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AUDETTE, J. APRIL 5TH, 1913. ATTORNEY-GENERAL OF CANADA. V. L’HEUREUX.
Constitutional Law – Seizure of Liquor in Possession of Dominion Crown under Authority of Provincial Statute— Illegality—Notice of Action—Prescription.
(1) The provisions of the Quebec Liquor License Act (R. S. Quebec (1909), sec. 14, pt. 2, chap. 5, title IV.), are not binding upon the Crown in right of the Dominion of Canada. Hence, when a person enters a building of the Intercolonial Railway of Canada and seizes and carries away therefrom certain liquors constituting freight consigned to third persons he cannot justify such seizure and conversion by invoking the authority of the said Act.
(2) Want of notice under Art. 88, C. C. P. (P.Q.), in an action for damages against an officer, if not specially pleaded by the defendant may be raised at the trial, and evi. dence then adduced shewing that the requisite notice was in fact given.
(3) Prescription is not a matter coming within Arts. 2267, and 2188 C. C. P. (P.-Q.), and must be raised by the defence filed.
Newcombe, K.C., for the plaintiff.
AUDETTE, J. FEBRUARY 4TH, 1913. LAPOINTE, ET AL. v. THE KING.
Government Railway—Negligence — Fatal Injury to Workman—Brakesmen — Defective Coupling on Car—Knowledge of Defect—Acceptance of Risk—Unskilled Workman—Standard of Prudence—Liability.
T. was employed on the Intercolonial Railway as a brakesman. At the time of the accident whereby he lost his life he was one of the crew on a shunter-train working between dif
ferent stations along the line of the Intercolonial Railway in the Province of Quebec. The coupling device of one of the cars in this train was defective in that the chain connecting the pin and the lever was broken and disconnected so that the device would not act automatically. It is the practice of brakesmen to uncouple cars when the train is in motion by means of this automatic device. There are no rules or regulations of the road forbidding the work being done in this way. It was shewn by the evidence that the train hands knew that the coupling on this particular car was defective. The deceased was not a permanent employee and had not acquired that skill in coupling and uncoupling cars that more experienced brakesmen have. His attention was called by one of his fellow-workmen to the fact that the coupling was defective but notwithstanding this he undertook to uncouple the car while the train was in motion. Finding that he could not accomplish this with the defective device he went between the cars and attempted to do the work of uncoupling with his hands. He fell between the cars and the wheels passed over him injuring him fatally. Held, that T. had accepted the risk of making the coupling under the circumstances; and that the Crown was not liable. (2) If an inexperienced workman knowing from observation of his skilled fellow-workmen that a particular piece of work is hazardous if done in the method pursued by them, undertakes to so perform it, while another and less dangerous method is open to him, he is not observing a proper standard of prudence and ought not to be held blameless if any accident results from his lack of care.
LOCAL OPTION AND ITS EFFECTS.
This decision is the first of its kind, relative to the assess. ment of hotels where Local Option has come into force, and it will, therefore, be of interest to many of our readers—ED.
In the matter of appeal from the Court of Revision of the town of Clinton. Between :—
Jose PH RATTEN BURY AND THE Corporation of CLINTON. Joh N J. McCAUGHEY AND THE CoRPORATION OF CLINTON.
THOMAS Got LDEN PIKE AND Joseph E. REINHARDT AND THE CORPORATION of CLINTON.
J. S. Killoran, for appellants.
The appellants in each of the above-mentioned appeals, appeal against their assessment, on the grounds of (1), overcharge on land, and (2), that the appellants are not liable for business tax.” The appellants contend that the passage of the Local Option By-law, by the respondents, has reduced the value of appellants' hotel property to upwards of one-half its former value. A standard author, Weir, on Assessment Law of Ontario, at p. 130, says: “It is a popular error that the costs of the buildings, less proper allowance for wear and tear, and other deterioration, should be the assessed value. By “value of the land ’’ and “actual * value in this section is doubtless meant the market value, or the value as an asset of the owner's estate. Its “actual value, must, however, be mea. sured in dollars, and is not more than what within a reasonable time, and with due care, can be realized from the sale of it.” “Strictly speaking, the value of the land, as of any other commodity, is the price it will bring at the time it is offered for sale.” Squire qui tam Wilson, 15 C. P. 284. There is no doubt that the passage of the Local Option By-law in Clinton has most materially reduced the value of all hotel property there, if it has not made it wholly unsaleable. The appellants contend, and not unreasonably, that the by-law has reduced the value by one-half. It is a serious question whether any of these properties could now be sold, without their contents or fixtures (which are not assessable), for half the sum at which they are now assessed.
Yet, as shewn by the last cited case, the value of land is the price it will bring at the time it is offered for sale.
Adopting McCaughey's present valuation, for assessment purposes, of his hotel property, including stable and sheds, which I believe to be a reasonable estimate, I order and adjudge that the assessment of said property be, and the same is hereby reduced to $2,500; the rink property to remain at the sum at which it is assessed. There was evidence shewing that the hotel building is from fifty to sixty years old.
I order and adjudge that the hotel property, including the stable and sheds, of the appellant Joseph Rattenbury be and the same is hereby reduced on the assessment roll to $3,500. The buildings on this property are new, and the whole property is certainly worth $1,000 more than the McCaughey hotel property. And I also order and adjudge that the Pike Hotel property, including all of the buildings, be and the same is hereby reduced to $800. As to the business tax, assessed against these appellants when they were assessed, those three hotels were “licensed,” and properly assessable as “licensed hotels, for a business tax. But, subsequently, and before appeal, the Local Option By-law was passed by the respondents, which deprived the appellants of the opportunity to renew their license. The appellants are now all hotel keepers, but not “licensed,” and, therefore, they are not one of the class of persons mentioned in the Act as liable to business assessment. (See 4 Edw. VII., ch. 23, sec. 10 (1) (h) 1904). The only hotel keepers defined by that Act as liable to a business tax is “Every person carrying on the business of a & hotel in respect of which a tavern license has been granted.” No tavern license having been granted to any one of the appellants they are clearly not within the Act. In America “hotel ” has been held to be a synonym for “inn" (Cromwell v. Stevens, 2 Daly. 15).
“I agree that the words ‘hotel’ and ‘tavern' are undergoing a change in their meaning, there being temperance hotels and temperance taverns, as well as houses for the sale of excisable liquors” (per Chitty, L.J., Webb v. Fagotti, 79 L. T.s. 684). An inn or hotel may be defined to be a house in which travellers, passengers, wayfaring men, and other such like, casual guests are accommodated with victuals and lodgings, and whatever they reasonably desire for themselves and their horses, at a reasonable price while on their way (Stroud's Judicial Dictionary, 2nd ed., pp. 978 tit. ‘inn’ and cases cited), which also shews that neither a boarding house, restaurant, nor coffee house is an inn.” Inn, hotel, tavern, public-house, the keeper of which is now by law responsible for the goods and property of his quests, are treated as synonymous. (Eng. Act, 1863, 26 & 27 Vict. ch. 41.) “Taxing acts must be construed strictly, and any am. biguity will entitle the subject to be exempt from the tax." Weir's Assessment Law, p. 49, and cases cited, I order and adjudge that the “business tax” assessed against each of the appellants be and the same is hereby disallowed, and I order that it be struck out of the Assessment Roll. And I order the said Assessment Roll to be amended according to all of the said foregoing adjudications, The appellants, being all clearly entitled to succeed, I allow them their costs, which I fix as follows:–
To the appellant, Joseph Rattenbury . . . . . . . . . . . . . $1 25 To the appellant, J. J. McCaughey . . . . . . . . . . . . . . . . 1 25 To the appellant Joseph Reinhardt . . . . . . . . . . . . . . 1 25
And I order the said respondents to pay the said appellants the said sum awarded to each, respectively, in two weeks,
If necessary, execution may be issued from the Third Division Court of the County of Huron.