this change was copied in The Assessment Act. See sec. 2 (g) of ch. 184, R.S.M., 1913. In the 1934 revision and consolidation of The Assessment Act this provision was condensed to read: ‘‘ ‘Municipality’ means a municipal corporation as defined by ‘The Municipal Act,. ,f In the 1940 revision, as already mentioned, The Assessment Act as a separate Act was dropped and it was incorporated in The Municipal Act and is, therefore, subject to the limiting provisions thereof already mentioned. It, therefore, seems to me that it follows as a matter of course that since 1902 The Assessment Act has not applied to the city of Winnipeg and that consequently no outside municipality derives any power from The Municipal Act or from The Assessment Act to assess or tax any property owned by the city of Winnipeg which comes within the provisions of sec. 700 (14) of the 1918 Charter. I have already held that the Windsor Park Golf Course comes within that classification.
I now come to a consideration of sec. 4 of the 1918 Charter, which I have quoted above. It is of more recent vintage than sec. 700 (14). It was originally enacted in 1912 by see. 4 of ch. 99, S.M. 1972, but its source is not disclosed. In all probability this provision was borrowed from Ontario, where it was enacted in 1893 as an amendment to The Assessment Act. See S.O. 1893, 26 Vict., ch. 38, sec. 1. It'has been carried forward in the successive revisions of the Ontario statutes and is now see. 4 (9) of ch. 272, R.S.O., 1937. The only reported case which I have been able to find in which this statutory provision has been considered is In re Orillia (Town) and Matchedash (Twp.), supra, which is a decision of the Ontario Court of Appeal. At the time that the 1893 amendment to the Ontario Assessment Act was made that Act already contained as subsee. (7) of the amended section a provision which, so far as the question here under consideration is concerned, served the same purpose as sec. 700 (14) of the 1918 Winnipeg Charter. Osler, J.A. expressed the opinion that this amending provision was unnecessary. He says at pp. 395-6 :
" " This clause was first passed in the year 1895, when sub-sec. 7 must have had the same meaning and construction which I think it now has.
" " All that can be said of the new clause is, that its framer, and following him the Legislature, misconceived the scope and meaning of sub-sec. 7 in respect of property owned by one municipality within the limits of another, quite as much as they did in respect of property owned by it for public purposes within its own limits.
“The clause may have been intended to remove doubts, or perhaps to prevent any possible difficulty from arising in Cases where park property was vested in commissioners for the municipality, but otherwise it would seem to have been an unnecessary enactment.”
If my interpretation of sec. 700 (14) of the 1918 Charter is correct, then sec. 4 ‘‘would seem to have been an unnecessary enactment.’’ It was, no doubt, added to the Charter ex abundanti cautela to meet, or to forestall, some apprehended difficulty, but actually it relates to a matter already completely covered by sec. 700 (14).
On the other hand, even if my interpretation of see. 700 (14) is incorrect, the city of Winnipeg is still entitled to succeed on this appeal under sec. 4 of the 1918 Charter, if the Windsor Park Golf Course is a public park. It is, therefore, necessary to determine whether it is or is not a public park.
What is a “public park?’’ Except for one previous decision in this province, there is a complete absence of Canadian authority on this question. At any rate, counsel did not cite any other Canadian case, and I have found none.
Par. 4 of the admissions (Ex. 1) states that:
“The said Golf Course is maintained and operated by the Public Parks Board of the City of Winnipeg for the plaintiff as a public golf course open to anyone paying the green fees and obeying the rules of the Course, whether a resident of Winnipeg or not.’
The first Public Parks Act in this province was passed in 1892, being The Public Parks Act, S.M. 1892, 55 Vict., ch. 31. It was carried forward as ch. 141, R.S.M., 1902, and again carried forward as ch. 163, R.S.M., 1913. In the 1933 revision and consolidation of The Municipal Act, The Public Parks Act as a separate Act was dropped and it was incorporated in The Municipal Act, 1933, ch. 57, as secs. 797-848 thereof. It is now contained in secs. 813-864 of ch. 141, R.S.M., 1940. These provisions are expressly made applicable to the cities of Winnipeg and St. Boniface. See sec. 797 (a) of ch. 57, 1933, and sec. 813 (a) of ch. 141, R.S.M., 1940. We were referred to these statutory provisions as a matter of information, so that we might understand the relationship between the board and the city of Winnipeg and by what authority the board operates this. golf course. We were referred to them also for the purpose of giving substance to the city’s objections to the assessment on technical grounds.
We were informed by counsel that the city of Winnipeg has a parks system consisting of 49 parks. In only two of them is any golf played, and these two are devoted exclusively to golf. They are the Kildonan Golf Course and the Windsor Park Golf Course. It seems to me that it is open to the city, or to the parks board, in rounding out its system of parks to set aside two of them as publie golf courses. The parks board has the statutory power to provide facilities for all forms of recreation and to charge fees, such as green fees. This power is given by see. 835 of ch. 57, 1933 (now see. 851 of ch. 141, R.S.M., 1940), which reads as follows :
" " 835. The parks board may provide facilities for all forms of recreation and may, from time to time, pass by-laws for the use, regulation, protection, government, and operations of the same and the charges for admission thereto for use thereof.” Golf is a form of recreation, and it is, therefore, within the powers of the board to provide facilities therefor. A golf course requires so much space, and the danger of injury from flying balls is so great, that it is not practically feasible to include a golf course in an ordinary park. It is, therefore, necessary, or at any rate desirable, that it be set apart. To hold that this cannot be done would be to say, in effect, that see. 835 authorizes a parks board to provide facilities for all forms of recreation, other than golf, by denying it the power to provide facilities for golf in the only feasible way. In my opinion a parks board is permitted to exercise common sense in carrying out its statutory powers; and, in working out a scheme of public parks, it may elect to devote one of its parks exclusively to golf, without thereby depriving it of its character as a public park.
Neither The Winnipeg Charter nor the public parks provisions of The Municipal Act define the expression "public park.” I take it that in sec. 4 of the 1918 Charter the term public” park is used merely in contradistinction to "" private” park, and that what we are, therefore, concerned with is the meaning of the term "park.’’ I, therefore, refer to the following definitions :
Stroud 9 s Judicial Dictionary :
“The modern definition of ‘park’ is an enclosed (private or public) space of ground set apart for ornament, or to afford the benefit of air, exercise or amusement.”
Oxford Dictionary:
“An enclosed piece of ground, of considerable extent, usually within or adjoining a city or town, ornamentally laid out and devoted to public recreation. ’’
Century Dictionary :
“A piece of ground, usually of considerable extent, set apart and maintained for publie use, and laid out in such a way as to afford pleasure to the eye as well as opportunity for open-air recreation.’’
In Riverside (Village) v. Maclean (1904) 210 II]. 308, 71 N.E. 408, at 414, the Supreme Court of Illinois adopted the following definition :
"A park is a piece of ground in a city or village set apart for ornament, or to afford the benefit of air, exercise, or amusement. ‘ ‘
The best and most comprehensive definition of "‘park’’ which I have found, and the one which I adopt as my own, is contained
in Northport Wesleyan Grove Camp Meeting Assn. v. Andrews (1908) 71 Atl. 1027, at 1030 (Maine) and is as follows:
"‘A ‘park’ may be defined as a piece of ground set apart to be used by the public as a place for rest, recreation, exercise, pleasure, amusement, and enjoyment.”
Applying this definition I hold that the Windsor Park Golf Course is land used for public park purposes within the meaning of sec. 4 of the 1918 Charter and as such exempt from taxation by the rural municipality of St. Vital. This view is supported by the decision of Donovan, J. in Old Kildonan (Mun.) v. Winnipeg [1943] 2 W.W.R. 268, and by the decision of the Supreme Court of Minnesota in Booth v. Minneapolis (1925) 203 N.W. 625. I have not come across any case involving a publie golf course which is opposed to this view.
It follows that the assessment by the defendant of the Windsor Park Golf Course and the sale thereof for taxes based on such assessment were unauthorized and illegal and absolutely null and void.
I would, therefore, affirm the judgment of the learned trial Judge and dismiss the defendant’s appeal with costs.
Dysart, J. (ad hoc) (dissenting)—The facts of this case, as well as the relevant statutes, are fully set forth in the reasons for judgment of Trueman and Bergman, JJ.A., and I shall not do more than make the necessary references to them.
The only, or at least the chief, issue here is whether or not the Windsor Park Golf Course, which belongs to the city of Winnipeg, is a public park within the meaning of see. 4 of The Winnipeg Charter, 1918, ch. 120. If it is such a park, or is used for ‘‘public park purposes,’’ it is exempt from taxation by the rural municipality of St. Vital.
By The Municipal Act, R.S.M., 1940, ch. 141, see. 992 (1), which applies to the rural municipality of St. Vital but not to the city of Winnipeg:
"‘All lands shall be liable to taxation by the municipality subject to the following exemptions:
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“ (c) Lands belonging to or held in trust for the municipality. ‘ ‘
The Winnipeg Charter, sec. 696, authorizes the city to acquire "‘lands for the purposes of * * * parks * * * pleasure grounds o * * * playgrounds.” Under this authority the Windsor Park Golf Course was acquired. See. 4 of the Charter exempts from taxation "‘all lands used for public park purposes or exhibition grounds’’ belonging to the city, and ""situate outside the territorial limits of the city. ‘ ‘
The above-quoted legislation makes it clear that neither parks, pleasure grounds nor playgrounds are exempted from taxation by The Municipal Act, and that the only lands exempt under that Act are those belonging to the municipality in which they are situate. Further, that the exemption under sec. 4 of the Charter is not of parks, pleasure grounds, or playgrounds, but only of lands used for ‘‘public park purposes.”
Does Windsor Park Golf Course fall within the exemptions? If not, it is taxable by St. Vital. The power given to Winnipeg to acquire and use lands in other municipalities extends to lands which are not within the exemption clauses—that is, to "‘pleasure grounds” and "‘playgrounds.’’
One cardinal rule of construction is that every word and phrase in a statute must, if possible and practicable, be given some meaning or significance. If the words Sparks” or "‘public park purposes’’ stood alone, I would not—and could not—differ from those who hold that a golf course might well be included in the term ‘‘parks,’’ and so be exempted; but where the other terms ‘‘pleasure grounds’’ and "‘playgrounds’’ are also used, the question arises: Does this golf course not more appropriately fall under the heading of ‘‘playground’’ than under ”parks?”
The term "‘public park” or " " park” generally connotes a portion of land of considerable extent, provided with the means and facilities of recreation and pleasure for the public at large without fee or charge. It may conceivably—and often does— include within its borders, baseball grounds, lawn bowling grounds, tennis courts, and even golf courses.
‘‘Pleasure grounds,’’ which must be distinguished from Sparks” in some way, if it is to be given a meaning here at all, might mean some sort of a park—one containing some features in addition to or different from those of a park.
"Playgrounds’’ are places for playing physical games. The orounds surrounding schools in use as recreation places for pupils are playgrounds. The term rather excludes many of the features which we might expect to find included in "parks’’ or "pleasure grounds’’—stich as long quiet walks, vistas of trees, flower gardens and extensive lawns.
The Windsor Park Golf Course, as is commonly known, comprises a large tract of land devoted exclusively to the game of golf. It is a full 18-hole course, with the necessary incidentals of club-house, locker-rooms, etc. It has no facilities whatever for any other game; it has no facilities for general pleasure such as one might expect in a park. The grounds, apart from that portion used for golf, are insignificant in area, and are so scattered and unimproved as to be unattractive to the public. The game of golf requires a large area, improved in certain ways, and when played is of some danger to onlookers and those who might intrude upon the course. For that reason, very few people attend a golf course for the purpose of enjoying a game from a bystander’s view-point, except on rare occasions. Moreover, players of the game are required to pay green fees; and these fees, one might fairly assume in this particular case, are sufficient, or more than sufficient, to defray all expenses of maintenance of the course.
Thus it would seem that the Windsor Park Golf Course—although a publie course, that is, open to any member of the public who cares to pay the green fee and observe the rules of the game—is of a different nature in its uses from ordinary public parks.
The exempting language is of lands used for "public park purposes;’’ that is, for the purposes of a public park. The omission of “pleasure grounds’’ and ‘‘playgrounds’’ from the exemption must indicate an intention not to exempt them— especially when "‘exhibition grounds’’ are specifically added to the exemption.
The cases cited nearly all turn on the interpretation of certain statutes, and are of very little assistance to us. One case, however, Old Kildonan (Mun.) v. Winnipeg [1943] 2 W.W.R. 268— a decision of my brother Donovan, J.—seems nearly in point. It holds that Kildonan Golf Course was not taxable by Old Kildonan. But much of the difficulty in that case turned on whether or not the land was by statute within the boundaries of the city or within the municipality. The point which I think vital in this case was apparently not raised—at least was not considered.
In dealing with this case upon the footing of the above- cited statutory provisions, I assume that these specific provisions must be given effect to, notwithstanding that other provisions of The Winnipeg Charter might well include Windsor Park Golf Course as a part of the city of Winnipeg, and therefore make it untaxable under The Municipal Act.
My view therefore is that, inasmuch as this golf course is open to be classified either as a playground, pleasure ground, or park, it seems much more appropriate to designate it as a ^playground” than as a "park. ”
On that view it does not fall within the exemption, and I would allowed the appeal.