Lowell, 2 vols., 1896. Vol. ii deals with the working of the federal system in Germany and Switzerland.

The Swiss Confederation, by Sir F. O. Adams and C. D. Cunningham, 1889.

On the referendum, as working in a federal constitution, consult Lowell, op. cit., chap. xii, on 'Switzerland; the Referendum and the Initiative'. (We have not to consider here the question how far the referendum could be introduced into the British Constitution.)

There are useful chapters on Second Chambers in the Dominions in:

Second Chambers, by J. A. R. Marriott, 1910.

And in Senates and Upper Chambers, by H. W. V. Temperley,

1910.

Modern Constitutions, by W. F. Dodd, 1909, contains the fundamental laws of no less than twenty-two countries.

Though in some ways the British Constitution may have changed since Bagehot wrote his English Constitution, it is still of abiding ́value, especially in this connexion, for the comparison of Parliamentary with Presidential government. See also The Governance of England, by S. J. Low, 1904.

The standard works on the English Constitution are The Law and Custom of the Constitution, by Sir William R. Anson, 3 vols. (vol. i, Parliament; vols. ii and iii, The Crown), 3rd and 4th ed., 1909; Introduction to the Study of the Law of the Constitution, by A. V. Dicey, 7th ed., 1908; and The Government of England, by A. Lawrence Lowell, 2 vols., 1908.

APPENDIX

ADDITIONS TO NOTES

PAGE 89, note. It would seem after thirteen years' experience of them that the Provincial Councils have proved a failure. "The system has given us all the evils of party government with none of its advantages;' 'the provinces' being 'too small to be national and in most cases too large to be local'. Whilst the central feature of parliamentary government is lacking, viz. the responsibility of the Executive for meeting the expenses of government by taxes levied through the legislature, the adoption of the £ for £ principle by the Union Government and Legislature and the special treatment given to education have led to extravagance and waste. Meanwhile recent years of depression and consequent retrenchment have caused substantial deficits. The whole subject was considered by a Royal Commission in 1922, and a timid and half-hearted measure of reform was passed in 1924; but as yet no solution of the problem satisfactory to all parties has been found. (See Round Table, Nos. 50 and 52, March 1923 and September 1923, and Nos. 54 and 55, March 1924 and May 1924.)

PAGE 149, note 3. It was held In re Initiation and Referendum Act of Manitoba (6 G. V, ch. 59) that the Act was invalid, as it compelled the Lieutenant-Governor to submit a proposed law to a body of voters totally distinct from the Legislature of which he is the constitutional head, and would render him powerless to prevent it from becoming the actual law, if approved by those voters. (A. C. 1919, pp. 935-46.)

PAGE 149, note 4. In Bank of England v. Lambe, 12 A. C., p. 575, and Cotton v. The King, 14 A. C. 1914, p. 176, the Privy Council adopted the definition of J. S. Mill: 'a direct tax is one which is demanded from the very persons who, it is intended or desired, should pay it. Indirect taxes are demanded from one person in the expectation or intention that he shall indemnify himself at the expense of another. Such are the Excise and Customs.'

PAGE 152, line 28 (addendum to note). A few of the more recent cases on these sections may be here noticed.

In Fort Francis Pulp and Power Company v. Manitoba Free Press, A. C. 1928, p. 696, it was held that the Canadian War measures of 1914 and Orders in Council made thereunder and a Dominion Act passed after the proclamation of Peace were intra vires on the part of the Dominion Parliament and Government on the ground that there is an implied power, for the safety of the Dominion as a whole, to deal with a sufficiently great emergency, although proprietary and civil rights of the Provinces are thereby trenched upon.

But In re the Board of Commerce Act, 1919, and the Combined and Fair Prices Act, 1919, 1 A. C. 1922, p. 191, there being no such highly exceptional circumstances, the Acts in question were decided to be ultra vires on the part of the Dominion since they interfered seriously with proprietary and civil rights. The power of the Dominion Legislature to pass the Acts

in question was not aided by Sec. 91, head 2, since they were not within its general subject-matter; nor by head 27, because such legislation did not in its matter belong to the domain of criminal jurisprudence.

A Dominion Act regulating the manner in which insurance policies shall be effected is ultra vires, since 'the regulation of trade and commerce' does not extend to the regulation by a licensing system of a particular trade, and since it could not be enacted under the general power to legislate 'for the peace, order, and good government of Canada'; whilst it encroaches upon the powers of the Provincial Legislature with regard to civil rights in the Province. (Attorney-General for Dominion v. AttorneyGeneral for Alberta, A. C. 1915, p. 588.) Nor can the Dominion Parliament by purporting to create penal sections under Sec. 91, head 27, appropriate to itself a field of jurisdiction in which, apart from that procedure, it could exert no legal authority. (Attorney-General for Ontario v. Reciprocal Insurers, A.C. 1924, p. 329.) The same case decided that a Provincial Act of 1922 was intra vires, since its provisions were capable of receiving a meaning according to which, whether enabling or prohibitive, they applied only to acts within the territorial jurisdiction of the Province. Attorney-General for Alberta v. Attorney-General for Canada, A. C. 1914, p. 363, decided that a section in a Provincial Act which claimed to exercise authority over a railway company authorized otherwise than under the legislative authority of the Province was ultra vires on the part of the Provincial Legislature.

At the same time, though Sec. 92 confines the actual powers and rights which the Provincial Government can bestow upon a company to powers and rights exercisable within the Province, this does not preclude a Province from keeping alive the then existing power of the Executive to incorporate by charter so as to confer a general capacity analogous to that of a natural person or to legislate so as to create a corporation with this general capacity. (Bonanza Creek Mining Company v. The King, A. C. 1916, p. 566.)

The subsection confining the Provinces to direct taxation within the Provinces has necessitated subtle distinctions. Thus the Quebec Succession Duty Act (6 Ed. VII, ch. 11, amended by 7 Ed. VII, ch. 14), which imposed succession duty in respect of property outside the Province upon the death of the owner domiciled within it, was held to be ultra vires, since the duty imposed was not 'direct taxation', having regard to the provisions for its collection; whilst a subsequent Act (4 G. V, ch. 10), imposing a duty upon all transmissions within the Province, owing to the death of a person domiciled therein, of movable property situated outside the Province at the time of such death, was held to be intra vires, being 'direct taxation within the Province'. (Burland v. The King, 1 A. C. 1922, p. 215.) (See also Cotton v. The King, A. C. 1914, p. 176.)

In Wilson v. The Esquimault and Nainimo Railway Co. (1 A. C. 1922, p. 209) the important point was decided that private rights that have been finally constituted under Provincial legislation are not swept away by subsequent disallowance.

Many of the conclusions of the Privy Council seem fairly obvious both from the letter and the spirit of the statute. Thus it is clear that a Provincial statute is inoperative in so far as it seeks to derogate from the rights of persons outside the Province (Royal Bank of Canada v. The King,

A. C. 1913, p. 283); and that a Provincial statute is invalid if it violates the conditions of a Dominion treaty (Attorney-General of British Columbia v. Attorney-General of Canada, A. C. 1924, p. 203). It seems equally clear that a Summary Convictions Act to empower a Provincial Prohibition Law is within the competence of a Provincial Legislature. (Canadian Pacific Wine Co. v. Tuley, A. C. 1921, p. 417; following Attorney-General of Manitoba v. Manitoba License Holders Association, A. C. 1902, p. 73.)

PAGE 200, note 3. The respective powers of the Commonwealth and the States under the Constitution have been the subject of conflicting decisions. In the recent case of The Amalgamated Society of Engineers v. The Adelaide Steamship Company, C. L. R. xxviii, p. 129, it was held that the rules of construction to be applied in construing the Constitution are those applied by the Privy Council in Webb v. Outrim, A. C. 1907, p. 81, and AttorneyGeneral for Australia v. Col. Sugar Refining Co., A. C. 1914, p. 237. It having once been ascertained, in accordance with these rules of construction, that a power has been conferred by the Constitution on the Commonwealth Parliament, no implication of a prohibition against the exercise of that power can arise, nor can a possible abuse of that power narrow its limits.

Deakin v. Webb, C. L. R. i, p. 585, and Baxter v. The Commissioners of Taxation, C. L. R. iv, p. 1089, so far as they decided that the taxation by a State of money received as salary from the Commonwealth is invalid as being an interference with a federal instrumentality, were overruled. As was Federal Amalgamated Government Railway and Tramway Service Association v.N.S. Wales Railway Traffic Employees Association, C. L. R. iv, p. 488, which decided that the Commonwealth Conciliation and Arbitration Act of 1904, so far as it purported to affect State railways, was ultra vires and void: that case being in direct conflict with Attorney-General for N. S. Wales v. Collector of Customs for N. S. Wales, C. L. R. v, p. 818 (the steel rails case), which decided that, apart from Sec. 114, there was nothing to prevent the Commonwealth Customs Act operating so as to prevent the States importing steel rails free of duty. PAGE 223, addendum to note 3. The Australian States Constitution Act, 1907, provided that it should not be necessary to reserve for the approval of the Crown any Bill passed by the legislature of any of the States, if the Governor had already received instructions to give his assent. Hence the Queensland Constitution Amendment Act of 1908 was valid.

The Queensland Parliamentary Bills Referendum Act of 1908, providing that when a Bill, passed in the Legislative assembly in two successive sessions, had in the successive two sessions been rejected by the Legislative Council, it might be submitted by referendum to the electors, and if affirmed by them and assented to by the Crown should become law, was held a valid exercise of the powers conferred by the Colonial Laws Validity Act, 1865. Hence there was power to abolish the Legislative Council, as was done in 1922. (Taylor v. Attorney-General of Queensland, C. L. R. xxiii, p. 457.)

PAGE 258, note. As was natural from its form, the South Africa Union Act has led to much less litigation than have the other two statutes. Such controversy as there has been has been almost exclusively over the powers of the Provincial Councils. It has been held that when once it is clear that the legislative powers which are challenged fall within the powers conferred on Provincial Councils the Court cannot

interfere with them on the ground that they are unwise, unpolitic, or unreasonable. (Middleburg Municipality v. Gertzen, S. A. Law Reports, (1914) Ap. Div., p. 544.)

In deciding on the validity of an ordinance passed by a Provincial Council the Court shall bear in mind the state of the law at the time of the passing of the S. A. Union Act in relation to the subject-matter dealt with by the ordinance. (Pretorius v. Barkly East Div. Council, ibid. p. 407.) Moreover under Sec. 85 (vi) a Provincial Council can not only create bodies for the management of municipal affairs, but also endow them with all the powers necessary to the discharge of all the functions of government. (Head & Co. (Lim.) v. Johannesburg Municipality, S. A. L. R. Transvaal Prov. Div. (1914), p. 514, and Groenwoud and Colyn v. Innesdale Municipaliy, (1915) Tr. Prov. Div., p. 413, and Cooper v. Johannesburg Municipality, (1916) Tr. Prov. Div., p. 601.

A section of an Act of 1912 allowing Town Councils to make by-laws for establishing separate tramcars for Europeans and Natives and Asiatics was held to be intra vires. (George and Others v. Pretoria Municipality, (1916) Tr. Prov. Div., p. 501.) Thus also a Transvaal Provincial Council ordinance of 1916 rendering null and void any contractual agreement, both retrospective and prospective, between the person primarily liable for municipal rates and the lessee holding under him, whereby the burden of such rates should be shifted in whole or in part from the former to the latter, was held to be intra vires of such Council. (Van Veyeren v. Tr. Administrator and Others, (1917) Tr. Prov. Div., p. 74.

On the other hand, a Transvaal Provincial ordinance imposing a polltax on Natives was held to be ultra vires in that it conflicted with the provisions of a section of a Union Act of 1921. (Transvaal Prov. Administration v. Letanka, S. A. L. Rep., (1922) Ap. Div., p. 102.)

It has been held that the provisions of an Act of 1921 preventing direct taxation of mining profits are not violated by an ordinance imposing a tax of £ per head in respect of every employee in excess of eight persons. (Commissioners of Inland Revenue v. Crown Mines (Lim.), S. A. L. Rep., (1922) Ap. Div., p. 121.