Martin, J.A.:—This is a reference by the Lieutenant-Governor in Council under the provisions of the Constitutional Questions Act, R.S.S. 1930, c. 60. By sec. 2 of the Act it is provided that the Lieutenant-Governor in Council may refer to the Court of Appeal for hearing and consideration any matter which he thinks fit, "and the court shall thereupon hear and consider the same,’’ In sec. 3 it is provided that the Court shall certify to the Lieutenant-Governor in Council its opinion on the matter referred, "‘with the reasons therefor, which shall be given in like manner as in the case of a Judgment in an ordinary action.’’
The matter involved in the present reference is whether or not the salaries of the Judges of the Court of Appeal, the Court of King’s Bench, and the District Court are subject to taxation under the provisions of the Income Tax Act, 1932 (Sask.), c. 9. The questions submitted are as follows :
"‘(1) Are Judges (a) of the Court of Appeal, (b) of the Court of King’s Bench, (c) of the District Courts, of the Provinee of Saskatchewan, appointed by His Excellency, the Governor General, pursuant to s. 96 of the British North America Act, 1867, subject to the taxation authorized 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 chapter 105 of the Revised Statutes of Canada, 1927?’
It is a fundamental rule in the administration of justice that where a Judge is interested in the result of litigation he cannot sit in Judgment upon it. Nemo debet esse judex in propria causa. Proceedings have been frequently set aside because a Judge who had an interest in the cause took part in the decision. According to the rule, therefore, the members of the Court should not participate in the reference, because each of us has a pecuniary interest in the result. The rule, however, does not apply where the Court acts ex necessitate, e.g., where an action is brought against all the Judges of the Court in a matter over which the Court has exclusive jurisdiction: Dimes v. Grand Junction Canal Co. (1852) 3 H.L. Cas. 759, at p. 787, 10 E. R. 301; Ranger v. G.W.R. (1854) 5 H.L. Cas. 72, at p. 88, 10 E.R. 824, per Lord Cranworth; Boulton v. Church Society of Toronto (1868) 15 Gr. 450; Toronto v. Morson (1916) 37 O.L.R, 369, 28 D.L.R. 188. The present reference has been made to the Court of Appeal under the provisions of the Constitutional Questions Act, and the Court is required not only to hear and consider the subject referred, but also to certify its opinion to the Lieutenant-Governor in Council and to give reasons therefor. Moreover, all Judges of the Province have the same interest in the result of the reference as have the member of this Court. The Court, therefore, acts ex necessitate.
See. 3 of the Income Tax Act, 1932, defines "‘income’’ for the purposes of the Act as follows:
“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 other business or calling, directly or indirectly received by a person from any office or employment, or from any profession or calling, or from any trade, manufacture or business, as the case may be, whether derived from sources within Saskatch- ewan or elsewhere; and includes the 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 includin : :
" (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 in Canada, or of any province thereof, or by any person, except as herein otherwise provided. ‘ ‘
Sec. 7 provides that the income of every person "‘residing, or ordinarily resident in Saskatchewan’’ shall be assessed and liable to a tax at the rates provided by the Act. A long list of exemptions from taxation are set out in sec. 4, but none of them has any bearing upon the matter with which we are here concerned.
Judges of the Court of Appeal, of the Court of King’s Bench, and of the District Court are persons or individuals residing in Saskatchewan, and are in receipt of salaries out of the revenues of His Majesty in respect of His Government in Canada, and are therefore subject to the provisions of the Act. Unless, therefore, by virtue of their position as Judges appointed under the provisions of sec. 96 of the B.N.A. Act, 1867, they are exempt from taxation by the Provinces in respect of their incomes they are subject to such taxation just as other persons resident in the Province.
By see. 96 of the B.N.A. Act exclusive power is conferred on the Governor-General to appoint the Superior, District, and County Court Judges; by sec. 100 it is enacted that the salaries of these Judges ‘‘shall be fixed and provided by the Parliament of Canada’’ and sec. 99 provides that the Judges of the Superior Courts shall hold office during good behaviour, but shall be removed by the Governor General on address to the Senate and House of Commons. These provisions are similar to those of the Act of Settlement of 1700, which were designed to protect the independence of the Bench. In Martineau c Sons Ltd. v. Montreal [1932] 1 D.L.R. 353, Lord Blanesburgh in delivering the judgment.of the Privy Council stated that sec. 96 of the B.N.A. Act, when supplemented by sees. 99 and 100, "‘is shown to lie at the root of the means adopted by the framers of the statute to secure the impartiality and independence of the provincial judiciary. . A Court of construction would accordingly fail in its duty if it were to permit these provisions, and the principle therein enshrined to be impinged upon in any way by provincial legislation.”
We do not think that the words of Lord Blanesburgh can be construed so as to affect in any way the powers of the Provinces to directly tax the income of all persons resident in a Province, including Superior, District and County Court Judges. His words must be read as applicable to the facts of the case, and the question was whether the president of the Public Service Commission of the Province of Quebec, in assessing compensation for property expropriated by the City of Montreal under authority given him by the City Charter and the Public Service Commission Act of the Province, was acting as a Judge of a Superior, District or. County Court, and ‘whether the Province, in appointing him, was trespassing upon the powers conferred upon the Governor-General under sec. 96 to appoint such Judges.
By sec. 92(2) of the B.N.A. Act, the Legislatures of the Provinces are given exclusive powers to make laws on the subject of ‘‘direct Taxation within the province in order to the raising of a Revenue tor Provincial Purposes. ‘ ‘ Acting under the power thus conferred the Legislature of Saskatchewan has enacted that every person resident or ordinarily resident in the Province shall pay a tax on his income at the rates prescribed by the Act. A resident of the Province is none the less so because he is a Judge appointed by the Governor-General. The statute imposes a provincial tax of general application; there is no discrimination ; it is aimed at all residents in the Province, and there is no ground, in the absence of express provision, for exempting the salaries of Judges from the incidence of the tax. In our opinion there is nothing in secs. 96, 99 and 100 of the B.N.A. Act which places limitation upon the powers of the Province to tax the salaries and income of Judges to the same extent as the salaries and income of other residents.
On the argument our attention was called to the words of see. 100, "‘the Salaries, Allowances, and Pensions of Judges . . . shall be fixed and provided by the Parliament of Canada,’’ and it was contended that the word ‘‘fixed’’ implies stability, security and non-interference, and while it may permit of salaries being increased, it prevents the decrease of a Judge’s salary, by means of taxation or otherwise, during his continuance in office. This eontention, however, loses much of its significance because of that fact that word “fixing” is used in sec. 91(8) of the B.N.A. Act in defining the power of the Parliament of Canada with respect to the salaries of civil servants. In Abbott v. St. John (1908) 40 8.C.R. 597, the Supreme Court of Canada held that members of the civil service of Canada were liable to taxation in the Province in which they resided, in respect of their salaries as officials of the Dominion Government. And very recently in two appeals from the Court of Appeal of the Province of Manitoba which were consolidated in the Supreme Court, A.-G. Man. v. Worthington, ante, p. 168, and A.-G. Man. v. Forbes, ante, p. 188, it was held by a majority of the Supreme Court, ante, p. 195, that the Province of Manitoba, under the powers conferred upon it with respect to direct taxation within the Province, could levy an income tax upon the salaries of officers of the permanent force of the active militia of Canada, and upon the salaries of members of the civil service employ ed by the Government of the Dominion of Canada.
There appears to be no direct authority on the subject which is binding upon this Court. The High Court of Australia, however, held in Cooper v. Income Tax Corner (1907) 4 Comm. L.R. 1504, that a Judge was not, by virtue of his office, exempt from taxation of a general kind imposed upon all without discrimination. In Krause v. Inland Revenue Com f r [1929] App.
D. 286, it was held by the Appellate Division of the Supreme Court of South Africa that, notwithstanding the provisions of sec. 100 of the South African Act, wihch enacted that the Judges of the South African Supreme Court should receive such remuneration as Parliament prescribes, and that their remuneration should not be diminished during their term of office, such Judges were not exempted from paying income tax, on the amount of their salaries, under the Income Tax Act, 1925, of the Union of South Africa. There is also a decision of the Court of Appeal of the Province of Ontario, Toronto v. Morson (1917) 40 O.L.R. 227, 38 D.L.R. 224, in which it was held that a Judge of the County Court was not exempt from municipal taxation under provincial legislation in respect of his salary or income. The Ontario Court followed the decision of the Supreme Court of Canada in Abbott v. St. John, supra, and apparently made no distinction between the position of Judges appointed under sec. 96 of the B.N.A. Act and the position of members of the civil service of Canada, as no reference is made in the judgments to sees. 96, 99 and 100 of the B.N.A. Act.
The subject of the taxation of the salaries of Judges of the Federal Courts has been dealt with by the Courts of the United States. Article 3, sec. 1, of the American Constitution provides that the compensation of Federal Judges shall not be diminished during their continuance in office. In McCulloch v. Maryland (1819) 17 U.S. 597, it was held that the States could not exercise a power of taxation over Federal agencies, including the judiciary. In Hvans v. Gore (1920) 253 U.S. 254, it was held (Holmes and Brandeis, J J ., dissenting) that art. 3, sec. 1, of the Constitution made it unconstitutional for Congress to levy an income tax on the salaries of Judges, because that would amount to a diminution of salary. This decision was relied upon in Krause v. Inland Revenue Com’r, supra, but the Appellate Division of the Supreme Court of South Africa followed the dissenting judgment of Halmes, J., who is reported at p. 265 as saying :
" " To require a man to pay the taxes that all other men have to pay cannot possibly be made an instrument to attack his independence as a Judge. I can see nothing in the purpose of this clause of the Constitution to indicate that the Judges were to be a privileged class, free from bearing their share of the cost of the institutions upon which their well-being, if not their life, depends.”
We are of the opinion that both questions in the reference should be answered in the affirmative.
Answers accordingly.