"It may be conceded," said the Chief Justice, that such prevention was a contemplated, if not the necessary, result of the acquisition of all the wheat. This argument, if valid, would, in effect, invalidate any State law couched in general terms for the expropriation of personal property, unless it contained an exception of any such property which might at the time of the attempted exercise of the power be the subject matter of inter-state commerce. In my judgment the well-known case of Macleod v. Attorney-General for New South Wales, (1891) A.C., 455, affords a complete answer to this argument. The general power of expropriation of property is a power which is, by the Constitution, neither withdrawn from the States nor exclusively vested in the Commonwealth. By virtue of section 107 of the Constitution, it continues as at thee establishment of the Commonwealth. When a State law is enacted in general terms, I do not think that it can be held invalid merely because its language is wide enough to cover cases with which by reason of some provisions of the Constitution it is beyond the competence of Parliament to deal. In such a case I think that, as a matter of construction, the Act should be construed as applying only to matters within the competence of Parliament, just as in the case of a Statute which in its terms includes matters beyond the territorial jurisdiction of the State, unless it appears on the face of the Act that it was intended to deal with matters beyond, as well as with matters within, the competence of Parliament, and that the provisions dealing with both are not severable (The Kalibia Case, 11 C.L.R., 689). It follows that in such a case the Statute should be construed as limited in its operations, not that it is invalid altogether" 20 C.L.R., at p. 66.

Eminent Domain.

"The power of the State to expropriate real property by Statute said BARTON, J. " is, in these days, never questioned. If the power to expropriate personal property is questioned as to any Australian State it can only be because its exercise has been so rare that its novelty rather exposes it to criticism and opposition. But a power newly used is nevertheless a power. The Constitution of New South Wales was at the establishment of the Commonwealth and is now preserved by section 106 of the Federal Constitution, subject to the latter Constitution. The New South Wales Constitution Act empowers the Parliament of that State to make laws for its peace. welfare, and good government in all cases whatsoever.' The grant

includes the course of power of expropriation (or eminent domain, if that term is more pleasing) according to the sole judgment of the Parliament of the State on the question of the public welfare. In some of the States of the American Union the power of expropriation is limited by their Constitutions to acquisition on just terms. So in our Federal Constitution not only must the terms be just, but the power is limited to the purposes in respect of which the Parliament has power to make laws: Constitution, sec. 51, sub-sec. (XXXI.). Whether there is or is not in that instance a power of eminent domain also, I do not discuss now. But the power to make laws is unlimited in New South Wales save by territorial jurisdiction, and, since January 1901, by the Federal Constitution in some respects." Per BARTON, J. in The State of New South Wales v. The Commonwealth, (1915) 20 C.L.R., at pp. 77-78.

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The Wheat Acquisition Act of New South Wales is not primarily an interference with inter-state trade or commerce at all; it is an exercise of a legislative power declared by section 107 of the Constitution to remain in the Legislature of New South Wales for the purpose of managing its own internal affairs. Per GAVAN DUFFY, J., 20 C.L.R., at p. 105.

I also agree that the State of New South Wales had power to acquire any property in the State and, after acquisition, to exercise the right of an owner to decide whether its property is to remain in the State or to be a subject of inter-state commerce. Section 92 of the Constitution does not affect that right. The New South Wales Wheat Act can reasonably be, and ought, if possible to be construed, as referring only to matters within the jurisdiction of State Parliament. I agree that the New South Wales Wheat Act in question is valid and that the Commonwealth action fails." Per POWERS, J., 20 C.L.R., at p. 107.

State Power over Property.

Section 92 of the Constitution, in forbidding obstructions or restrictions to commerce among the States, is not in any way paramount to section 107 of the same Constitution; both sections are

to get full effect. Under section 107 every original State power— unless exclusively vested in the Commonwealth Parliament or unless withdrawn from the States is to continue as at the establishment of the Commonwealth." Now, at the establishment of the Commonwealth the State Legislatures had power to take away

all or any of the rights of ownership of property. This power has not been exclusively vested in the Commonwealth Parliament, and has not been withdrawn from the States; so that it must continue as in 1900. It is true that if a State law as to property should be inconsistent with a valid law of the Commonwealth Parliament a law dealing with any of the objects expressly entrusted to the Commonwealth Parliament, the State law would be invalid "to the extent of the inconsistency" (section 109). But" said Mr. Justice HIGGINS," there is no such Commonwealth law. It is true also that the power of a State Legislature to make laws obstructing or restricting commerce among the States is withdrawn' from it; but the Queensland Meat Act does not obstruct or restrict commerce among the States." Per HIGGINS, J. in Duncan v. State of Queensland, 22 C.L.R., at p. 631.

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The Parliaments of the States, at the establishment of the Commonwealth, had the power to authorize the Crown to acquire any property or any interest in property with or without paying compensation. They had the power to tax the property of residents in the States to any extent they thought fit. They had the power to say who should or should not be qualified to hold real or personal estate, and who should or should not be able to sell it. They had the power to say on what conditions property could be held or used, they had the power to prevent any owner of cattle from removing cattle from his holding without the consent of an officer of the Government. None of those powers have been exclusively vested in the Parliament of the Commonwealth or withdrawn from the States, and hence those powers can still be exercised by a State even if the effect of the exercise does incidentally hinder or prevent some inter-state trade or commerce. The framers of the Constitution," said Mr. Justice PowERS," apparently did not anticipate or think it necessary to prevent, the exercise of the sovereign powers of the State being used to the extent that they have been in the direction of socialism or of the State acquisition and control of marketable commodities. The High Court held in the Wheat Case, 20 C.L.R., 54, that the State of New South Wales could compulsorily acquire all the marketable wheat in New South Wales, although a large portion of it. prior to the compulsory acquisition, was admittedly intended for inter-state trade and commerce. The change of ownership did not prevent inter-state trade or commerce merely because the new owner (the State) did not wish to engage in interstate trade or commerce. Inter-state trade was just as free to

all owners of property who desired to engage in such trade or commerce and were capable of doing so. The State of South Australia is dependent altogether on the State of New South Wales for its coal supplies. Victoria is to a great extent dependent on New South Wales for its coal. All the other States import some New South Wales coal, and the shipping companies (except in the State of Queensland) depend almost wholly on New South Wales coal. It is a marketable commodity, and the greater part of the coal raised on New South Wales is used for inter-state purposes. Yet the State of New South Wales can legislate as to all mines in the State. It could make labour conditions so oppressive that it would prevent the owners working a coal mine; it could order all employers to pay their employees a £1 a day for six hours work on 6 days a week, and in that way prevent many of the mines being worked at all; it could tax all coal raised to such an extent that it would be unprofitable to work the mines. It is admitted that it could acquire all the mines, or all the coal as it is raised; and in all the ways mentioned prevent or interfere with inter-state trade without any contravention of section 92. The power of the State to pass any legislation necessary to protect the health or safety of the people of the State has never been questioned, however seriously the exercise of the power may incidentally affect inter-state commerce or even if it prohibits it." Per POWERS, J. in Duncan v. The State of Queensland, (1916) 22 C.L.R., at p. 150.

Saving of State laws.

108. Every law 178 in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.

§ 178. "EVERY LAW IN FORCE IN A COLONY SHALL CONTINUE."

Municipal Rate Law.

Pre-Federation State laws imposing municipal rates on State Government lands and buildings which, after the establishment of

L. P.

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the Commonwealth, become vested in the Commonwealth are not continued in force by section 108 of the Constitution. By section 114 of the Constitution the Commonwealth is not liable to pay rates in respect of such property: The Municipal Council of Sydney v. The Commonwealth, (1904) 1 C.L.R., at p. 208.

Imperial and State Law.

The expression "every law in force in the State" is sufficient to include not only every State law in force at the time of Federation but every Imperial Act applicable to the State. In Mc Kelvey v. Meagher it was contended that the administration of the Fugitive Offenders Act 1881 was not a law in force in Victoria, at the time of the establishment of the Commonwealth, within the meaning of section 108 of the Constitution. The Chief Justice (Sir SAMUEL GRIFFITH) said :-" I can see no force in that contention. Amongst the powers possessed by the Governor, the Judges, and the magistrates of Victoria were powers under the Fugitive Offenders Act 1881, and the law which enabled them to exercise those powers was a law in force in Victoria, and, in my opinion, still continues a law there" (1906) 4 C.L.R., at p. 297.

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Inconsistency of laws.

109. When a law of a State is inconsistent 179 with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

§ 179. "A LAW OF A STATE INCONSISTENT." Concurrent Powers.

"It must" said the Chief Justice, "be taken to be of the essence of the Constitution that the Commonwealth is entitled, within the ambit of its authority, to exercise its legislative powers in absolute freedom, and without any interference whatever except that prescribed by the Constitution itself. There is, however, a large class of cases with respect to which a similar power is for a time reserved to the States. In these matters there is, consequently a possibility of conflicting legislation. This contingency is provided for by section 109 of the Constitution, which declares that when a