1. Spens, C.J.:—The Opinion which I am about to deliver is that of my brother Varadachariar and myself.

2. This is a Reference made by His Excellency the Governor-General under s. 213 of the Constitution Act. The questions referred are:—

“(1) Has the Federal Legislature power to make a law providing that upon the death of any person there shall be levied an Estate Duty in respect of property, other than agricultural land, passing upon the death

(2) If the Federal Legislature has such power, has it also the power to make a law providing that for the purposes of the aforesaid Duty:—

(a) “property passing upon the death” shall be deemed to include

(i) property passing either immediately on the death or after a specified interval, either certainly or contingently, either originally or by way of substitutive limitation;

(ii) property of which the deceased was at the time of his death competent to dispose;

(iii) property in which the deceased or any other person had an interest ceasing on the death of the deceased, including, in particular, a coparcenary interest in the joint property of a Hindu family governed by the Mitakshara School of Law;

(iv) property transferred by the deceased as a gift in contemplation of death or within a specified period before death;

(v) property passing under any settlement made by the deceased whereby an interest in such property for life or any other period determinable by reference to death was reserved to the settlor

(b) the situs of movable property shall be such as may be specified in the law or prescribed by rules made under the law.

(3) If the Federal Legislature has not the powers referred to in questions (1) and (2), is the levy of such duties a matter not included in any of the Lists in the Seventh Schedule to the Government of India Act, 1935

(4) If the Federal Legislature has the power referred to in question (1) but not all the powers referred to in question (2), is the levy of a duty on those classes of property mentioned in question (2) in respect of which it has not such powers a matter not included in any of the Lists in the Seventh Schedule to the Government of India Act, 1935”

3. Notice of the Reference was given to the Government of India and to the Provinces and we have heard arguments from counsel for the Governor-General and the Governor-General in Council and from the Advocates-General of the United Provinces and the Central Provinces and Berar. At our instance, Sir Alladi Krishnaswami Aiyar was instructed to appear as amicus curiae and present what may be called the taxpayer's point of view. We are indebted to all the learned counsel for the assistance that they have rendered.

4. The circumstances in which the Reference has been made and the form of the questions referred have led to some discussion at the Bar as to the proper course to be adopted in this case. Two particular features of the situation are:—

(1) that the questions relate to contemplated legislation and not to the validity or operation of a measure already passed; and

(2) that the main question referred, namely, Question (1), contains only very limited information as to the nature of the tax proposed to be levied.

5. It may be stated at the outset that when Parliament has thought fit to enact s. 213 of the Constitution Act it is not in our judgment for the Court to insist on the inexpediency (according to a certain school of thought) of the advisory jurisdiction. Nor does it assist to say that the opinions expressed by the Court on the questions referred “will have no more effect than the opinions of the law officers”: Attorney-General for Ontario v. Attorney-General for Canada. That is the necessary result of the jurisdiction being advisory.

6. The fact that the questions referred relate to future legislation cannot by itself be regarded as a valid objection. Section 213 empowers the Governor-General to make a reference when questions of law are “likely to arise”. It has been urged upon us in the present instance that the reference has become particularly necessary because of a suggestion that the proposed legislation requires to be made possible by a notification to be issued by the Governor-General under s. 104 of the Constitution Act. Such a notification can be issued if the subject-matter of the proposed legislation is not enumerated in any of the Lists in Schedule VII to the Act. As the issue of a notification under s. 104, thereby adding to the Lists in Schedule VII, is regarded as a matter of some gravity, it seems to have been assumed by the Joint Parliamentary Committee that before issuing such a notification, the Governor-General would ordinarily take the opinion of the Federal Court as to whether the proposed legislation is not covered by any of the entries in the Lists and this is what the Governor-General has thought fit to do in this case. In this class of cases, the reference should, in the very nature of things, be made before the legislation has been introduced and the objection based upon the hypothetical character of the questions can have no force. We may, however, add that instances were brought to our notice in which references had been made under the corresponding provision in the Canadian Supreme Court Act when the matter was at the stage of a Bill.

7. It would no doubt make the task of the Court easier and perhaps enable it to give a more specific and useful opinion, if in these cases the Court could have before it not only questions intended to indicate the pith and substance of the proposed legislation but also a draft notification to be issued under s. 104 and a draft Bill to be introduced to carry out the proposals.

8. Hence it is that the form of the questions in this case has caused us greater difficulty. When we deal with the questions themselves, it will be seen that we have been obliged to make certain assumptions and reservations in answering them. As observed in Attorney-General for Ontario v. Attorney-General for Canada the necessity for making such reservations may arise in particular cases and the proper course for the Court to adopt in such cases is to make its report with such reservations as may be found necessary.

9. On behalf of the Governor-General in Council, counsel invited us to answer questions (1) and (2) (a) in the negative and questions (3) and (4) in the affirmative. This is slightly different from the position taken up in the statements filed on behalf of the Governor-General in Council, but in a matter of this kind, we are not disposed to attach much importance to this circumstance. He contended that nothing like the proposed tax was mentioned in Lists II and III of the Seventh Schedule to the Constitution Act and that the only relevant entry in the first List, namely entry No. 56, could not, on its true interpretation, be held to authorise the levy of the proposed tax. He drew our attention to some of the English decisions in which the distinction between a Succession Duty and an Estate Duty had been clearly indicated and asked us to apply the same test here and hold that the proposed Estate Duty was not a duty “in respect of succession to property” within the meaning of that phrase in entry No. 56. Pressed with difficulties arising out of the meagreness of the information contained in the questions as to the nature of the proposed tax, he contended that the language of questions (1) and (2) was enough substantially to represent the charging sections of the proposed Act, that taken with the description “Estate Duty” in question (1), the questions gave sufficient information for the purpose of the present Reference and that other sections of the Bill would only be machinery provisions. Finally he asked us to express our opinion on the assumption that what was proposed to be levied was a tax similar in all material respects to the Estate Duty imposed in England by the Finance Act of 1894 (and its later amendments) as interpreted and explained by the decisions of the English Courts thereon; and he referred to the observations of Rigby L.J. in Marl Cowley's case and to the decisions in Winans v. Attorney-Genera and Nevill v. Inland Revenue Commissioner as clearly showing that the proposed tax was essentially different from a succession duty and was not therefore covered by the phraseology used in entry No. 56 or any other entry in the Lists in Schedule VII. The Advocates-General of the United Provinces and of the Central Provinces and Berar contended that the proposed tax fell within the ambit of entry 56 of List I and that question (1) and even question (2), to a great extent, must be answered in the affirmative. They urged that the term “succession” is one of wide and general import, as comprehensive as the expression “passing upon the death” in question (1) and that there was no justification for limiting its interpretation by reference to the distinction drawn in England between Succession Duty and Estate Duty. This distinction, they said, was merely the result of the history of this group of taxes in England and of the co-existence of the two kinds of duties. They insisted that a constitutional enactment should be liberally interpreted so as to give the fullest scope and effect to the language employed and avoid as far as possible an inference of an intention to withhold essential powers of taxation from the Indian Legislatures. They pointed out that when Parliament had thought fit to provide in s. 137 that Succession Duty, though collected by the Central Government, should form part of the revenues of the Provinces, it would not be right to attribute to Parliament an intention that this provision could be defeated by levying a similar tax under a different name or on a different basis. Referring to a recommendation made in 1924-25 by the Indian Taxation Enquiry Committee in favour of the levy of Estate Duty in India, they argued that it was unlikely that the power to impose this duty was not conferred by the Constitution Act passed some years after that recommendation. Lastly, they pointed out that writers on Political Economy and Public Finance and several enactments in Canada and Australia used the expressions “Death Duties”, “Inheritance Taxes” and duties or taxes on “succession” to include both the Succession Duty and the Estate Duty of the English Law. As regards question (2), they contended that, if the Indian Legislature had the power to levy Succession Duty in the wide sense contended for by them, it must also be held to have the power to enact provisions required to make the exercise of that legislative power effective and to prevent evasions of the taxing statute. Many of the categories in the sub-heads forming question (2) (a) they said, would, on this principle, be within the competence of the Indian Legislature. In respect of that portion of sub-clause (iii) of question (2) (a) which relates to coparcenary interest in Mitakshara joint families, they relied on the judgment of this Court in In re The Hindu Women's Rights to Property Act as conclusive in support of the view that survivorship is also a form of succession.

10. Sir Alladi Krishnaswami Aiyar, at one stage, viz., in the case filed by him, supported the contention that “the answer to the first question must be in the negative”, because “an Estate Duty as such could not be comprehended within the scope of the power conferred by the item” (i.e. entry No. 56) and there was no other entry in List I or List III capable of being construed as authorising the levy of such a duty. In his statement in reply, he referred to the American, Canadian and Australian decisions relied on by the Government of the Central Provinces in its case and submitted “that it is unsafe to rely on American, Canadian or Australian analogies and that the Court must reach its conclusion on a proper interpretation of the meaning of the expression ‘duties with respect to succession’ in item 56”. During the arguments before the Court, he stated that further examination of the question in the light of the arguments urged on behalf of the United Provinces and the Central Provinces rather inclined him to the view that the word “succession” in entry 56 of List I could, without any undue straining of its significance, be held to include all cases of “passing of property on death” and that the entry could therefore be held to comprehend both “Succession Duties” (in the narrow sense) and “Estate Duties”. He instanced the case of a Hindu reversioner being spoken as “succeeding” to the estate on the death of a widow, though the widow had only a “limited interest” and the reversioner has been held not to claim under her. He invited our attention to the report of the Percy Committee (the Federal Finance Committee of 1932) and to the White Paper on Constitutional Reforms where the expression “Death or Succession Duties” is used and he asked us to read it as implying that in the opinion of the authors both the expressions “Death Duties” and “Succession Duties” were of the same comprehensive significance. He reiterated the argument based by the Advocate-Greneral of the Central Provinces on s. 137 and he apprehended that if the “Estate Duty” and the “Succession Duty” should be held to be two different duties, there might be practical difficulties and conflicts in their levy in view of the financial scheme adopted by the Constitution Act. We do not feel that the illustration derived from the case of the Hindu widow and the reversioner is likely to be very helpful. The “woman's estate” under the Hindu Law is an anomalous conception created by a long course of decisions in an attempt to reconcile various conflicting interests. Nor is the passage cited from the Percy Committee's Report calculated to throw much light on the question. There is nothing to indicate whether the authors thought that the two duties were one and the same or were different. Anyhow, there remains the fact that the Constitution Act did not employ that composite expression but only the expression “duties in respect of succession”—probably taken from item 2 in List I of the Devolution Rules of 1921. Our conclusion must therefore rest on the weight to be given to the other contentions urged before us.

11. With reference to the form of question (1), we feel that we are at some disadvantage by reason of its inadequacy. It may generally be true to say that questions (1) and (2) correspond to the charging sections of the proposed Act; but a perusal even of the machinery sections may often be useful and sometimes even necessary to elucidate the scope of the charging sections: see Colquhoun v. Brooks; Rex v. Lovitt;

12.Attorney-General for British Columbia v. McDonald Murphy Lumber Co.; and Commissioner of Stamps, Straits Settlements v. Oei Tjong Swa and this is particularly so in cases of ambiguity: Provincial Treasurer of Alberta v. Ker. The expression “property passing upon the death” in the question might not be inappropriate even to denote cases of succession (in the limited sense) if the other provisions of the Act indicate only a Succession Duty in the English sense. Reference has no doubt been made in the question to “Estate Duty”, but it may be doubted whether it is permissible as a matter of interpretation to import into this country, merely from the use of that expression, all the incidents associated with that tax in the English financial system — see the observations in Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan as to the connotation of the expression “Estate Duty” used in the Straits Settlements Ordinance considered in that case and as to the danger of using decisions on an Imperial Statute in the interpretation of a colonial measure. See also the observation of Lord Robson in Rex v. Lovit  where, dealing with the tax imposed by a Canadian enactment, he said: “although called a succession duty, the tax here in question was laid on the corpus of the property”. In a Queensland Statute referred to in Archibald v. Commissioners of Stamps the Queensland Legislature had (as pointed out by O’Connor J.), though adopting the words of the English section, used them in a different context and as part of a different scheme of assessment from that contained in the English Act. As we are not, however, confined strictly to a question of interpretation of the terms used in the Reference and as counsel for the Governor-General in Council has expressly invited us to give our opinion on the assumption that the tax referred to in the Reference as proposed to be levied is one resting on the same essential basis and having the same essential incidents as Estate Duty in the English Law, we are prepared to express our opinion on that assumption.

13.It is true that the difference recognised in England between the Succession Duty and the Estate Duty is, to some extent, due to the history of those taxes in that country. But it does not follow therefrom that the difference does not also rest on a real and important difference in the bases on which they rest. It is likewise true that in some Canadian and Australian Statutes the expression “Succession Duty” has been employed to denote or to include what would be Estate Duty in the English Law; but these were instances in which very little turned on the difference between the two kinds of imposts; the expression was generally found in the “Short title” of the enactment or taken from it. Similarly the principle of “aggregation” and the principle of “progression” (or graduated scale) associated with the Estate Duty have sometimes been adopted even in respect of Succession Duty; they cannot, therefore, be made the basis of differentiation between the two. It is also to be noted that though economists and writers have dealt with “Succession Duty” and “Estate Duty” under the headings “Death Duties”, “Inheritance Taxes” and “Duties on Succession”, it cannot be said that they did not recognise a real distinction between Succession Duty and Estate Duty. There are certain common features justifying the treatment of both these methods of taxation under one head; but the distinctive features are also noted. Thus Findlay Shirras in his “Science of Public Finance”—p. 524—classifies Death Duties or Inheritance Taxes “under two categories, an estate tax levied on the inheritance as a whole, and a succession duty or share tax on the separate portions going to the different beneficiaries”. He adds that both categories have their peculiar characteristics and proceeds to indicate them, observing that the Estate Duty is a more productive and efficient source of revenue while the Inheritance Tax may be said to be the more equitable. There is one feature common to both taxes, namely, that the occasion for the levy is the death of a person; but while Succession Duty has reference to the acquisition of the property by the successor and generall takes into account the extent of the benefit derived by him and other considerations relevant from that point of view, the Estate Duty has reference to the value of the property constituting the estate of the deceased and is independent of the question as to who takes it. Thus the distinction drawn in the English decisions between Estate Duty and Succession Duty seems to correspond substantially to a distinction in principle and basis recognised by writers on Economics. The Members of the Indian Taxation Enquiry Committee themselves recognised it: see para 356 of the Report. The judgments in Provincial Treasurer of Alberta v. Kerr and in some of the earlier cases therein referred to will also show that that distinction may have a material bearing upon the classification of taxes into “direct” and “indirect” and upon the decision of questions relating to the territorial jurisdiction of legislatures imposing such taxes.

14. The argument based upon the improbability of Parliament having withheld the power to levy such a tax when framing the constitution in 1935 has no great force. Section 104 has been enacted to meet that very difficulty. That section has also some bearing on the argument founded on s. 137; the Governor-General may by a notification under s. 104 confer the power even on a Provincial Legislature. If, however, the situation cannot be satisfactorily met in that way, the matter must, of course, go before Parliament. As regards the recommendation of the Taxation Enquiry Committee, it seems to us that it must be taken along with the difficulties pointed out in the report itself as standing in the way of the immediate introduction of such a tax into this country. The recommendations made as to the preliminary steps necessary might well have created the impression that it would be some time before the tax could be introduced, if at all.

15. Recognising that there are real and substantial differences between Succession and Estate Duties, we now address ourselves directly to the question: in what sense is the word “succession” used in entry 56 of List I which speaks of “duties in respect of succession to property”. Our attention was drawn to the meaning of the word “succession” in dictionaries and law lexicons and it was contended that the word was capable of comprehending every kind of passing of property intended to be comprised in question (1). We are by no means satisfied that this is so. Assuming, however, that the word “succession” by itself is capable of a wide significance, can it bear any such meaning in the expression “succession to property”, especially when it is read in the light of other indications derivable from the Lists in the Seventh Schedule The Indian Succession Act broadly divides the subject of “succession” into “testamentary” and “intestate” succession; and the ordinary meaning of succession is the transmission, by law or by the will of man, to one or more persons of the property and the transmissible rights and obligations of a deceased person. That this is the sense in which “succession” is used in the Lists in Schedule VII is indicated by the collocation of the words “wills”, “intestacy” and “succession” in entry 7 of List III. Entry 21 in List II contains a corresponding provision in respect of “agricultural land”; and it speaks of “transfer, alienation and devolution” (entry 21 corresponds not only to entry 7 of List III but also to entry 8; hence it deals with transfers inter vivos as well as testamentary dispositions and devolution). It is only reasonable to assume that entry 56 in List I and entry 43 in List II, which authorise the levy of duties in respect of succession, refer us back to the succession and devolution provided for elsewhere in the Schedule. The use of the word “to” in the expression “suceession to property” lends some support to this view. How different from this is the concept of a duty which [in the words of Rigby L.J. in Earl Cowley's case has no reference to or implication of a relation of predecessor and successor or the existence of a succession. So far as legislative practice is concerned, there can, we think, be no doubt that in England, where the distinctions between the two duties were well-known, a power to impose duties “in respect of succession to property” would be regarded as most inaptly worded if it was intended to include a power to impose an estate duty. If in India there were any conflicting legislative practice, we should not place any great reliance on the English practice. But if there be any legislative practice at all in India, it is to be found generally in the use of the word “succession” in the narrower sense. For reasons indicated earlier in this opinion, we do not think that legislative practice in other Dominions or States is relevant for our purpose.

16. The expression “in respect of” in entry 56 is also not without significance. It indicates that the “succession” is the subject-matter of the taxation and not merely the occasion. It may be that the amount of the tax is fixed or regulated with respect to the value of the property but the subject-matter of the tax is not the property but the succession. The significance of this distinction is brought out in Provincial Treasurer of Alberta v. Ker. A tax of which the subject-matter is the “succession” cannot be held to be the same as a tax which has no relation to “the accession to the property of a deceased person”—as the Estate Duty is described by Lord Gorell to be: Winans v. Attorney-General. It is perhaps right to add that at the present stage we approach the question only from the point of view of ascertaining the probable intention of Parliament. When a Court is called upon to pronounce actual legislation ultra vires, the view point becomes slightly different; because, though the intention of the Constitution Act is even then the test, the presumption in favour of validity—weak as it may sometimes be—inclines the Court to put as wide a construction as possible on the words used in the enactment. In our opinion, there is more reason and justification for placing a limited construction on entry 56 of List I than for adopting the wider construction suggested.

17. Counsel for the Governor-General in Council referred to entry 55 in List I only to say that it is not appropriate to describe a levy in the nature of Estate Duty. We agree in this view; and, as the other counsel appearing before us did not suggest anything to the contrary, we do not think it necessary to discuss the entry at any length. Entry 13 in List III and the cognate entry 51 in List II are equally inappropriate. Both Estate Duty and Succession Duty may be collected in the form of stamps and in some countries legislation relating to Estate Duty and Succession Duty is included in Stamp Laws; but the duties themselves are in their nature different from stamp duties (see Bastable's Public Finance, B. IV, Ch. IX, S. 1). The express mention of “duties in respect of succession” in the Lists in Schedule VII is itself an indication that the entry relating to “Stamp Duties” was not intended to comprise duties of the other kind.

18. If the first question is answered in the negative, it will not be necessary to answer the second question which has been framed on the assumption that the Federal Legislature has power to impose the proposed tax. It seems, however, desirable to make a few observations with reference to the arguments advanced by the Advocate-General of the Central Provinces and Berar in respect of this question. The expression “shall be deemed to include” is the method of introducing a statutory fiction, so as to enlarge the scope of a preceding provision in the statute. While it is true that the grant of legislative power in respect of a certain subject-matter will carry with it certain accessory or incidental powers, including a power to enact provisions to make effective the exercise of the main power or to prevent evasion of the law enacted under that power, provisions of this kind are substantially different from provisions calculated to extend the scope of the main power itself by a statutory fiction. It is bound to be a question of much difficulty—and one which, in our opinion, could only usefully be attempted when the legislation has taken much more final form—to determine whether the various provisions set out in question (2) (a) can be regarded as “incidental” or “accessory” in the sense above explained.

19.The point raised by question (2) (b) does not turn on the construction of the Lists in Schedule VII, but on s. 99. The legislature may, within limits, have the power to define the situs of movable property for the purposes of an Act but the validity of such legislation will depend upon its conforming to the provisions of s. 99 of the Constitution Act. The question does not, therefore, admit of a general answer and counsel for the Governor-General in Council did not accordingly invite us to answer this question. There is nothing in List II of Schedule VII to cover the proposed duty.

20. We are, therefore, of the opinion that the answers to the questions comprised in the Reference are as follow:—

(1) The Federal Legislature has no power to make a law providing for the levy of “Estate Duty” of the nature and with the incidents of Estate Duty under the English Law.

(2) The question does not arise in view of the answer to question (1).

(3) & (4) The levy of Estate Duty of the kind above referred is not a matter included in any of the Lists in the Seventh Schedule to the Government of India Act, 1935.

21. Our brother Zafrulla Khan finds himself unable to express any opinion on the questions referred. A report will, therefore, be made to His Excellency in accordance with the opinion of the majority.

22. Zafrulla Khan, J.:—Consultation of Judges by the Executive has been the subject matter of much controversy at the hands of text-writers, jurists and Judges. The attempts made by the first two Stuart Kings of England which were characterised by Sir Edward Coke as “auricular taking of opinions” from the Judges and which eventually led to his own removal from his high office were to a large extent responsible for the bias which is noticeable throughout the judicial history of England against such consultation. These attempts were regarded as interference by the Executive with the proper exercise of their judicial function by the judges and as tending to undermine their independence. Today the Crown has come to occupy an impersonal and detached position and the independence of Judges has been secured by means of such effective safeguards that any suggestion of such a suspicion attaching to a reference made by the Executive to the Judiciary may perhaps be disregarded. That does not mean that the exercise of advisory jurisdiction, even in pursuance of provision made in that behalf in modern statutes, may not often be attended with great inconvenience, occasion embarrassment and result in prejudice to the rights of future litigants. It is a jurisdiction the exercise of which on all occasions must be a matter of delicacy and caution.

23. That the prejudice against obtaining advisory opinions from Judges is still very strong in England may to some extent be gathered from the protests made in the House of Lords in April 1928 to a clause contained in the Eating and Valuation Bill of that year whereby it was proposed that in certain events the Minister of Health may submit a substantial question of law to the High Court for its opinion thereon. The condemnation of the clause was so vigorous that the Government thought it wise to abandon it.

24. On the other hand, s. 4 of the Judicial Committee Act, 1833, (3 & 4 William IV, c. 41), provides: “It shall be lawful for His Majesty to refer to the said Judicial Committee for hearing and consideration any such other matters whatsoever as His Majesty shall think fit; and such Committee shall thereupon hear and consider the same; and shall advise His Majesty thereon in manner aforesaid”.

25. Section 60 of the Canadian Supreme Court Act, 1906, empowers the Governor-General in Council to refer important questions of law touching certain matters to the Supreme Court for hearing and consideration. The Supreme Court is bound to entertain and answer the reference, and the opinion of the Court upon such reference is subject to appeal to His Majesty in Council.

26.The Supreme Courts of the Canadian Provinces and several of the States Supreme Courts in the United States have been invested with similar jurisdiction. The Supreme Court of the United States has consistently refused to pronounce advisory opinions upon abstract questions of law on the ground that to do so would be incompatible with the position that it occupies in the Constitution of the United States.

27. The Permanent Court of International Justice was invested with competence to deliver advisory opinions by Art. 14 of the Covenant of the League of Nations which provided: “The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly”. It has given advisory opinions on several occasions with very beneficent results.

28. Professor Felix Frankfurter (now Mr. Justice Frankfurter of the Supreme Court of the United States) expressed himself on the subject of advisory opinions on legislative proposals twenty years ago in the following terms:—

“The whole milieu of advisory opinions on proposed bills is inevitably different from that of litigation contesting legislation. However much provision may be made on paper for adequate arguments (and experience justifies little reliance) advisory opinions are bound to move in an unreal atmosphere. The impact of actuality and the intensities of immediacy are wanting. In the attitude of court and counsel, in the vigour of adequate representation of the facts behind legislation (lamentably inadequate even in contested litigation) there is thus a wide gulf of difference, partly rooted in psychologic factors, between opinions in advance of legislation and decisions in litigation after such proposals are embodied into law. Advisory opinions are rendered upon sterilized and mutilated issues. Let any one, for instance, compare the adverse opinion of the Massachusetts Supreme Court upon the constitutionality of municipal coal and wood yards with the opinion of the Supreme Court sustaining such legislation; the adverse opinion of the Massachusetts Court on prohibition of trading stamps with the opinion of the Supreme Court sustaining such legislation; the adverse opinion of the Massachusetts Court on the State's power to provide for dwelling houses with the opinion of the Supreme Court sustaining such legislation. These are samples taken from the court in which, presumably, advisory opinions have been rendered under the most favourable circumstances.”

29. He concluded with the warning, “It must be remembered that advisory opinions are not merely advisory opinions. They are ghosts that slay.” 

30. Writing in 1931, Professor Carleton Kemp Allen expressed himself as follows:—

“The whole notion of ‘consultation’ of the judiciary is, by hypothesis, a contradiction which requires exceptional justification. The judge does not sit in the seat of justice in order to be consulted, but in order to decide an issue. If, then, he is to be ‘consulted’, his advice must be one of two things. Either it is mere opinion, subject to the same limitations as any other opinion—namely, that the person advised may or may not, at his option, follow the advice; in this case it is not easy to see the advantage of imposing this additional duty on judges…………Or, in the alternative, it is (like the fictitious ‘advice’ of the Judicial Committee) opinion of such a peculiarly authoritative nature that it is not, and is not intended to be, really opinion at all, but judgment disguised as opinion. There seems to be no cogent motive for extracting opinions from the Bench except to give them an authority which cannot belong to any lesser opinion. If, then, this opinion is really judgment, it is open to the extremely serious objection that it is anticipatory of actual facts, which are of infinite complexity, and upon which all judgment, in the sense of the application of principle to circumstances, must depend……………………No abstract principle of interpretation laid down in advance by the Courts could be, or at all events ought to be, more than a guide for the decision of subsequent cases. It is therefore either superfluous, or else it is a signpost with a pointing finger in which we may read a gesture, not of direction, hut of command or of threat.” 

31. In Attorney-General for Ontario v. The Hamilton Street Railway Company, their Lordships of the Judicial Committee in an appeal from Canada declined to answer certain questions with the following observations:—

“They are questions proper to be considered in concrete cases only; and opinions expressed upon the operation of the sections referred to, and the extent to which they are applicable, would be worthless for many reasons. They would be worthless as being speculative opinions on hypothetical questions. It would be contrary to principle, inconvenient, and inexpedient that opinions should be given upon such questions at all. When they arise, they must arise in concrete cases, involving private rights; and it would be extremely unwise for any judicial tribunal to attempt beforehand to exhaust all possible cases and facts which might occur to qualify, cut down, and override the operation of particular words when the concrete case is not before it.”

32. The desirability and utility of advisory opinions is supposed to have been stressed by Lord Loreburn in the judgment of the Judicial Committee delivered by him in Attorney-General for Ontario v. Attorney-General for Canada. A perusal of the judgment however would make it quite clear that in that case the Judicial Committee were concerned (as indeed was bound to be the case) not with the wisdom of the Canadian provision in respect of advisory opinions, but with the question whether that provision had been validly enacted by the Canadian Parliament. The very first sentence of the judgment runs:

“The real point raised in this most important case is whether or not an Act of the Dominion Parliament authorising questions either of law or of fact to be put to the Supreme Court and requiring the judges of that Court to answer them on the request of the Governor in Council is a valid enactment within the powers of that Parliament.”

33. At page 582 of the Report, Lord Loreburn thus sets out the gists of the arguments advanced on behalf of the provinces:—

“Broadly speaking the argument on behalf of the provinces proceeded upon the following lines. They said that the power to ask questions of the Supreme Court, sought to be bestowed upon the Dominion Government by the impugned Act, is so wide in its terms as to admit of a gross interference with the judicial character of that Court, and, therefore, of grave prejudice to the rights of the provinces and of individual citizens. Any question, whether of law or fact, it was urged, can be put to the Supreme Court, and they are required to answer it, with their reasons. Though no direct effect is to result from the answer so given, and no right or property is thereby to be adjudged, yet, say the appellants, the indirect result of such a proceeding may be and will be most fatal. When the opinion of the highest Court of Appeal for all Canada has been given upon matters both of law and of fact, it is said it is not in human nature to expect that, if the same matter is again raised upon a concrete case by an individual litigant before the same Court, its members can divest themselves of their preconceived opinions; whereby may ensue not merely a distrust of their freedom from prepossession, but actual injustice, inasmuch as they will in fact, however unintentionally, be biassed. The appellants further insist that although the Act in question provides for requiring argument, and directing that counsel shall be heard before the questions are answered, yet the persons who may be affected by the answers cannot be known beforehand, and therefore will be prejudiced without so much as an opportunity of stating their objections before the Supreme Court has arrived at what will virtually be a determination of their rights.”

34. On this he observes (p. 583):—

“This view, which was most powerfully presented, has a twofold aspect. It may be regarded as a commentary upon the wisdom of such an enactment. With that this Board is in no sense concerned. A Court of law has nothing to do with a Canadian Act of Parliament, lawfully passed, except to give it effect according to its tenor. No one who has experience of judicial duties can doubt that, if an Act of this kind were abused, manifold evils might follow, including undeserved suspicion of the course of justice and much embarrassment and anxiety to the judges themselves. Such considerations are proper, no doubt, to be weighed by those who make and by those who administer the laws of Canada, nor is any Court of law entitled to suppose that they have not been or will not be duly so weighed. So far as it is a matter of wisdom or policy, it is for the determination of the Parliament…………It cannot be too strongly put that with the wisdom or expediency or policy of an Act, lawfully passed, no Court has a word to say. All, therefore, that their Lordships can consider in the argument under review is whether it takes them a step towards proving that this Act is outside the authority of the Canadian Parliament, which is purely a question of the constitutional law of Canada.”

35. Viscount Haldane, L.C. in Attorney-General for British Columbia v. Attorney-General for Canada observed as follows:—

“It is clear that questions of this kind can be competently put to the Supreme Court where, as in this case, statutory authority to pronounce upon them has been given to that Court by the Dominion Parliament. The practice is now well established, and its validity was affirmed by this Board in the recent case of Attorney-General of Ontario v. Attorney-General of the Dominion. It is at times attended with inconveniences, and it is not surprising that the Supreme Court of the United States should have steadily refused to adopt a similar procedure, and should have confined itself to adjudication on the legal rights of litigants in actual controversies. But this refusal is based on the position of that Court in the Constitution of the United States, a position which is different from that of any Canadian Court, or of the Judicial Committee under the statute of William IV. The business of the Supreme Court of Canada is to do what is laid down as its duty by the Dominion Parliament, and the duty of the Judicial Committee, although not bound by any Canadian statute, is to give to it as a Court of review such assistance as is within its power. Nevertheless, under this procedure questions may be put of a kind which it is impossible to answer satisfactorily. Not only may the question of future litigants be prejudiced by the Court laying down principles in an abstract form without any reference or relation to actual facts, but it may turn out to be practically impossible to define a principle adequately and safely without previous ascertainment of the exact facts to which it is to be applied. It has therefore happened that in cases of the present class their Lordships have occasionally found themselves unable to answer all the questions put to them, and have found it advisable to limit and guard their replies. It will be seen that this is so to some extent in the present appeal.”

36. The view taken by different Lords Chancellor and Judges in the Judicial Committee of the advisability of having recourse to provisions for obtaining advisory opinions on abstract questions of law was revealed by Lord Haldane in the House of Lords during the debate on Clause 4 of the Rating and Valuation Bill to which I have made reference earlier. He there said:

“The Dominion of Canada got into the habit many years ago, before my time, of passing Acts submitting abstract questions for the opinion of the Supreme Court of Canada, and then, by a special clause, to the Privy. Council here. The Privy Council was not bound to hear those questions, and said so, but the Privy Council, from the desire to be helpful, did get into the practice of entertaining them, and the King in Council pronounces upon them when they come. I have had a long experience of these questions. I have decided scores and scores of them, and anything more unsatisfactory and more mischievous I do not know.

37. You get a perfectly general question brought up, without reference to specific facts—or, at least, there are no specific facts which enable you to deal exhaustively with the case; and then what happens I have heard Lord Chancellor after Lord Chancellor say: ‘We decline to answer the whole of the questions which are put to us. To do so would be to decide ahead, to go into regions which we cannot survey, and embarrass at every turn private litigants who come hereafter." At a later stage he said:

“I referred on the last occasion to the liking which had grown up in Canada for submitting abstract constitutional questions to the Courts there and ultimately to the Privy Council. In my opinion experience of that course has led to enormous inconveniences, and successive Lords Chancellor have objected to and denounced it. The late Lord Herschell said some strong things about it, and at times refused to give an opinion. The late Lord Loreburn was even stronger, and other Lords Chancellor and other Judges in the Judicial Committee have expressed themselves without restraint upon a system which they deemed to be very mischievous. It was mischievous because it invited the Court to go beyond the particular case which it had to decide and to say things beyond the facts to which the decision would be applied., which might prejudice future suitors.”

38. On the same occasion Lord Merrivale observed: “I want to say two or three words more with regard to the position of His Majesty's Judges in this matter. It is no part of the business of His Majesty's Judges, and never has been part of their business, at any rate since the Act of Settlement, to have any advisory concern in the acts of the Administration or to take part in advising the Administration. The natural effect of associating them with the Administration and attaching to them the responsibility for conclusions which are put forward by the Administration will be to weaken the authority of the Judiciary. It can have no other effect…………..Why should the Judges be brought in by this side-wind to help the Executive to carry on their business, to replace the Law Officers and to relieve the Executive of responsibility as to decisions that they ought to arrive at upon the law”

39. Lord Carson said:

“Anything more dangerous or more unfair to the subject I cannot conceive……..I cannot imagine anything worse than for us to lay down that such a procedure should be taken as one which may be applied to many other matters. Just fancy applying it to the Finance Acts—to those complicated measures which raise all the taxes of the country. A case might be submitted to the Judges as to whether under a particular clause certain persons should be taxed, and then, if they were advised that that is not the proper construction, they would be told: ‘Oh, you were not there; we have got judgment; that is what the Courts say’. Anything more mischievous I cannot imagine.” 

40. Nevertheless, in 1935 Parliament thought it wise to incorporate s. 213 in the Constitution Act. We must take it, therefore, that in the opinion of Parliament, in spite of the criticism to which provisions of this nature had been subjected, it was desirable that the Grovernor-General should be enabled to refer to the Court questions of law which in his opinion were of such a nature and of such public importance that it was considered expedient to obtain its opinion upon them. It is to be observed that unlike s. 4 of the Judicial Committee Act, 1833, and s. 60 of the Canadian Supreme Court Act, 1906, s. 213 does not make it obligatory upon the Court to arrive at a determination of the questions referred to it: In re Allocation of Lands and Buildings situate in a Chief Commissioner's Province.

41. The Court is to report after such hearing as it thinks fit and every report must be made in accordance with an opinion delivered in open Court with the concurrence of the majority of the Judges present with liberty to a Judge who does not concur to deliver a dissenting opinion. Thus the procedure has, as far as possible, been approximated to a judicial hearing and determination of the questions referred.

42. An advisory opinion on the other hand is not in the nature of a judicial pronouncement and the Constitution Act does not make an opinion appealable to His Majesty in Council. Nor is it binding upon the Governor-General. Whether the pronouncements of the Court in an advisory opinion could be regarded as “law declared by the Federal Court” within the meaning of s. 212 of the Constitution Act, so as to be recognized as binding on Courts in British India appears to be open to serious doubt. The very fact that the subject of advisory opinions is dealt with in a section later than s. 212 is in itself an indication that an advisory opinion would be no more than an opinion. The marginal note to s. 213 indicates that the whole procedure merely constitutes “consultation” between the Governor-General and the Court.

43. Questions that may be referred to the Court for its opinion under s. 213 may fall under different categories, with reference to their nature and subject-matter and to the stage at which and the form in which they are referred. It may be that, for instance, in the case of a dispute between the Centre and a Province, questions may be referred that have reference to concrete matters in controversy between the Governments and it may be possible to proceed to their determination against that background. In a case of that description, the Court may not be faced with any difficulty having relation merely to the subject-matter or form of the Reference.

44. The Court has already answered References relating to two enactments, one passed by a Provincial Legislature and the other by the Central Legislature, which shows that where the Court is called upon to deliver an advisory opinion with reference to existing legislation, it might be able to do so, subject to such reservations and qualifications as the nature of the questions referred might necessitate. This is not, however, to be taken to mean that in all cases of completed legislation the Court would be able to deliver an opinion. That must always depend upon the nature of the questions and the material available for their determination.

45. In the present case we are concerned not with an existing law but with a legislative proposal. That the proposal is of a fiscal nature merely enhances the difficulty of pronouncing upon it in advance. I will not go so far as to suggest that no legislative proposal could usefully form the subject of a reference and opinion under s. 213, but I do apprehend that it would be possible for the Court to pronounce upon such a proposal with confidence only in exceptional cases, A reference relating to a legislative proposal must in a large number of cases be enveloped in a thick fog of hypotheses and uncertainties and an opinion delivered thereon could only rest upon a forest of assumptions which must rob it of all value. If a legislative proposal can be cast in a form which does not give rise to difficulties of this character the Court might find it possible to pronounce upon it. In any event the Court must be furnished with the fullest material on the subject in an exact and precise form and should not be left to base its opinion upon assumptions or be reduced to the necessity of safeguarding against misapprehension or misconstruction of what it might have to say by a profuse employment of ‘ifs’ and ‘buts’ and ‘provideds’. In other words, it should be put in a position to arrive at a determination of the questions referred with confidence that its opinion would furnish some guidance and help. One precaution that might be taken would be to attach to the Reference a draft of the bill which it is proposed to place before the legislature. I am not to be understood as suggesting that if such a draft is forwarded, the Court might always find it possible to deliver an opinion, but a draft might be found, to be of considerable assistance. It is true that the bill might subsequently emerge from the legislature in a shape very different from that in which it had been considered by the Court. In such a case the opinion of the Court will always be read with reference to the proposal placed before it and there will be no danger of its being read with reference to the form which the legislation finally takes. Such a precaution would be wise in the case of all legislative proposals, but I am disposed to regard it as indispensable in the case of fiscal proposals.

46. With these observations I proceed to the consideration of the Reference now before us. We were informed that a Reference had become necessary at this stage as the Governor-General had been advised that a law of the description envisaged in paragraphs (1) and (2) of the Reference was not covered by any of the entries in the three Lists of the Seventh Schedule to the Constitution Act and that, therefore, this was a case in which the Governor-General would have to have recourse to his powers under s. 104 of the Act. As this was the first occasion on which such a contingency had arisen the Governor-General had thought it prudent to seek the opinion of the Court before taking appropriate action. I fully appreciate the considerations that have prompted the Reference, but deplore my inability to answer the main questions propounded on the material made available.

47. The scheme of the proposed legislation is to levy upon the death of a person a duty in respect of property other than agricultural land passing upon the death. To make the duty effective and to render evasion impossible or at least difficult it is proposed to enact “that property passing upon the death” shall be deemed to include certain kinds of property which might not otherwise have been regarded as passing upon the death. It is further proposed to provide that for the purposes of this duty, the situs of movable property shall be such as may be specified in the contemplated law itself or prescribed by rules made under that law. We are asked whether the Federal Legislature has power to make a law of this description, and if not, is it not a matter which is not included in any of the Lists of the Seventh Schedule

48. The difficulty that I have felt in dealing with these questions may be illustrated by inviting attention to paragraph (2) (b) of the Reference. This paragraph put by itself would read as follows: “Assuming that the Federal Legislature has power to make a law providing for the levy of an Estate duty, has it also the power to make a law providing that for the purposes of that duty the situs of movable property shall be such as may be specified in the law or prescribed by rules made under the law”

49.The answer must depend upon the actual provision with regard to the situs of movable property that may be made in the law or that may be prescribed by rules made under the law. In the absence of a draft of the provision itself it would be impossible to say whether the Federal Legislature had or had not the power to enact such a provision. On this being pointed out it was conceded on behalf of the Grovernor-G-eneral that to this part of the Reference no answer could be given and the Court was excused from attempting to frame an answer.

50. The main controversy revolved round the first paragraph of the Reference. The contentions raised are summarised in the opinion just delivered by my Lord and my brother and need not be recapitulated here. It was maintained on behalf of the Governor-General in Council that paragraphs (1) and (2) (a) of the Reference indicated the real nature of the duty proposed to be levied with sufficient exactness for us to be able to pronounce an opinion upon it. I am unable to accept that position. All that the first paragraph tells us is that upon the death of a person there shall be levied an estate duty in respect of property, other than agricultural land, passing upon the death. The expression “estate duty” is not a term of art and carries no precise connotation. I was unable to elicit during the course of the argument what purpose the word “estate” before “duty” in the first paragraph was intended to serve, unless it was the psychologic one of directing our minds to the provisions of the English Finance Act of 1894, whereby estate duty was imposed in England. A law enacting that upon the death of a person there shall be’ levied a duty in respect of property passing upon the death may well be so framed as to be completely covered by entry No. 56 of the Federal List, even upon a narrow construction of the term “succession” used in that entry.

51. We were told that the intention was to levy a duty similar in all material respects to the estate duty imposed in England by the Finance Act of 1894 (and its later amendments) as interpreted and explained by the decisions of the English Courts thereon and we were invited to base our opinion upon that assumption. This means that we are to read into the Reference all the essential and material provisions of the English Finance Act of 1894 and all its later amendments as interpreted and explained in the decisions of the English Courts, and further, that whoever seeks to extract any guidance or derive any profit from the opinion that the Court may be induced to deliver on that assumption must at his peril carry out a careful study of the whole of the English legislation on the subject and of the very voluminous judicial interpretation thereof. I consider this most unsatisfactory. Whenever this Court is invited to render an opinion upon questions of law, the questions must be cast in a precise and exact form and the Reference itself must contain all the material necessary to enable the Court to arrive at a satisfactory determination of the questions. It should not be left to counsel to supplement the Reference during the course of the hearing by oral submissions. Counsel may as of right enter upon an exposition and interpretation of the material contained in the Reference, but that is quite different from varying or supplementing it, which according to their Lordships of the Judicial Committee is not permissible: Attorney-General for Alberta v. Attorney-General for Canada. For instance, the English Finance Act, 1894, levies a duty upon the “principal value” of all property passing upon the death of a person. There is nothing in paragraph (1) of the Reference which indicates that the duty contemplated in the paragraph is to bear that characteristic. We were informed that that was the intention and that we should assume that the duty would be so levied.

52. It was urged that paragraphs (1) and (2) (a) of the Reference would form the charging sections of the proposed legislation and that the nature of the proposed duty should be ascertained from the charging sections. When it was pointed out that the Reference contained no information on the method of assessment and collection of the duty we were told that the machinery provisions could have no bearing upon the nature and character of the duty. With that I am unable to agree. In determining the true nature of a tax considerable help may be derived from the machinery provisions and the schedules etc.: Colquhoun v. Brooks and Rex v. Lovitt.

53. In Attorney-General for British Columbia v. McDonald Murphy Lumber Company their Lordships found no difficulty in holding that while a Canadian Act purported to impose a tax on all timber cut within the Province it proceeded in the relative schedules so to reduce the tax by rebate in the case of timber used in the Province as to leave it to operate only on timber exported and that therefore it was in effect an export tax.

54. In Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan Lord Macmillan observed: “It may well be that provisions dealing merely with the machinery of taxation ought not to be presumed to impose a charge, but statutes must be read as a whole and the language used in so-called machinery sections may be called in aid for the interpretation of the charging sections.”

55. In answer to questions whether we could be given an idea of the machinery provisions proposed to be incorporated in the law levying the duty, we were informed that the matter had not yet taken any definite shape, though various alternative proposals had been under consideration. Anybody familiar with conditions in India as compared with those in England would readily appreciate that though the drafting of an Estate Duty Bill upon the model of the English Finance Act of 1894 may not present any serious difficulty so far as the so-called charging clauses are concerned, the devising of the machinery for the assessment and collection of the duty might present insurmountable difficulties. The vast bulk of the people of this country are governed in matters of inheritance and succession by their personal laws and have not the remotest conception of letters of administration, probate and the like. It may therefore well be that though the proposed duty is given the name of estate duty and is levied on “property passing upon death”, yet the machinery provisions may perforce have to be so framed as to make the duty in effect a “duty in respect of succession to property” within the meaning of entry No. 56 of the Federal List. I do not think the Court could fairly be invited to make a pronouncement upon the nature of the duty proposed to be levied in the absence of full information on the subject of machinery and other matters which would be necessary to make the duty effective.

56. One of the considerations to which our attention was invited during the course of argument as bearing upon the question whether the expression “succession to property” in entry No. 56 of the Federal List should be given a narrow or wide construction, was that Parliament, which must be presumed to have been well aware of the technical distinction between a succession duty and an estate duty as understood in England, had made no express mention of estate duty in any of the Lists. This, it was argued, went to show that “duties in respect of succession to property” in entry No. 56 must be given a wide and liberal construction so as to cover an estate duty. It was urged that Parliament having by entry No. 55 of List I gone so far as to confer upon the Federal Legislature even the power to impose a capital levy it was not to be supposed that it had withheld from that Legislature the power to levy an estate duty. Our attention was directed to s. 137 of the Constitution Act which provides that duties in respect of succession to property shall be levied and collected by the Federation but that the net proceeds thereof shall be assigned to the Provinces. It was pointed out that if estate duty was not covered by entry No. 56, List I, and was a matter not included in any of the Lists, Parliament must be deemed deliberately to have left that duty to be allotted at the discretion of the Governor-General to the Provinces or to the Centre and that it was open to the Governor-General by allotting it to the Centre in effect to deprive the Provinces of the benefit of duties in respect of succession to property and thus to defeat the purpose of s. 137. Another consequence that would follow would be that whereas even for purposes of collection duties in respect of succession to property had been divided by the Constitution Act between the Centre and the Provinces on the basis of property other than agricultural land (entry No. 56, List I) and agricultural land (entry No. 43, List II), the Governor-General would be at liberty to allot estate duty to the Centre irrespective of the character of the property upon which it might be levied. To this the answer given was that paragraph (1) of the Reference itself showed that it was not proposed to levy estate duty upon agricultural land and that it had already been declared that the net proceeds of the duty would be distributed among the Provinces. The rejoinder was that what was proposed to be done was a mere matter of grace and not a matter of legal compulsion and that it was not reasonable to suppose that Parliament had left these important matters to be adjusted by agreement and not by express provision. The only explanation suggested was that having regard to the conditions that prevailed in India, to which reference has been made earlier, Parliament might have felt that it would be extremely inconvenient, if not actually impossible, to levy an estate duty in this country. That again tends to emphasise the consideration already stressed that though the definition of an estate duty may be retained in the proposed law as set out in paragraph (1) of the Reference, the machinery provisions may have to be devised in such a fashion as to make the duty in substance one in respect of succession to property.

57. The material supplied being insufficient to enable me to pronounce an opinion on the first question, it follows that I am unable to pronounce an opinion upon the second and subsequent questions.

58. I may point out that assuming that in the absence of material of the kind that I have indicated an affirmative answer could have been returned to the first question, as it stands, it would have been extremely difficult to return an answer to the whole of question (2) (a) in the absence of such material. It was contended on behalf of the Provinces that if the subject-matter of the first paragraph was covered by entry No. 56 of List I, the various items set out in paragraph (2) (a) could be regarded as merely “incidental” or “accessory” to the main purpose of the duty, designed to make the duty effective and to check evasion thereof. In the case of some of these items at least it would not have been possible to arrive at any conclusion one way or the other in the absence of a draft of the legislative provisions embodying the item. Take, for instance, item (iv) which relates to property transferred by the deceased as a gift in contemplation of death or within a specified period before death. A determination with reference to the first part of the item would depend upon the definition of a gift in contemplation of death and with reference to the second part upon the period that may be specified.

59. In the state of the material made available to us I do not think any useful purpose would be served by my attempting to frame answers to the questions referred. Indeed, I apprehend, that any such attempt might result in the opinion delivered being made the foundation of endless litigation hereafter, apart altogether from any question relating to the vires of the proposed law, and operating to the serious prejudice of persons whom it might be attempted to bring within the mischief of that law. It is bound to raise ghosts far more troublesome than any that it might serve to lay. For these reasons I am compelled respectfully to decline to express any opinion on the questions referred.