Nicholls vs. Cummuig.

notice points out to him for having the amounts put forward investigated and rectified. The right to have such a notice is a substantial privilege and to deprive a taxpayer of it and enrol an assessment against him of which he had no notice is a substantial wrong. To give, as was done in this case, a notice with details and amounts unobjectionable to the taxpayer and subsequently enrolling a different assessment against him, with items different from those furnished, and imposing a much heavier burthen on him, and against which he might and probably would have appealed had he had the notice the law provided he should have, is simply assessing him behind his back in a manner, in my opinion, not authorized by law.

It is a departure not only from the letter but from the spirit of the law. It is even worse than giving no notice at all; for every one must, in this age and country, know that if he has any property, he is bound to be taxed, and, not receiving the usual notice, a party might possibly be led to enquire why he did not receive his notice, but, having received a notice with which he has no reason to be dissatisfied, and which he has a right to assume is the notice to be acted on, he is lulled into a false security and placed in an entirely false position. I think the provision for the giving this notice cannot be considered merely directory. I think it is a condition precedent to the imposition of the tax and the statute required it to be done before the Defendants could become properly chargeable with the tax. As to the inconveniences which appear to have largely influenced the minds of the Appellate Court, I think they should have no weight whatever in a case of this kind. The argumentum ab inconvenienti, except in very doubtful cases,

Nicholls vs. Cumming.

is not of much weight, and certainly in a case such as this should not, I think, be permitted to sweep away a most substantial safeguard conceded by the Legislature to the subject before a burthen is imposed on him. If inconveniences such as have been alluded to would result from giving effect to the statute according to its plain provisions, then it is, in my opinion, for the Legislature to weigh the conveniences and inconveniences of the imposers of taxes on the one hand and the parties respectively to be taxed on the other, and if the taxpayer's privileges under the statute may lead to results too inconvenient, it will be for the Legislature to restrict or take them away altogether, but I do not think rights, substantial rights conferred by the Legislature, can be taken away by the courts.

The question raised for decision by this appeal, and which depends on the construction to be placed on two clauses of the Assessment Act of Ontario, passed in 1869 (1), is whether the Appellants, who were served with a notice in the form prescribed by sect. 48 of the act, that they were assessed for $20,900, are, by force of the 61st section of the same act, bound by the roll, as finally passed by the Court of Revision, on which the Plaintiffs are entered as assessed for an amount of $43,400. In other words, whether the provision of the 61st section, that the roll, as passed by the Court of Revision, shall be final and bind all parties concerned, notwithstanding any defect or error committed in or with regard to such roll, covers such an irregularity as an omission to give the notice provided for by section 48. (1) 32 Vic., c. 36.

Nicholls vs. Cumming.

I am of opinion that the Court of Common Pleas came to a correct conclusion, and that the judgment entered by order of the Court of Appeals should be reversed.

Aside altogether from the grounds on which the judgment of the Court of Common Pleas proceeded, the construction which the Appellants contend for, must, in my judgment, prevail.

It is a cardinal rule in the construction of statutes, that where a particular enactment has received a judicial interpretation, and the Legislature has afterwards re-enacted it, or one in pari materia with it, in the same terms, it must be considered to have adopted the construction which the Courts had applied. In Jones v. Mersey Docks (1), Blackburn, J., in giving his opinion to the House of Lords, says: "Where an act of "Parliament has received a judicial construction putting a certain meaning on its words, and the Legislalature, in a subsequent act in pari materiâ, use the "same words, there is a presumption that the Legisla"ture used those words intending to express the meaning which it knew had been put upon the same words before, and, unless there is something to rebut that "presumption, the act should be so construed, even if "the words were such that they might originally have "been construed otherwise." (2)

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In the case of The Municipality of London v. The Great Western Railway Company (3), the Court of Queen's Bench of Upper Canada were called upon to determine the identical point in question here, and it was there held that the omission to give the notice was fatal to

(1) 35 L. J., N.S., Mag. cases, p. 15; (2) See also Sturgis v. Darell 4 H. & N., 622; Maxwell on Statutes, pp. 234, 277. (3) 16 U. C. Q. B., 500.

Nicholls vs. Cumming.

the validity of the assessment. This was under the assessment Act of Upper Canada of 1853 (1).

There have, since this decision, been three re-enactments of the same provision, almost in the same words, viz., in the Consolidated Act of 1859 (2), in the Assessment Act of 1866 (3), and in that of 1869 (4), under which the present assessment was made. It is true, that The Municipality of London v. The Great Western Railway Company arose under section 21 of the act of 1853, and not under section 23 of that act, which corresponded to section 48 of the present act, but this could make no difference, as section 21 expressly provided that the notice required by it should be held to be the notice required by the 23rd section, a provision which has been carried through all the acts down to section 33 of the act of 1869, which refers in the same manner to section 48. This well established and useful rule would, therefore, have precluded any different construction, even if we had been of opinion that The Municipality of London v. The Great Western Railway Company had been wrongly decided.

I agree, however, in the judgment of the Court of Common Pleas, for the reasons given by Mr. Justice Gwynne, for, if the point had been for the first time raised in this case, I should have been of opinion that the clause in question was imperative and the notice required by it essential to the validity of an assessment, and I do not think there is any difficulty in demonstrating the correctness of this conclusion.

No one can deny that if section 61 were out of the way, section 48, standing by itself, must be construed as imposing an essential condition, making a notice indispen

(1) 16 Vic., c. 182; (2) Cons. St. U. C., c. 55; (3) 29, 30 Vic., c. 53; (4) 32 Vic., c. 36, 0.

Nicholls vs. Cumming.

sable to a valid assessment. The process of assessment is in the nature of a judicial proceeding (1) and, although the scheme of this, and of most other enactments of the same nature, differs from an ordinary judicial proceeding, even of the most summary character, in this, that the assessor first fixes the amount of the assessment, and then calls on the party assessed to bring forward his objections, it is still as much of the essence of the whole proceeding that the party should have an opportunity to object, and notice to enable him to do so, as it is in more formal proceedings, where, according to the usual and natural course of proceeding, the party to be affected is cited in the first instance (2).

Taxation is said to be an exercise by the Sovereign power of the right of eminent domain (3), and, as such, it is to be exercised on the same principles as expropriation for purposes of public utility, which is referable to the same paramount right. Then, it needs no reference to specific authorities to authorize the proposition, that in all cases of interference with private rights of property in order to subserve public interests, the authority conferred by the Sovereign-here the Legislature—must be pursued with the utmost exactitude, as regards the compliance with all pre-requisites introduced for the benefit of parties whose rights are to be affected, in order that they may have an opportunity of defending themselves (4). We find ample illustrations of this principle in the numerous cases which have been decided on acts of Parliament conferring compulsory powers to take lands, the property of private owners, for the purposes of

(1). Cooley on Taxation, p. 265; (2) Cooley on Taxation, p. 266 et seq.; (3) Bowyer's Public Law, p. 227; (4) Cooley on Taxation, supra; Maxwell on Statutes, pp., 333, 334, 337, 340; Noseworthy v. Buckland in the Moor L. R. 9 C. P., 233.