§ 170. "RIGHTS OF STATE TO USE WATERS OF RIVERS."

LEGISLATION.

INTER-STATE COMMISSION ACT 1912, Section 17.

River Questions.

The Commission may investigate all matters affecting the extent of diversions or proposed diversions, or works or proposed works for diversions, from any river and its tributaries, and their effect or probable effect on the navigability of rivers, that by themselves or by their connexion with other waters, constitute highways for inter-state trade and commerce; the maintenance and the improvement of the navigability of such rivers; the abridgment by the Commonwealth by any law or regulation of trade or commerce of the rights of any State or the residents therein to the reasonable use of the "waters of rivers for conservation or irrigation; the violation by any State, or by the people of any State, of the rights of any other State, or the people of any other State, with respect to the waters of rivers. In this section diversions" includes obstructions, impoundings, and appropriations of water that diminish or retard the volume of flow of a river.

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Rights of Commonwealth and State in respect of Inter-State Rivers.

No recent decision of the Supreme Court of the United States has been a source of greater interest than the case of Kansas v. Colorado, 206 U.S., 46. Apart from its importance as a controversy between two sovereign States, it is especially noteworthy on account of the claims put forward on the part of the Federal Government to control an inter-state river.

The State of Kansas brought a suit in the Supreme Court to restrain the State of Colorado from diverting the water of the Arkansas River for the purpose of irrigation of lands in Colorado. It was contended that this artificial diversion diminished the natural and customary flow of the river into and through Kansas. The United States Government filed an intervening petition claiming the right to control the waters of the river to aid in the reclamation of arid lands.

The argument of counsel for the Government was-that the control of such a stream, valuable for irrigation purposes, was necessary for the furtherance of the Government's policy as to irrigation.

This being conceded, the Federal Government would properly have control of such a stream under that provision of the Constitution which gives Congress all the incidental and instrumental powers necessary and proper to carry into execution all the express powers: Const., art. I., sec. 8, cl. 18;

Story on Const., sec. 1243.

This brought up for the consideration of the Court the question as to whether the right to reclaim arid lands was one of the powers granted to Congress by the Constitution. No proposition of constitutional law is more thoroughly settled than that the Federal Government is a Government of delegated powers. And the right to legislate for the reclamation of arid lands, aside from those the ownership of which is vested in the Federal Government, is not one of the powers expressly delegated to Congress. Counsel for the Government next endeavoured to sustain the right of Congress to legislate for an inter-state stream, which is not navigable, by the doctrine of sovereign and inherent power. This doctrine of inherent power was expressly negatived in Kansas v. Colorado.

Mr. Justice BREWER said :- This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment. This amendment, which was seemingly adopted with prescience of just such a contention as the present, disclosed the wide-spread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. It reads: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people. The argument of counsel ignores the principal factor in this article, to wit: the people.' Its principal purpose was not the distribution of power between the United States and the States, but a reservation to the people of all power not granted. The powers affecting internal affairs of the States not granted to the United States by the Constitution, not prohibited by it to the States are reserved to the States respectively, and all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States."

The petition of the Federal Government to be allowed to intervene was disposed of on the ground that the Government had no legal interest in the subject-matter of the suit, On the main ques

tion the Supreme Court found that the damage done to the State of Kansas by the diversion of the water of the river had not been sufficient to justify the granting of an order restraining the State of Colorado from using the water for irrigation purposes.

Inter-State Commission.

101. There shall be an Inter-State Commission, with such powers of adjudication11 and administration as the Parliament deems necessary for the execution172 and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.

§ 172. “EXECUTION AND MAINTENANCE.”

LEGISLATION.

Enabling not exclusive power.

The language of section 101 is somewhat similar to that of section 61, which declares that the executive power of the Commonwealth extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth." It has been held that the provisions of section 101 conferring on the Inter-state Commission power of adjudication and administration deemed necessary for the execution and maintenance of the provisions of the Constitution relating to trade and commerce are enabling and supplementary to section 51 (1.) and section 61 and do not confer on the Commission any exclusive power.

In the case of Huddart Parker & Co. Proprietary Ltd. v. Moorhead, (1909) 8 C.L.R., 331, objection was taken to the validity of section 15B of the Australian Industries Preservation Act which authorizes the Comptroller-General to call upon certain persons and corporations to answer questions as to whether they are engaged in contracts in restraint of trade to the detriment of the public. The ground of the objection was that this legislation vested in the Comptroller-General powers and functions which belong exclusively to the Inter-state Commerce Commission. It was contended that section 101 is in effect an exception from, or proviso to, section 61. so far as relates to the execution and maintenance of laws relating to trade and commerce, and that pending the appointment of the Commission the execution and maintenance of these laws, whatever

that phrase may mean, is in abeyance, just as the right of action by a State against the Commonwealth or another State was in abeyance until the establishment of the High Court. It was pointed out that before the establishment of the Commonwealth great difficulties had arisen in the United States of America with respect to the execution of the trade and commerce laws of that Republic, and that an Inter-state Commission had been created for that purpose. It was also pointed out that the duties to be performed in the execution of such powers are of great complexity, and require the exercise of a fine and impartial discretion. Accordingly, it was said, it was provided by section 103 that the members of the Commission should have a fixed tenure of office so as to be free from political pressure. It was contended that these provisions are inconsistent with the entrusting of the execution and maintenance of the trade and commerce laws to ordinary members of the public service. On the other hand, it was urged that the words of section 101, alalthough in form mandatory, are, from the nature of the case directory only, and that on any other construction any laws which the Parliament might pass as to trade and commerce would be nugatory until the Commission were appointed.

The High Court held that the power of inquiry vested in the Comptroller-General is not an incident of the execution and maintenance of the provisions of the Constitution relating to trade and commerce within the meaning of section 101 of the Constitution. and need not be entrusted to the Inter-state Commission.

Mr. Justice O'CONNOR said :- It is difficult to see how full effect could be given to the Constitution as a whole by construing section 101, not as an enabling section enlarging the powers conferred by sections 51 and 61, but as a restrictive section, as indicating an intention in the framers of the Constitution that the powers essential for the execution and maintenance of laws relating to trade and commerce should remain in abeyance until the necessary Statutes had been passed for the constitution of an Inter-state Commission. Having regard to these considerations I am of opinion that section 101 is entirely enabling, and that it in no way cuts down the power of the Parliament under sections 51 and 61 to enact such a provision as that now under consideration for the administration and enforcement of laws relating to inter-state trade and commerce": 8 C.L.R., at p. 376.

Mr. Justice ISAACS said Section 101 is an exceptional constitutional permission to Parliament which is additional and subsidiary. Adjudication is placed on the same footing as administration, and if the contention that section 61 is entirely displaced is sustainable at all, it applies as much to the case of judicial power as to that of administrative power: see section 73 (III.). If for any reason Parliament thought it desirable to invest the Inter-state Commission when created with the duties of inquiry under the Australian Industries Preservation Act, it could certainly do so, but I cannot agree that the only alternative to this is executive paralysis in regard to all the trade and commerce provisions established by the Constitution or enacted by the legislature. And yet that extraordinary position is essential to this branch of the appellants' argument": 8 C.L.R., at p. 387.

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§ 171. "POWERS OF ADJUDICATION."

LEGISLATION.

The Inter-state Commission Act 1912, part V., which is headed Judicial Powers of the Commission," enacts (section 23) that the Commission in the exercise of its powers for the hearing or determination of any complaint, dispute or question or for the adjudication of any matter, shall be a Court of record with power to issue injunctions. Section 24 purports to confer upon the Commission jurisdiction to hear and determine complaints, disputes or questions and to adjudicate upon any matter arising under the Act.

Functions of the Commission.

The

In January 1915, a complaint was lodged with the Commission with respect to the contravention of the provisions of section 92 of the Constitution with relation to inter-state commerce. complaint was lodged by the Commonwealth against the State of New South Wales and the Inspector-General of the Police. The Farmers and Settler Association of New South Wales intervened. The basis of the complaint was that the Government of New South Wales had seized certain parcels of wheat which were the subject of inter-state trade. This, it was contended, was a breach of the provisions for inter-state freedom of trade contained in section 92 of the Constitution. The answer of the defendant State was that the wheat was, at the time of seizure, the property of the Crown by virtue of the Wheat Acquisition Act 1914, and it was not therefore the subject of inter-state commerce.