Palmer and Collier to Cardwell
Lincolns Inn
November 25. 1864
We are honored with your commands, signified in Mr Elliot's letter of the 29th of October, ultimo, requesting that we would favor you with our opinion on the following point.
Mr Elliot was pleased to enclose the Copy of a DespatchreceivedManuscript image received from the Governor of Vancouver's Island, enclosing with other papers the Copy of an Act passed by the Legislature of that Colony.
Mr Elliot was also pleased to state that the 24th clause of that Act appeared to be intended, subject to certain restrictions, to enable the City of Victoria to tax the inhabitants of that City of which the limits are defined in the first clause.
That the Council would appear to have imposed some license duties in virtue of this law, and inter alia to have imposedaManuscript image a tax on "Barristers at Law." That the legality of this tax had been disputed, and the Chief Justice, in a Judgment of which a copy was enclosed in the Governor's Despatch, decided it to be illegal.
Mr Elliot was further pleased to add, that the Chief Justice is a Gentleman of ability who has not received a legal Education; and further stated, that he was directed to ask, whether in our opinion the 24th clause of the "Act to incorporate the City of Victoria" confers on the City Council any power of taxing the Inhabitants of that City.
WhetherManuscript image
Whether that power is subject to any limits, by construction of law, or otherwise, besides those expressed in the provisoes to the Clause; and, if so, what those limits are—whether, in particular, that power extends to imposing a tax on the profession of Barristers?
In obedience to Your commands, we have taken this matter into consideration, and have the honor to Report
That, owing to the peculiar manner in which the 24th section of the Act in question is expressed, it is by no means easy to define the extent of thepowerManuscript image power thereby conferred.
But, according to the best judgment which we have been able to form, we think, that a limited power to tax the inhabitants of the City of Victoria is conferred, by that section, upon the City Council.
The words do not define, either the persons liable to be taxed, or the subjects of taxation: but they refer to the power of making byelaws, given by a former (the 20th) section, for certain purposes; and they declare that, by a byelaw, to be passed and confirmed as is mentioned inthatManuscript image that section, "the Council may direct in what manner the funds required for the municipal purposes may be raised."
Postponing the question, how far the interpretation of this power is aided by the provisoes which follow, we think, that these words, if they stood alone, would confer upon the City Council, not a general and unlimited power of taxation, but a power incidental to, and limited by, the other powers and authorities previously vested in them for "the municipal purposes," and capable of being exercised with respect tothoseManuscript image those persons, and those subjects only, which were thereby placed under their control, administration, and Government. In other words, we think, that any byelaw for taxation, under the 24th Section, ought to be confined, in its operation, to matters within the scope of the general power of making byelaws, contained in Section 20.
So interpreted, the Council might lawfully pass any byelaw for levying street tolls, market tolls, highway rates, drainage and sewage rates, rates on houses and land within themunicipalManuscript image municipal limits &c &c. But it could not lawfully impose a personal poll-tax, or a tax upon trades or professions, because the 20th section does not invest it with any power over persons generally, nor enable it to create monopolies, or to make the exercise of trades and professions subject to exclusive licences.
We think, that this is the true principle of interpretation by which the limits of the power must be ascertained: and we are confirmed in that view by the promises which follow. It was evidently considered,thatManuscript image that freehold and leasehold property within the city, (which constitutes the qualification for voting at Municipal elections) would be taxable under the power; as, according to our view, it would be; because such property receives direct benefit from the charter and from all the powers to be exercised by the council under the 20th section; more especially those, which relate to highways, &c, to drainage and sewerage, to precautions against fires, and to landmarks in the City. On the other hand, the exclusion of a power to impose"anyManuscript image "any tax in the nature of a tax upon personal estate," (which was not superfluous, as it might have been contended, that personal as well as real property within the City derived direct benefit from some of the powers conferred by section 20), seems to us altogether inconsistent with the supposition, that it was intended to give a power large enough to authorize a capitation tax, or a tax upon trades and professions. The exclusion of "ships, shipping, or passengers," is not according to our view, unnecessary: because "the Regulation of the trafficwithinManuscript image within the City" (section 20) might well be construed to include the regulation, not only of the traffic by land, but also of the water-traffic within the municipal boundaries.
We think, therefore, that the power in question is subject, by construction of law, to other limits, (the nature of which we have endeavoured to explain,) besides those expressed in the provisoes to the clause: and we think, that it does not enable the City Council to impose any tax on the profession of Barrister.
We have the honor to be,
Sir,Manuscript image Sir,
Your most obedient
humble Servants
Roundell Palmer
R.P. Collier
Minutes by CO staff
Manuscript image
VJ 25 Novr
Send to Govr with the observations suggested in the 3rd par. of my minutes upon 9629/1864 Victoria.
FR 25/11
EC 26
Other documents included in the file
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Draft, Cardwell to Kennedy, No. 63, 29 November 1864 forwarding "certain papers relative to the powers of taxation" in Victoria.