DENNISTOUN,
J.A.
(dissenting)
:—I
agree
with
the
reasons
for
judgment
of
my
brother
Robson.
The
Act
to
Impose
a
Special
Tax
on
Incomes
(Special
Income
Tax
Act),
1933
(Man.),
c.
44,
passed
by
the
Legislature
of
the
Province
of
Manitoba,
imposes
a
wage
tax
of
2%
upon
the
amount
of
all
wages
earned
or
accruing
due
to
employees
after
May
1,
1933.
The
defendant
is
an
officer
of
His
Majesty’s
Forces
holding
a
captain’s
commission
in
the
Princess
Patricia’s
Canadian
Light
Infantry,
a
regiment
which
is
part
of
the
Permanent
Militia
Force.
After
being
served
with
a
County
Court
writ
in
this
action,
and
before
trial,
he
was
transferred
from
Military
District
No.
10
at
Winnipeg
to
Military
District
No.
2
at
Toronto,
where
he
is
now
serving.
Judgment
has
been
given
against
him
for
$44.58,
being
2%
on
$2,229.50,
the
amount
of
his
pay
and
allowances
from
May
to
December,
1933,
made
up
as
follows:
|
Pay
received
in
cash
|
$1,626.80
|
|
Deduction
for
pension
dues
|
105.35
|
|
Deduction
under
Dominion
Income
War
Tax
Act
|
|
|
10%
|
154.35
|
|
Allowances
for
lodging,
fuel
and
light
in
married
|
|
|
officers’
quarters
in
barracks
|
343.00
|
|
$2,229.50
|
We
have
now
to
decide
whether
the
pay
so
received,
and
the
allowances
made,
are
"wages”,
within
the
meaning
of
the
provincial
statute,
and
subject
to
the
2%
tax.
The
statute,
sec.
2(l)(d)(ii)
specifically
mentions
certain
classes
of
persons
as
in
receipt
of
""wages”
who
obviously
would
not
be
considered
11
employees”
unless
expressly
declared
to
be
such.
They
are
members
of
the
Senate
and
House
of
Commons
of
the
Dominion,
members
of
provincial
legislative
councils
and
assemblies,
members
of
municipal
councils,
Judges
of
any
Dominion
or
provincial
Court,
all
of
whom
are
to
be
taxed
2%
on
the
amount
of
their
salaries,
indemnites,
or
other
remuneration.
It
will
be
noticed
that
officers
and
soldiers
of
His
Majesty’s
Forees
are
not
mentioned,
though
it
is
argued
that
the
final
words
of
the
section,
"‘and
of
all
persons
whatsoever,
whether
such
salaries,
indemnities,
or
other
remuneration
are
paid
out
of
the
revenues
of
His
Majesty
in
right
of
the
Dominion
or
in
right
of
any
province
thereof,
or
any
persons’’,
are
wide
enough
to
include
them.
In
my
view
these
general
words
do
not
make
taxable
the
pay
and
allowances
of
His
Majesty’s
Forces
for
several
reasons.
The
status
of
the
soldier
is
different
from
the
status
•of
those
specifically
named,
in
this
respect,
that
the
soldier
has
no
enforceable
contract
with
the
Crown
for
the
payment
of
wages
or
emoluments.
What
the
soldier
receives
is
the
King’s
bounty,
not
an
earned
wage,
and
no
one
but
the
King
can
interfere
with
it,
or
deprive
the
soldier
of
the
full
use
and
enjoyment
of
that
bounty.
The
King
in
relation
to
the
soldier,
is
the
King
in
right
of
the
Dominion.
The
organization
and
administration
of
Militia
and
Defence
is
committed
by
the
B.N.A.
Act
to
the
Dominion
alone,
by
sec.
91(7).
The
Dominion,
with
the
King’s
consent,
may
withhold
the
bounty
or
tax
it
at
pleasure,
but
the
King
in
right
of
the
Province
has,
in
my
judgment,
no
such
right:
To
attempt
to
do
so
is
to
derogate
from
the
King’s
prerogative
in
respect
to
his
troops
who
are
maintained
for
the
defence
of
the
whole
of
Canada
and
all
the
Provinces
thereof,
and
may
be
moved
from
one
Province
to
another
at
will.
That
the
pay
of
the
soldier
is
a
royal
bounty
and
not
enforceable
except
at
the
King’s
pleasure
is
clear
from
the
following
cases.
In
Williams
v.
Howarth
[1905]
A.C.
551,
the
Judicial
Committee
of
the
Privy
Council
considered
a
contract
made
by
the
Government
of
New
South
Wales
with
the
respondent
for
military
services
in
South
Africa
at
a
certain
rate
of
pay.
The
New
South
Wales
Government
deducted
from
the
pay
agreed
upon
certain
sums
which
were
paid
to
the
soldier
by
the
Imperial
Government,
and
he
sued
for
the
amount
so
deducted.
The
trial
Judge
held
that
there
was
no
evidence
that
the
Imperial
Government
purported
to
pay
on
behalf
of
the
local
Government
and
directed
a
verdict
for
the
balance
claimed.
The
Lord
Chancellor,
The
Earl
of
Halsbury,
in
giving
judgment,
said,
at
p.
554:
"
The
plaintiff
was
in
the
service
of
the
Crown,
and
his
payment
was
to
be
made
by
the
Crown.
Whether
the
money
by
which
he
was
paid
was
to
be
found
by
the
Colony
or
the
Mother
Country
was
not
a
matter
which
could
in
any
way
affect
his
relation
to
his
employer,
the
Crown.
"‘The
learned
Acting
Chief
Justice
in
giving
his
judgment
in
this
case
said:
‘The
King
has
no
concern
with
payments
for
services
rendered
in
this
Colony;
the
obligation
is
with
the
Government
of
New
South
Wales’,
and,
so
far
as
their
Lordships
can
understand,
this
is
the
ground
upon
which
the
judgment
rests.
But
with
great
respect
to
the
learned
judge,
this
is
entirely
erroneous.
The
Government
in
relation
to
this
contract
is
the
King
himself.
The
soldier
is
his
soldier,
and
the
supplies
granted
to
His
Majesty
for
the
purpose
of
paying
his
soldiers,
whether
they
be
granted
by
the
Imperial
or
the
Colonial
Legislature,
are
money
granted
to
the
King,
and
the
Appropriation
Act,
whenever
an
Appropriation
Act
is
passed,
simply
operates
to
prevent
its
being
applied
to
any
other
purpose.
‘
4
Under
these
circumstances
the
money
paid
was
money
paid
for
the
services
rendered
to
the
King,
and
no
other
payment
could
possibly
be
due
upon
the
contract
declared
on.
’
In
Mitchell
v.
The
Queen,
reported
in
a.footnote,
in
[1896]
1
Q.B.
121,
Lord
Esher,
M.R.
said
(p.
122)
:
"‘I
agree
with
Mathew
J.
that
the
law
is
as
clear
as
it
can
be,
and
that
it
has
been
laid
down
over
and
over
again
as
the
rule
on
this
subject
that
all
engagements
between
those
in
the
military
service
of
the
Crown
and
the
Crown
are
voluntary
only
on
the
part
of
the
Crown,
and
give
no
occasion
for
an
action
in
respect
of
any
alleged
contract.”
The
headnote
summarizes
the
judgment
in
these
words:
"‘No
engagement
made
by
the
Crown
with
any
of
its
military
or
naval
officers
in
respect
of
services
either
present,
past,
or
future,
can
be
enforced
in
any
court
of
law.”
In
re
Tufnell
(1876)
3
Ch.
164,
is
to
the
same
effect,
where
Malins,
V.C.,
at
p.
176,
says:
4
Nothing
can
be
more
clear
than
that,
now
that
Mr.
Tufnell
is
retained
on
half-pay,
if
the
Crown
thinks
fit
to
withhold
the
half-pay,
he
has
no
remedy
whatever,
but
is
entirely
at
the
merey
of
the
Crown,
and
by
no
petition
of
right
or
any
other
proceeding
can
he
enforce
the
payment
even
of
his
half-pay.
”
It
is
argued
on
behalf
of
the
Attorney-General
that
this
is
an
income
tax,
and
that
when
money
is
received
it
matters
not
where
it
comes
from
so
long
as
the
recipient
is
able
to
use
it
as
income,
but
the
words
of
the
statute
make
it
a
tax
on
wages
specifically,
and
impose
the
duty
on
the
employer
of
paying
it
before
the
money
reaches
the
hands
of
the
employees.
The
Crown
(Dominion)
has
ignored
this
provision
and
has
declined
to
become
a
tax
gatherer
for
the
Province.
It
is
a
matter
of
common
knowledge,
and
of
special
knowledge
on
my
own
part,
that
no
taxation
of
the
pay
and
allowances
of
Canadian
soldiers
was
made
by
the
Imperial
Government
when
they
were
serving
overseas.
Canadian
soldiers
were
in
receipt
of
the
bounty
of
the
King
in
right
of
the
Dominion
of
Canada,
and
the
Crown
(Imperial)
while
taxing
its
own
soldiers
who
had
resided
in
England
for
more
than
six
months,
recognized
that
the
taxing
power
in
respect
to
Canadian
soldiers
was
the
Dominion
and
not
the
Mother
Country.
It
may
be
said
that
this
was
a
matter
of
state
policy
or
comity
as
between
countries
which
had
independent
jurisdictions,
but
is
it
too
much
to
suggest
that
state
policy,
or
comity,
should
be
recognized
between
Provinces
and
the
Dominion,
as
well
as
between
the
Dominion
and
the
Mother
Country?
Returning
to
the
case
before
us,
the
B.N.A.
Act,
see.
125,
prohibits
the
taxation
of
lands
or
property
belonging
to
Canada.
The
barracks
containing
officers’
quarters
in
Military
District
No.
10
are
exempt
under
this
section.
Nevertheless,
so
soon
as
a
married
officer
is
put
into
possession
of
a
suite
of
rooms,
the
Government
of
Manitoba
attempts
to
collect
from
him
2%
of
the
value
of
that
apartment
on
a
rental
basis.
In
my
opinion
this
is
equivalent
to
a
tax
on
militia
quarters
which
is
prohibited.
The
quarters
are
assigned
to
the
officer
to
enable
him
to
perform
his
military
duties,
and
any
diminution
of
their
value
by
an
outside
agency,
to
that
extent
decreases
their
value
to
the
occupants
:
Tennant
v.
Smith
[1892]
A.C.
150:
Bent
v.
Roberts
(1877)
3
Ex.
D.
66;
Lister
v.
Regina
[1922]
2
W.W.R.
1162;
and
the
important
judgment
of
MeCardie,
J.,
in
Bayley
v.
Bayley
[1922]
2
K.B.
227,
in
which
it
was
held
that
allowances
for
lodging,
fuel,
light,
and
rations,
were
not
part
of
an
officer’s
pay,
and
were
not
to
be
taken
into
account
in
fixing
alimony
to
be
paid
a
former
wife.
Similarly
the
officer
is
taxed
on
the
value
of
the
heat
and
light
which
are
necessary
to
enable
him
to
perform
his
duty.
The
value
of
the
uniform,
rations,
boots,
clothing
of
the
private
soldier
may
be
taxed
in
the
same
way
if
the
judgment
appealed
from
is
sound.
By
see.
6(2)
of
the
Act
under
consideration
every
person
who
contravenes
any
provision
of
the
Act
for
which
no
other
penalty
is
provided
is
liable
to
a
fine
not
exceeding
$500
for
each
day’s
default,
and
may
be
proceeded
against
under
see.
7
by
the
procedure
laid
down
in
the
Manitoba
Summary
Convictions
Act,
R.S.M.
1913,
c.
189,
which
may
involve
imprisonment.
As
this
is
said
to
be
a
test
case
it
may
be
that
at
the
present
time
all
the
military
forces
in
the
Province
are
liable
to
incarceration.
Such
a
possibility
is
a
direct
interference
with
the
powers
of
the
Dominion
to
use
its
troops
for
military
purposes
as
it
sees
fit.
I
refer
to
Rex
v.
Anderson
(1930)
39
Man.
R.
84,
in
which
this
Court
recently
held
that
the
Provincial
Government
has
no
power
to
compel
an
officer
driving
a
motor
ear
belonging
to
the
Crown
(Dominion)
to
take
out
a
driver’s
licence.
At
p.
322,
my
brother
Trueman
said
:
"‘The
issue
is
a
constitutional
one,
affecting
the
sovereignty
of
the
Dominion
and
the
powers
of
the
Province.
As
it
is
apparent
that
if
the
respondent
may
not
use
the
car
without
taking
out
a
chauffeur’s
licence
or
permit,
the
cost
of
which
must
be
borne
by
the
Dominion
Crown,
unless
he
voluntarily
assumes
it,
there
is
interference
by
the
Province
with
Dominion
property
and
agencies
as
well
as
taxation
thereof,
it
is
difficult
to
conceive
how
anyone
considered
it
worth
while
to
raise
the
question.
’
’
I
would
adopt
this
reasoning
and
apply
it
to
the
present
case.
Here
the
soldier
may
be
prevented
from
performing
his
military
duties,
and
the
property
of
the
Crown,
quarters,
light,
and
heat,
are
made
subject
to
taxation.
There
is
the
further
objection
that
the
deductions
which
are
made
by
the
Dominion
from
the
King’s
bounty
to
provide.
the
soldier
with
a
pension
on
retirement
are
taxed,
though
they
have
never
come
into
the
soldier’s
hands,
and
will
never
be
available
to
him
unless
the
Crown
so
determines.
Moreover
a
tax
of
10%
of
the
soldier’s
pay
and
allowances
imposed
by
the
Crown
(Dominion)
and
which
never
reaches
the
soldier,
is
taxed
2
%
by
the
Province,
something
the
Act
never
contemplated,
in
my
humble
judgment.
My
brother
Robson
has
referred
me
to
the
case
of
Rex
v.
Crabbs
[1934]
4
D.L.R.
324,
at
p.
327,
in
which
Hughes,
J.,
delivering
the
judgment
of
the
Supreme
Court
of
Canada,
collects,
and
comments
on
a
number
of
leading
eases
which
deal
with
taxing
Acts,
and
quotes
with
approval
the
words
of
Kitz-
Gibbon,
L.J.,
in
Re
Finance
Act,
1894,
&
Studdert
[1900]
2
Ir.
R.
400,
at
p.
410:
il
If
it
be
doubtful
or
difficult
of
interpretation,
which
I
do
not
think
it
is,
the
Finance
Act
is
subject
to
the
rule
that
no
tax
can
be
imposed
except
by
words
which
are
clear,
and
the
benefit
of
the
doubt
is
the
right
of
the
subject.’
‘‘
I
would
allow
the
appeal
with
costs.
TRUEMAN,
J.
A.
:—This
is
an
action
in
the
County
Court
of
Winnipeg
by
the
Attorney-General
of
the
Province
on
behalf
of
the
King
in
the
right
of
the
Province
to
recover
from
the
defendant
Frederick
F.
Worthington
a
2%
tax
levied
by
the
Province
under
the
Special
Income
Tax
Act,
on
wages
paid
to
him
from
the
revenues
of
the
King
in
the
right
of
the
Dominion
from
May
1,
1933,
to
December
31,
1933,
which
wages
were
earned
by
him
in
said
months
as
an
officer
of
the
Active
Militia
of
Canada,
Permanent
Force,
while
resident
during
said
months
in
the
Province.
The
amount
sued
for
is
$44.58.
A
pro
forma
judgment
for
that
amount
was
entered
by
His
Honour
Judge
Whitla.
Sec.
3(1)
of
Part
I
of
the
statute
provides
that:
"‘In
addition
to
all
other
taxes
to
which
he
is
liable
under
this
or
any
other
Act,
every
employee
shall
pay
to
His
Majesty
for
the
raising
of
a
revenue
for
provincial
purposes
a
tax
of
two
per
centum
upon
the
amount
of
all
wages
earned
by
or
accruing
due
to
him
on
or
after
the
first
day
of
May,
1933,
which
tax
shall
be
levied
and
collected
at
the
times
and
in
the
manner
prescribed
by
this
part.
‘
‘
See.
4
enacts
as
follows
:
"
"
(
1
)
Every
employer
at
the
time
of
payment
of
wages
to
an
employee
shall
levy
and
collect
the
tax
imposed
on
the
employee
by
this
part
in
respect
of
the
wages
of
the
employee
earned
or
accruing
due
during
the
period
covered
by
the
payment,
and
shall
deduct
and
retain
the
amount
of
the
tax
from
the
wages
payable
to
the
employee,
and
shall,
on
or
before
the
fifteenth
day
of
the
month
next
following
that
in
which
the
payment
of
wages
takes
place,
or
at
such
other
time
as
the
regulations
prescribe,
pay
to
the
administrator
the
full
amount
of
the
tax.
No
employee
shall
have
any
right
of
action
against
his
employer
in
respect
of
any
moneys
deducted
from
his
wages
and
paid
over
to
the
administrator
by
the
employer
in
compliance
or
intended
compliance
with
this
section.
"‘(2)
Every
employer
shall,
with
each
payment
made
by
him
to
the
administrator
under
this
section,
furnish
to
the
administrator
a
return
showing
all
taxes
imposed
by
this
part
on
the
employees
of
the
employer
in
respect
of
wages
during
the
period
covered
by
the
return,
which
shall
be
in
the
form
and
verified
in
the
manner
prescribed
by
the
administrator.
(3)
Every
employer
who
deducts
or
retains
the
amount
of
any
tax
under
this
part
from
the
wages
of
his
employee
shall
be
deemed
to
hold
the
same
in
trust
for
His
Majesty
and
for
the
payment
over
of
the
same
in
the
manner
and
at
the
time
provided
under
this
part.”
See.
5
provides
that
certain
records
shall
be
kept
by
every
employer,
to
be
produced
for
inspection
when
requested
by
the
Income
Tax
Administrator.
By
sec.
6
payment
of
a
penalty
by
an
employer
who
fails
to
collect
and
pay
said
tax
is
provided
for.
The
concluding
provision
is
sec.
7,
which
is
as
follows
:
"‘In
case
the
wages
earned
or
accruing
due
to
an
employee
are
paid
to
him
without
the
tax
imposed
thereon
being
deducted
therefrom
by
his
employer,
it
shall
be
the
duty
of
the
employee
to
forthwith
pay
the
tax,
and
all
the
provisions
of
sections
23,
234,
24
and
25
of
‘The
Income
Tax
Act’
shall,
mutatis
mutandis,
apply
to
the
collection
and
recovery
of
the
tax
so
imposed
from
the
employer
and
employee,
or
either
of
them.
‘
‘
By
sec.
2(1)
.
.
.
.
"‘(b)
‘Employee’
means
any
person
who
is
in
receipt
of
or
entitled
to
any
wages;
“
(0)
'Employer’
includes
every
person,
manager,
or
representative
having
control
or
direction
of
or
responsible,
directly
or
indirectly,
for
the
wages
of
any
employee,
and
in
case
the
employer
resides
outside
the
province,
the
person
in
control
within
the
province
shall
be
deemed
to
be
the
employer
;
(d)
‘Wages’
includes
all
wages,
salaries,
and
emoluments
from
any
source
whatsoever,
including
“
(i)
any
compensation
for
labour
or
services,
measured
by
the
time,
piece,
or
otherwise
;
"
(ii)
the
salaries,
indemnities,
or
other
remuneration
of
members
of
the
Senate
and
House
of
Commons
of
the
Dominion
and
officers
thereof,
members
of
the
Provincial
Legislative
Councils
and
Assemblies,
members
of
municipal
councils,
commissions,
or
boards
of
management,
and
of
any
judge
of
any
Dominion
or
provincial
court,
and
of
all
persons
whatsoever,
whether
such
salaries,
indenmities,
or
other
remuneration
are
paid
out
of
the
revenues
of
His
Majesty
in
right
of
the
Dominion
or
in
right
of
any
province
thereof,
or
any
person;
"‘(iii)
personal
and
living
expenses
and
subsistence
when
they
form
part
of
the
profit
or
remuneration
of
the
employee;
and
""
(v)
emoluments,
perquisites,
or
privileges
incidental
to
the
office
or
employment
of
the
employee
which
are
reducible
to
a
money
value.
"‘(2)
The
value
of
that
part
of
the
wages
of
an
employee
which
is
within
the
scope
of
sub-paragraphs
(iii)
or
(iv)
of
the
definition
of
wages
in
subsection
(1)
shall
be
determined
by
the
administrator
at
the
actual
amount
thereof
if
payable
in
money,
or
otherwise
in
accordance
with
any
prevailing
rates.
‘
‘
By
see.
92(2)
of
the
B.N.A.
Act,
a
Provincial
Legislature
may
exclusively
make
laws
relating
to
direct
taxation
within
the
Province
for
raising
revenue
for
provincial
purposes.
In
Abbott
v.
St.
John
(1908)
40
S.C.R.
597,
the
Supreme
Court
of
Canada
held
that
as
under
this
power
a
provincial
income
tax
applying
to
all
residents
of
the
Province
may
be
enacted,
a
civil
or
other
officer
of
the
Government
of
Canada
may
be
lawfully
taxed
in
respect
to
his
income,
earned
by
him
as
such,
by
the
municipality
in
which
he
resides,
there
being
no
conflict
or
inconsistency
between
the
power
vested
in
the
Province
and
the
exclusive
authority
given
by
sec.
91(8)
of
the
Constitutional
Act
to
the
Parliament
of
Canada
to
fix
and
provide
"‘for
the
Salaries
and
Allowances
of
Civil
and
other
Officers
of
the
Government
of
Canada’’.
Davies,
J.,
as
he
then
was,
said
(pp.
606-8)
:
"
"
The
Dominion
fixes
and
provides
the
salary
and
the
province.says
‘you
shall
pay
to
us
the
same
income
tax
upon
your
salary
as
all
other
residents
of
the
Province
have
to
pay
upon
their
incomes’.
.
.
.
The
province
does
not
attempt
to
interfere
directly
with
the
exercise
of
the
Dominion
power,
but
merely
says
that,
when
exercised,
the
recipients
of
the
salaries
shall
be
amenable
to
provincial
legislation
in
like
manner
as
all
other
residents.
.
.
.
It
is
said,
the
legislature
might
authorize
an
income
tax
denuding
a
Dominion
official
of
a
tenth
or
even
a
fifth
of
his
official
income
and,
in
this
way,
paralyze
the
Dominion
service
and
impair
the
efficiency
of
the
service.
But
it
must
be
borne
in
mind
that
the
law
does
not
provide
for
a
special
tax
on
Dominion
officials
but
for
a
gen-
eral
undiscriminatory
tax
upon
the
incomes
of
residents
and
that
Dominion
officials
could
only
be
taxed
upon
their
incomes
in
the
same
ratio
and
proportion
as
other
residents.
"At
any
rate,
if,
under
the
guise
of
exercising
power
of
taxation,
confiscation
of
a
substantial
part
of
official
and
other
salaries
were
attempted,
it
would
be
then
time
enough
to
consider
the
question
and
not
to
assume
beforehand
such
a
suggested
misuse
of
the
power.
"‘Then,
it
was
argued
that
inasmuch
as
at
common
law
the
salaries
of
officials
of
the
Crown
were
incapable
of
being
assigned,
pledged
or
charged
by
the
acts
of
the
officials
or
bv
process
of
law’
any
attempt
to
make
them
liable,
like
other
residents,
as
income-taxpayers
would
be
an
illegal
interference
with
the
prerogative
of
the
Crown
as
executive
head
of
the
Dominion.
"‘I
confess
myself
quite
unable
to
follow
this
argument.
“The
question
before
us
has
nothing
to
do
with
the
common
law
privileges
or
immunities
of
office
holders.
It
is
a
question
of
statutory
construction.
Has
the
statute
or
has
it
not
conferred
the
power
claimed?
It
is
admitted
it
has
so
far
as
provincial
officials
are
concerned,
and
I
am
unable
to
appreciate
the
fine
distinction
which
admits
the
King’s
prerogative
was
constitutionally
interfered
with
in
right
of
the
province
while
it
was
excepted
in
right
of
the
Dominion.
The
words
conferring
the
power
are,
to
my
mind,
too
clear
and
broad
and
general
to
admit
of
the
exception
sought
to
be
read
into
them.”
Abbott
v.
St.
John
was
applied
in
Toronto
v.
Morson
(1917)
40
O.L.R.
227,
where
it
was
held
by
the
Appellate
Division
that
the
salary
of
the
defendant,
as
one
of
the
Judges
of
the
County
of
York,
was
not
exempt
from
municipal
taxation
authorized
by
the
Assessment
Act
of
the
Province.
The
Court
dealt
with
the
further
point
that
the
defendant
had
exemption
from
taxation
by
a
provision
of
the
Assessment
Act,
which
exempted
‘‘The
full
or
half-pay
of
any
officer,
non-commissioned
officer
or
private
of
His
Majesty’s
regular
Army
or
Navy
;
and
any
pension,
salary,
gratuity
or
stipend
derived
by
any
person
from
His
Majesty’s
Treasury,
and
the
income
of
any
person
in
such
Naval
or
Military
services,
on
full
pay,
or
otherwise
on
actual
service.”
In
holding
that
the
exemptions
referred
to
Imperial
officers
only,
Mulock,
C.J.Ex.
pointed
out
that
Canada
maintains
no
regular
army
or
navy.
The
Court
also
brushed
aside
the
contention
that
a
‘‘Judge’’
is
not
a
“person”
and
that
his
‘‘salary’’,
which
is
paid
out
of
the
Consolidated
Revenue
Fund,
is
not
"‘income’’
within
the
Assessment
Act.
As
it
always
has
been
and
continues
to
be.
the:
attitude
of
Canada
that
a
constitutional
question
is
not
disposed
of
until
passed
upon
by
the
Judicial
Committee,
the
occasion
was
presented
in
Caron
\.
The
King
[1924]
4
D.L.R.
105,
to
have
Abbott
v.
St.
John
reviewed.
The
question
there
for
consideration
by
the
Judicial
Committee
was
whether
or
not
the
Income
War
Tax
Act,
1917
(Can.),
e.
28,
and
the
amending
Act
of
1919
(Can.),
e.
55,
which
imposed
an
income
tax
on
every
person
residing
or
ordinarily
residing,
or
carrying
on
business
in
Canada,
applied
to
the
appellant,
a
Minister
of
the
Government
of
the
Province
of
Quebec,
in
respect
of
his
salary
as
such
and
his
indemnity
as
a
member
of
the
Legislative
Assembly.:
The
Judicial
Committee,
affirming
the
judgment
of
the
Supreme
Court
of
Canada,
[1923]
1
D.L.R.
1173,
held
that
it
did
apply.
In
their
reasons
for
judgment,
which
was
delivered
by
Viscount.
Cave,
the
Board
adopted
views
-expressed
in
the
judgment
of
Davies,
J.,
above
quoted,
and
expressly
approved
the
reasoning
in
the
Abbott
ease.
Lord
Phillimore
(p.
110)
characterized
the
Income
Tax
Acts
in
question
"‘as
statutes
for
imposing
on
all
citizens
contributions
according
to
their
annual
means,
regardless
of,
or
it
may
be
said
not
having
regard
to,
the
source
from
which
their
annual
means
are
derived’’.
What
then
is
there
in
this
appeal
that
calls
for
attention?
One
contention
is
that
in
its
application
to
the
appellant
the
tax
is
not
direct
taxation.
How
can
that
be
said?
It
is
levied
on
his
wages;
its
payment
is
demanded
from
him;
he
alone
bears
it;
he
is
now
sued
for
it
in
an
action
of
debt
under
the
provisions
of
the
Act.
It
is
useless
to
submit
that
as
under
see.
4
provision
is
made
for
the
collection
of
the
tax
by
the
employer
and
payment
over
to
the
Provinee,
the
tax
is
primarily
placed
on
the
employer,
to
be
passed
on
by
him
to
the
employee.
See
Brandon
v.
Municipal
Commissioner
c
A.-G
.Man.,
39
Man.
R.
982,
[1931]
1
D.L.R.
830.
Equally
outside
serious
argument
is
the
view
with
which
the
Court
was
pressed
that
the
Act
does
not
apply
since
the
appellant’s
employer,
His
Majesty
the
King
in
the
right
of
the
Dominion,
is
not
and
cannot
be
made
subject
to
the
duties
imposed
on
employers
by
sec.
4,
for
which
reason
it
is
said
the
appellant
is
not
an
"‘employee''.
The
Province
is
not
obliged
to
rely
upon
this
section
in
enforcing
payment
of
the
tax
but
may
proceed,
at
its
option,
against
the
delinquent
employee
under
the
provisions
of
sec.
7,
as
it
is
now
doing.
An
effort
was
made
to
invest
the
position
occupied
by
Captain
Worthington
in
the
Permanent
Force
with
a
personal
or
mystical
relationship
to
His
Majesty
the
King,
which
gave
to
the
appellant
the
samé
immunity
from
legislation
that
the
Crown
enjoys
unless
expressly
named.
With
respect,
I
do
not
know
from
what
source
this
idea
is
derived.
The
Militia
Act,
R.S.C.
1927,
ce.
132,
cer-
tainly
gives
no
countenance
to
it.
It
provides
(inter
alia)
that
there
shall
continue
to
be
a
Permanent
Force
which
shall
consist
of
such
permanently
embodied
corps,
not
exceeding
10,000
men,
enrolled
for
continuous
service,
as
are,
from
time
to
time,
authorized
by
the
ov
ernor
in
Council,
and
for
the
appointment
by
the
Governor
in
Council
of
a
general
staff,
etc.,
and
such
other
officers
as
are
from
time
to
time
deemed
expedient.
By
sec.
32,
the
pay
and
allowances
of
the
officers
of
the
general
staff,
etc.,
shall
be
fixed
by
the
Governor
in
Council.
By
sec.
48,
officers,
warrant
officers
and
non-commissioned
officers
of
the
Permanent
Force
shall
be
entitled
to
daily
pay
and
allowances
at
rates
to
be
prescribed.
There
is
thus
left
no
ground
for
thinking
that
the
pay
received
by
the
appellant
in
respect
to
which
the
tax
in
question
is
imposed
is
not
"‘wages’’
within
the
statute.
It
may
here
be
pointed
out
that
by
Schedule
E
of
the
Income
Tax
Act,
1918
(Imp.),
c.
40,
and
the
Rules
applicable
thereto,
income
tax
is
required
to
be
paid
by
officers
in
His
Majesty’s
navy;
commissioned
officers
in
His
Majesty’
s
military
forces,
and
commissioned
officers
in
His
Majesty’s
air
force.
The
amount
sued
for
is
based
on
an
income
of
$2,229.50,
made
up
as
follows
:
$1,626.80,
pay
for
the
eight
months
in
question
;
$105,35,
deductions
for
said
period
under
the
Militia
Pension
Act,
RS.C.
1927,
c.
133;
$154.35,
deductions
of
10%
for
said
period
under
the
1.
ncome
War
Tax
Act;
and
$343,
for
allowances
for
said
period
for
lodging
quarters,
fuel
and
light
at
Fort
Osborne
Barracks,
where
Captain
Worthington
and
his
family
resided.
The
deduction
of
5%
under
the
Militia
Pension
Act
is
made
from
the
appellant’s
pay,
which
is
calculated
on
his
total
emoluments,
including
the
amounts
granted
for
lodging,
fuel
and
light,
notwithstanding
that
he
may
be
provided
with
these
in
kind
instead
of
money:
See
sec.
10(1)
of
the
Act
and
art.
43
of
the
Pay
and
Allowance
Regulations.
I
think
it
is
not
open
to
question
that
this
deduction
is
subject
to
the
provincial
Act,
there
being
no
provision
therein
for
its.
exclusion.
Imperial
legislation
allows
deductions
in
computing
the
amount
on
which
income
tax
shall
be
paid
in
respect
of
any
sums
paid
by
an
employed
person
towards
a
pension
or
superannuation
fund,
or
to
secure
an
annuity
to
his
widow
or
provision
for
his
children
after
death.
A
like
exemption
is
provided
for
in
the
Dominion
and
the
Manitoba
Income
Tax
Act.
The
inclusion
in
the
appellant’s
pay
of
10%
tax
paid
by
him
to
the
Dominion
under
the
Income
War
Tax
Act,
R.S.C.
1927,
€.
97,
is,
in
my
opinion,
wrong.
This
tax
was
first
imposed
upon
the
salaries
or
pay
paid
by
the
Dominion
to,
among
others,
the
commissioned
officers
of
the
military,
naval
and
air
forces
of
Canada
by
e.
44
of
the
Dominion
Acts
of
1932.
It
is
therein
referred
to
as
a
special
income
tax
and
is
applied
only
to
the
salaries
or
pay
received
during
or
in
respect
of
the
fiscal
year
commencing
April
1,
1932,
and
ending
March
31,
1933.
It
is
made
payable
in
eleven
equal
monthly
instalments
on
the
last
day
of
each
month,
commencing
in
May,
1932.
A
provision
in
the
amendment
is
that
"‘Every
payment
made
on
account
of
the
said
special
tax
shall
be
deductible
from
income
of
the
year
in
which
the
payment
is
made,
for
the
purpose
of
determining
income
liable
to
income
tax
other
than
the
special
tax
imposed
by
this
section
(sec.
9A(5))‘.
The
Act
was
expected
to
be
required
for
no
more
than
the
time
mentioned
in
it
and
was
not
an
income
tax
measure
but
a
means
of
bringing
about
a
reduction
for
the
time
being
in
the
salaries
affected
by
it.
Due
to
the
continuance
of
the
exigency
which
prompted
the
legislation,
the
amendment
was
continued
in
force
until
March
1934,
by
e.
15
of
the
statutes
of
1932-33.
See.
2
of
this
enactment
made
provision,
the
details
of
which
need
not
be
stated,
by
which
instead
of
making
payment
by
monthly
instalments,
direction
could
be
given
that
the
amount
should
be
deducted
from
the
salary
in
accordance
with
the
Salary
Deduction
(Continuance
)
Act,
1933
(Can.),
e.
19.
A
further
renewal
of
the
10%
tax
for
the
year
from
April
1,
1934,
and
ending
March
31,
1935,
is
provided
for
in
c.
19
of
the
statutes
of
1934.
Sec.
3
of
the
provincial
Act,
quoted
supra,
provides
that
every
employee
shall
pay
to
His
Majesty
for
the
raising
of
a
revenue
for
provincial
purposes
a
tax
of
two
per
centum
upon
the
amount
of
all
wages
earned
by
or
accruing
due
to
him.
.
.
.”
In
one
construction
it
can
be
said
that
the
salary
earned
by
the
appellant
was
the
amount
paid
to
him,
and
thus
the
amount
on
which
he
should
pay
the
provincial
tax.
The
opposing
view
called
for
by
the
circumstances
is
that
his
salary
was
reduced
10%
not
by
an
income
tax
in
its
characteristic
and
universal
sense
but
by
a
method
which,
while
denominated
a
tax,
was
preferred
to
the
alternative
device
of
making
a
deduction
from
the
salary
at
the
time
it
was
paid.
The
judgment
should
therefore
be
reduced
by
$3.08.
Allowances
for
lodging,
fuel
and
light
are
within
the
inclusive
language
of
the
Act,
which
provides
(sec.
2(1))
that
"‘wages’’
includes
‘‘(d)
emoluments
from
any
source
whatsoever,
in-
eluding
.
.
.
(iii)
personal
and
living
expenses
and
subsistence
when
they
form
part
of
the
profit
or
remuneration
of
the
employee;
and
(iv)
emoluments,
perquisites,
or
privileges
incidental
to
the
office
or
employment
of
the
employee
which
are
reducible
to
a
money
value”.
By
subsec.
(2)
"‘The
value
of
that
part
of
the
wages
of
an
employee
which
is
within
the
scope
of
sub-paragraphs
(iii)
and
(iv)
of
the
definition
of
wages
in
subsection
(1)
shall
be
determined
by
the
administrator
at
the
actual
amount
thereof
if
payable
in
money,
or
otherwise
in
accordance
with
any
prevailing
rates’’.
The
Pay
and
Allowance
Regulations
provide
(art.
76)
that
if
an
officer
or
soldier
is
not
provided
with
quarters,
the
allowance
for
lodging,
fuel,
light,
etc.,
laid
down
in
art.
74
will
be
paid.
Rates
therefor
in
accordance
with
rank
are
set
out
in
tabulated
form
in
art.
74.
There
can
thus
be
no
question
that
lodging,
fuel
and
light
furnished
to
the
appellant
under
the
Pay
and
Allowance
Regulations
are
""wages”
within
the
above
definition.
The
language
of
the
Act
is
much
wider
than
that
of
the
Imperial
statute
and
considered
in
Robinson
v.
Corry
[1933]
2
K.B.
521;
affd
[1934]
1
K.B.
240.
There
an
established
civil
servant
was
appointed
by
the
Lords
Commissioners
of
the
Admirality
to
a
post
which
necessitated
his
residing
in
a
colony
for
several
years.
During
that
time
he
received,
in
addition
to
the
salary
appropriate
to
his
rank
in
the
civil
service,
a
colonial
allowance
to
provide
for
the
increased
cost
of
living
in
the
colony.
During
part
of
the
time
he
occupied
an
official
house
provided
for
him,
and
during
other
parts
of
the
time
he
received
a
housing
allowance
in
lieu
of
an
official
house.
By
the
Income
Tax
Act,
1918,
Sch.
E.,
"Tax
under
Schedule
E
shall
be
charged
in
respect
of
every
public
office
or
employment
of
profit
.
.
.”
By
Rule
1
applicable
to
the
Schedule:
‘‘Tax
under
this
Schedule
shall
be
annually
charged
on
every
person
having
an
office
or
employment
of
profit
mentioned
in
this
Schedule
.
.
.
in
respect
of
all
salaries,
fees,
wages,
perquisites
or
profits
whatsoever
therefrom.
.
.
.”
It
was’
held
that
the
tax
was
chargeable
not
only
on
salary,
but
also
on
the
colonial
allowance
and
housing
allowance
and
that
the
annual
value
of
the
official
residence
was
not
income
chargeable
with
tax,
since
it
was
not
money,
nor
convertible
into
money.
Pertinent
to
the
general
discussion
are
some
trenchant
remarks
by
Stratford,
J.A.,
in
Krause
v.
Corner
of
Inland
Revenue
(1929)
App.
D.
286,
(referred
to
in
45
L.Q.
Rev.,
p.
291)
in
which
the
Appellate
Division
of
the
Supreme
Court
of
South
Africa
decided
that
the
salary
of
a
Judge
of
the
Transvaal
Division
of
the
Supreme
Court
was
subject
to
tax
under
the
Income
Tax
Act.
Sec.
100
of
the
South
African
Act,
1909.
taken
from
art.
3,
sec.
1-
of
the
American
Constitution,
provides
that
Judges
of
the:
Supreme
Court
shall
receive
such
remuneration
as
Parliament
prescribes
and
that
their
remuneration
shall
not
be
diminished:
during
their
continuance
in
office:
The
argument
was
made
that
while
the
Income
Tax
Act
was
in
its
terms
wide
enough
to
include
the
salary
of
a
Judge
it
did
not
override
the
foregoing
provisions
of
the
Union
Act.
Stratford,
J.A.,
said
that
before
this
contention
could
be
accepted
the
proposition
would
have
to
be
established
that
the
effect
of
sec:
100
was
to
relieve
Judges
from
the
duty
of
paying
income
tax.
"The
prohibition
is
directed
against
the
diminution
of
the
salaries
of
judges
as
such,
and
cannot
be
construed
to
protect
judges
from
the
incidence
of
a
tax
of
general
applicability.”
I
would
dismiss
the
appeal.
Robson,
J.A.
(dissenting)
:—This
action
was
commenced
in
the
County
Court
of
Winnipeg
by
the
Attorney-General
for
Manitoba,
who
sues
for
and
on
behalf
of
His
Majesty
the
King
in
the
right
of
that
Province.
The
defendant
is
in
the
amended
statement
of
claim,
stated
to
be
a
married
person
and
an
officer
in
the
Active
Militia
of
Canada,
Permanent
Force,
holding
the
rank
of
captain
in
the
said
militia,
and
it
is
alleged
that
at
the
date
of
the
service
of
the
writ
herein
and
during
the
whole
of
the
year
1933
and
prior
thereto
the
defendant
was
within
the
Province
of
Manitoba
and
resided
or
lived
at
the
date
of
the
service
of
the
writ
and
during
the
whole
of
the
year
1933
and
prior
thereto
in
the
said
Province;
that
the
defendant
as
such
officer
aforesaid
has
earned
‘‘wages’’
within
the
meaning
of
the
Special
Income
Tax
Act,
continuously
from
May
1,
1933,
to
December
31,
1933,
both
inclusive,
which
said
""wages”
earned
as
aforesaid,
it
is
alleged,
were
paid
to
the
defendant
by
and
out
of
the
revenues
of
His
Majesty
in
the
right
of
the
Dominion
of
Canada
on
or
about
the
last
day
of
each
and
every
month
during
the
said
period
and
which
said
payments
were
in
the
amount
of
$282.10
for
the
months
of
May,
July,
August,
October
and
December
in
the
said
year
1933
and
were
in
the
amount
of
$273
for
the
months
of
June,
September
and
November
in
the
said
year
1933.
The
plaintiff
proceeds
to
allege
that
under
the
provisions
of
the
said
Act
the
defendant
became
liable
to
pay
to
His
Majesty
the
King
in
the
right
of
the
Province
of
Manitoba,
for
the
raising
of
a
revenue
for
provincial
purposes,
a
tax
of
2%
upon
the
amount
of
all
such
""
wages”
earned
by
him
as
aforesaid,
all
of
which
wages”
were
paid
to
the
defendant
without
the
said
tax
having
been
deducted
therefrom,
but
that
the
defendant
has
neglected
and
refused
to
pay
the
said
tax
or
any
part
thereof.
The
Attorney-General
claimed
$44,58.
There
is
a
long
statement
of
defence
which
aises,
all
important
points.
Admissions
of
fact.
were
made
and
a
pro
for
ma
judgment
in
favor
of
plaintiff
was
taken
in
the
County
Court.
The
defendant
appealed.
From
the
statement
of
facts
it
appears
that
defendant
was
a
captain
in
Princess
Patricia’s
Canadian
Light
Infantry
having
been
commissioned
on
January
1,
1920;
he
was
stationed
at
Montreal
till
January,
1923.
Defendant
was
general
staff
officer
at
Tuxedo,
Manitoba,
from
January,
1923,
till
March,
1934,
when
he
was
transferred
to
Toronto.
Defendant’s
residence
at
Tuxedo
was,
till
and
including,
1931,
featured
by
certain
absences
in
other
Provinces
on
military
duty.
Defendant’s
"‘pay
and
allowances’’
are
set
forth:
pay
$6
per
diem;
ration
allowance,
50c
per
diem;
servant
allowance,
400
per
diem;
staff
pay
at
300
per
diem;
married
allowance
500
per
diem.
There
are
deductions
from
pay
and
certain
items
of
5%
for
pension
under
Militia
Pension
Act,
also
10%
under
the
Income
War
Tax
Act.
So
that
in
31-day
monthe
defendant
received
in
cash
$205.84
and
in
30-day
months
$199.20.
In
the
argument
much
was
said
as
to
the
voluntary
nature
of
pay
for
army
officers.
Several
cases
so
stating
the
law
for
a
long
time
back
are
collected
by
Audette,
J.,
in
Bacon
v.
The
King
(1921)
61
D.L.R.
455.
That
circumstance
does
not,
in
my
view,
form
the
chief
consideration
in
this
case.
Blackstone,
vol.
1,
p.
417,
says,
although
soldiers
are
placed
under
stricter
discipline
and
severer
restrictions
than
most
other
subjects
of
the
realm
yet
they
enjoy
some
peculiar
advantages
;
and
the
text
goes
on
to
mention
pensions
and
other
relief.
Chapter
4
of
1869
(Imp.),
is
intituled,
"‘An
Act
for
punishing
Mutiny
and
Desertion,
and
for
the
better
payment
of
the
Army
and
their
Quarters.
’
’
The
association
of
topics
is
significant.
The
preamble
recites
“whereas
it
is
adjudged
necessary
by
Her
Majesty
and
this
present
Parliament
that
a
body
of
forces
should
be
continued
for
the
safety
of
the
United
Kingdom,
and
the
defence
of
the
possessions
of
Her
Majesty’s
Crown.”
The
fact
that
military
officers
have
a
special
status
is
in
my
view
important
here.
In
the
case
of
Re
Grimley
(1890)
137
U.S.
147,
Brewer,
J.,
at
p.
155,
referred
to
the
case
of
Tyler
v.
Pomeroy
(1864)
8
Allen
480,
and
said:
"‘In
that
case,
Mr.
Justice
Gray,
then
a
member
of
the
Supreme
Court
of
Massachusetts,
in
an
opinion
reviewing
all
the
authorities
in
England
and
in
this
country,
drew
a
distinction
between
an
agreement
to
enlist,
which,
if
broken,
simply
gives
a
right
of
action
for
damages,
and
an
enlistment,
which
changes
the
status
of
the
party,
transfers
him
from
civil
to
military
life,
and
renders
him
amenable
to
military
jurisdiction.
‘
‘
Brewer,
J.
elaborated
on
the
subject
himself
in
the
following
words
(pp.
152-3)
:
"‘By
enlistment
the
citizen
becomes
a
soldier.
His
relations
to
the
State
and
the
public
are
changed.
He
acquires
a
new
status,
with
correlative
rights
and
duties
;
and
although
he
may
violate
his
contract
obligations,
his
status
as
a
soldier
is
unchanged.
He
cannot
of
his
own
volition
throw
off
the
garments
he
has
once
put
on,
nor
can
he,
the
State
not
objecting,
renounce
his
relations
and
destroy
his
status
on
the
plea
that,
if
he
had
disclosed
truthfully
the
facts,
the
other
party,
the
State,
would
not
have
entered
into
the
new
relations
with
him,
or
permitted
him
to
change
his
status.
.
.
.
"While
our
regular
army
is
small
compared
with
those
of
European
nations,
yet
its
vigor
and
efficiency
are
equally
important.
An
army
is
not
a
deliberative
body.
It
is
the
executive
arm.
Its
law
is
that
of
obedience.
No
question
can
be
left
open
as
to
the
right
to
command
in
the
officer,
or
the
duty
of
obedience
in
the
soldier.
Vigor
and
efficiency
on
the
part
of
the
officer
and
confidence
among
the
soldiers
in
one
another
are
impaired
if
any
question
be
left
open
as
to
their
attitude
to
each
other.
So,
unless
there
be
in
the
nature
of
things
some
inherent
vice
in
the
existence
of
the
relation,
or
natural
wrong
in
the
manner
in
which
it
was
established,
public
policy
requires
that
it
should
not
be
disturbed.
‘
‘
An
infant
who
enlists
"‘becomes
subject
to
the
paramount
control
of
the
state’’:
per
Bayley,
J.;
in
Rex
v.
Lytchet
Matraverse,
7
B.
&
C.
226,
at
p.
232,
108
E.R.
707
;
and
Rex
v.
Rotherfield
Greys,
1
B.
&
C.
345,
at
p.
347,
107
E.R.
128.
The
pay
of
an
officer
may
be
subject
to
penal
deductions:
Army
Act,
1881
(Imp.),
c.
58,
see.
137.
The
being
in
pay
as
a
soldier
fixes
the
military
character
upon
him
and
very
wisely:
per
Lord
Loughborough
in
Grant
v.
Sir
Chas.
Gould,
2
Bl.H.
69,
at
page
103,
126
E.R.
434.
The
upkeep
of
the
personnel
of
the
army
required
extraordinary
provisions,
some
of
which
are
found
in
1869
(Imp.),
e.
4,
and
in
the
Army
Act,
1881,
whereby
limit
was
placed
upon
the
legal
processes
under
which
a
soldier
might
be
liable
to
be
taken
out
of
the
Crown’s
service:
Army
Act,
sec.
144.
It
appears
to
me
that
see.
136
of
the
Army
Act,
which
is
in
force
here
as
applicable
to
Canada,
reading
as
follows:
"‘136.
The
pay
of
an
officer
or
soldier
of
His
Majesty’s
regular
forces
shall
be
paid
without
any
deduction
other
than
the
deductions
authorised
by
this
or
any
other
Act
or
by
any
royal
warrant
for
the
time
being
or
by
any
law
passed
by
the
Governor-
General
of
India
in
Council,”
is
a
declaration
of
state
policy
(of
which
sec.
141
mentioned
later
is
an
example)
that
the
soldier
shall
get
his
pay
for
his
own
use.
In
Flarty
v.
Odlum,
3
T.R.
681,
at
p.
682,
100
E.R.
801,
Lord
Kenyon
said:
“Emoluments
of
this
sort
are
granted
for
the
dignity
of
the
State,
and
for
the
decent
support
of
those
persons
who
are
engaged
in
the
service
of
it.
It
would
therefore
be
highly
impolitic
to
permit
them
to
be
assigned;
for
persons,
who
are
liable
to
be
called
out
in
the
service
of
their
country,
ought
not
to
be
taken
from
a
state
of
poverty.
Besides
an
officer
has
no
certain
interest
in
his
half-pay;
for
the
King
may
at
any
time
strike
him
off
the
list.”’
And
Ashurst,
J.
(p.
683)
:
“All
voluntary
donations
of
the
Crown
are
for
the
honor
and
service
of
the
State.
’
’
It
seems
to
me
that
if
half-pay
or
pension
should
be
so
classified
a
fortiori
full
pay
of
an
officer
on
duty
should.
See
also
Lidderdale
v.
Duke
of
Montrose,
4
T.R.
248,
100
E.R.
1000,
where
the
principle
of
public
policy
was
again
applied.
Reference
may
be
made
to
the
reporter’s
note
to
Stuart
v.
Tucker,
2
Bl.
W.
1137,
96
E.R.
671,
referring
to
Arbuckle
v.
Cowtan,
3
B.
&
P.
321,
127
E.R.
177,
where,
at
p.
328,
Lord
Alvanley,
C.J.,
said:
“It
is
now
clearly
established,
that
the
half-pay
of
an
officer
is
not
assignable
;
and
unquestionably,
any
salary,
paid
for
the
performance
of
a
public
duty,
ought
not
to
be
perverted
to
other
uses
than
those
for
which
it
is
intended/
9
This
rule
was,
with
respect
to
the
army,
put
into
statutory
form
at
least
as
early
as
the
Army
Act,
1881,
see.
141.
That
Act,
as
already
noted,
is
declared
to
apply
to
the
Canadian
militia.
See
the
Militia
Act,
see.
69.
Sec.
141
is
as
follows:
‘
‘
Every
assignment
of,
and
every
charge
on,
and
every
agreement
to
assign
or
charge
any
deferred
pay,
or
military
reward
payable
to
any
officer
or
soldier
of
any
of
His
Majesty’s
forces,
or
any
pension,
allowance,
or
relief
payable
to
any
such
officer
or
soldier,
or
his
widow,
child,
or
other
relative,
or
to
any
person
in
respect
of
any
military
service,
shall,
except
as
far
as
the
same
is
made
in
pursuance
of
a
Royal
Warrant
for
the
benefit
of
the
family
of
the
person
entitled
thereto,
or
as
may
be
author
ized
by
any
Act
for
the
time
being
in
force,
be
void.”
Sec.
141
was
applied
in
Ontario
with
respect
to
the
assignment
of
an
officer
of
a
gratuity
in
Union
Bank
of
Canada
v.
Newcomen
(1924)
55
O.L.R.
17.
I
would
take
it
to
be
clear
that
the
application
of
sec.
141
to
Canada
amounted
likewise
to
a
declaration
of
parliamentary
policy
here.
as
to
the
destination
and
purpose
of
army
pay.
I
think
it
must
be
that
the
matter
of
pay
is
fixed
by
Parliament
with
relation
to
the
various
considerations
present
as
to
upkeep
of
the
forces
and
that
no
outside
authority
can
by
taking
a
percentage
reduce
the
measure
so
made
of
what
should
be
the
soldier’s
or
officer’s
pay.
I
think
it
is
too
narrow
a
view
to
suggest
that
while
the
Province
cannot
require
the
Dominion
to
make
the
deduction
of
the
tax
from
a
soldier’s
pay
yet
when
the
soldier
once
receives
the
pay
he
shall
be
liable
to
pay
the
tax
himself.
I
think
that
although
the
matter
of
payment
for
services
is
ordinarily
a
provincial
subject,
yet
the
pay
of
an
army
is
a
matter
of
importance
to
its
upkeep
and
morale
and
that
as
the
subject
of
militia
and
defence
is
especially
and
exclusively
a
Federal
one,
the
matter
of
pay
is
wholly
within
Federal
power
as
a
matter
pertaining
to
efficiency
and
that
therefore
the
Federal
authority
can
prohibit
assignments
as
it
has
done.
In
the
Newcomen
case
a
Court
that
could
not
miss
the
point
held
that
sec.
141
prevailed.
In
view
of
the
considerations
I
have
mentioned,
it
seems
to
me
that
officer’s
""pay”
is
here
one
of
the
incidents
of
status
and
that
taxing
an
officer
because
of
pay
is
infringing
upon
status.
It
seems
to
me
that
the
alleged
right
to
tax
in
respect
of
value
of
quarters
and
allowances
merely
emphasizes
the
objections
there
are
to
the
tax
itself.
I
think
there
is
no
analogy
in
law
between
the
relation
of
military
officer
or
soldier
to
the
Crown
and
that
of
a
servant
to
his
master.
There
is
only
the
appearance
of
one.
I
think
employees
in
governmental
business
services
are
in
entirely
different
positions.
I
would
think
that
where
there
is
already
a
wide
field
of
clear
application
for
the
general
meanings
given
by
the
statute
to
"
1
employee
‘
‘
and
"
"
wages
‘
‘
those
terms
should
not
be
strained
to
cover
a
doubtful
category.
In
a
taxing
statute
this
cannot
be
done.
See
The
King
v.
Crabbs
[1934]
4
D.L.R.
32,4
and
the
authorities
cited
there
by
Hughes,
J.
I
think
that
the
Legislature
used
clause
(ii)
of
subsec.
(d)
of
sec,
2(1)
of
the
Special
Income
Tax
Act
to
specify
the
persons
of
special
status
who
were
intended
to
be
taxed
and
that
it
exhausted
its
list
with
the
enumeration
it
made.
I
do
not
think
the
words
"‘military
icers’’
can
be
read
into:
clause
(ii)
so
as
to
introduce
another
class
merely
on
the
strength
of
the
words
‘‘
and
of
all.
persons
whatsoever
In
the
result,
I
would
hold
that
the
Province
could
not
by
any
means
take
away
from
the
pay
or
allowance
of
military
officers
and
further
that
the
Act
should
not
be
read
as
intending
to
do
so.
I
would
allow
the
appeal.
RICHARDS,
J.A.
agrees
with
TRUEMAN,
J.A.
Appeal
dismissed.
Email this Content