Palmer and Collier to Cardwell

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 Despatch 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 imposed 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.

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 the 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 in 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 to 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 the 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,
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 "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 traffic 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.