Grand Trunk Railway v. Attorney-General of Canada, (1907) A.C., 66.-The Dominion Parliament passed a law to prevent railway companies within the Dominion jurisdiction from "contracting out of liability for injuries to servants." This was held valid as railway legislation under an enumerated power of the Dominion, notwithstanding that it incidentally affected civil rights within the Province.

The principle of the decision is that, where enumerated powers overlap, Dominion legislation prevails. In other words, where two exclusive powers meet on a common field, the Canadian Constitution is interpreted as leaving that field concurrent, and the result is then the same as in cases in the United States or Australia where the legislation in exercise of or incidental to the exercise of an enumerated power of the Federal Government comes into conflict with State legislation passed in the exercise of the residuary power; if the Federal law is in substance an exercise of Federal legislative power the State law, though valid in the absence of Federal legislation, yields to the Federal law in case of conflict.

Toronto Corporation v. Canadian Pacific Railway, (1908) A.C., 54. The Dominion Railway Act provides for certain works for the protection of the public at level crossings on the C.P.R. and for the adjustment and recovery of the cost from persons interested. The Railway Committee of the Privy Council of Canada, in pursuance of the Act, directed the cost of the protection of certain level crossings in Toronto to be apportioned between the railway and the city. Held that the municipality was a person liable, and that the Dominion Act imposing this liability on the city was valid as general railway legislation, notwithstanding that it affected civil rights. The principle of the case is precisely similar to that of the Grand Trunk Railway Case (supra).

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT(a)

(63 & 64 VICT. c. 12).

AS ALTERED BY

CONSTITUTION ALTERATION (SENATE ELECTIONS) 1906 (No. 1 OF 1907).

AND BY

CONSTITUTION ALTERATION (STATE DEBTS) 1909 (No. 3 OF 1910).

An Act to constitute the Commonwealth of Australia. [9th July, 1900.]

W

HEREAS1 the people of New South Wales, Vic

toria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crowns of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established :

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent

(a) NOTE.-This print of the Constitution Act contains all the alterations of the Constitution which have been made up to and including the 31st December, 1918. The Acts by which the Constitution was altered are the Constitution Alteration (Senate Elections) 1906 assented to 3rd April, 1907, and the Constitution Alteration (State Debts) 1909 assented to 6th August, 1910.

of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

§ 1. "WHEREAS THE PEOPLE."

Declaratory not Enacting Effect of Preamble.

In the case of Jacobson v. Massachusetts, (1905) 197 U.S., 11, an unsuccessful attempt was made in argument to found substantive rights upon the words of the preamble of the Constitution of the United States. A compulsory vaccination law of the State of Massachusetts was claimed to be invalid as being repugnant to the declaration in the preamble that the Constitution was ordained “in order to secure the blessings of liberty to ourselves and

our posterity."

The Supreme Court of the United States, however, made short work of this argument. We pass without extended discussion," they said, "the suggestion that the particular section of the Statute of Massachusetts now in question is in derogation of rights secured by the preamble of the Constitution of the United States. Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom: 1 Story's Constitution, § 462." 197 U.S., at p. 22. The Court added, significantly, that the liberty secured by the Constitution "does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint."

To the same effect was the observation of Mr. Justice ISAACS in the Federated Saw Mill Employees v. James Moore & Sons Proprietary Ltd., (1908) 8 C.L.R., at p. 535, that if covering Clause V. and section 109 of the Constitution, which formed the keystone of

66

the Federal structure, were loosened Australian union was but a name, and would reside chiefly in the pious aspirations for unity contained in the Preamble to the Constitution." Note by Sir ROBERT GARRAN.

The Constitution of the Commonwealth is included in and receives the sanction of law from an Imperial Statute, yet it is, nevertheless, founded upon and is the result of a compact or agreement between the people of the pre-existing colonies. The fundamental basis as well as the most prominent feature of the Federal compact is the distribution of powers between the Commonwealth and the States. Per GRIFFITH, C.J. in the Colonial Sugar Refining Co. Ltd. v. Attorney-General of the Commonwealth, (1912) 15 C.L.R., 194. It is a familiar and popular description of the Federal Constitution to say that it is a compact. In the same case upon appeal to the Privy Council their Lordships lent additional sanction to the use of the term "compact." "Their Lordships," said Lord HALDANE, H.C., "are called on to interpret the legislative compact made between the Commonwealth and the States, and they have to determine on the language of the Statute what rights of legislation the federating colonies declared to be reserved to themselves. It is clear that any change in the existing distribution of powers has been safe-guarded in such a fashion that on a point such as that before the Board the Commonwealth Parliament could not legislate so as to alter that distribution merely of its own motion" (1914) App. Cas., at p. 237.

The Constitution Act is not only an Act of the Imperial Legislature, but it embodies a compact entered into between the six Australian Colonies which form the Commonwealth. This is recited in the preamble to the Act itself. Per GRIFFITH, C.J. in Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway and Traffic Employees' Association, (1906) 4 C.L.R., at p. 534.

This doctrine of a Federated Compact" is not likely to lead to the promulgation of a Constitutional heresy similar to that which took place in the United States in the days of Calhoun which led to the Civil War of 1862-64.

§ 3.

"THE CROWN."

Imperial Unity and Division.

The Crown is a symbol of the combined unity and division of Imperial Sovereignty. It is the legal evidence of the visible central authority, the King in Parliament which unites and holds together the British Empire with its multitudinous peoples and its complex divisions of political power. The Crown, however constitutionally, represents not only the United Kingdom of Great Britain and Ireland but also those autonomous communities beyond te sea upon which the rights and privileges of local self-government branches of sovereignty, have been conferred by Imperial legislation. Thus the Crown may be considered as representing the Dominion of Canada, the Commonwealth of Australia and the South African Union, in each of which there is a Governor-General being the King's Representative, but it also represents the several Provinces of Canada and the States of Australia in which there are Provincial and State Governors. This differentiation of the Crown, considered from various constitutional standpoints, has been referred to and recognized in several cases which have come before the High Court of Australia for consideration.

Not Bound by Statute unless Named.

In Ahern v. Roberts, (1904) 1 C.L.R., 406, the rule that the Crown, and consequently the State or Commonwealth, is not bound by legislation unless it appears in the face of the Statute that it was intended it should be so bound, was considered and explained. The informant was the Inspector of Nuisances for the Borough of Inglewood (Victoria). The defendant was employed to cart nightsoil from the Post Office at Inglewood by one Appleby, who had contracted with the Commonwealth Government to carry out necessary sanitary operations in connection with those premises. The defendant, without having obtained a licence from the Borough Council, and without having given the required security to the Council carted night-soil away from the Post Office premises. He was prosecuted under section 5, sub-section 7, of the Police Offences Act 1890. The defence was that he was authorized by the Commonwealth Government, through the post-master, to do the act complained of. The defendant was convicted and fined. He obtained special leave to appeal from that decision to the High Court: (1903-4) 1 C.L. R., 406.