Queen v. Town Council of Dartmouth

A mandamus was applied for, at the Instance of the Sessions for the County of Halifax, to compel the Warden and Council of the Town of Dartmouth to assess on the property of the town liable for assessment the sum of $15,076 for its proportion of County School Rates for the years 1873-1878, under section 62 of the Educational Act, Revised Statutes, chapter 32.

Held, that the Warden and Town Council ought to have assessed in each year for the proportion of the County school assessment payable by the town, but that in view of the act to amend the act to incorporate the town, (1877, chapter 40,) section 30 of which provided that the sum to be voted at the annual meeting of the town for the estimates, including ordinary and extraordinary expenses, should not exceed in any year the sum of 915,000, there was a difficulty in the way of issuing the mandamus as asked for.*

Q. Whether there should have been a relator.

Per James, J.—The City of Halifax is not exempted by chapter 32, Revised Statutes, from contribution to the County School Rates, but is equally liable with the Town of Dartmouth. This matter came before the Court on a rule for a mandamus to the Town Council of Dartmouth, at the instance of the Sessions of Halifax county, to compel them to assess for County School Rates. The nature of the dispute between the Town and the County may be gathered from the report of the case, In Re Dartmouth School Assessment, 3 R & C, 147 q. v. The motion for a mandamus was Argued before Sir William Young, C. J., Mcdonald, Smith and James, J J.

* The Court, having expressed an opinion on the main question, suspended its final determination on the rule pending action by the Legislature in the premises.

Ritchie, Q. C, cites the Act of 1873, chapter 17, sections 27 and 28, Dartmouth Incorporation Act. The Council have power to assess for school and other rates. By section 36 the town is to be set off as a separate section. By section 37 certain ether portions are united with the town for school purposes. These are all the sections I know of referring to school matters.

A judgment was delivered in reference to the matter in 1878, reported in 3 Russell & Chesley, 147. Motton, Q. C, for the Town of Dartmouth. —The judgment of the Court was one such as the Town could not appeal from. They felt it necessary to have the deliberate opinion of the Court on the subject, and they were persuaded that, notwithstanding the former opinion, arguments could be presented now which had not previously been brought to the notice of the Court.

Rigby, Q. CL, (with Motton, Q. C.)—We wish to take the objection that the County of Halifax has no legal position either as an individual or as a corporation. It has no legal existence. Proceedings cannot be taken in the name of the Queen unless someone is named as relator, who moves in the matter, and who is responsible for costs. Here we have Nepean Clarke, who calls himself Clerk of the Peace, and William Evans, who calls himself County Treasurer, but the County of Halifax, which they represent, is neither a corporation nor an individual capable of instituting proceedings. (James, J.—A private individual may become a realtor. Young, C. J.—If a private individual asked for a mandamus in this case we would be slow to grant it.) Mr. Clarke, whose name is mentioned, is not a party interested.

Young, C. J.—Is the City of Halifax interested?

Ritchie, Q. C.—It is specially excepted.

Attorney-General. —It stands in the same position as Dartmouth.

Ritchie, Q. C.—Cites Gude’s Practice of Grewn Side, K. B,, pp. 180,181,; High on Ex. Remedies, 304, in relation to the issue of mandamus. A relator need have no interest. Rigby, Q. C, cites, contra, Fislier’s Annual Dig., (1876,) p. 302 ; U L. J., Q. B., 85. Ritchie, Q. C.—Where should it appear that there is a relator? Rigby, Q. C.—It should be,” the Queen upon the relation of,” etc. The affidavits in this case shew that Mr. Clarke is acting on the authority of irresponsible persons. We say the rule is improperly issued, and that there is nobody before the Court.

Ritchie, Q. C, reads Nepean Clarke’s affidavit, also the affidavit of W. Evans, County Treasurer, on which the rule t was taken out. Motton, Q. C, reads the affidavit of Alfred Elliott, Town Clerk of Dartmouth, also the affidavit of Dominick Fanell, and of W. H. Weeks, Esq., Warden of Dartmouth.

(Mcdonald, J. —The question is one of law. What can you shew by these affidavits?)

We can shew they are not entitled to $15,000. We will shew that Clarke has been collecting a very considerable portion of the money claimed. Section 27 of the Act to Incorporate the Town of Dartmouth is the first which refers to schools. Section 28 says they shall vote, etc., and shall have all the powers of the Sessions. We contend that after the passage of this act the Town of Dartmouth ceased to be a portion of the County. No language could be used stronger than that of section 28 to take the municipality entirely out the County, or to shew that for school and other purposes it became separate and distinct from the County. There were certain County charges which they were still liable for and did pay. Mr. Ritchie only read a portion of clause 28. This is an application by the Sessions requiring us to assess a certain sum. We say that the Sessions have no authority, but that for school purposes we are the Sessions. An idea has prevailed that the City of Halifax is excepted. We contend that if Dartmouth is liable Halifax is liable also. We can only argue as to the construction of the act from the construction of existing acts. The city is only excepted “so far as hereinafter provided,” and there is no provision following which excepts it. The words of the act do not bear out the marginal note, which has evidently led to the mistake. We contend that the language of the Dartmouth Act is much stronger. The town is made a municipality, with all the powers which formerly belonged to the Sessions.

(Young, C. J.—The first question is whether it is a liability under the act, and the second who can enforce it?) Cites sections 36 and 37 of the act of incorporation. This act is unlike other acts of incorporation of municipalities, in as much as no other municipality is charged with, the maintenance of schools outside of it. Dartmouth has the light to levy, appropriate and expend all moneys for school purposes raised in the municipality.

(Young, C. J.—Truro and New Glasgow have the same clauses, and no such construction has been contended for.) If the town were seeking to evade its fair share it would be different, but it not only supports all the schools in the town, but others beside.

(McDonald, J.—Why should Dartmouth occupy a different position from others?) Because greater responsibilities are thrown upon it.

(Young, C. J.—You receive your share of the Government grant and of the thirty cents per head.) If it were not the intention of the Legislature that Dartmouth should have the exclusive control, where was the necessity for providing for all the machinery for collection and expenditure. Moneys levied in the municipality for school purposes belong to the town.

(Young, C. J.—Section 37 does nothing more than bring the outlying sections within the town for school purposes.) It does more, as it gives increased weight to preceding sections. When the Town was being incorporated it was found that there were sections at either end which would be left unprovided for school purposes, and Dartmouth, in consideration of being relieved from County assessments, undertook to support these sections.

(McDonald, J.—I do not see why the City of Halifax should be excepted, and I think the rest of the County has reason to complain. Young, C. J.—Halifax is excessively taxed.) Dartmouth is taxed in proportion quite as much as Halifax, and to the extent of the outlying sections we are just so much worse off. Other municipalities have a clause similar to the Dartmouth 36th clause with the exception of Windsor. In the latter case the payment into the County Treasury is specially provided for. This has a good deal of significance. If it had been intended merely that Dartmouth should be a school section, it would have been enough to call it so, but it was called a seperate school section. The word “separate” indicated that it should be separate from the rest of the county. The word has no significance unless it means this. The whole clause bears out this contention.

The town has the exclusive expenditure of the moneys raised for school purposes. Where is the machinery to assess the inhabitants of the town and compel them to pay? There are no trustees to receive the moneys returned out of the amount raised. In Halifax there is an incorporated Board. There is nothing-whatever to shew that the town is to contribute anything to the County.

(McDonald, J.—That is not the question. It Is whether there is anything to repeal the law as it originally stood.) The amended act, chapter 40, Acts of 1877, repealed everything inconsistent with the Incorporation Act. If any interpretation by the Legislature is desired, we have it in this clause and in the Windsor Act.

(Young, C. J.—You cannot get out of the real difficulty. The City of Halifax is expressly excepted, we think, from the operation of the Act. It is a very extraordinary thing. If the Legislature intended to relieve Dartmouth, that they did not clearly say so. If we apply the principle you contend for to Dartmouth, we must apply it to other towns which have never dreamed of asking for it.) My argument is that the language applying to Dartmouth is much stronger than that applying to Halifax.

(McDonald, J.—I cannot see the slightest ground for the contention that the City of Halifax is not excepted from the operation of the act. It is provided that the assessment is to be added to the regular assessment of the city. I do not mean to say that the exception is just. I think it is not.

James, J.—Would it not be reasonable to infer that the Legislature intended to carry out the same principle in regard to Dartmouth that they had already adopted in regard to Halifax?

Mcdonald, J.—It would have been a very simple thing for the Legislature to have said that the sections applying to Halifax should apply equally to Dartmouth.) A mandamus will not be granted if, when granted, it would be nugatory.

(McDonald; J.—Why should Dartmouth, because it has been incorporated, be placed in a different position from that which it occupied previously, and in a different position from Yarmouth and other towns?) Dartmouth is not only charged with the support of her own schools, but schools outside the municipality.

(McDonald, J.—I do not attach much importance to that, because these sections are entitled to an allowance from the County and the Government, which Dartmouth is entitled to draw, and the difference is not much.) The amount received is insignificant compared with the additional burden. The population is sparse, and we must provide schools and teachers, whereas we are only reimbursed in proportion to the attendance.

(McDonald, J.—The town undertook to do those things. Young, C. J.—It could not have been imposed without the consent of the town. Mcdonald, J. —If your argument is sound you should not draw anything from the Government allowance. I think your contention, however, is wrong, and that you are entitled. Every school section is a separate section.) It is impossible to have a mandamus enforced, and the only remedy is by legislation. The Town of Dartmouth is not in a position to enforce it. See section 42 of the charter; Acts of 1877, chapter 40, section 30. The amount for which the Town can be assessed is limited by statute. The Court will not grant a mandamus if it will create confusion or disorder, or be vexatious or manifestly improper; 2 T. R., 336; 1 W. BL, 59. The County of Halifax has permitted the deficiency to increase. There has been a large influx of people, and the result will be to make people pay who were not responsible. Dominick Farrell’s affidavit shews that the County accounts, after paying all liabilities, shew an overplus of $4000, without charging the Town of Dartmouth.

Attorney-General, (with Motion, Q. C.)—Our argument is not that Halifax is not exempted, but that it is, and that Dartmouth is exempted by legislation following the same course and the same words. If Halifax is exempt, Dartmouth must also be exempt by virtue of the same language. The only difference is in regard to two sections which cannot affect this question. In regard to section 52 of chapter 32 of the Revised Statutes, there is nothing “hereinafter provided” in relation to the City of Halifax that is not enacted, by chapter 17 of the Acts of 1873, in regard to Dartmouth.

(McDonald, J. —It is provided that in Halifax the amount shall be assessed by the city authorities.) It is provided that in Dartmouth it shall be assessed by the municipal authorities. Section 100 of the Public Instruction Act says that “the provisions of the chapter except as herein otherwise specified shall apply to the City of Halifax.” In the case of Halifax, we are to raise the money and expend it ourselves, and the same language is used in reference to Dartmouth. Sections 52 and 100 expressly refer to some other portion of the act, and do not in themselves create an exemption. Section 100 says Halifax shall be liable except where specially exempted, and Halifax is not more clearly exempted from school rates than Dartmouth is. Would sections 52 and 100 exempt the City of Halifax in any way of themselves?

(Young, C. J.—I think not.) If that is the case where is there anything, then, from section 52 to the end of the act that does create the exemption?

(Young, C.J. —Is not Halifax exempted?)I think it stands in the same position as Dartmouth. Sections 52 and 100 depend, for their effect, on the intervening sections, which are in no respect different from those applying to Dartmouth.

(McDonald, J. —I do not think it affects the question before us that Halifax must be held to be in the same position as Dartmouth.) If Halifax is not exempt the County cannot get their mandamus because, in that case, our proportion would not be one-third the amount claimed.

(McDonald, J.—Why should the municipality of Dartmouth be exempted?) I don’t know, unless it is that it is expected to create a public spirit, and induce a larger expenditure. In Halifax we expend $80,000 a year. If the city had not the exclusive control of its own schools no one can suppose that it would raise or expend anything like that sum.

(James, J.—I am under the impression that the Town of Dartmouth, relying upon this exemption, has expended large sums on buildings.) Sec. 37 of the act of 1873 purported to do more than include the outlying sections. It preserved for the town the rates. The clause expressly transferred to the town from the County the power to levy and collect the assessment in those districts.

(Young, C. J.—The difficulty is not surprising. These in corporations are the loosest pieces of legislation I have ever seen. In New Glasgow they have established a Court for which there was not a shadow of law.) That was under a by-law. This was a part of the act and could not be considered a piece of carelessness. When the framers of the Act of Incorporation found that for upwards of ten years the City of Halifax had been exempted under words similar to those in their own act, they may be excused for supposing that they could claim exemption also. Another question arose under section 37.

It was contended that the municipality should pay over the thirty cents to the County. There was not a word to compel this in regard to the outlying districts, and the result is that the County authorities have gone there and collected the school rates, though the act expressly gives us the right. The Clerk of the Peace testifies that he computes the amount to be paid by Dartmouth from information as to the valuation of property by the Town Assessors. We contend that he has no right to use any such criterion. He has no material, and cannot, therefore, fix his rate.

Section 52 requires the Clerk of the Peace to add to the sum voted for general County purposes a sum sufficient to yield thirty cents per head, but there is no provision enabling him to call upon the municipality for the amount so added, or upon the Warden or Council. Nor does it authorize him to take the Dartmouth assessment rate as the basis of valuation. In Dartmouth they have a different principle of valuation, and the result is entirely different from what it would be if the mode prescribed by chapter 21 of the Revised Statutes had been followed.

Chapter 21 has no operation in Dartmouth. Property which would be exempt under that chapter is included and assessed. The assessment of Dartmouth is equal to that of the whole of the County outside of Halifax. Shipping is made assessable whether at home or abroad. This is not in in the general act.

One thing complained of here is that the system of valuation being different in Dartmouth from that in the rest of the Province, it would be unfair to compute the assessment on that valuation. See Tapping on Mandamus, p. 16, as to the creation of disorder. It is not the practice outside of Halifax and Dartmouth to tax fishing plant. The Warden has no authority under the by-laws to assess the amount. The Warden and Council have no authority to levy any sums that have not been brought before a Town Meeting; Act of Incorporation, section 42.

(McDonald, J.—If they have no power to assess more than that, have we any right to compel them?) No. Have they neglected or refused the performance of any duty which the law imposes on them? This is asking the officers of the town to do what they never could have done, even if they were willing. The present Warden and Council have no power to do anything. It is for the incoming Council. If they did levy an assessment, it could be set aside. A further difficulty in regard to the power to assess arises under sec. 30 of the Act of 1877, chapter 40, which says that in no year shall a larger sum than $13,000 be voted for ordinary or extraordinary expenditures, and no further sum shall be voted unless by legislative enactment.

They have already, I think, assessed about that sum, or about 813,000, yet they are to be asked to assess, on pain of imprisonment, $15,000 more. In order to authorize a mandamus the sum must be clearly ascertained; Tapping on Mandamus, 17; Reg. v. London and N. W. Railway Company, Fisher, 5651, 5638, 5640; 8 D. & R., 689. It is alleged that the County is willing to pay back the proportion we are entitled to. To strengthen our contention that Dartmouth is separate we say they have no power to pay, and we have no power to receive or claim that proportion. The only authority there is is to pay the proportion to trustees of schools. Suppose it were necessary to ask the intervention of the Court to compel payment, could the Town Clerk or the Warden do it? Surely neither can be said to be in the position of a trustee. The Legislature could not have intended the town to pay this money and get none of it back, and yet there is no machinery to enable the town to recover it. The County Assessment Act gives another remedy if this liability exists, and if there is another remedy the Court will not grant a mandamus. Even where the Sessions have made a presentment, the Court has power to name a person, under sec. 57 of chap. 21, R. S., to levy and collect the rate; Tapping on Mandamus, 21. A remedy by amercement is sufficient to discharge the writ. This can only be recovered as a County rate, and if it be so the sections in reference to County assessment would apply.

Ritchie, Q. C, in reply. —As regards the question of relator see Gude. pp. 405, 653, giving forms of writ, which show no reference to relator. The objection was that it did not appear on the face of the proceedings. See also 8 A.d E.,822, The Queen v. Frost. Two things are lost sight of. First, these rates are made County rates, and also are rates raised for schools in the County and not in any section. They are County rates raised for no particular school, but distributed according to a scale. Chapter 24, Section 62 varies the assessment slightly. It provides for the apportionment by the Clerk of the rates assessed in the County. By the 27th section the Dartmouth Council must assess the County rates. They are the only ones who can. They must assess this rate unless there is something to exempt them. I ask for a mandamus addressed to the existing Warden and Council.

(McDonald, J.—Suppose they change to-morrow?) I am supposing they don’t change. Rigby, Q. C.—If the writ lies at all it must be to the town, —the incorporation, —and not to the Council.

Ritchie, Q. C.—It is not the town, but the Warden and Council who are to assess. They are to assess whatever money is necessary. The 30th section provides that the Council have only the expenditure of money assessed for schools of the town. This money is not assessed for the schools of the town, but of the County. They have the expenditure of the Government and the school grant, which last is the portion of the thirty cents rate returned; Section 37. The County was not relieved from the outlying sections. They get the same as they always did. The town took the best portions of these sections, and left the poorest, which cannot support schools. The town never assessed those districts. The County did it, and handed over its proportion to the town. Now see the difference between that and the Halifax Act. See section 98 of chapter 32. In Halifax all money assessed for educational purposes must be paid by the City Treasurer to the School Commissioners. Even if the thirty cents were assessed in the city it would go, under that clause, to the Commissioners, being money assessed on property in the city for educational purposes. The Dartmouth Council has the expenditure of all rates assessed for the schools of the town, but the thirty cents is assessed for the schools of the County, not of the Town.

(McDonald, J.—It comes to the same thing.) I don’t think it does by any means. They have not the expenditure of money raised for the schools of the County, but only their share of it. Reads Truro Act, Acts of 1874, chapter 47. It is precisely the same, and if Dartmouth is excepted Truro is too. In the New Glasgow Act the school rates are specially excepted. In the Windsor Act, chapter 41, Acts of 1878, they have the expenditure of moneys raised “within the limits for the schools of the town,” but must pay over to the County their just proportion. As regards the point that the mandamus would be nugatory because the Warden and Council could not assess, —the Town Meeting has nothing to say about anything but the extra assessment. The meeting has no vote on County rates or ordinary expenditure. It would be a perfect farce if it were otherwise. They might vote that they would pay nothing for salaries or any other purpose.

Attorney-General, —My point is that the in-coming Council can only assess what has been included in the estimates of the out-going Council.

Ritchie, Q. C—The section is only for the purpose of giving the meeting an opportunity of expressing an opinion on extraordinary expenditure. The Warden and Council are bound to assess the County rates whatever they are, and not merely the sum named before the meeting. In regard to the alleged difference between the rate of assessment, I fail to see that there is any difference. They are precisely the same if the assessors do their duty. In regard to the argument that the population has changed, no law was cited, and a mandamus could never issue for taxes if that contention prevailed. In regard to the remedy by amercement, the only case where the Supreme Court can amerce is where the Sessions have failed to make a presentment. We are not asking them to assess for the outlying districts. We have tendered them a cheque for their proportion of “that, and they have declined to receive it.

Sir William Young, C. J., now, (March 22nd, 1880.) delivered the judgment of the Court: — This is a rule nisi for a mandamus requiring the Warden and Council of Dartmouth to assess on the property of the town liable to assessment the sum of $15,966 for its proportion of school rates during the years 1873, 1874, 1875, 1876, 1877 and 1878, under section 52 of the Educational Act, Revised Statutes, chapter 32, about one-third of which, if assessed, would revert to the town, leaving a balance of about 810,000 claimed by the Sessions for distribution under sections 52 and 53.

It is a question, therefore, between the other, and for the most part the poorer sections of the County, and the Town of Dartmouth, in which the City of Halifax has no part, being exempted by sections 52 and 100 from the payment of thirty cents a head imposed by section 52.

Much was said at the argument about the policy and the injustice of this exemption, while the liability of Dartmouth, if there were a liability, continued, but it is obvious that this is a matter for the Legislature with which we have nothing to do. We are called upon to determine the true construction and meaning of the Act of 1873, chapter 17, incorporating the Town of Dartmouth, and the amending Act of 1877, chapter 40.

This same question was brought before us last year at the instance of the Sessions, and the Court gave the judgment reported in 3 R. & C. 147, with which the Town Council were dissatisfied, and the present proceeding was of necessity adopted by the Sessions. It happens, too, that the kindred act incorporating the Town of New Glasgow, with its by-laws, has come, in two cases, under discussion, one during the last and one in the present Term, and raising some of the questions which throw light upon the case in band. There are acts also incorporating the towns of Truro and Windsor, all of them constructed nearly on the same principle and subject to like difficulties and objections.

In the three judgments I have already delivered and the grounds of which I abstain from repeating, most of these objections are stated, and looking at the Dartmouth acts and by-laws it is obvious that many of them extend to this case. Our common schools, under chapter 32, derive their support from three sources; first, from the Government grant of S117,000, under section 41; secondly, from an addition, under section 52, to the annual vote of the Sessions in each County for general County purposes, of a sum sufficient, after certain deductions, to yield an amount equal to thirty cents for every inhabitant of the County, the sum so added to form and be a portion of the County rates; thirdly, under section 73, from the sums voted at the annual meetings of the sections held for the election of Trustees, and for determining the amount that shall be raised in each to supplement the sums provided by the Province and County. The act also creates the machinery by which the business of public instruction is carried on. Sections 84 to 100 provide a special system for the City of Halifax. Special provision, too, was needed for the incorporated towns, but this has been left to their own choice, and it is difficult to say how much or how little of the act remains in force within their respective limits.

The Dartmouth Act, 1873, cap. 17, in the 27th section, gives the Council jurisdiction over the support and regulation of the public schools, and the appointment of the teachers, and, by the 28th section, the Council shall vote, receive and pay whatever monies are required, inter alia, for school rates and shall have within the town all the powers relating thereto vested in the Sessions, Grand Jury, School Meeting and Town Meeting.

The powers of the Commissioners of Schools are thus transferred to the Town Council, and Trustees are no longer to be appointed. By the 35th section the then school house became the property of the town, and by the 36th section it is declared that the town shall be set off into a separate school section, and the town «hall have the expenditure of all school rates raised within the limits thereof for the schools of the town, as also of all Government and school grants for such schools, which shall be paid to the Council, —grants, let me ask, from what funds, and by and to whom paid?

From the Government, drawn from the Treasury under section 41, and from the Sessions, drawn from the assessment equal to thirty cents a head, under section 52. This view of the section, —and it is susceptible of no other, —is decisive of the question, as it seems to me. In the Windsor Act, 41 Vic., chapter 41, passed 4th of April 1878, two months after our former judgment to the same effect was delivered, the 38th section has a proviso which I look upon as affirming it, for the Legislature would never impose upon one town an impost which they had not imposed on the others, and ratified by so invidious a distinction an exemption which Dartmouth alone of the incorporated towns have laid claim to.

They have made the duty, under the 42nd section of the Act of 1873, imperative on the Council to furnish an estimate of the expenses for the current year, including the County rates of the town for the incoming year and the amount required to defray the same, which sum the in-coming Council shall assess, with any additional sum affirmed by the rate-payers. The County rates in this section, I cannot bring myself to entertain a doubt, comprehend the additional rate arising out of the thirty cents impost. As the town is to receive a proportion of the fund, so also must they contribute to it.

Let us now consider the objections to the form of proceeding. The writ of mandamus is of familiar use in England, as appears by the numerous examples occupying upwards of two hundred pages in the Treatise by Tapping. In this Province it has been rarely resorted to, notwithstanding the facilities afforded by our Equity Act, Revised Statutes, chapter 95, sections 44 to 49. In the case of Justices, it is superseded by the summary method presented by chapter 112, section 13. The latest case I have seen upon the subject was in the House of Lords in 1876. The Queen v. Churchwardens of All Saints, Wigan, L. R., 1 Appeal Cases, 620, where Lord Chelmsford said; “A writ of mandamus is a prerogative writ, and not a writ of right, and it is in this sense in the discretion of the Court whether it shall be granted or not. The Court may refuse to grant the writ, not only upon the merits, but upon some delay or other matter personal to the party applying for it; in this the Court exercises a discretion which cannot be questioned. So, in cases where the right in respect of which a rule for a mandamus has been granted upon shewing cause appears to be doubtful, the Court frequently grants a mandamus, in order that the right may be tried upon the return; this also is a matter of discretion. But where the Judges grant a peremptory mandamus, which is a determination of the right, and not a mere dealing with the writ, they decide upon the merits of the case, and not upon their own discretion.” In The Queen v. The Mayor of Peterborough, cited at the argument from 44 L. J., 86, “It is clear,” said Blackburn, J., “that the person applying for the prerogative writ of mandamus must shew that he has a real interest in the subject of it, and that he is bona fide in making his application. See also Sehwyn’s Nisi Prius, chapter 27; 1 Chitty’s Practice, 789. In Rex v. London and N. W. Railway, 16 Q. B., S86, Lord Campbell said; “A writ of mandamus supposes the required act to be possible, and to be obligatory when the writ issues. In the present case,” he added, “the prosecutors were guilty of laches by giving no notice till the power of doing the act had expired, and not applying for it for a considerable time after the power had expired.”

Let us apply these principles to the circumstances of the case in hand. We have decided that on the true construction of the Education Act the Town Council of Dartmouth ought to have assessed the town in each of the six years from 1873 to 1878 in the sums specified in the notices served upon them in each of these years by the Clerk of the Sessions and disregarded. I do not at all question the good faith with which they resisted those demands, believing them to be illegal, nor their anxiety to expend judiciously and to the profit of their own rate-payers all the money they could afford for education.

This does not justify them, if the law will not, in withholding the aid they ought to have contributed to the school sections in the poorer districts. Neither does the very inadequate contribution of the country districts, through assessments far below the cash value of the property therein, afford an excuse which this Court can accept. The 30th section, also, of the amending Act of 1877, stands in the way of the large assessment that will now be required, unless specially authorized by legislative enactment. This section was framed, and as the law assumes, at the instance and with the assent of the corporation, recognizing no such liability.

We must again suggest, as in our former opinion, that resort should be had to the Legislature, where the new municipality and the Town Council can be heard with a view to the equities as well as the law of the case. Our duty lies only with the law, and that, as I think, is entirely with the Sessions. So far the Sessions, representing the outlying districts, and now the municipal body representing the Sessions, have the right, and we are aware of no other mode by which they can enforce it except a writ of mandamus. It was urged that there ought to have been a relator liable for costs, and the counsel of the Sessions offered to supply one if we required it, but in the case of a public body having a duty to fulfil and a direct interest in the result, a relator does not seem to be necessary.

Still, with a view to the cases I have already cited, and to that of The King v. The Bishop of Ely, 1 W. Blackstone, 581; 1 Wilson, 268, it is obvious that there is a serious difficulty in the way when the right is sought to be enforced. The rule nisi asks that the writ of mandamus shall issue directed to the Warden and Council of Dartmouth, directing and commanding them forthwith to assess upon the property within the Town of Dartmouth liable to assessment the sum of $15,076, and collect the same, and pay it over to the Treasurer for the County of Halifax.

Now, we must ask ourselves, how is this requisition, if made, to be obeyed? The demand has swollen to this large amount, the accumulation of six years, from a reluctance on one hand to enforce, and on the other to admit the claim Some time has been spent in litigation, our first judgment having been rendered two years ago. But the grand difficulty arises out of the language of the incorporating and the amending acts, neither of which, and especially the latter of the two, has any reference to this special burden.

Had it been recognized at once in 1873, as the Legislature must have intended, it might have been murmured at, but could not have pressed so severely. In 1877 it was entirely lost sight of, for the 30th section of the act provides that at the annual meeting of the rate-payers” the sum to be voted for the estimates, including ordinary and extraordinary expenses, shall not exceed in any year the sum of $15,000, and no additional sum shall be expended unless specially authorized by legislative enactment.

Under these peculiar circumstances, we have decided on the only course that seems to be open to us. It will be for the Legislature to reconcile this apparent contradiction, and having given a decided opinion on the main question, we suspend in the meantime our final determination on the rule.

James, J., delivered the following opinion: The Legislature has provided that the public schools of the Province shall be supported from three different sources;

First. A specific sum of money, voted for the purpose out of the general revenue, which is divided among the several counties in certain proportions, and the grant for each county is sub-divided among the schools of that county, so that a portion is allotted to the support of each school.

Secondly. An assessment upon each county, to raise a sum equal to thirty cents per head of the population; the amount of which, is divided among the several Boards of Commissioners of Schools for the county, and by them subdivided among the school sections in the several districts in proportion to the attendance, so that each school receives a share.

Thirdly. A local assessment in each school section of a sum sufficient to make up the balance of the expense of maintaining the public schools in the section.

The object of this complex system was exceedingly beneficent. It was felt as the greatest difficulty in introducing a general system of education that, while the richer and more populous towns and settlements could maintain their schools with efficiency without any serious burden, a great many, perhaps the majority, of the school-sections would be unable, owing to their being thinly settled and poor, to maintain efficient schools, and in many of them no provision whatever would be made for the education of the young.

Their resources for this purpose were therefore supplemented by grants to each school—first, from the Provincial Treasury, and secondly, from the County Assessment; thus, compelling the richer sections to contribute towards the education of the young in the poorer sections.

The operation of the Act in this respect has been most satisfactory, and the object of providing the blessing of a free education for every child in the Province has been very successfully accomplished. Under its operation hundreds of schools have been organized and sustained which, were the supplements from the Treasury and the County Fund withdrawn, would necessarily be closed.

Of all the counties in the Province Halifax stood most in need of this humane arrangement. It is about 100 miles in length and 25 or 30 in breadth. It contains one city, (Halifax), one small town, (Dartmouth), and but one moderately prosperous agricultural settlement, on the Musquodoboit River.

The whole population is about 56,000, of whom about 30,000 are in Halifax and 4,500 in Dartmouth. The remaining population of some 22,000 are very scattered, poor, and in many cases the school sections are thinly inhabited, and therefore in need of all the assistance intended for them by a beneficent Government.

I find by reference to the affidavits that the amount added to the county assessment for school purposes for several years past has been $8,214 annually. It also appears by the affidavits that the assessable value of real estate for county rates for the current year is as follows:

—City of Halifax $15,604.00

Town of Dartmouth 1,325.00

Remainder of county about 2,000.00

Making in all about $19,000.00

The amount now raised under the supposition which has prevailed, viz., that the city is exempt by law from this taxation, is paid as follows;

City nil

Dartmouth $3,244

Remainder of county 4,970

The Education Act requires that an amount shall be raised equal to 30 cents per head of the population, but the 58,214 raised represents the tax, not on the whole county, but on that portion of the county outside of the city, with a population of about 26,500.

If the population of the city were added, the amount to be raised, would on a population of 56,000 amount to about $18,000, of which the City would pay $14,830, Dartmouth 1,260, Remainder of county 1,910 .

Enormous as is this disproportion between these figures and the present actual taxation, the disproportion is greatly increased when we look at the distribution of the fund as prescribed by the Act.

In section 53 it is enacted that the amount raised by County Assessment shall be distributed among the schools in proportion to the average attendance of pupils in each school. I have no means of ascertaining what that average attendance is for the various schools in this county, but in the absence of this information. I may fairly presume that the attendance at the schools is pretty nearly in the ratio of the population.

Of course, there will be differences in different sections, but for my present purpose I am justified in assuming that the ratio is nearly the same all over the county on this assumption the sum of $18,000 would be distributed as follows:

City of Halifax, about $9,557

Dartmouth, 1,443

County 7,000

Therefore, if the assessment were levied and distributed according to the Education Act, the city being included, the city of Halifax, Dartmouth and the rest of the county would respectively receive and pay as follows:

Payment Receipts.

City $14,830 $ 9,557

Dartmouth 1,260 1,443

County 1,910 7,000

$18,000

Adopting the same ratio for distribution under the present system, that is the ratio of population, the amounts distributed must be, Dartmouth about $1,394, county about $4,858; so that Dartmouth under a fair carrying out of the general laws of the Province would pay $1,260, and receive back $1,433, or $173 more than she would have to pay; whereas, if the city of Halifax is exempted, Dartmouth receives back only $1,394 but has to pay $3,245 annually, or $1,851 more than she receives.

The difference to Dartmouth is therefore over $2000 per annum in all time to come, in addition to the $15,000 now demanded. The remainder of the county which, under a fair system, would pay $1,910 and get back $7,000, (balance $5,090,) now pays $4,970 and gets back only $6,857, (balance $1,867).

The county outside of Halifax and Dartmouth therefore pays the difference of these balances of $5,090 and $1,910, that is, $3,180, which is taxed on a population of 22,000; but Dartmouth is much worse treated, being taxed unjustly over $2,000 annually on a population of a little over 4,000.

I say “unjustly” taxed, because I can see no reason why the city of Halifax, even if she did not derive a large part of the trade to which she owes her wealth from the industry of the 26,000 fishermen and farmers inhabiting the outlying sections of the county, should escape taxation to support the schools of the county, while the people of Dartmouth are taxed for that purpose annually about four dollars for every family in the town.

They have never been able to conceive it possible that so monstrous an exaction could ever be enforced against them in a country where the laws are generally not only just but humane, and they would be grieved to learn from the decision of the Court that the law which ought to be just before it is generous, in seeking to be humane has become unfair, partial and oppressive.

The foregoing calculations are made from the figures furnished the Court on this application. More accurate information to be obtained at the public offices, and more exact calculations may vary the results to a trifling extent, but I am sure not materially.

Considering, then, that the town of Dartmouth is called upon to pay a taxation, over and above her fair proportion, of over $2,000 annually, besides an arrear of $15,000, a sum far exceeding her whole gross annual revenue, and nearly approaching the present debt of the town —the interest of which added to the $2,000 extra taxation will increase her annual burden to the extent of over $3,000 a year, which is equivalent to an increase in the debt of the town of $50,000, the whole of which is imposed in order that the city of Halifax may be relieved from a burden which is cheerfully borne by every other town, village and hamlet in the Province, it is not wonderful that the deepest dissatisfaction and alarm prevail in the community of Dartmouth in relation to this matter.

They have never been able to conceive it possible that so monstrous an exaction could ever be enforced against them in a country where the laws are generally not only just but humane, and they would be grieved to learn from the decision of the Court that the law which ought to be just before it is generous, in seeking to be humane has become unfair, partial and oppressive.

Believing that the idea of their being seriously called upon for this large amount of arrears, besides a very large addition to their annual taxation since they became incorporated, was chimerical, they have refused until compelled by law, either to assess the tax or to receive the subsidy from that source, and have gone on erecting school houses and employing teachers on a liberal scale,—a scale not inferior, in proportion to their wealth and numbers, to that of any other town in the Province.

Among other things, they have for many years maintained in the town a thoroughly efficient High School, an attainment which the city of Halifax was unwilling to afford till within the last year, and which is still not quite a successful experiment. Under the idea that they were exempt, as the city of Halifax is usually supposed to be, from this tax, they even consented to have included in the town by their Act of Incorporation, for educational purposes, two poor districts outside of the limits of the town, which would otherwise be unable to maintain schools.

The people of Dartmouth, therefore, are not trying to shirk a burden imposed on them, as on every other town in the Province, for beneficent purposes. They are acting on the defensive to prevent and remedy a great wrong to themselves and all the rest of the county. Unjust in the extreme as is the exemption of the city from the county school assessment, its injustice and inconsistency are greatly enhanced by the fact that, while escaping the county assessment, the city of Halifax takes her full share of the Provincial grant.

This, like the other, was intended mainly as an equalizing arrangement for the benefit mainly of the poorer sections. It is contributed to the revenue by the whole population; the poor, as is well known, paying a much larger amount, in proportion to their means, than the rich. The exemption of the city, if it was at all intended by the Legislature, was based on the idea that they were to support their own schools independently of external aid.

The amount of Provincial money allotted to the city is stated by the Superintendent’s report for last year at the sum of 39,500. If the same principle had been adopted as in the case of the county assessment, the city should have been required to support their own schools independently of the Provincial grant as well as the county assessment, and the amount of Provincial money to which they would otherwise have been entitled should have been divided among the poorer school sections, as some compensation for their greatly increased taxation, owing to the exemption of the city from the county assessment.

For what distinguished services to the Province the city of Halifax has enjoyed this remarkable exemption for some sixteen years I know not. What, with interest, has been its total amount, I leave for others to calculate; but I am sure that the annual saving to the finances of the city during any one of these years would have enabled her to pay the salaries of at least two additional professors in Dalhousie College, after deducting the amount necessary to place the College grounds in a condition still more attractive to distinguished strangers visiting the city than they are at present. (LOL! Cold dis – editor)

I shall now briefly consider the question whether the town of Dartmouth is liable in law for the amount claimed or any part of it. This question has been so fully discussed by the learned Chief Justice, in an opinion in which, so far as it defines the natural construction of the Statutes, I entirely concur, that not many words will be necessary from me on that point.

There can be no doubt that the framers of the Dartmouth Act of Incorporation intended and expected that their town would be exempted, as the City was supposed to be. There are several features of the Act which indicate that that was their intention. But was that the intention of the Legislature as expressed in the Act of Incorporation? In considering this question, I think I am bound to require that any language that would exempt one locality from the payment of a tax imposed upon the whole of the rest of the Province, with at most but one exception, should be clear and explicit, but I find no clear and explicit words in the statute to this effect.

On the contrary, I find in section 36 and 37, language which appears to me totally inconsistent with such contention. Keeping in mind that the schools in each school section are to be supported from three sources, viz: —the Provincial Grant, the County Assessment, and the Local Assessment, I observe that section 36 is as follows:

“After the passing of this Act the Town shall be set off as a separate School Section, and the Town shall have the expenditure of all school rates raised within its limits for the schools of the Town, as also of all Government and school grants for such a Town, which grants shall be paid to the Town.”

Here we find the three sources of educational income clearly, as I consider, specified in detail, viz: 1—Local assessment. 2— Government grants. 3—School grants. And the two latter grants are to be “paid to the Town.” Now we know, of course, that the second of- these, the government grant, means the grant out of the Provincial treasury. But what is the third, the school grant, if not the share allotted to the town out of the county assessment.

I can conceive of no other meaning for the words, and therefore the town is to receive and expend its proportion of the county assessment. It is not contended that the town is to receive a proportion of this fund without contributing to it.

That would be taxing the poorer districts of the County to assist the richer, and I am sure the people of Dartmouth have no such desire, and would never ask such a thing, and their counsel have raised no such contention at the argument.

All they ask, and all their counsel have contended for, is that if the city of Halifax is exempt, Dartmouth should also be exempt, and this they are, in all justice and equity, bound to insist upon, not only in their own behalf but in behalf of the rest of the County, who, like themselves, are unjustly taxed to subserve the interests of the city of Halifax. It is clearly the interest of Dartmouth that neither should be exempt.

Again, in section 37,1 find that for the two adjoining districts included in the Town for school purposes by this section, the “Council shall be paid the proportion of Government school grants payable in respect of such districts, and to impose and levy the County School Assessments, and all School Assessments, in such districts, and collect the same in the same manner as if such districts formed part of the Town. I find nothing in the Act to countervail these explicit statements. I can only say that if the framers of the Act intended, as I have no doubt they did, to exempt the Town from the County Assessment, they have made a most unfortunate use of the English language.

I hope the Town will no longer persist in an expensive and hopeless contention in the Courts of Law to escape this assessment which the city and Dartmouth ought both to be willing to bear, but look to the Legislature to remedy in another way the severe taxation inflicted on them by the law, and which they are quite unable to bear. It is indispensable, in my view of the law and facts, that I should decide, so far as I am able upon the arguments presented to us, whether the City of Halifax is exempt or not.

The question was partially discussed at the argument, and I have given it full consideration. It is nowhere expressly enacted that the city shall be exempt from the tax. It is rather the result of a close and careful examination of its clauses, which were cautiously framed with that intention.

Were this an act of Parliament unobjectionable on moral grounds, it is possible that it might be construed so as to exempt the city. But this is not an Act of Parliament unobjectionable on moral grounds; it is an Act to impose upon one district a tax which ought justly to be paid by another.

It is a statute, if that be its true construction, violating the first principles of natural justice, and perpetrating a moral wrong; and such a law cannot receive that construction unless such meaning appears in express words, or by necessary implication.

Nowhere in any statute of this Province is it stated that the city of Halifax shall be exempt from this tax, or words expressly to that effect, or ‘which can receive no other construction. All the expressions relied on are merely inferential, and may easily be otherwise construed.

This principle is clear and undoubted, and has been recognized and applied by this Court to the construction of statutes in the two most important cases that have been argued here in the last three years. I have already applied it above against the defendants’ contention.

It is equally applicable to the city; for in neither case are there express words of exemption, or any clear or undoubted inferences to that effect. Were the law as is contended, had it been properly represented, it would never have received the Royal assent, as no Statute ever will that arbitrarily taxes one section of a country, and without any reason exempts another; still less when one section is made to bear a largely aggravated burthen to relieve another, as in the present case.I am strongly inclined to believe that if the question of the exemption of the city under the Education Act ever comes in litigation before this or any other Court, it must be held that the city is not exempt.

It is quite true that the Legislature never could have intended to enact one law for Truro and New Glasgow, and another for Dartmouth. It is equally impossible to believe that they intended to tax the people of Dartmouth, and exempt the far more wealthy community on the opposite side of the harbor.

If I am right in this opinion, it has a most important bearing on the liability of Dartmouth. I have no doubt whatever that Dartmouth is not exempt from taxation, but if the city is illegally exempted, and if the whole arrear claimed against the town has been caused by that illegal exemption of the city, then there are no arrears due from Dartmouth; because had the law been carried out in the case of the city, Dartmouth, instead of contributing a balance to the fund, would have received from it some two hundred dollars annually, over and above her contribution to it; and if this be the law Dartmouth is entitled to recover back some $15,000 or $20,000 for taxes paid from the passing of the Education Act down to 1873, that is, for the whole period during which the city of Halifax has been exempted by the county authorities from the payment of the tax, up to the date of the Incorporation of the Town of Dartmouth, when resistance was first made to the tax.

It was contended for the defense at the argument that, as the Act to incorporate the Town of Dartmouth expressly prohibits the Town Council from assessing anything beyond the current annual expenditure, except upon a vote of the ratepayers at a public meeting, and then only for public improvements, a writ of mandamus would be nugatory, and therefore ought not to be ordered by the Court; and several authorities were cited to this effect. But as the writ in this case would not only command an impossibility, as in the case cited, but an absolute illegality, I think it unnecessary to refer to the cases cited.

That the high power and authority of this Court cannot be invoked to compel a subordinate authority to violate the law, is a proposition which appears to me self-evident, and which requires no authority to support it. We must, therefore, either discharge the rule nisi for a mandamus, or suspend our decision upon it until there shall be a change in the law relating to the subject under consideration.

Under the circumstances, I concur with the learned Chief Justice that if there be any arrears legally due, the latter course is one which meets the necessity of the case. The matter will doubtless now be brought before the Legislature by one or other of the parties concerned, and it will then be judged on the principles of right and justice. Our duty is to expound the law.

If the law is unjust, we cannot alter it, but those who make the laws have not only the power, but it is their solemn duty to amend them if they are unjust or inequitable, as I am satisfied the law on this question now is if the construction which has heretofore been put upon it is correct. The question before the Legislature will be whether Halifax and Dartmouth shall be both exempt, or, on the other hand, whether Halifax and Dartmouth shall be both included in the assessment.

The proposition that Halifax be exempt and that Dartmouth shall be taxed to supply the duty which the city of Halifax owes to the county of Halifax, is simply preposterous, and will be so held, whenever the city of Halifax is called upon in any Court of Justice to pay up the fifty or eighty thousand dollars of taxation which she has hitherto escaped through a mistaken interpretation of the law. I concur with the course of dealing with this application indicated in the opinion of the learned Chief Justice.

I ought to add in conclusion that as I am resident of Dartmouth, and own property there, I thought I ought to be excused from sitting on this case, but my learned brethren thought otherwise, and therefore I have very reluctantly been drawn into this discussion in deference to their opinions. I have endeavored to divest myself of prejudice in the matter, and to give a decision in accordance with the law, and I believe that I have succeeded in doing so.

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