United Kingdom House of Lords Decisions

The first observation which I think falls to be made is that in construing Rule 4 one must bear in mind that the Legislature had already placed on record Rule 1. In other words, when they deal with “perquisites” in Rule 4 it is to be assumed that they had in their minds the provisions of Rule 1, and intended in the language which they employed in Rule 4 to provide for a distinguishable, and indeed for an already distinguished, case. Bearing that observation in mind, what conclusion is to be drawn? It is, I think, evident that the scheme of the First and Fourth Rules of section 146 is that fixed emoluments, such as salary, shall be assessed on the basis of the sum receivable during the year of assessment, but that profits which vary from year to year shall be assessed by way of estimate at the recipient's option either on the profits of the preceding year or on the fair average of one year of the amount of the profits in the three years preceding. The First Rule is intended, as I read it, to define the extent of the charge, and it accordingly uses wide words in order to bring within the charge all profits whatsoever accruing by reason of the office. The object of he Fourth Rule, on the contrary, is to deal in a more specific manner with profits which vary, and here the important words from the point of view of the subject-matter of the present appeal are the definition of “perquisites.” It is at first sight not altogether easy to see what in the definition of “perquisites” in the Fourth Rule is added to the definition of “perquisites” in the First Rule, but the words about which an observation falls to be made in the definition of “perquisites” in the later rule are—“Such profits of offices and employments as arise from fees or other emoluments, and payable in the course of executing such offices or employments.” What is the purpose of the definition? It surely must be to ascertain what are the profits which are to be assessed either by reference to the receipts of the year preceding the year of assessment or by reference to the average of the three preceding years. The words that are used are—“Such profits of offices and employments as arise from fees or other emoluments.”

Is it possible to contend with success that a bonus payable under the circumstances provided for by the clause of the agreement I have read is not a “perquisite” in the sense in which “perquisite” is explained by the words that follow it in Rule 4? Infinite disputation is possible as to what in different contexts may be the proper connotation of a term such as “perquisite.” In one context it may have a bad or an irregular connotation; in another it may be normally ranged under payments which are both frequent and regular in commercial transactions. I am to put a meaning upon “perquisites” in the context of the rule, and I derive no small degree of guidance from the words which follow, to which I have directed attention—“Such profits of offices and employments as arise from fees or other emoluments.” The Lord Advocate in his clear argument says that I am to read “emoluments” as being ejusdem generis with “fees.” Be it so. With what am I to read “fees” as being ejusdem generis? What definition of the term “fee am I to adopt which would exclude a payment by way of bonus such as that which is stipulated for under clause 8 of this agreement.

For these reasons, in a case which seems to me to be very clear, I reach the conclusion that the decision of the Commissioners was right and ought to be affirmed, and that this appeal should be dismissed, and I move your Lordships accordingly.

Viscount Finlay—I am of the same opinion. Under the First Rule certain duties are imposed “for all salaries, fees, wages, perquisites, or profits whatsoever” arising from certain offices, employments, and pensions mentioned in the schedule. Then the rule goes on to say that each assessment shall be in force for a whole year. In the enumeration in that rule you have “perquisites” and it seems to be considered desirable to define the word “perquisites.” “Perquisite” is a word which may, according to the connection in which it is used, have a variety of different meanings, and a definition is given accordingly by Rule 4 which in some respects may be taken as extending the meaning of the term “perquisites”—The ‘perquisites’ to be assessed under this Act shall be deemed to be such profits of offices and employments as arise from fees or other emoluments and payable either by the Crown or the subject in the course of executing such offices or employments, and may be estimated either on the profits of the preceding year or of the fair and just average of one year of the amount of the profits thereof in the three years preceding.” The first observation to be made, I think, on this rule is that the words ‘to be such profits as arise from fees” are clearly to be read with the words “in the course of executing such offices or employments.” You have got words intervening referring to the question by whom the fees are to be paid, and saying it does not matter whether they are payable by the Crown or the subject. The profits are to be such profits as arise from fees or other emoluments in the course of executing such offices or employments. There is nothing that I can find there to denote that the fee or perquisite is to be payable on the doing of a particular act. In most cases I dare say it will be so, but it is quite enough if it is a payment which arises in the course of the employment.

The object of Rule 4 was to deal with a case where owing to the manner in which the charge was made you could not say till the period had elapsed what the amount was, because if a fee is to be charged either on doing a certain act or on the happening of a certain event you cannot say until the period has run out how often that act has

Page: 456↓