VOL. IV.1 EXCHEQUER COURT REPORTS. 2'75 ANGUS SINCLAIR AND WILLIAM 1894 DOHENY. SUPPLIANTS ; Oct. 29. AND HER MAJESTY THE QUEEN. ...RESPONDENT. Customs-duties—R. S. C. c. 32 sec. 13-50-51 Vict. c. 39, items 88 and I73—Steil rails imported for temporary 'use dwring construction of railway—Rate of duty. Steel rails weighing twenty-five pounds per lineal yard to be temporarily used for construction purposes on a railway and not intended to form any part of the permanent track cannot be imported free of duty undér item 173 of The Tariff Act of 1887 (50-51 Vict. c. 39). 2. In virtue of clause 13 of The Customs Act (R. S. C. c. 32) the court held that such rails should pay duty at the sanie rate as tramway rails (under 50-51 Vict. c. 39 item 88) to which of all the enumerated articles in the Tariff they bore the strongest similitude or resemblance. THIS was a petition of right for the return of certain moneys alleged to have been improperly paid in respect of customs-duties. The facts of the case are stated in the reasons for judgment. The case was heard at Montreal on 22nd March, 1894. W. P. Sharpe for the suppliants ; W. D. Hogg, Q.C., for the respondent. THE JUDGE OF THE EXCHEQUER COURT , nOW (October 29th, 189 4) delivered judgment. The suppliants were contractors for the execution of certain works connected with the double tracking of a portion of the Grand Trunk Railway. To facilitate the work of widening the permanent way of that railway, they, from time to time, laid down alongside thereof a temporary track or way on, which were 18%
276 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 hauled, with horses, cars loaded with material taken SINGA IR from the excavations. As one piece of work was finish- THE ed the rails on such temporary track or way were QUEEN. taken up and used for a like purpose on another portion of the railway, and so on. during the progress Judgfment- of the work. For the purpose of making these tem- porary tracks or ways, the suppliants, in the year 1891, imported a quantity of steel rails weighing twenty-five pounds per lineal yard. They were not intended for use in the permanent track or way of the Grand Trunk Railway or of any railway. They were too light in weight to be useful for that purpose, and they were in fact never so used. The suppliants, in the first instance, passed the rails through the Customs as being free of duty. Subsequently they were called upon to amend their entries and to pay duty. This they did under protest, and they now bring their petition to recover the amount of duties so paid ($1,276.87). At the time of the importation the duty leviable on steel rails for railways and tramways was regulated by the Act 50-51 Vict. c. 39, to amend. the Act respecting the duties of Customs. By the first section of the Act, item 88, a duty of six dollars per ton ad valorem was imposed upon " iron and steel railway bars and rails for railways and tramways, of any form, punched " or not punched, not elsewhere specified "; and by the second section, item 173, it was provided that " steel " rails, weighing not less than twenty-five pounds per " lineal yard, for use in railway tracks " should be free of duty. The question to be decided is :—Were the rails in question for use in the track of the Grand Trunk Railway ? I am of opinion that they were not. This temporary track or way in which they were used may
VOL.. IV.] EXCHEQUER COURT .REPORTS. 27.7 or may not have been a tramway. I express no 1894 opinion on that point ; but it clearly was not a rail- SINO R way. It is equally clear that it formed-no part of the TxE permanent way owned by the Grand Trunk Railway QUEEN. Company. The company owned, I assume, the way Reasons on which the rails were by its license laid for a tem- aud aftent. porary purpose ; but it had no right or interest in the rails, which remained the property of the suppliants, to be by them removed. The rails were. undoubtedly imported to be used, and they were used, in the construction of a railway track in. the same sense that the shovels and picks and other tools and appliances used by the men employed by the suppliants were so used, but they were not for use in the track either of the main line or the sidings of the railway. That was not either their immediate or ultimate destination. There may be some question as to whether they were rails for a railway or tramway, at all .within the meaning of the 88th item referred to. If the words " for railways or tramways " in that provision are not merely descriptive, but indicate the use to which the rails'are to be put after importation, there may be some doubt whether the rails in question were dutiable under that provision of the Act. That perhaps would depend upon the character of the temporary -way laid down,—whether or not it was a tramway within the meaning of the Act. If not, then it might be that the rails were not dutiable under item. 88, but under the clause prescribing the duty on unenumerated articles. The difference is not great, but such as it is it would be in favour of the suppliants. I shall reserve leave to them to amend their State= ment of Claim, and to move for judgment for such difference, the motion to be made within thirty days.
278 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 If no such motion is made within that time there Si x cz A IR will be judgment for the respondent, with costs.* V. THE Judgment accordingkii. QUEEN. Solicitor for suppliants :—J. S Hall, jr. Reasons Jud g r ment. Solicitors for respondent :—O'Connor, Hogg 4. Bald-erson. * NOTE :—On the 28th Novem.-Mr. May reads from eonclud- ber, 1894, the suppliants moved in ing clauses of judgment : " I shall pursuance of the leave reserved. " reserve leave to them to amend The following is a transcript of " their Statement of Claim, and the stenographic report of the " to move for judgment for such motion : " difference, the motion to be A. F. May in support of ni.3 tion. " made within thirty days. W. D. Hogg, Q.0,, contra. - " If no such motion is made Mr. May: This is a motion to " within that time there will be amend the petition of right under " judgment for the respondent, leave reserved in your lordship's " with costs." judgment, and to move for judg- (THE JUDGE OF THE EXCHEQUER ment for the difference between COURT : That only reserves leave the duty on the rails that were to amend and to move for judg-seized under item 83 of the Tariff ment. 1 did not give judgment Act and that which would be pay- on the amendment. The clause able under the clause that pre- now referred to by Mr. Hogg was scribes the duty on unenumerated not relied upon at the trial. It is articles. I now move under the raised now for the first time). reserve. Mr. Hogg : I submitted at the (THE JUDGE OF THE EXCHEQUER trial that it was a tramway, and COURT : What have you to say, still do so. It embraces all the Mr. Hogg ?) elements of a tramway. Mr. Hogg: If I have the right to (THE JUDGE OF THE EXCHEQUER do so now, I would submit that COURT : The suppliants claimed under the similitude clause of The the rails were used for railway Customs Act (R. S.C. c. 32 s. 13) the tracks. I was of opinion at the similitude which these rails, look- trial that they were not). ing at the use to which they were Mr. Hogg : The mere question put, bear is that of tramway rails, of permanency cannot be taken but as your lordship has given into consideration here, because judgment I don't suppose it is that would make against their open for me to argue this point. character as a " railway " as well (THE JUDGE OF THE EXCHEQUER as against their character as a COURT ; I have not given judg- "tramway." The rails were never ment upon the amendment. I used for a railway in the proper have merely given leave to sense of the term. They were amend.) used for the carriage of dumping.
VOL. IV.1 EXCHEQUER COURT REPORTS. 279 ears in construction work. They incorporated company having 1894 might have been here for one power to do so. The rails should .~., month and away the next week. therefore be considered as con- SINCLIAR But there is this to be said about tractor's tools such as derricks, Tin their permanency that they were &c. QUEEN. permanently used for tramways (THE JUDGE OF THE EXCHEQUER during the whole construction, in COURT : But what do you say as Ite ns tôr one place or another. It seems to the clause of The Customs Act Judgment. to me to be a case as near a tram- on which Mr. Hogg relies ?} way as you can get with the ex-Mr. May reads clause 13. "On ception of permanency, and I "each and every non-enumerated submit under the similitude "article which bears a similitude, clause in The Revised Statutes " either in material or quality, or . (Clause 13 of The Customs Act) that " the use to which it maybe appli-as they could be used for tramway " ed, to any enumerated article purposes they must be rated for "chargeable with duty, the same duty in the same way that rails to " rate of duty shall be payable ' which they bear the closest resem- " which is charged on the enumer- blance are rated. Your lordship " ated article which it most resin your judgment holds that whe- " em[bles in any of the particulars therit was a tramway or not would, " before mentioned." perhaps, depend upon the char-(THE JUDGE OF THE EXCHEQUER acter of the temporary way laid COURT : The rails in question in down. T was under the impression • this case bear at least a similitude that all the elements of a tramway to rails for tramways in material were there. • and quality as well as in respect (THE JUDGE OF THE EXCHEQUER of the use to which they were ap-COURT : I did not intend by my plied.) judgment to express any opinion Mr. May : As to the question one way or another whether the of what value should be taken as duty had been properly levied or the value for, duty, I might say not.) that the statute directs that it Mr. May : I submit to your shall be the cost price at the place lordship that the rails in question where the goods are exported. Here should not be charged for duty the Customs' officers have added. under the rate provided for trans- the freight and insurance on the ways. These rails were moved goods to the cost price. The in-about from place to place as they voice shows this, were required on construction, THE JUDGE OF THE EXCHEQUER and were simply part of the con- COURT : That question was not tractor's tools or utensils. These raised or reserved, and you cannot parties were engaged in double- go into it now. The leave reserved tracking the Grand Trunk Rail- to you in the judgment does not way. In putting down these tent- cover that. I will allow the sup-porary doiible tracks they had no pliants to make the amendment right to make a permanent way and you will have the advan-' so far as we know, and it is fair tags of it in case of appeal, but to assume that they had no right there will be judgment for the to lay down. a "tramway" as we respondent with cysts. understand it. They were not an Judgment accordingly.
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.