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[1904] HCA 46
High Court of Australia
1904-07-01
O'Connor J, Power J, Per Barton J
Original judgment source is linked above.
patent may legally issue. As it is clear that there has been an H.C. or A. infringement of that patent by the defendant, I am of opinion as that, on the whole case, the plaintiff is entitled to the damages Wiutmaxy and injunction awarded him, that the judgment of Mr. Justice pyrprsny, Power should be, with the exception mentioned by the Chief
Justice, restored, and the appeal upheld. As to costs, I agree
Appeal allowed. Judgment of Full Court reversed. Judgment of Power J. restored with costs of action eacept so far as they were incurred by the claim in respect of Patent No. 4799. Respon- dent to pay costs of appeal to the Full Court and of this appeal.
Solicitors for the appellant, Atthow & McGregor, Brisbane, for H. B. Wright, Mackay. Solicitors for the respondent, Roberts & Roberts, for Alex. G.
Sorcet Old Rin Greco - Petrie.w. 39 Herm Fl aco ar (gent Baro Keamitind" Boi (1973) ate
DAVIES anp JONES . : ' . é . PUAINTIFFs ; AND THE STATE OF WESTERN AUSTRALIA. Derenpanr.
Commonwealth of Australia Constitution Act, (sec. 117] - Discrimination - '' Resi-
dent " - Administration Act (W. A.)] (1903, No. 13), sec. 86 - '' Bond Prrru, fide residents of and domiciled in." Oct. 13.
The Administration Act of Western Australia (1903, No. 13) sec. 86, im- SYDNEY, poses a duty on the final balance of the real and personal estate of the Dec. 23. deceased according to fixed rates, and contains a proviso that in so far as beneficial interests pass to persons bond side residents of and domiciled in Gritith, C.1., Western Australia, and occupying towards the deceased a certain relation- gor JJ.
ship, duty shall be calculated so as to charge only one-half of the percentay
upon the property so acquired by such persons, The plaintiffs, executors
the will of E.W.D., late of Western Australia, paid succession duty at th rate of nine per cent. under the above section on a sum of £8,055, representit the value of property passing under the will to one A.E.D., who, at th death of the testator was a British subject, bond jide resident, and domici in Queensland, and who occupied towards the deceased the required relation
ship. 'The payment was made under protest, and the plaintiffs now sued to recover half the amount paid, on the ground that the section of the Act under which it was claimed, worked a discrimination contrary to sec. 117
Held, that the real ground of the discrimination prescribed by the sectio of the Administration Act was domicil and not residence, and that, cons quently, the enactment was not void under sec. 117 of the Constitution, setting up a discrimination between the residents of different States,
Per Barton J. - '' It is discrimination on the sole ground of residence out- side the legislating State that the Constitution aims at in sec. 117."
Demvrrer to statement of claim. The plaintiffs were the execu tors of the will of Edward William Davies of Fremantle, Weste
Australia £362 9s. 10d. excess probate duty, paid by them to probate officer under protest under the following circumstances
Schedule. The plaintiffs claimed the same concession that would be made if the beneficiary were a bond fide resident of and dom- iciled in Western Australia. he plaintiff now sought to recover the excess of the probate duty paid on the ground that the pro- vision in the Act under which the duty was exacted, was in viola- tion of sec. 117 of the Constitution inasmuch as it imposes upon the beneficiary a discrimination to which he would not be subject if he were a resident of the State of Western Australia. The defendant State demurred on the ground that the statement of claim disclosed no cause of action.
Pilkington (with him Barker), for the defendants, in support of the demurrer. The demurrer should be upheld on two grounds:
Section 117 of the Constitution precludes any State from imposing on the property which citizens of other States may own, or the business which they may carry on within its limits, any higher burdens by way of taxation than are imposed upon the corresponding property or business of its own citizens: Harrison Moore's Commonwealth of Australia, p. 297 and illustration (in notis).
(Grirrirs C.J - The general trend of that argument is against the defendant.]
It would be against the defendant in so far as this section deals with residence and domicil. If "residence" is used there contrary to the Constitution it may be struck out.
A resident does not mean a mere casual visitor, but a person domiciled. The Act provides exemption for a very small class, viz., persons domiciled in Western Australia, and in close re- lationship to the deceased ; and, therefore, the class is immune.
[O'Connor J. - Then a resident of Western Australia not domiciled is for the purposes of this Act in exactly the same position as a person domiciled in Queensland 7]
H.C.orA. Yes; a person domiciled in Queensland, and resident 1904. Western Australia is not entitled to the benefit of the provis Mere residence in a country is not sufficient to show tha
Davies anp : Joxks - domicil in that country has been chosen: Winans v. Attorne
'ay Sean on General (1). aan } Avsrratia, If the proviso is contrary to the Constitution it is void an must be struck out. The defendant is then entitled to succee [O'Connor J. - It could not be that a resident of Queensland
is in a better position than a resident of Western Australia respect of the Western Australian Succession duty.] ' The provisions of the American Constitution are very differen They provide expressly that when once a State confers an immunity on citizens of one State, that immunity is eonfei on the citizens of all the States: Art. IV., see. 2 and XIV Amendment see, 1. The plaintiff contends that the Western Australian Legislature, having conferred immunity on a ¢ of citizens in Western Australia, is also to be taken to hay done the same in regard to citizens of other States. distinction between the two is clear. By the American Cor stitution a penalty is imposed on a State, viz.: That where privilege is conferred on citizens of one State, citizens of ot! States may come in and obtain the benefit. The Australian Constitution is very different. The plaintiff is not entitled t the benefit of the proviso because he is not domiciled in Wester Australia.
[GrirrirH C.J. - Unless "resident" in sec. 117 is used in # wider sense and includes domicil. Suppose a man is domic and resident in Queensland, is not that sufficient under th Constitution to give him the same privileges as a person reside and domiciled in another State 7]
No; and here the see. requires domicil in Western Aust and close relationship to deceased. "Resident" in the Con stitution could not mean domiciled. The word "residence" often used to denote a person's habitual physical presence in place or country which may or may not be his home: Dice Conflict of Laws, p. 80.
[O'Coxnor J. - Would not one test be to find out if, supposin
the party to be resident in Western Australia, he would stand in H. ©. or A. the same position as any other resident of Western Australia who 14. is not domiciled. You must read in after "is applicable" the pays axp
words "under the same conditions."] son S On the wording of the Constitution everything contrary to ae Srate or the Constitution is pro tanto void. This section does not impose Avsrratia. a disability, it confers a favour upon a certain class; and, in so far as it confers a favour on residents of Western Australia, and not elsewhere, it is void, and the whole proviso must be struck out. Analogous cases are those in which it has been held that covenants to pay higher rates of interest under mortgages where the payments have been unpunctual are in the nature of penalties, and unenforceable, though, secws, if the covenant was for the pay- ment of a lower rate of interest on punctual payment: Thompson v. Hudson (1). But the section in question confers a benefit on persons " resident and domiciled" in Western Australia. (Grirrirx C.J - I think there are American decisions that when part of a Statute is unconstitutional the whole provision unless severable, must be rejected.] {O'Coynor J. - There is no section in the American Constitution corresponding to sec. 109 of the Australian Constitution.] Therefore sec. 109 is strongly in the defendant's favour to the extent of the inconsistency. Sec. 109 means that, if an Act be passed in a State contrary to the Constitution, the part so contrary must be struck out. A suggestion was made that the mere fact of residence out of Western Australia would prevent the plaintiff taking the benefit of the Act. If there is anything in that, the proviso is void only so far as the words "is resident" are con-
cerned. The person who is to pay duty is the executor or administrator.
It is not a debt of the beneficiary, but of the deceased, i.e., the Legislature points out to the personal representative from what particular fund he is to reimburse himself for his payment to the Crown on behalf of the deceased. Therefore this section cannot be one discriminating between residents of Western Australia and of other States. The section makes known to residents of
H.C. or A. Western Australia that on their demise certain property is take Ute by the Crown. But if these conditions combine (a) relationshi Davies axv (0) bond fide residence in Western Australia, and (c) domiei Jones then portion of the duty will be remitted. The object and Tue Stare oF intention of the Legislature is plain. The money goes to person
Wester , i " a Avsrratia. resident in the country, and who, by reason of their domicil
[O'Connor J. - That argument is not sound. The executor has to pay the duty in the first instance. That duty comes out the share going to another State. That is just the same thing taxing directly the resident of another State.] j
The object is to cause the testator to leave less to pers outside Western Australia.
in a negative form the substance of Article IV., sec. 2, of American Constitution. The Fourteenth Amendment was passed
thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which sha
States ; nor shall any State deprive any person of life, libe or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the lay Under that section residence is necessary. 4
In Blake v. McClung (1), " residents," in the Tennessee Statute there in question, was held to " refer to those whose residence Tennessee was such as indicated that their permanent home or habitation was there without any present intention of removing therefrom, and having the intention when absent from that Stat
to return thereto - such residence as appertained to or inhered in H. ©. or A. citizenship." Under American law permanent residence was - necessary to qualify for citizenship of a State: Slaughter-House ye Cases (1). When the section of the Australian Constitution was - J°S®S framed, the members of the Convention had these cases before oa their minds, and they intended that residence should be of such a Avsrratia. kind as would constitute domicil. Practically the same meaning =~ is indicated by the words of sec. 86 of the Administration Act. The words " domiciled in Western Australia" are really to show what was meant by residence. It was to mean, not merely temporary residence, but residence wnimo manendi.
In sez. 117, " resident" means practically resident.
A person's domicil is the place where his habitation is fixed without any present intention of removing therefrom: Lord v. Colvin (2); and Whicker v. Hume (3).
[O'Connor J. - Suppose a privilege were conferred upon a class because they comply with certain conditions, would you contend that that privilege should be accorded to all citizens of Australia ?]
[O'Connor J. - Do not persons domiciled as well as resident in Western Australia form a distinct class? How do you distinguish between the two cases ?]
"Domiciled and resident mean the same thing, and are both
included in the term resident. The only classes distinguished are residents and non-residents.
[O'Connor J. - Your contention amounts to this, that residence in see. 117 of the Constitution must be equivalent to domicil, and whatever privilege a resident of Western Australia has, a resident of any State has.]
Yes, that would appear to be the case from Paul v. Virginia (4), where it was held that the privileges and immunities secured to the citizens of each State in the several States by Art IV., sec. 2, are those which are common to citizens in the latter States under their Constitution and laws by virtue of their being citizens. This clause had for its object the placing of citizens of each State
(1) 16 Wall, 36. (3) 28 L.J., Ch., 396, at p. 400. (2) 28 L.J., Ch. 36, at p. 366. (4) 8 Wall, 168.
H.C. or A. upon the same footing as citizens of other States so far as th
ie advantage resulting from citizenship in those States is concerned eyes 'As to the contention that the whole proviso should be stru Jos¥S ont, see. 109 only renders void the portion which is inconsisten
pas SCPE ee with the Constitution. es Bea, Acsrratia. [O'ConNor J. - Sec. 117 prevents a disability being imp it does not grant a privilege.]
Where there are two provisions in a Statute, the one constitu tional and the other not, the unconstitutional provision may b rejected and the other stand: Re Mahoney's Estate (1); Sprag v. Fletcher (2).
Sec. 117 cannot be evaded by putting in a proviso to the sectior of the State Act.
[GrirritH C.J. - Is succession duty a taxation of the person, all? The property can only be claimed under the law of Wester Australia. Is there a discrimination at all? The tax comes ou of the capital.]
The plaintiff must have the same rights under the Suecessio Laws as residents of this State. But the effect of the section is that he gets less than his share. 7
Melbourne, GrirritH CJ. Sec. 86 of the Western Australian Administra. tion Act 1903 provides that: "Every executor and administratot shall pay to the Commissioner of Stamps Duty on the final bal ance of the real and personal estate of the deceased according t the rules set forth in the second schedule. Provided that, in far as beneficial interests pass to persons bond fide residents 0 and domiciled in Western Australia and occupying toward the deceased the relationship set forth in the third schedul duty shall be calculated so as to charge only one half of the pe centage on the property acquired by such person," Under th Act the plaintiffs, who are executors of the will of E. W. Davie
late of Fremantle, Western Australia, were called upon to pay H.C. or A. succession duty in Western Australia, upon the estate of their eae testator, including duty upon a sum of £8,055 representing the payres axp value of property passing under the will to one A. E. Davies, who - J°%#8 at the death of the testator was alleged to be a British subject T ; ( bond fide resident and domiciled in the State of Queensland. The Avsrratta. rate of duty for the estate in question according to the rules in the second schedule is 9 per cent., and A. E. Davies is a person occupy- ing to the deceased the relationship set forth in the third schedule. The Commissioner of Stamps demanded from the plaintiffs in respect of his share duty at the full rate of 9 per cent., which the plaintiffs paid under protest, and they now sue to recover one- half of that sum, claiming that under sec. 117 of the Constitution, A. E. Davies is entitled to the benefit of the provision in favour of persons bond fide residents of and domiciled in Western Aus- tralia. Sec. 117 is as follows: "A subject of the Queen resident in any State shall not be subject in any other State to any dis- ability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State." The defendants contend (1) that a privilege conferred upon a particular class of residents is not a discrimination within the meaning of sec. 117 of the Constitution, and that the real discrimination made by the Statute in question is not between residents of Western Australia and residents in other States, but between persons domiciled in Western Australia and other persons; and (2) that if the Western Australian Act offends against the Constitution it is the proviso only and not the prin- cipal enactment, under which duty is payable at 9 per cent., which is obnoxious to the rule, and that it must therefore be re- jected. It was further contended that the testator, who must be taken to have known the law, himself adopted the discrimination by giving a benefit to a person who, as he also knew, could not take it without becoming liable to the higher rate of duty. This last argument however was not pressed, and is obviously not tenable.
I will deal first with the second contention, on the assumption that a discrimination is made by the Statute between residents of Western Australia and residents of other States. This Court has
H.C. or A. had occasion more than once to point out that in construing ¢
Davies asp form. If the two enactments contained in sec. 86 of the Ag
THE Srare oF ficle residents of Western Australia should be liable to duty
Avsrratia, One rate, and all other persons should be liable to duty at
Constitution regard must be had to substance and not to me
ministration Act had been transposed, so as to say that bon
double rate, it cannot be doubted that there would be a diseri ination within the meaning of the Constitution between bond fide residents of Western Australia and other persons. In n opinion, every enactment in every State Act must be read subjec to the provisions, if any, of the Constitution applicable to th case. Assuming, then, that sec. 117 is applicable, see 86 shoul be read: "Subject to the provisions of sec. 117 of the Constiti tion, every executor and administrator shall pay &c., provid &e." Persons entitled to the benefits of sec. 117 would then b clearly brought within the benefit of the proviso. For, othe wise, the discrimination prohibited by the Constitution y become effective. Or, to express still more definitely the impl qualification, the section should be read: "Subject to the pro visions of the Constitution which prohibit any discrimination against British subjects residents in any other State, every executor and administrator shall pay &e., provided," &e. substance of sec. 117 is, in short; that whatever privileges ar conferred upon residents of a State by its laws are to be taken be equally conferred upon residents of other States, and he every enactment conferring such privileges is to be construed including residents of other States.
The suggestion that the proviso might be treated as invalid and that all persons, whether bond fide residents of Western Australia or not, are liable to duty at the double rate, but the the Western Australian Government might, if they pleased, d regard the proviso, and enforce payment at the full rate, | manifestly inconsistent with the intention of the legislatur And, although it is true that as a general rule utile per inutil non vitiatur, that maxim does not apply when the invali portion of an enactment is so bound up with the rest that it omission would result in au entire departure from that intentio Moreover, such a construction would enable any State Gover
ment by an exercise of the dispensing power to evade altogether the prohibition of the Constitution. No doubt, such a power of dispensation may in fact be exercised by the Executive authority. But it would be unwarranted by law. And our duty is to con- strue the Statute as we find it, and to give it such a construction as is consistent with the Constitution. The only way in which practical effect can be given to the provisions of sec. 117 of the Constitution is by allowing residents of other States to claim the same privileges as are formally given to residents of the particular State. And this is the view which has been accepted in enforcing analogous provisions in English Statutes. By the Act 8 Vict. ¢. 20 (The Railways Clauses Act 1845), see. 90, it is pro- vided that : " All tolls shall be at all times charged equally to all persons and after the same rate, whether per ton, per mile, or other- wise, in respect of all passengers, and of all goods or carriages of the same description conveyed or propelled by a like carriage or engine passing only over the same portion of the line of railway under the same circumstances, and no reduction or advance in any such tolls shall be made either directly or indirectly in favour of or against any particular company or person travelling upon or using the railway." Under this Act it was the practice for persons com- plaining of an undue preference to apply for an injunction re- straining the railway company from giving the undue preference, and enjoining them to give the same advantages to the com- plainants: See Zn re Harris and Cockermouth Railway Co. (1). Applying this principle, if the money has been illegally exacted contrary to the provisions prohibiting preference, it may be recovered by action, as is sought to be done in the present case.
I pass now to the other contention of the defendants.
The word "resident" is used in many senses. As used in sec. 117 of the Constitution, I think it must be construed distri- butively, as applying to any kind of residence which a State may attempt to make a basis of discrimination, so that, whatever that kind may be, the fact of residence of the same kind in another State entitles the person of whom it can be predicated to claim the privilege attempted to be conferred by the State law upon its own residents of that class. The difficulty arises upon the words
Davizs AND JONES v 'Tue Srate or WESTERN AUSTRALIA,
H.C. or A. "bond fide" and ' "domiciled." The word "domicil" is a technical 1904. Jegul word with a definite legal meaning, although it may nash no doubt, be used in a popular or more enlarged sense, of which JONES the case of McMullen v. Wadsworth (1) affords an illustration
'THe Stare or But it is not so clear that the word "domiciled" is a techni
airy term with a definite legal meaning. Two constructions of the See words of the section are, in my opinion, open, one that the adjee- sriffith C.J.
tival or adverbial expression "bond fide" qualifies "domiciled a8 well as "residents," the other that its qualifying effect is limited to "residents," and that "domiciled" is equivalent to "having their legal domicil" in Western Australia. In the former view the use of the adverbial expression would indicate that the con cept intended to be expressed by the word "domiciled" is one the quality of which depends upon the intention of the person of whom it is predicated, and not upon the application of rules of law. In the latter view, taking the word "domiciled" by itself and without qualification, that inference would not arise. Which then is the more probable construction? It will be convenient, in this connexion, to consider briefly the rules of law as to the acquisition of domicil of choice as distinguished from domicil of origin.
In the leading case of Whicker v. Hume (2), the Lord Chan- cellor (Lord Chelmsford) said (3): - *It seems to me, that the nature of his (the testator's) residence and his constant returns from the continent, bring that residence completely within the definition of domicil which is given in the Digest (4). Unde cum profectus est, peregrinari videtur; quod si rediit, peregrinari jam destitit."
Lord Cranworth, after referring to the definition of domicil quoted by the Lord Chancellor from the Digest, which he said was also to be found in the Code (5), and was a principle of Roman law, added (6): "There have been many others, but I never saw any of them that appeared to me to assist us at all in arriving at a conclusion. In fact, none of them is, properly speaking, a definition. They are all illustrations in which those who have made them have sought to rival one another by
(1) 14 App. Cas., 631. (4) Book 50, tit. 16, s. 203. (2) 7HLC., 134, (5) Book 10, tit. 39, 8. 7. (3) 7 H.L.C., at pp. 146-47, (6) 7 H.L.C., at pp. 159-60.
endeavouring, as far as they can, by some epigrammatic neatness H. ©. or A. or eloquence of expression, to gloss over the fact that, after aie all, they are endeavouring to explain something clarwm per Davies axv obscurum. By domicil we mean home, the permanent home ; Towns and if you do not understand your permanent home, I am afraid Ta Stare ov that no illustration drawn from foreign writers or foreign Avsrratia. languages will very much help you to it." He then referred to the passage in the Code (afterwards quoted at length by Lord Wensleydale), and added : "I think that is the best illustration, and I use that word rather than definition, to describe what I mean."
Lord Wensleydale said (1): "There are several definitions of domicil, which appear to me pretty nearly to approach correctness. One very good definition is this: Habitation in a place with the intention of remaining there for ever, unless some circumstance should occur to alter his intention; I also take the definition from the Code, which is epigrammatically stated, and which I think will be found perfectly correct, that domicil is: "In eo loco singulos habere domicilium non ambigitur, ubi quis larem rerumque ac fortunarum suarum summam constituit ; unde rursus non sit discessurus si nihil avocet; unde cum profectus est, peregrinari videtur, quod si rediit, peregrinari jam destitit."
This may be thus rendered: "It is not in doubt that every man has his domicil in the place where he sets up his household shrine and his principal establishment, whence he has no intention of again departing, unless something should call him away, so that when he goes thence he regards himself as a wanderer, whereas when he returns his wandering is ended."
In Udny v. Udny (2) Lord Westbwry said: "Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. . . . . . . There must be a resi- dence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed
(1) 7H.L.C., at p. 164. (2) L.R. 1 H.LL., Sc., 441, at p. 458.
H. C.or A. not for a limited period or particular purpose, but general 1904. indefinite in its future contemplation. It is true that reside y ae originally temporary, or intended for a limited period, may a
'These passages, which authoritatively declare the English lawo the subject of domicil, establish that the essential quality of do of choice is permanent residence. And, if the words "bond qualify the word "domiciled" in sec. 86, it would appear to fol that the legislature was speaking of domicil of choice, whi being residence of a particular kind or quality, would entitle persons of whom residence of the same kind or quality in anothe State can be predicated to claim the same privileges.
I will now proceed to consider how the matter stands j the word "domiciled" is read alone, as meaning "having th legal domicil" in Western Australia. To simplify the questio I treat the matter as if the additional qualification of being bon fide residents were omitted. I take first the case of a pe whose domicil of origin is not in Western Australia, and has not acquired a domicil of choice in that State. Is he entitk to the benefit of the proviso? The answer must be "No," fo does not fall within its terms. It follows that a person who is bond fide resident of Western Australia, but whose domicil o origin, still subsisting, is in Queensland, is in this respect in th same position as a resident of Queensland whose domicil of origi is in Queensland. In this view the ground of discrimination not residence at all. Take, next, the case of a person whos domicil of origin was elsewhere, but who has acquired a domici of choice in Western Australia. In the supposed case (boné fide residence not being a necessary qualification) he would be entitled to the benefit of the proviso, whether he resided i Western Australia or not. If, then, the word "domiciled" is con strued with reference to the technical meaning of domici whether meaning domicil of origin or domicil of choice, the of discrimination imposed by the section does not depend upo residence.
It is a general rule of construction that technical terms
in a Statute should receive their technical meaning unless it is H.C. or A. clear from the context, or the subject-matter, that the legislature IS has used the term in a popular and more enlarged sense. Con- payres axp versely, the context or subject-matter may clearly indicate that - J0%® the legislature has used a word in a limited as opposed to the Tar as popular sense. Now the subject matter of this provision is avsrratia. Succession Duty. Every State can impose such duties in respect grifitn os. of the whole of the personal property of the domiciled citizens of the State, whether that property is situate within or beyond its territorial limits. The State may, therefore, derive a much larger revenue from the estates of such persons than from those of others who merely reside in the State without having their domicil in it. The area of taxation being larger in their case, the legislature may well think it reasonable to reduce the rate im their favour. Moreover, it isa well-known fact that the double liability to death duties, as they are called, 7. the liability to pay them both to the State of domicil and the State in which the property is situate, has considerable operation upon the minds of investors, and the legislature might reasonably offer such a reduction as that in question as an inducement to persons to make their permanent home in Western Australia.
Again, I think it is a sound rule of construction that a State Act should if possible be so interpreted as not to make it incon- sistent with the Constitution - ut res magis valeat quam pereat. These reasons have led me - not without some fluctuation of opinion - to the conclusion that the word "domiciled" should be read without the qualifying words "bond fide" and should be construed as meaning "having their legal domicil" in Western Australia.
On this construction, the discrimination effected by the Act is not a discrimination as between residents of Western Australia and others, but as between persons having their legal domicil in Western Australia and others, and A. E. Davies, not having such a domicil, is not entitled to the benefit of the reduction claimed. Whether, if his legal domicil were in Western Australia instead of in Queensland, he would be entitled to claim the reduction, is a question which it is not necessary to consider.
I have assumed throughout my judgment that the word
"domiciled" is used in the statement of claim in the sense which I think it bears in the Administration Act. 4
For these reasons I think that the demurrer must be allowed and judgment given for the defendants.
Barton J. Arthur Elvin Davies and Frederick Jones, execu- tors of the will of Edward William Davies, of Fremantle, Weste Australia, deceased, were refused the issue of probate by the Commissioner of Stamps for that State unless and until they paid him as estate duty £724 19s. 8d., being 9 per cent. on the value of certain property, the beneficial interest in which passed to Alfred Ernest Davies under the will. They insist that the duty lawfully chargeable is only 44 per cent., and they sue to recover: from the defendant State £362 9s. 10d., the difference of one ha between the sum paid under protest and the sum which, as they contend, is all the Commissioner was entitled to demand.
The testator died at Fremantle in January, 1904, and the plaintiffs proved the will in the Supreme Court of Weste Australia in February. Under it a beneficial interest of the value of £8,055 7s. 6d. passed to Alfred Ernest Davies, a son of the testator. The Western Australia Administration Act of 1903 enacts in its 86th sec. that: "Every executor and administrator shall pay to the Commissioner of Stamps duty on the final balance of the real and personal estate of the deceased according to the rules set forth in the second schedule. Provided that in so far as beneficial interests pass to persons bond Jide residents of and domiciled in Western Australia, and occupying towards the deceased the relationships set forth in the third schedule, duty shall be calculated so as to charge only one half of the percentage on the property acquired by such person."
The rate of duty on the final balance of the estate, according to the second schedule, is 9 per cent. The relationship of Alfred Ernest Davies to the testator is one of those set forth in the third schedule. But he is not a "bond Jide resident of and domiciled in Western Australia." He is a bond Jide resident of and domiciled in Queensland. It is quite clear therefore that the plain- tiff executors cannot make the Western Australian enactment the basis of their claim, because Alfred Ernest Davies is not one of.
the class of beneficiaries preferred by the 86th section. But they contend that the preference of one class is a discrim- ination against others, and they call to their aid the 117th section of the Constitution, which is in these words: " A subject
of the Queen, resident in any State, shall not be subject Tu Stave oF
in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State." They say, "our beneficiary is a subject of the King resident and domiciled in Queensland. He must not be subjected in Western Aus- tralia to any discrimination which would not be equally applicable to him if, being a subject of the King, he were one of the residents of Western Australia who are domiciled there." In remitting half the duty on property passing to certain beneficiaries, who are bond fide residents of and domiciled in Western Australia, the State enactment, the plaintiffs urge, dis- criminates against beneficiaries, cwteris paribus, who are not bond fide residents of and domiciled in Western Australia. Consequently it discriminates against certain residents of other States, and is within the prohibition of the Constitution in sec. 117, and therefore invalid.
This argument involves two chief propositions which will be considered in order. The first is that the enactment, while pro- fessing to confer a privilege, really works a discrimination. In that contention the plaintiffs appear to be right. The meaning of the section is the same as if it set out by subjecting the pro- perty passing to beneficaries under the third schedule, residents of and domiciled in Western Australia, to 44 per cent. duty, and went on to prescribe that the property passing to beneficiaries not so resident and domiciled must pay 9 per cent. In that case the discrimination would be manifest, and the difference in the section as it stands is one of form and not of substance. Consti- tutional safeguards could be evaded with impunity if any other view were taken, and the matter is too clear to justify extended discussion. The other principal proposition involved in the argu- ment for the plaintiffs is that it is as residents that beneficiaries, such as Ernest Alfred Davies, are discriminated against. Unless that proposition could be maintained, it seemed to be realized
H.C.or A. that the 117th section of the Constitution could not help th ae plaintiffs. 'To support this contention Mr. Draper, for the plai Dans AND tiffs, urged that the word "domiciled" was employed in Administration Act merely for the purpose of qualifying eword "residents" and that it had not in this connection 'Avstnatia. technical meaning which would be carried by the words "havin their domicil." It is possible indeed to read the qualification "bond fide" into a conjunction with "domiciled" as well as with "residents." ; The result of this process would be to help the plaintiffs' argu- ment so far as to deprive the word "domiciled" of all or part of what to my mind is its ordinary signification (at any rate in : Statute of a technical kind, such as this one), namely, " having their domicil"; that is, their domicil whether of origin or of choice. But with the qualification which the expression bond fide would attach to the word " domiciled," the character of mere intention - that is,the animusmanendi, would be sofar involved a to at least reduce the meaning to "having their domicil of choice, if indeed the word did not become merely an indication of more or less permanent residence. But I see no reason, in the context or otherwise, to suppose that the term "Lond fide" is intended to qualify anything more than the noun which immediately follows it - namely "residents." That word and "domiciled," being to legal minds distinctive in relation to each other, it is not easy to believe that they were selected by the draftsman only to be so qualified by one and the same term as to make it a question whether the legislative mind had not erroneously identified or, confused them. In my opinion the section intended that the persons to be preferred should be bond fide residents of Western Australia "having their domicil" in that State. Domicil of origin as well as domicil of choice would thus be included. And nothing has been suggested to render it even possible that the a lature intended strangely to discriminate against those born and - bred in Western Australia in favour of settlers choosing that State as their permanent home and making it their domicil. It appears then that the qualifications of bond fide residence i i Western Australia, and of domicil therein, have both been prescribed. True, they must concur to give a title to the
preference, that is to enable their possessor to escape the dis- crimination. But though Mr. Alfred Ernest Davies is discrimin- ated against, it is not asa "resident" of a State other than Western Australia. Mere residence in Western Australia does not give any of its inhabitants a better right to resist the higher rate of duty than Mr. Davies has, residing as he does in Queensland. But when residence and domicil concur, the concept of residence is so absorbed in that of domicil that it has no separate existence in thought. Residence in the place of domicil is the normal condition, and residence away from it is in the view of law not permanent until it becomes of such a kind as to merge in its turn into a domicil of choice. Consequently without the Western Australian domicil, there is no discrimination between subjects of the King residing in Queensland and those residing in Western Australia.
It is discrimination on the sole ground of residence outside the legislating State that the Constitution aims at in the 117th section. I do not think that is the ground of the discrimination in the Western Australian Administration Act, and therefore I am of opinion that the plaintiff has failed to establish one of the two propositions, the demonstration of both of which was essential to his success. His action therefore fails, and the validity of the enactment he has attacked is not affected.
O'Connor J. The plaintiffs are executors of the will of the late Edward William Davies of Fremantle, Western Australia, and they claim to recover from the State of Western Australia £362 9s. 10d., excess probate duty, paid by them to the probate officer after protest under the following circumstances : -
A portion of the testator's estate passed under the will to Alfred Ernest Davies, his son, then bond fide resident and domiciled in Queensland. Under sec. 86 of the Western Australian Adminis- tration Act of 1903, probate duty is payable by executors at the general rate of 9 per cent. on the final balance of the real and personal estate of the deceased. But the section provides that where a beneficial interest passes to a person "bond fide resident of
and domiciled in Western Australia," and occupying towards the
H.C. or A. deceased a certain relationship, including that of son, the
ae payable by the executors in respect of that interest shall be hi Davies anv the general rate. As the beneficiary Alfred Ernest Davies y JONES not at the death of the testator a bond fide resident of
v. : Tux Sate or domiciled in Western Australia, the probate officer demanded #f
ara full duty of 9 per cent. in respect of the interest passing to hii and insisted upon its being paid before probate was issued. plaintiffs protested against the payment, and claimed the sam concession that would be made if the beneficiary were a bo fide vesident of and domiciled in Western Australia. In orde however, to obtain probate they paid the duty demanded, and now suing by a statement of claim setting out these facts recover the excess on the ground that the enactment under whit the duty was exacted is a violation of see. 117 of the Constiti inasmuch as it imposes upon Alfred Ernest Davies a discrimi tion to which he would not be subject if he were a resident ¢ the State of Western Australia. The defendant State has d murred on the ground that the plaintiff's statement of discloses no cause of action, On the demurrer the question fo our determination is whether or not the Western Aus enactment imposes a discrimination against a resident of anothe State contrary to section 117 of the Constitution.
The proviso to sec. 86 of the Western Australian Administi tion Act of 1903 is in the following words : - " Provided that ins far as beneficial interests pass to persons bond fide residents 0 and domiciled in Western Australia and occupying towards th deceased the relationship set forth in the third schedule duty shall be calculated so as to charge only one half of the per- centage upon the property so acquired by such persons."
In determining the question raised regard must be had to th substance and not to the form of the enactment. Although s tion 117 of the Constitution uses the words "shall not be subj in any other State to any disability or discrimination," a Stat enactment will be equally invalid whether it imposes the un stitutional "disability" or "discrimination" by direct prohibit against the residents of other States, or by granting a privil applicable only to residents of a particular State. In other word this enactment must be read as if it provided expressly
where beneficial interests passed to persons within the named H.- ©. or A. degrees of relationship, and bond fide residents of and domiciled eee in Western Australia, the duty should be at the rate of 43 per Davies axp cent., but in respect of beneficial interests passing to any other 2°8#8
v. persons the duty should be double. It is conceded that the sec- THe State or
tion does discriminate in favour of persons "bond fide residents Rubee of and domiciled in Western Australia." But it is not every dis- crimination that is prohibited. Section 117 of the Constitution contemplates that there may be a disability or discrimination, the imposition of which would be legal, that is to say a disability or diserimination which would be equally applicable to the person complaining if he were a resident of the State complained against. For example, if the Statute under consideration had exempted
all ratepayers permanently residing within municipal areas in
Western Australia from payment of probate duty in respect of beneficial interests passing to them, a resident of Queensland could not complain that he was not allowed the benefit of the exemption in respect of a beneficial interest passing to him, because in that case he would be in exactly the same position as any resident in Western Australia who was not a ratepayer residing within a municipal area. In other words the exemption in that case would arise, not from mere residence in Western Australia, but from the superadded condition of residence as a ratepayer within a municipal area in Western Australia. It therefore becomes important to inquire whether the lower rate of duty allowed in this case, and claimed as a discrimination, arises from the mere residence in Western Australia, of persons within the named degrees of relationship, or whether it arises from residence accompanied by some superadded condition. That brings me directly to the crucial question - what is the the true interpretation of the words " bond fide residents of and domiciled in Western Australia?" It is a well known rule of interpretation that as far as possible its full meaning must be given to every word of a Statute. It will be necessary therefore to examine with some care the words under consideration. There is no difficulty about the first few words - bond fide resident" is an expression frequently used in the legislation of all the Australian
States. It may be said to have acquired a settled meaning as Vou. I, a
'Tax State or take "domiciled in" to have exactly the same meaning as "having
conveying the idea of "habitual physical presence " in a locality or in other words, " permanent residence." 7
As to the words "domiciled in Western Australia" I attach importance to the participial form in which "domiciled" is used,
their domicil in" or "whose domicil is in." The real question i what is the true interpretation of the word "domicil" in the context in which it stands. The word has a well known legal 'mea it also has acquired a popular meaning, A very good definitio showing both uses of the word is to be found in Dicey's Confli of Laws, at p.79: "The domicil of any person is, in gen the place or country which is in fact his 'permanent home, bu is in some cases the place or country which, whether it be in fae his home or not, is determined to be his home by a rule of Law The law ascribes to every man a domicil, that is to say, a countr by whose laws his rights of property are in certain respects to b regulated. For instance, questions arise as to the laws to b applied in the distribution of or succession to property on death of its owner, as to the laws which govern the validity of his will, or the liability of his property to legacy duty. None of these questions can be settled until it is determined in what country the deceased person was domiciled at the time of his death. ascertain therefore the country which the law ascribes to a man as his domicil at the time of his death well-known rules of law ar applied. Generally speaking the country in which a man perman- ently resides is his domicil, but that is not always so. Of this case of Winans v. Attorney-General (1) cited tous in argument a very strong illustration. Lord Westbury in Bell y. Kennedy (2 explains the distinction between residence and domicil. "R dence and domicil are two perfectly distinct things. It is neces in the administration of the law that the idea of domicil shoul exist, and that the fact of domicil should be ascertained, in order : determine which of two municipal laws may be invoked for purpose of regulating the rights of parties. We know very that succession and distribution depend upon the law of domicil. Domicil, therefore, is an idea of the law. It is the rela- tion which the law creates between an individual and a partie
(1) (1904) A.C., 287. , (2) L.R. 1 HLL, Se., 307, atp. 320,
locality or country. To every adult person the law ascribes a H. ©. or A. domicil, and that domicil remains his fixed attribute until a new - 8% and different attribute usurps its place." Such is the well recog- Davies axp nized legal meaning of "domicil." In the popular meaning which is also given in Dicey's definition the word is generally used to™ describe a man's " permanent residence" the place or country in Av; which he has his "home." The important question for our con- oonnor 4. sideration is in which sense has the word been used in this enaet-
ment. Has it been used in its ordinary legal sense, or has it been
used in the popular sense to which I have last referred. A very
sound rule of interpretation is laid down by Lord T'rwro in Stephen-
son v. Higginson (1): "In construing an Act of Parliament, I apprehend every word must be understood according to the legal meaning,unless it shall appear from the context that the legislature
has used it in a popular or more enlarged sense." Taking the con-
text as a guide it seems plain that "domicil" has not been used
in the popular sense. "Bond fide resident" has practically the
same meaning as " domicil" in its popular sense. It is difficult to
suppose that the latter expression was used by the legislature
merely to repeat the idea already conveyed by the words immedi-
ately preceding it. Again, let us look at the subject matter.
The legislature in making this concession were giving up revenue.
It is certainly more probable that they would limit the concession
to those persons, the distribution of whose property after death,
would be regulated by and under the laws of Western Australia,
and whose estates would pay probate duty to the State of Western Australia, than that they would allow the concession to every permanent resident of Western Australia within the named degrees
of relationship wherever his legal domicil might be. And in this connection we are, I think, entitled to consider the circumstances
under which,as is well known, Western Australia has drawn a large
portion of her population from the Eastern States of Australia. We
must take it that the legislature was well aware that there were
many thousands of persons who were in fact permanent residents
of Western Australia, but who yet maintained homes for their
families in the Eastern States, and who in law would still be regarded as having their domicils in one or other of those States.
H.C. or A. Having regard therefore to the words of the enactment, to
asad correlation in the section, to the context, and to the subje ay 'anv matter, I find myself unable to avoid the conclusion that somes expression "domiciled in Western Australia" was used by Gore Brace oF legislature not in its popular sense but in the legal and techn cal Avsrrataa, sense which I have explained. So interpreting the section a expanding the expression "domiciled " into its full meaning, discrimination is in favour of persons within the named degrees of relationship who are "bond fide residents of Western Aus' and whose domicil the law deems to be in Western Australia, It follows therefore that no resident of Western Australia can claim the reduction of duty unless he also has his legal domieil Western Australia, and the Queensland resident not domiciled in Western Australia is in this respect subject to precisely same discrimination, and to no further and no other. In othe
words if Alfred Ernest Davies had before the testator's death
tained his Queensland domicil he would be subject to the dis crimination of which the plaintiffs now complain. Next follow
the Constitution? The section is in the following words: subject of the Queen resident in any State, shall not subject in any other State to any disability or discrimination which would not be equally applicable to him if he wer a subject of the Queen resident in such other State." This is the only section of the Constitution which recognizes in express terms a common citizenship amongst the States. It i no doubt intended to serve the same purpose as Article sec. 2 of the United States Constitution which provides "the citizens of each State shall be entitled to all privil and immunities of citizens in the several States." It will b observed that the Commonwealth Constitution does not use thi word "citizen" and that it confers equality of rights in ver different terms, Indeed we know as a matter of history that the Convention deliberately rejected the United States plan o dealing with the question. Clause 17 of the Draft Constitutio of 1891, which followed somewhat the lines of the 14th am ment of the United States Constitution, and which was retained
in the first draft of the 1897 Bill, was in the final sittings of the H. C. or A. Convention eliminated, and sec. 117 in its present form was 5
passed. "Residence" is there made the basis of equality of Davis axp rights. Whatever rights the laws of a State give its own J0%#
residents by virtue of residence must be equally accorded to 1 y the residents of other States. The word "resident" is not defined. As to what are its limitations, and to what extent, if at all, it corresponds to the word "citizen" as used in the American Constitution we are not called upon at present to decide. For the purposes of this case it is only necessary to say that the word has quite a different meaning from "domiciled" in its legal sense as I have explained. If the concession given by sec. 86 of the Western Australian Administration Act of 1903 were given "to all bond fide residents of Western Australia" coming within the named degrees of relationship to the testator, the plain- tiffs in this case would have good ground to complain that a dis- crimination contrary to the Constitution had been made against a resident of Queensland, but the section has not made the concession to all bond fide residents of Western Australia coming within the named degrees of relationship, but only to those who, in addition to being bond fide residents of Western Australia, are persons to whom the law ascribes Western Australia as their country of domicil. In my opinion the Constitution does not prohibit a State from conferring special privileges upon those of its own people whe,in addition to residence within the State,fulfil some other sub- stantial condition or requirement such as that which is made the condition of the concession allowed in this enactment. The power of raising money by probate taxation remains with the State of Western Australia, under section 107 of the Constitution, and the State can in raising that taxation make such concessions to, and confer such privileges on, its own people as it thinks fit so long as in doing so no provision of the Constitution is violated. As the enactment in question does not violate the Constitution it must stand good. It follows that the duty enacted by the probate officer was legally payable, that the plaintiffs' action must fail, and that judgment on jhe demurrer should be entered for the defendant.
Solicitor, for the defendant, W. F. Sayer. Solicitor for plaintiffs, Crossman.