Nicholls vs. Cumming.

the taxable inhabitants in their townships, &c., and also all the taxable property within the same, its extent, amount and value. They were then to prepare an assessment roll and set down in separate columns the names of the taxable parties in the township, with the extent or amount of property assessable against each. They might demand of parties assessable a statement in writing of all their assessable property verified by oath, but the statement was not binding on the asses

sors.

By this change in the law, the assessors not only placed on the roll the property for which a party was liable to be assessed, but also fixed a value on it. The effect of this change was virtually to give the assessors power, according to their own unaided judgment, of imposing burthens which might be unjust on any taxpayer, and this might be done by design, or want of care or capacity to form a correct opinion as to value by the assessors. If this could have been done without notice to the parties who might be injured, it would be a proceeding frequently characterized in the books as being against the first principles of natural justice. As a general rule, no man's property or liberty, even in a judicial proceeding, however large the power given to the courts, can be brought in jeopardy, so that he may be said to be bound by it, unless he has had the opportunity of being heard. The framers of the statute of 1850 (1) were not unmindful of this rule, for by the 25th section of the statute it was enacted, that the assessors should, immediately after the completion of their roll, leave for every party a notice of the value at which his property had been assessed.

By the 28th section, if any person deemed himself (1) 13 & 14 Vic., c. 67.

Nicholls vs. Cumming.

overcharged by the assessors, he might, within six days after he received the notice, notify the clerk of the municipality of the overcharge, and the complaint was then to be heard by the Court of Revision, created under the same section of the statute, which court was to determine the matter, and affirm or amend the roll accordingly; and if two members of the municipality thought any member assessed too low, after reasonable notice to the party and the assessors, the matter was to be decided in the same manner as complaints by a party assessed.

Looking at these provisions, there can be no doubt they were reasonable ones, intended for the protection of the ratepayer, providing also for the protection of the public, when the amount assessed was too low, but making it necessary that the party should have notice. when it was intended to increase the amount of his assessment. Is this proceeding directory, or is it mandatory? Can any court properly say, that proceedings, which the Legislature has required should be taken to protect tax-payers from unequal or unjust taxation, may be dispensed with, by holding that they are directory, and, therefore, non-essential? I think not. On the contrary, I think reason and authority shew the proper rule to be, that provisions, intended for the security of the ratepayer, to enable him to know, with reasonable certainty, for what real and personal property he is taxed, and the amount, are essential conditions, and, if not observed, he is not legally taxed.

There are many authorities which shew, that provisions intended to regulate the manner of carrying out the system established by the statute, but which do not affect the rights of the taxpayer, are merely directory; and not strictly following them would not affect

Nicholls vs. Cumming.

the validity of an assessment, but I do not think they apply to the case before us.

This notice is the only one which the taxpayer receives. Under the statute of 1850, the copy of the roll was not required to be put up in some public place within the municipality, as it was by the 25th section of the statute of 1853 (1), nor does it appear that any public notice of the sitting of the Court of Revision was required to be given under the former act. Reasonable notice of the sitting of the court is to be given to the complainant.

With these provisions in the act of 1850, I think there would be no doubt it would be held that the notice to be given by the assessor to the taxpayer, was essential to the validity of a tax If it were not, the taxpayer would be in no position to appeal to the Court of Revision; he had received no notice, and he must give notice of his intention to appeal within six days after receiving notice of his assessment As no public notice was required to be given of the sitting of the Court of Revision, he would not know when that court was to sit. He would be compelled, if a farmer seldom visiting the place where the meeting of the Court of Revision was held, to enquire, from time to time, when this court would sit; which would impose a burthen, I think, never contemplated by the Legislature.

If two members of the municipality thought any party assessed too low, then the court might revise the assessIf then the notice of the assessment would be considered necessary to a valid assessment, in the view so far taken of the statute of 1850, would the following words in the 28th section of the act require that it should be held to be only directory and (1) 16 Vic., c. 182.

Nicholls vs. Cumming.

not essential to a valid rate, viz : " and the roll, as finally

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66

passed by the said Court and certified by the clerk as so passed, shall be valid and shall bind all parties concerned, notwithstanding any defect or error committed in "or with regard to such roll."

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These words, it is said, are sufficient to cover all omissions and make the roll so certified absolute.

It has, however, been held, and, undoubtedly, correctly held, that when property is exempt from taxation, the putting of it on the roll and the confirmation of the roll by the Court of Revision, does not bind the party assessed. Nor when the party resides out of the municipality and has not requested his name to be inserted on the roll for unoccupied land (1). These are exceptions, and it seems to me, that the notice to the tax-payer is so essential an element in the imposition of a valid tax that its omission ought to be considered quite as fatal as where there is no jurisdiction to tax at all. Although by that statute notice was not required to be given before the completion of the roll, it was essential to be given before the roll should be held valid and binding on all parties concerned.

It was argued that if the clause requiring notice was essential to the validity of the rate, and would be so held if it stood uncontradicted, yet the section declaring the roll as finally passed to be binding was a subsequent one and the last legislative declaration of the law, and was, therefore, binding and over-rode the former section. We must, if possible, give effect to both sections. We make the revised roll conclusive if we hold, as has been decided (2), that when a party is assessed as owner, who is a tenant or occupier, and who omits to appeal,

(1) Municipality of Berlin v. Grange, 1 Grant, Er. & Ap. R., 279; (2) Mc Carrall v. Watkins et al., 19 U. C., Q. B., 248.

Nicholls vs. Cumming.

yet is bound by the assessment, and when if on an appeal the Court of Revision or County Judge makes an erroneous decision and holds that real estate is personalty, as in the Niagara Falls Suspension Bridge Co., v. Gardner (1), yet the roll as finally revised is binding. It is probable the omission to certify the roll by the assessor, or to verify the certificate by affidavits or some mistake in the date of the certificate or affidavit, would not invalidate the roll, if these mistakes, errors or omissions did not deprive the taxpayer of his right to appeal, or of having the reasonable time required by law to do so; they may be properly considered as covered by the words referred to, and so both the sections have proper operative effect.

In 1853 the act of 1850 was repealed (2) and many of its important sections re-enacted and amended. During the same session the statute relating to the registration of votes (3) was passed, and the machinery of the assessment law was adapted to carry that system out, and this rendered alteration necessary in some of the sections to which reference will be made.

The provisions as to the assessors ascertaining the owners and value of the real and personal property and entering the same on a roll were re-enacted. But this important change was made with regard to the time of serving the notice on the party of the assessment of his real and personal property by the assessors; that notice, under section 23, was to be given before the completion of the roll, and the certificate appended to the roll was to be verified upon oath, or affirmation, and the certificate, in addition to what was contained in that required by the statute of 1850, was to state that they had entered the names of the freeholders and householders, with the

(1) 29 U. C. Q. B., 194; (2) 16 Vic., c. 182; (3) 16 Vic., c. 153.