Sir
SIDNEY
ROWLATT:—This
is
an
appeal
from
a
judgment
of
the
Court
of
Appeal
for
Saskatchewan
dated
June
6,
1936,
ante,
p.
271,
answering
in
the
affirmative
certain
questions
referred
to
the
Court
by
the
Lieutenant-Governor
in
Council
for
hearing
and
consideration
pursuant-to
the
Constitutional
Questions
Act,
c.
60
of
R.S.S.
1930.
The
questions
so
referred
were:
«(1)
Are
Judges
(a)
of
the
Court
of
Appeal
(b)
of
the
Court
of
King’s
Bench,
(c)
of
the
District
Courts,
of
the
Province
of
Saskatchewan,
appointed
by
His
Excellency,
the
Governor-General,
pursuant
to
sec.
96
of
the
British
North
America
Act,
1867,
subject
to
the
taxation
authorised
by
the
Income
Tax
Act,
1932,
of
Saskatchewan,
being
otherwise
persons
subject
to
the
provisions
of
the
said
Act?
«(2)
If
the
said
Judges
or
any
of
them
are
subject
to
the
said
taxation,
then
has
the
Legislature
of
Saskatchewan
legislative
authority
to
include
in
income
for
the
purposes
of
the
Income
Tax
Act,
the
salary
and
allowances
of
the
said
Judges
or
any
of
them
paid
pursuant
to
the
provisions
of
the
Judges
Act,
being
3.
105
of
the
Revised
Statutes
of
Canada,
1927
?
‘
‘
The
reference
in
question
placed
the
Court
in
an
embarrassing
position,
all
its
members
being
from
the
nature
of
the
case
personally
interested
in
the
point
in
controversy.
They
took
the
view
(quite
rightly
in
their
Lordships’
opinion)
that
they
were
bound
to
act
ex
necessitate.
In
the
result
they
came
unanimously
to
a
conclusion
adverse
to
the
contention
put
before
them
on
behalf
of
their
order.
The
statutory
provisions
which
it
is
necessary
to
consider
are
as
follows:
By
sec.
92
of
the
B.N.A.
Act,
1867,
one
of
the
subjects
assigned
to
Provincial
Legislatures
is
‘‘
Direct
Taxation
within
the
Province
in
order
to
the
raising
of
a
Revenue
for
Provincial
Purposes.”
The
other
material
sections
of
the
same
Act
are:
"96.
The
Governor-General
shall
appoint
the
Judges
of
the
Superior,
District,
and
County
Courts
in
each
Province,
except
those
of
the
Courts
of
Probate
in
Nova
Scotia
and
New
Brunswick.
"‘9.
The
Judges
of
the
Superior
Courts
shall
hold
office
during
good
Behaviour,
but
shall
be
removable
by
the
Governor-General
on
Address
of
the
Senate
and
House
of
Commons.
"
"
100.
The
Salaries,
Allowances,
and
Pensions
of
the
Judges
of
the
Superior,
District,
and
County
Courts
(except
the
Courts
of
Probate
in
Nova
Scotia
and
New
Brunswick),
and
of
the
Admiralty
Courts
in
Cases
where
the
Judges
thereof
are
for
the
time
being
paid
by
salary,
shall
be
fixed
and
provided
by
the
Parliament
of
Canada.”
Pursuant
to
the
powers
conferred
by
the
last
mentioned
section
the
Parliament
of
Canada
has
at
various
times
passed
statutes
fixing
and
providing
the
salaries
and
allowances
of
the
Judges
of
the
several
Provinces
specifically.
The
enactment
affecting
this
appeal
is
the
Judges
Act,
R.S.C.
1927,
ce.
105,
mentioned
in
the
second
question
in
the
present
reference.
In
addition
to
the
salaries
the
Act
provides
by
sec.
21
for
the
payment
to
Judges
of
certain
living
and
travelling
expenses
when
acting
away
from
their
places
of
residence.
The
Income
Tax
Act,
1932,
of
Saskatchewan
(ce.
9)
referred
to
in
the
questions
for
the
Court
provides
as
follows
:
"2.
In
this
Act,
unless
the
context
otherwise
requires,
the
expression
:
"‘(8)
‘
Person
‘
means
an
individual,
and
includes
a
guardian,
trustee,
executor,
administrator,
agent,
receiver
or
any
other
individual,
firm
or
corporation
acting
in
a
fiduciary
capacity
and
the
heirs,
executors,
administrators,
successors,
and
assigns
of
such
person.
""3.
For
the
purposes
of
this
Act,
‘income’
means
the
annual
net
profit
or
gain
or
gratuity,
whether
ascertained
and
capable
of
computation
as
being
wages,
salary
or
other
fixed
amount,
or
unascertained
as
being
fees
or
emoluments,
or
as
being
profits
from
a
trade
or
commercial
or
financial
or
other
business
or
calling,
directly
or
indirectly
received
by
a
person
from
any
office
or
employement,
or
from
any
profession
or
calling,
or
from
any
trade,
manufacture
or
business,
as
the
case
may
be,
whether
derived
from
sources
within
Saskatchewan
or
elsewhere;
and
includes
interest,
dividends
or
profits
directly
or
indirectly
received
from
money
at
interest
upon
any
security
or
without
security,
or
from
stocks,
or
from
any
other
investment,
and
whether
such
gains
or
profits
are
divided
or
distributed
or
not,
and
also
the
annual
profit
or
gain
from
any
other
source
including:
"‘(c)
the
salaries,
indemnities
or
other
remuneration
of
all
persons
whatsoever,
whether
the
said
salaries,
indemnities
or
remuneration
are
paid
out
of
the
revenue
of
His
Majesty
in
respect
of
his
Government
of
Canada,
or
of
any
province
thereof
or
by
any
person,
except
as
herein
otherwise
provided
;
and.
(d)
all
other
gains
or
profits
of
any
kind
derived
from
any
source
within
or
without
the
province
whether
received
in
money
or
its
equivalent.
"‘7.
(1)
There
shall
be
assessed,
levied
and
paid
upon
the
income
during
the
preceding
year.
of
every
person
:
"
"(a)
residing
or
ordinarily
resident
in
Saskatchewan
during
such
year;
or
"
"
(b)
who
remains
in
Saskatchewan
during
any
year
for
a
period
or
periods
amounting
to
one
hundred
and
eighty-three
days;
‘
‘
(c)
who
is
employed
in
Saskatchewan
during
such
year
;
or
"‘(d)
who,
not
being
resident
in
Saskatchewan,
is
carrying
on
business
in
Saskatchewan
during
such
year
;
or
Ci
(6)
who,
not
being
resident
in
Saskatchewan,
derives
income
from
services
rendered
in
Saskatchewan
during
such
year,
Otherwise
than
in
the
course
of
regular
or
continuous
employment,
for
any
person
resident
or
carrying
on
business
in
Saskatchewan;
a
tax
at
the
rates
applicable
to
persons
other
than
corporations
and
joint
stock
companies
set
forth
in
the
first
schedule
to
this
Act,
upon
the
amount
of
income
in
excess
of
the
exemptions
granted
by
this
Act.’’
No
special
provision
is
made
for
taxing
or
for
exempting
from
taxation
Judges’
salaries
or
allowances.
Certain
allowances
and
deductions
are
to
be
made
in
ascertaining
the
taxable
income.
These
deductions
include
See.
5
"(1)(f)
travelling
expenses,
including
the
entire
amount
expended
for
meals
and
lodging
while
away
from
home
in
the
pursuit
of
a
trade
or
business.”
It
is
to
be
observed
that
no
question
arises
in
the
reference
which
has
given
rise
to
this
appeal
as
to
the
general
validity
of
any
provision
of
this
Income
Tax
Act
the
only
point
being
whether
the
salaries
and
allowances
of
the
Judges
are
exempt
from
its
operation.
Nor
is
it
in
question
whether
or
how
far,
assuming
judicial
emoluments
to
be.
validly
taxed
by
the
statute
the
living
and
travelling
allowances
of
the
Judges
should
be
included
in
the
quantum
of
their
assessments.
It
should
be
added
that
counsel
for
the
appellants
expressly
disclaimed
in
argument
any
contention
that
the
Judges
were
exempt
from
income
tax
save
in
respect
of
their
official
emoluments.
The
judgment
in
the
Court
below
answering
both
questions
in
the
reference
in
the
affirmative
was
delivered
by
Martin
J.
It
was
pointed
out
that
the
Judges
of
the
Courts
in
question,
being
persons
residing
in
Saskatchewan
and
in
receipt
of
salaries
out
of
the
revenues
of
the
Dominion,
were
prima
facie
subject
to
taxation
by
the
Province
in
respect
of
their
incomes
just
as
other
residents,
and
that
there
was
nothing
in
sees.
96,
99
and
100
of
the
B.N.A.
Act,
1867,
to
limit
the
powers
of
the
Provinces
to
tax
their
salaries.
An
argument
had
apparently
been
addressed
to
the
Court
based
upon
the
word
(i
fixed”
in
see.
100.
The
same
word
is
used
in
sec.
91(8)
of
the
B.N.A.
Act
in
defining
the
powers
of
the
Parliament
of
Canada
with
respect
to
the
salaries
of
civil
servants
and
the
Court
had
before
it
two
decisions
of
the
Supreme
Court
of
Canada,
namely
Abbott
v.
St.
John
(1908)
40
S.C.R.
597
and
A.-G.
Man.
v.
Forbes,
ante,
p.
193,
in
which
a
provincial
income
tax
upon
such
salaries
was
upheld.
The
latter
of
these
two
cases
was
appealed
to
His
Majesty
in
Council
and
the
judgment
of
this
Board
has
been
recently
given
but
is
not
yet
reported.*
The
decision
of
the
Supreme
Court
was
affirmed
and
the
argument
under
discussion
is
not
now
open.
This
in
effect
disposes
of
the
present
case
also,
unless
judicial
emoluments
are
in
a
class
apart
protected
by
some
paramount
principle
making
inapplicable
to
that
form
of
income
a
tax
imposed
by
statute
in
terms
wide
enough
to
include
it.
There
is
no
foundation
in
the
realities
of
the
situation
for
any
such
conception.
Neither
the
independence
nor
any
other
attribute
of
the
judiciary
can
be
affected
by
a
general
income
tax
which
charges
their
official
incomes
on
the
same
footing
as
the
incomes
of
other
citizens.
The
Court
below,
agreeing
with
though
not
bound
by
two
decisions
in
other
Dominions
namely
Cooper
v.
Com’r
of
Income
Tax
(1907)
4
C.L.R.
1804
before
the
High
Court
of
Australia
and
Krause
v.
Corner
for
Inland
Revenue
[1929]
S.A.R.
(A.D.)
286
in
the
Supreme
Court
of
South
Africa,
found
no
reason
for
exempting
judicial
emoluments
from
income
tax.
Their
Lordships
are
of
the
same
opinion.
They
will
therefore
humbly
advise
His
Majesty
that
the
appeal
be
dismissed.
Pursuant
to
an
arrangement
between
the
parties
there
will
be
no
order
as
to
costs.
Appeal
dismissed.
*Now
reported,
ante,
p.
237.—Ed.
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