Sec. 123. Where Customs duties are, at the Union, leviable on any goods, wares, or merchandises in any two Provinces, those goods, wares and merchandises may, from and after the Union, be imported from one of those Provinces into the other of them, on proof of payment of the Customs duty leviable thereon in the Province of exportation, and on payment of such further amount (if any) of Customs duty as is leviable thereon in the Province of importation. Sec. 124. Nothing in this Act shall affect the right of New Brunswick to levy the lumber dues provided in chapter fifteen of title three of the Revised Statutes of New Brunswick, or in any Act amending that Act before or after the Union, and not increasing the amount of such dues; but the lumber of any of the Provinces other than New Brunswick shall not be subject to such dues. The revenue provisions of the Swiss Federal Constitution are contained in Switzerland. Articles 28 to 32. They require no comment. United States. Inter-State CHAPTER XIV. The question of the right of the Central Government in a Union of States to regulate railways in the territory of the several States of the Union-whether they belong to the State Government or are owned privately-is one which has occasioned a great deal of controversy. In the Constitution of the United States there is, of course, no definite provision as to this question of railways; but it has been held by an extensive interpretation of Sub-sec. 3, Sec. 8, Article I., which gives Congress power to regulate commerce among the several States--that the Central Legislature has power to provide for the regulation of railways in the several States. Thus in the case of Railroad Co. vs. Huson [95, U.S. Supreme Ct. Rep., p. 465] Mr. Justice Strong said that "neither the unlimited powers of a State to tax, nor any of its large police powers, can be exercised to such an extent as to work a practical assumption of the powers properly conferred upon Congress by the Constitution. Many acts of a State may indeed affect commerce, without amounting to a regulation of it, in the constitutional sense of the term While we unhesitatingly admit that a State may pass laws for the protection of life, liberty, health or property within its borders ..it may not interfere with transportation into or through the State beyond what is absolutely necessary for its self-protection." And it is now admitted that Congress has plenary powers to regulate the rates of inter-State and foreign commerce.* "The Constitution of the United States" [say Messrs. Quick and Garrant] " contains no clause authorising Congress to appoint an Inter-State Commerce Commission; but such Commission has been authorised and appointed under and by virtue of the power vested in Congress to regulate commerce. This is a striking illustration of the vastness and elasticity of the commerce power. The first Inter-State Commerce Act was passed on 4th February, 1887; it was amended on 2nd March, 1889; again amended on 10th February, 1891; and finally on 11th February, 1893. The *Covington and Cincinnati Bridge Co. vs. Kentucky (154, U.S., 204). New York Board of Trade vs. Pennsylvania Ry. Co. (3, Inter-State Commission Rep., 417). Kauffman Milling Co. vs. Missouri Pacific Railroad Co. (3, Inter-State Comm. Rep., 400]. † Annot. Const. Australian Comm., p. 521. general outlines of this legislation and the principles deducible. therefrom will be found discussed in Inter-State Comm. vs. Baltimore and Ohio Railroad Co., 1892, 145 U.S., 263; Inter-State Comm. vs. Brimson, 1894, 154 U.S., 447; Inter-State Comm. vs. Alabama Midland Railway Co., 1896, 5 Inter-State Comm. Rep., 685, and 1897, 168 U.S., 144.” The idea of the Inter-State Commission thus established in the Great Britain. United States was borrowed from England. There, as far back as 1840, powers were given to the Board of Trade with regard to the superintendence of railways. By subsequent legislation these powers were more specifically defined in their application to "undue preferences" and the with-holding of "reasonable facilities" for through traffic; and were transferred to Railway Commissioners, who were themselves replaced in 1888 by the Railway and Canal Commission with greatly enlarged jurisdiction and the power to award damages and without any appeal from its decision on any question of fact or locus standi. In the United States, the Act establishing the Inter-State Com- United States. merce Commission gives the Commission power to inquire into the management of the business of all common-carriers subject to the provisions of this Act' [i.e., all common-carriers engaged in inter-State or foreign commerce], to keep itself informed as to the manner and method in which such business is conducted, and to obtain from such carriers full and complete information necessary to enable the Commission to perform the duties and carry out the objects for which it was created. The Commission is further authorised to require the attendance of witnesses and the production of documents and to invoke the aid of the Federal Courts in case of disobedience to its summons. Sec. 13 provides that any person complaining of any act done by a carrier in contravention of the Act may apply to the Commission by petition. The Commission is then to call upon the carrier to satisfy the complaint or answer it. If the carrier does not satisfy the complaint, or if there appears to be reasonable ground for investigating the matters complained of, it is the duty of the Commission to investigate them. The Commission may also investigate any complaint forwarded by the Railroad Commission of any State, or may institute any inquiry on its own motion. "It is the duty of the Commission to make reports of all investigations, including the findings of fact on which its conclusions are based, and its recommendations, if any, as to what reparation should be made by the carrier to any persons injured; and such findings are in all judicial proceedings prima-facie evidence as to the facts found. If the Commission is satisfied that any carrier has violated the Act, or that any party has sustained injury by such violation, it must forward to the carrier a copy of its report, with a notice to desist from such violation, or to make reparation, or both [Sec. 15]. If a common-carrier violates or disobeys any order of the Commission it is the duty of the Commission, and lawful for any person interested, to apply in a summary way, by petition, N Australia. to the proper Circuit Court, alleging such violation or disobedience; and the Court must hear and determine the matter speedily, as a Court of Equity, but without formal pleadings or proceedings, and in such manner as to do justice, and may restrain the carrier by injunction or other process, mandatory or otherwise, and may enforce such process by attachment or fine, and may order the payment of costs. When the subject in dispute is of the value of 2,000 dollars or more, either party may appeal to the Supreme Court [Sec. 16]."* [Vide, on the whole subject: Hadley, " Railroad Transportation." Prentice and Egan, "The Commerce Clause."] The fact that in the Australian Federal Constitution the American system of railway regulation has been copied to a large extent, makes it convenient to discuss here the provisions of that Constitution on this point. It should be remembered that, whereas in Great Britain and to a large extent in the United States the railways are the property of private companies, in Australia they are almost wholly owned by the several States. The difficulties attending the regulation of Railways in Australia are discussed in Part I., Chapter II., of this book. The problem -as it finds expression in the Federal Constitution-falls under two heads (i.) Extent of Federal Control over State Railways: This is expressed in several sections. Thus Sec. 51 gives the Federal Parliament power, subject to the Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to . . . . Sub-Sec. xxxii.: "The control of railways with respect to transport for the naval and military purposes of the Commonwealth." Sub-Sec. xxxiii.: "The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State." Sub-Sec. xxxiv.: " Railway construction and extension in any State with the consent of that State." And under Sec. 98 : "The power of the Parliament to make laws with respect to trade and commerce extends to . . . . railways the property of any State," thus crystallising into a definite constitutional provision that power of the Central Government which in the United States has been established by judicial interpretation of the Constitution. Whilst under Sec. 99 it is provided that : "The Commonwealth shall not, by any law or regulation of trade, commerce or revenue, give preference to one State or any part thereof over another State or any part thereof," thus adopting, almost verbatim, Article I., Sec. 9, Sub-Sec. 6, of the United States Constitution, which says that : "No preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another." * Annot. Const. Australian Comm., p. 897. (ii) The Exercise of Federal Control: It is at once clear that the power of the Federal Parliament to control State railways in Australia-as defined above-inevitably involves both the question as to how that power is to be exercised and that as to the extent to which it can be put into force. The word "preference," for instance, in Sec. 99, is one which demands close definition with special reference to the problems of State railway management in Australia-problems which are briefly noticed in the second chapter of Part I. of this book. The solution of the first question is to be found in Secs. 101 and 103 of the Australian Constitution; that of the second question in Secs. 102 and 104. Secs. 101 and 103 are as follows : Sec. 101. "There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce and of all laws made thereunder." Sec. 103. "The members of the Inter-State Commission :-- (i.) "Shall be appointed by the Governor-General in Council; (ii.) “Shall hold office for seven years, but may be removed within that time by the Governor-General in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehaviour or incapacity; Shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office." (iii.) And Secs. 102 and 104 define the limits of the points to be decided by the Commission. Thus :— Sec. 102. "The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connection with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission." Sec. 104. "Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of a State, and if the rate applies equally to goods within the State and to goods passing into the State from other States." Finally, Sub-Sec. 3 of Sec. 73 gives a right of appeal to the High Court from an order or decree of the Inter-State Commission, "as to questions of law only." It is not within the province of this work [as explained in the Introduction] to discuss the working of the Inter-State Commission thus established by the Australian Federal Constitution. But the following quotation from Professor Moore's "Commonwealth of Australia" expresses briefly and clearly the essential difference between its duties and those of similar bodies in Great Britain and the United States : |