Nicholls vs. Cumming.

to the Court of Revision. The reasonable inference being if he was satisfied he need not appeal. I think the proper conclusion to arrive at in this case is that the assessment is good for the amount mentioned in the notice, and it being confirmed for a larger amount would not necessarily destroy it as to the amount for which the taxpayer himself shows it ought to have been confirmed. The fact that if the taxes were sued for, the certified copy of the Collector's roll would only be prima facie evidence of the debt, would seem to indicate that the Defendant might show that the debt was not due and, perhaps, go behind the assessment roll. When, however, we consider that the statute, under which these Plaintiffs were rated, was passed after the decision by a Court of competent jurisdiction as to the consequences of an omission to give the notice to the ratepayer required by the 23rd sec. of 16 Vic., c. 182 had been given (and that sec tion was in all its material parts re-enacted by the 48th section of the latter act), we, according to numerous authorities, are bound to hold that the Legislature meant to give the effect to the section which the court that considered it had given to it before it was re-enacted. If so, the notice under the 48th section is essential to a valid assessment, and the payment of the tax cannot be enforced by action or distress when it has not been given.

The notice given to these Plaintiffs was one which did not invite, or require, an appeal at their hands, and the amount could only be properly made or confirmed in accordance with it; otherwise the notice would be the means of lulling the ratepayer into security rather than enabling him to protect his rights.

If the assessor, after giving the ratepayer notice of the amount at which he was rated, discovered that he had

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assessed the property too low, he should have notified the party that he had altered the assessment as to him, and have given him another notice. I apprehend he could have done this before the time had elapsed for returning his roll, or, if after the return of the roll he had discovered that the rating was too low, at the instance of any municipal elector, a notice could have been given to the ratepayer under section 60, and then he could have been heard as to any increase of his assessment. In this way any errors could be corrected and the ratepayer be heard; otherwise, he might be made. to suffer from the negligence or fraud of the assessor, over whose appointment he had no control, and against whose improper proceedings he could not appeal.

The only case in which, it appears to me, a seeming injustice might be done in the view I take of the effect of the statute, is that an assessor might accidentally, in giving the assessment slip to the taxpayer, omit to insert the full amount of his taxable property and be unaware of the mistake, and so no means of correcting it would be afforded, and the taxpayer would, in that way, escape paying his fair share of taxes. This may occasionally occur, but I think it more consistent with justice that the fundamental rule which ought to prevail is that the provisions that the Legislature has made to guard the subject from unjust or illegal imposition should be carried out and acted on, though, at times, a ratepayer may escape taxation, rather than a single individual should be oppressively taxed without an opportunity of being heard against the illegal imposition.

It is said that the statute provides (1) that the Court of Revision may, when by reason of gross or manifest error in the roll as finally passed, any person has been (1) Section 62.

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overcharged more than 25 per cent. on the sum he ought to be charged, reduce the taxes. This is only permissive; it gives the ratepayer no right to have his case heard and decided on evidence to be adduced with an appeal to the County Judge, and is not the relief from being overcharged which the Legislature clearly intended to give him.

I have arrived at the conclusion that the Legislature required the notice of the amount of his ratable property to be served on the taxpayer by the assessor, in order that he might protect himself against any improper valuation of his property; that being one of the safeguards provided by the Legislature for the protection of the taxpayer, it is essential to the validity of the tax that it should be given and served in time to enable the party assessed to exercise the right of appeal against the rating by the assessors.

That the notice given in this case to the Plaintiffs, so far as it related to the assessed value of their property on the roll as returned, was not the notice required by the statute, and, as to the amount in excess of that mentioned in the notice, the notice is as if no notice had been given, and is void as to any such excess. That the rates and taxes charged against the Plaintiffs on the collector's roll on the amount of the excess of assessment cannot be collected from them.

I think this the proper conclusion to arrive at from the statute itself and the general principles of interpretation applicable to statutes of this nature. If there is any doubt that this is the proper construction of the statute, I think the legislative approval of the interpretation of the sections of the statute of 16 Vic. c. 182, by the judgment of the Court of Queen's Bench referred to, by substantially re-enacting those sections

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in the Ontario act, binds us to give the same interpretation of those sections (1).

It was argued before us, though not in the court below, that this action of replevin would not lie against the collector as the goods would be considered in custodia legis. No authority was shown to sustain that view. The cases referred to by the Plaintiffs shew this form of action has been frequently resorted to in Upper Canada, when it was intended to hold the collector had no right to seize property to satisfy taxes; and it has also been held that the collector in replevin was not entitled to notice of action. (2)

The collector, as well as the assessor, is appointed by the corporation; they are their officers, and though, under some circumstances, the collector might be entitled to notice of action, he is not like a sheriff, bound to execute the writ issued by the court, and for whose protection the writ is a sufficient warrant. If the pro

ceeding is wholly void, and the rate cannot be collected, the corporation must protect their own officers. It is more reasonable that they should do so than that a party should be illegally deprived of his property without remedy.

This appeal must therefore be allowed, the judgment of the Court of Appeal for the Province of Ontario reversed, and that of the Court of Common Pleas for the Plaintiffs on the demurrers affirmed; the Respondents should pay the costs of this appeal, and of the appeal from the judgment of the Court of Common Pleas to the said Court of Appeal.

Since writing the above, the statutes of the Province

(1) Mansell v. Regina, 8 E. & B., 73. Ex parte Campbell L. R. 5 Ch. Ap., 706. Regina v. Whelan, 28 U. C. Q. B., 43; (2) George v. Chalmers 11 M. & W., 149.

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of Ontario for the year 1877 have come to hand, and I find that by the 56th section of the statutes for the amendments of the law, cap. 8 of the statutes of that session, that the 61st section of the Assessment Act of 1869 is repealed, and another section substituted for it, which makes the final passing of the roll valid and binding on all parties concerned, "notwithstanding any defect or error committed in or with regard to such roll, or any defect, error or mistatement in the notice "required by section 48 of this act or the omission to "deliver or transmit a notice."

This amendment will probably prevent actions like the present being brought in future.

RITCHIE, J.

I think this is a jurisdictional defect invalidating the

tax.

The principle of the Common Law is, that no man shall be condemned in his person or property without an opportunity of being heard. When a statute derogates from a common law right and divests party of his property, or imposes a burthen on him, every provision of the statute beneficial to the party must be observed. Therefore it has been often held, that acts which impose a charge or a duty upon the subject must be construed strictly, and I think it is equally clear that no provisions for the benefit or protection of the subject can be ignored or rejected. Not to give a proper notice is a clear violation of the statute. To give a proper notice containing the details required by the statute is to place the party in a position, if dissatisfied with the assessment as indicated on the notice, to take the necessary steps which the