262 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 THE TORONTO RAILWAY CO PLAINTIFFS ; Oct. 29. AND HER MAJESTY THE QUEEN DEFENDANT. Customs-duties—Importation of steel rails for street railways—Tariff Act, 50-51 Viet. c. 39, items 88 and 173—Construction. The word "railway " as used in (free) item 173 of the Tariff Act of 1887, 50-51 Vict. c. 39, does not include street railways. 2. In construing a revenue Act regard should be had to the general fiscal policy of the country at the time the Act was passed. When that is a matter of history reference must be had to the sources of such history, which are not only to be found in the Acts of Parliament, but in the proceedings of Parliament, and in the debates and discussions which take place there and elsewhere. This is a different matter from construing a particular clause or provision of the Act by reference to the intention of the mover or promoter of it expressed while the Bill or the resolution on which it was founded was• before the House, which cannot be clone under the rules which govern the construction of statutes. THIS was a claim for the return of moneys alleged to have been improperly paid for customs-duties. The case was heard at Toronto on the 19th and 20th of April, 1894. C. Robinson, Q.C., for the plaintiffs : The question here is : What is the meaning of the term railways as used in the statute 50-51 Vict. c. 39 ? To answer that question we must have reference to the statutes in pari materia. We have to trace the legislation on this subject throughout, and see the change of language which has been adopted by the legislature, and then see if it is possible to assign to that change of language any other meaning and intention than the meaning and intention which the plaintiffs claim will admit their rails free of duty. (He here discusses the legislation on the subject in question from 1879 until the Act 50-51 Vict. c. 39).
VOL. 1V.] EXCHEQUER COURT REPORTS. 263 It is a principle of construction that a change of 1894 language imports, prima facie, a change of intention. THE The legislature showed in 1885 and 1886 that when TORONTO RAILWAY they wished to exclude street rails from the free list COMPANY they knew how to do it, using the appropriate m expressions ; they did it specifically. Why did they drop QUEEN' that exclusion altogether ? Why did they omit from Argument of Conneel, the statute governing this case any exclusion of street rails from the free list,?. If the legislature here intended to continue the exclusion of street rails from the free list, why did they not use the same words they had previously used' in two successive Acts for that purpose, words which could have left no doubt ? It must be inferred that' their intention was to make these rails free. (He cites Elmes on Customs Laws (1) ; United' States v., 200 chests of tea (2) ; Hardcastle on Statutes (3) ; Bell and the Master in Equity (4) ; Maxwell on Statutes (5) ; . Endlich on Statutes (6) ; Aerated Bread Company v. Gregg (7) ; Doughty v. Firbank (8) ; Swansea Improvements Co. v. Swansea Urban Sanitary Authority (9) ; MacFarlane v. Gilmour (10) ; Ex parte Zebley (11) ; Gyger v. Philadelphia City Passenger Ry. Co. (12) ; Hestonville• Passenger Ry. Co. v. City of Philadelphia (13) ;. Milivale Burough v. Evergreen Railway Co. (14) ; Pennsylvania Railroad 6o. v. Pittsburgh (15) ; Lumley ,v. Guy (16). B. B. Osler, Q. C., followed for the plaintiffs. He cited Nix v. Hedden (17) ; Conmee v. Canadidn Pacific Railway (unreported). (1) Sec. 880. (9) [1892] 1 Q. B. 357. (2) 9 Wheat. 430. (10) 5 Orit. R. 302. (3) 2d ed. p. 93. (11) 30 N. B. R. 130. (4) 2 App. Cas. 565. (12) 136 Penn. 96. (5) P. 394. (13) 89 Penn. 219. (6) Pp. 382 to 385. (14) 131 Penn 1. (7) L. R. 8 Q. B. 355. (15) 104 Penn. 529. (8) 10 Q. B. D. 358. (16) 2 El. & Bl. 216. (17) 39 Fed. Rep. 109.
264 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 F. E. Hodgins, for the defendant : THE The plaintiffs are estopped by their sworn entries at TORONTO RAILWAY the Customs from denying 'the correctness of such COMPANY V. entries now. In the affidavits it is stated that the THE descriptions of the goods in the invoices are correct. QUEEN. The Customs Act (1), secs. 13, 85, 58 and 68, requires oAfr C gu o m uns e e n l t. that the invoices should correctly state the description of the .goods imported, and the court must be influenced in its construction of the Act by the terms used by the manufacturer or exporter of the goods in question. (He cites United States v. Sarchet (2) ; Ross v. Fuller (3); Elmes on Customs Laws (4). But apart from this, the statute will in no way permit entry of these rails free of duty. The plaintiffs, to bring themselves within the free entry item 173, must clearly show that these are rails for railway tracks such as are contemplated by that section. Due consideration must be given to 'the fact that the duty item stands first in the statute. The duty is there clearly and expressly imposed. It is quite certain that were it not for the words, " not elsewhere specified " the duty so imposed would cover the rails in question here. Then in the free list the admission of rails thereunder is limited to those for use in railway tracks. [THE JUDGE OF THE EXCHEQUER COURT : You say the effect of these two things is to get rid, on your part, of the rule that requires a tax to-be imposed by clear words. To state your -proposition in another form, you say the court has to construe not the positive enactment but the exception, and it is for the plaintiffs to bring themselves within the exception ?) Yes, my lord ; and the authorities sustain the position I take. (He cites Hogg v. The Parochial Board (5) ; Elmes on (1) R. S. C. c. 32. (3) 17 Fed. Rep. 224, (2) Gilp. 273. (4 ) P. 24. (5) 7 Rettie's Rep. 98G.
VOL. IV.] EXCHEQUER COURT REPORTS. 265 Customs Laws (1) ; Phillips on Tramways (2) ; Clarke 1894 on Tramways (2) ; Roberts and Wallace on Employers THE (-1) ; Spens and Younger on Employers (5) ; Wood on T OR N TO Razxn.x Railways (6) ; Re Brentford 4.Islesworth Tramway Com- COMPANY pany (7) ; Swantiea Improvement Company's Case (8) ; THE Louisville Railway Company v. The Louisville City QUEEN. • Railway Company (9) ; Clement v. The City of Cin-Argnanen t oY C ou n sel. cinnati (10) Williams v. The City Electric Ry. (11) : Matson v. Baird (12) ; Doughty v..Firbank (13) ; The Birmingham Mineral Railway Co. v. Jacobs (14) ; Commonwealth v.' Central Passenger Railway Co. (15). Then, in order to find the intention of Parliament in regard to the exclusion of rails such as these in question from free importation under item 173 of the Tariff Act, I refer the attention of the court to a state-mentmade by the Finance Minister, during the passage • o f the free item through the House, to the effect that tramway " was intended to include " street railway." (He cites on this point Hardcastle on Statutes (1.6) ; Reg'. y. Bishop of Oxford (17) ; South Eastern Rai l • way Co. v. The Railway Commissioners (18) ; Best on Evidence (19) ; Taylor on Evidence (20) ; Brant Y. Mid- land Railway Co.(2l.) ; Hill v. East and West India Dock Co. (22) ; Smiles v. Belford (23) ; .Roots v. Snelling (24) ; Mersey Docks y. Lucas (25) ; Mayor of Southport y Morris (26) ; Woodward v. London 4. North Western Railway (1) Sec. 880. (14) 92 Ala. 187. (2) P. 2. (15) 52 Nun. 506. (3) Pp. 4, 5, 6, 7 and 15. (16) P. 143. (4) P. 289. (17) 4 Q. B. D. 525. (5) P. 248. (18) 5 Q. B. D. 236. (6) P. 1. (19) 7th ed. 231. (7) 26 Ch. D. 527. (20) 8th ed. 61. (8) [1892] 1 Q. B. 357. (21) 2H.&P.89. (9) 2 Duv. 175. (22) 9 App. Cas. 448. (10) 16 W. L. Bull. 355. (23) 1 Ont. App. 436. (11) 41 Fed. Rep. 556. (24) 48 L. T. 216. (12) 3 App. Cas. 1082. (25) 8 App. Cas. 902. (13) 48 L. T. 530. {26) [1893] 1 Q: B. "359.
266 EXCHEQUER COURT REPORTS. (VOL. IV. 1894 Co. (1) ; South Eastern Railway v. Railway Commis- THE sioners (2) ; Hickman v. Birch (8) ; The Dunelm (4) ; TORONTO Wandsworth v. The United Telephone Company (5) ; RAILWAY COMPANY Fleming y. The Toronto Street Railway (6). v. THE C. Robinson, Q.C., replied. (He cited The Queen v. QUEEN. The Bishop of Oxford (7) ; South Eastern Railway V. Ar gument Railway Commissioners (8) ; Julius y. Bishop of Oxford of Counsel. (9) ; Rankin v. Lamont (10) ; Bray v. Justices of Lancashire (11) ; Endlich on Statutes (12) ; Sutherland on Statutory Construction (13) ; Warrington y. Furbor (14) ; The Queen v. The J. C. Ayer Co. (15). THE JUDGE OF THE EXCHEQUER COURT 11.0W (October 29th, 1894) delivered judgment : The plaintiff company operates a street railway in the city of Toronto. At different times in the years 1891, 1892 and 1893 it imported steel rails, weighing sixty-nine pounds per lineal yard, to be used in relaying and extending the tracks of its railway there. On such rails there was paid, under protest by the company, customs-duties amounting to some fifty-six thousand dollars, which it now seeks to recover from the Crown. During the years mentioned the Duties of Customs Amendment Act, 50-51 Viet. ch. 39 was in force. By the 88th item in the first section of that Act a duty of six dollars per ton was imposed upon "iron or steel railway bars and rails, for railways and tramways, of any form punched or not punched not elsewhere specified." By the second section of the (1) 3 Exch. D. 121. (8) 5 Q.B.D. 217 ; 6 Q.B.D. 586. (2) 6 Q. B. D. 586. (9) 5 App. Cas. 214. (3) 24 Q. B. D. 172. (10) 5 App. Cas. 44. (4) 9 Prob. D. 171. (11) 22 Q. B. D. 484 ; 8 App. (5) 13 Q. B. D. 920. Cas. 501. (6) 37 U. C. Q. B. 116. (12) Pp. 41 and 479. (7) 4 Q. B. D. 245, 525 ; 5 App. (13) P. 384. Cas. 214. (14) 8 East 242. (15) 1 Ex. C. R. 270.
VOL. IV.] EXCHEQUER COURT REPORTS. 261 Act (item 173) " steel rails, weighing not . less than 1894 twenty-five pounds' per lineal yard, for use in rail- T way tracks " were made free of duty, and the ques- TORONTO AIrwAY tion to be answered is : Does the term " railway " in COMPANY this clause include a street railway or not ? THE The first Act by which duties of Customs were QUEEN. imposed, passed after the Union, came into force on it, f n o or r n. the 13th of December, 1867. From that date to March,J"danent. 1879, " railway bars " were not dutiable (1). In the latter year an Act was passed to alter the duties of Customs and Excise (2), one object of which was, as every one knows, to afford a measure of protection to Canadian products and manufactures. By this Act a duty of fifteen per centum ad valorem was imposed upon " iron rails or railway bars for railways or tram-ways," and ten per centum ad valorem on steel " railway bars or rails " to be levied on and after the 1st,of January, 1881 (3). The date upon which the duty would be leviable on steel railway bars or rails was extended from time to time (4) until 1883 when they were placed upon the free list (5). The only other change which it is material to notice occurs in the Act of 1885, when the item under which steel railway rails were admitted free of duty was so amended as to ,read as follows :—" Steel railway bars or rails not including tram or street rails (6)." Now it is clear that the expression " railways and tramways " in the 88th item of 50-51 Vict. ch. 39, sec. 1, by which, as we have seen, a duty of six dollars per ton was imposed on iron and steel railway bars and rails not elsewhere specified, included street railways. (1) 31 Vict. c. 7, Schedule C ; 1881 pp. 67 and 69 : 1882 pp. 69 and 31 Vict. c. 44, Schedule C. and 70. (2) 42 Viet. c. 15. (5) Acts of 1883 p. 156. (3) Acts of 1879 pp..127, 133 (6) Acts of 1885 p. 148. See and 141. also R. S. C. c. 33, items 217 and (4) Acts of 1880 pp. 64 and 66 ; 770.
268 EXCHEQUER COURT REPORTS. [VOL. 1V. 1894 There may he a difference of opinion as to whether T they were so included by force of the word " railways," TORONTO or of the word " tramways "; but that they were RAILWAY COMPANY covered by the language used was conceded by Mr. v. Robinson, and does not, I think, admit of any doubt. THE QUEEN. steel rails for street railways were dutiable then at Re f a o so r n,' the rate of six dollars per ton unless they were in the Judgment. Act elsewhere specified. It is contended for the plaintiff company that they were so specified in item 173 which makes free " steel rails," of not less than a given weight, " for use in railway tracks." It is obvious that under the amendment of 1885 rails for street railways were dutiable ; but it is pointed out that apt words were then used to indicate the intention of the legislature. Steel railway bars or rails in the schedule of free goods were not, it was then provided, to include " tram or street rails." In the Act of 1887 these words were omitted, and it is argued that the change of language must be taken to import a change of intention on the part of the legislature, and that the only fair conclusion is that the word " railway " in item 173 of the Act of 1887 was used to denote railways generally, including of course street railways. The terms " railway " and " railways " in their largest sense include no doubt all classes of railways. Commonly, however, they have a narrower signification, and if anyone desired to refer to a tramway or to a marine, ship, electric, street, or other railway, he would, I think, ordinarily use the word tramway or prefix the appropriate qualifying term. If he should use the word railway without any qualifying words. or circumstances, he would, I think, be taken to mean one of the ordinary railways of the country which transport passengers and freight, and upon which, in general, locomotive engines have hitherto been in use. Not that the use of steam as a motive power is an
VOL. I.V.] EXCHEQUER COURT REPORTS. 269 essential incident. Such railways would, I think, be 1894 railways in the same sense of the word, if electricity T were substituted for steam. In the same way a street TORONTO RAILWAY i railway would be none the less a street railway al- COMPANY though it should be operated by locomotive engines. . TV E Confining the attention for the moment to the words QUEEN. used in the 88th and 173rd items of the Act of 1887, Rea ons for and reading the two items together, it would appear Jndginenf. that the words " railways " and ." railway " are not therein used in a sense large enough to include tram- ways. The use of the latter word in the 88th item would seem to make that tolerably clear. But what are the tramways that are not to be understood as being railways within the meaning of the clauses that have been cited ? In England, the word tramway " includes and is generally. used to denote a street rail- way. It is of course a larger term. There are tram- ways which are not street railways, but all street railways are tramways within the meaning of that , term as commonly used in that country. The word has also found its way into the French language, with, I think, substantially the same meaning (1). In Canada the word is sometimes, though not generally, used to designate a street railway. When so used no one has, I think, any difficulty in knowing what is meant, and among importers of rails there are, I should think, few if any persons who do not know that tram- way rails include rails for street railways. It will have been observed, however, that in the Act of 1885, in the item under which "steel railway rails" were made free of duty, it was declared in terms that the expression should not include tram or street rails, using both words, the second of which was clearly (1) Dictionnaire de Littré vo. vo. Tramway : — Dictionnaire de Tramway :—Diètionn air e de . l'A- Bescherelle, vo. Tramway. cadémie Française, 7ième edn., r
270 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 superfluous if the term " tram rails " included " street T rails." But for that circumstance I should have TORONTo thought that the word " tramways " in the 88th item of RAILWAY COMPANY the Act of 1887 included, and that the word " rail-y. THE way " in the 173rd item did not include, a street QIIEEN. railway. As the matter stands however, and if there He ôr ~ were no legitimate aids to assist in discovering the Judgment. intention of the legislature other than the language used in the Acts of 1885 and 1887, I should think the question to be, to say the least, so involved in doubt that the plantiffs should succeed in this action. But there are other considerations that lead, it seems to me, to an opposite conclusion. Among such considerations I do not include, and I do not rely upon, what was said by the Minister of Finance, when in 1887 he moved the House into Committee of Ways and Means, or in the debates that occurred when the resolutions on which the Tariff Act of that year was founded,were before the Committee. I do not agree with Mr. Hodgins that that is permissible, except perhaps so far as the resolutions and the debate show, what may, I think, be gathered from the Act itself, that one object which the legislature had then in view, was to give a larger measure of protection to the production and manufacture in Canada of iron, and the products of iron. In construing a statute relating to the revenue, one must, I think, have regard to the general fiscal policy of the country at the time when the statute was enacted. That may be a matter of common knowledge, or of history ; and if of history, he who seeks to know the truth must go to the sources of history, and they, so far as the fiscal policy of a country is concerned, are to be found not only in Acts of Parliament but in the proceedings of Parliament and in the debates and discussions that take place there and elsewhere. But that is a different matter from construing a particular
VOL. IV.] EXCHEQUER COURT REPORTS. 271 clause or provision of a statute by reference to the in- 1894 tention of the mover or promoter of it, expressed while TEE the Bill or the resolution on which it is founded was TORONTO RAILWAY before the House. The latter course is one which COMPANY under the rules governing the construction of English THE statutes one may not adopt. QUEEN. The primary object of an. Act imposing duties of Re isons • fo Customs is ordinarily, of course, to raise a revenue r enc. But that was not, I think, the end which the legislature had principally in view in imposing a duty on railway rails whether of iron or steel. Its`main object was apparently to encourage the production and manufacture in Canada of iron and steel. But a protective tariff 'is of necessity, a complex affair. The finished product of one .man's labour is the -raw material which another uses in the industry in which he is engaged. A tariff in which the protection of the labour of the country is an element, must consist of a series of adjustments. To ascertain the particular adjustment aimed at will often afford a key to the construction of the language used in such a tariff. That is one thing. Then it happens sometimes that there are other interests to be guarded, or promoted; and here again there must be a compromise or an adjustment. For instance, during the time when. what was called the national policy was being developed, there was in Canada great activity in the construction of railways, and that activity was stimulated by Parliament by large subsidies in money or grants of land or by both. I do not refer especially to the Canadian Pacific Railway, but to a great number of other railways. In the Act of 1882, authorizing such subsidies, we find the names of four lines of railway (45 Vict. c. 14) : in the Act of 1888, eleven (46 Vict. c. 25) : in the Act of 1884, twenty-five (47 Vict. c. 8) : in the Act of 1885, seventeen, (48-49 Vict. c. 59) : in the Act of 1886,
272 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 thirty-one (49 Vict. c 10) : and in the Act of 1887, thirty-THE eight (50-51 Vict. c. 24). An examination of the several TORONTO Acts will show, too, that the bounty of Parliament and RAILWAY COMPANY the aids granted by it during the years mentioned, V. THE were not limited to railways and railway undertakings QUEEN. within its legislative authority. Railway companies Season* incorporated by Acts of the several provinces were for Judgment. also the object of that bounty and received such aid in prosecuting the enterprises for which they were created. But it will be observed, and I think it is important to observe, that in no case was any aid given by Parliament to any street railway. Coming back then to the 173rd item of the Act of 1887 respecting duties of Customs, let us see if in the light of what has been said, it is possible to discover the intention of Parliament. In the first place rails to have been free of duty must have been made of steel. Iron rails were, and had since 1879 been dutiable. Then in the second place they must have weighed not less than twenty-five pounds per lineal yard. Why ? Because steel rails of a light weight were then being made in Canada, and Parliament desired to protect and foster that industry. But why make steel rails free at all ? Why not, as proposed in 1879, put a duty on them and encourage their manufacture in Canada? Because at this point two policies came into conflict and Parliament did not wish to impose any such burdens upon those who were with its aid, constructing new railways, or without it maintaining or extending lines of railway already built. That consideration did not however apply to tramways or street railways. In the Act of1885 they had been expressly excepted from the benefits arising from the importation of rails free of duty. The amendment of that year was intended, I think, to remove doubts that may have arisen as to the proper construction of the Act of
VOL. IV.1 EXCHEQUER COURT REPORTS. 27a 1883. I do not think that the words " steel railway bars 1894 or rails" on the free list in the latter Act were intended THE to include steel rails for tramways or street railways. RAi way But doubts may have arisen and the Act of 1885 COMPANY quieted them. I admit that when we come to the Act THE of 1887, a difficulty is created, and some doubt, by 'not* QUEEN" continuing the very explicit and clear language of the Seasons for Act of 1885. That, under the circumstances, does not ;judgment- appear to me to be conclusive, and I see no other indication of an intention on the part of Parliament in 1887 to alter its policy in the direction of enlarging the free list, and of making rails for use in street railway tracks free. On the contrary, 'the railways. referred to in item. 173 of the Act of that year were,. it seems to me, railways of the same class as those which had hitherto been the objects of the care and bounty of Parliament ; and street railways were not,. it is clear, of that class. I have been referred to a considerable number of' authorities, which I have examined with some care,. but there is nothing in any of them, I think, which stands in the way of arriving at the conclusion that I have stated. Possibly I should except the case of Ex parte Zebley (1). A majority of the Supreme Court. of New Brunswick in that case, (Allen, C.J., Wetmore,. Palmer and Fraser, JJ., Tuck, J. dissenting, and King, J. taking no part) held that The Saint John City Rail- way Company, which operates a street railway in that City, is a railway company within the meaning of the Act of the Assembly of that Province, 33 Vict. c. 46,. and exempt from Mtunicipal taxation under the pro- visions of that Act.. That was not, I think, a stronger case than this, and it is the decision of a court to, which every one, whether bound by its decisions or not, is ready to accord the highest respect and consid-- (1) 30 N. B. R. 130. i8
274 EXCHEQUER COURT REPORTS. [VOL. 1V. 1894 eration. It is, therefore, with great deference to the T E E opinion of the majority that I add that I think TORONTO Mr. Justice Tuck, who dissented, presented the true RAILWAY COMPANY view of the case. I do not see that any sufficient TRE answer was given, or can be given, to the reasons QUEEN. stated by him for the conclusions to which he came. Reasons for .Tudgment for the, defendant, with costs. Jadgntent. Solicitors for plaintiffs : Kingsmill, Saunders, Symonds & Torrance. Solicitor for defendant: F. E. Hodgins.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.