Whether "reasonableness" is a question of law or a question of fact seems therefore to depend on the assumed competence of the tribunals to which questions of law and fact are respectively assigned. It may be said that this is a somewhat arbitrary and unscientific test of classification; but it must be remembered that all classifications are more or less arbitrary; and this classification has at least the merit of endeavouring to assign each question to the most suitable tribunal.

Applying these principles to the Inter-State Commission, it is necessary to take into consideration the special character of that body, and the purposes for which it is constituted. The function of the Commission, in its judicial capacity, is to decide upon a class of questions involving the consideration of an intricate multitude of facts, and upon which a body of commercial experts are able to form a better opinion than a Bench of judges. Accordingly it is contemplated that the Inter-State Commission will consist of competent experts in the questions which will arise. It is a jury, but a jury of a very special character; a jury who are also judges-who are selected on account of their competence, and are secured in their tenure of a responsible position. The spirit as well as the letter of the Constitution would seem to indicate that the question whether a preference or discrimination is "undue and unreasonable, or unjust to any State "--or whether "due regard" has been had to the financial responsibilities of a State-are questions on which the decision of the Commission is absolutely final.

This conclusion is supported by decisions under the English Railway and Canal Traffic Acts, and the American Inter-State Commerce Act (see Notes, secs. 101, 102). The English Railway and Canal Traffic Act, 1888 (51 and 52 Vic. c. 25, s. 17), provides an appeal from the Railway and Canal Commission to the Court of Appeal, "but not on any question of fact or locus standi." In Phipps v. London and N.W.R. Co. (1892) 2 Q B. 229, it was held that the question whether a preference was undue or unreasonable was a question of fact for the Commission. (See also Palmer v. London and S. W. R. Co., L.R. 1 C.P. 593; Denaby Main Colliery Co. v. Manchester, &c., R. Co., 14 Q.B.D. 209, per Selborne, L.C.) "As there is nothing in the (Inter-State Commerce) Act which defines what shall be held to be due or undue, reasonable or unreasonable, such questions are questions not of law, but of fact." (Texas and Pac. R. Co. v. Inter-State Commerce Commission, 162 U.S. at p. 219. And see Inter-State Commerce Commission v. Alabama Midland R., 168 U.S. 145; and notes to sec. 102, infra.)

In two particular cases the judgment of the Commission is expressly made final. If the Commission decides that a rate is not undue, unreasonable, or unjust (sec. 102), that settles the question finally; and if the Commission decides that any railway rate of a State is "necessary for the development of the territory of the State," nothing in the Constitution can render the rate unlawful. It does not appear, however, that the mention of these two cases raises any presumption that an appeal lies in other cases not mentioned. These two provisions were inserted, not so much to prevent an appeal to the High Court, as to provide a tribunal independent of the Parliament; their object was to guard against the decision of a judicial question by a political body. They are so absolute in terms that they clearly make the opinion of the Commission, in these cases, final; but they do not seem to raise any presumption which would affect the interpretation of the words "questions of law."

But although the questions of what is unreasonable, what is unjust, what is undue, are for the Inter-State Commission alone, the interpretation of such words as "preference" and "discrimination "-like the interpretation of any other words in the Constitution— involves a question of law. The question whether the proved facts constitute a preference or discrimination, within the meaning of the Constitution, would seem to be wholly a question of law; though, if a preference or discrimination were held to exist, its reasonableness or unreasonableness would be a question of fact.

"Questions of law" include questions arising not only upon the laws of the Commonwealth, but upon the laws of the States. It may be that in the Courts of a State (and even on appeal from the Courts of that State) the laws of another State may

have to be proved as matters of fact (see Notes to sec. 118); but it is clear that the Inter-State Commission, having the duty not only of executing-and in the first instance interpreting - the Constitution and the laws of the Commonwealth, but also of adjudicating upon the laws and regulations" of the States, must act as judicial interpreters of the latter as well as of the former. On the same principle it has been decided in the United States that the federal courts, in the exercise of their original jurisdiction, take judicial notice, without proof, of the laws of all the States. (Chicago and Alton R. Co. v. Wiggins Ferry Co., 119 U.S. 615.)

The words "final and conclusive " mean, primarily and generally, that there is no appeal. (Waterhouse v. Gilbert, 15 Q.B.D. 569; Bryant v. Reading, 17 Q.B.D. 128; Lyon v. Morris, 19 Q. B. D. 139.)

A right of appeal may mean one of two things: the right of a party to claim an appeal to a higher court; or the right of a higher court to grant leave to appeal. In the case of the High Court, the only higher court of which there is any question is the Queen in Council; so that the discussion of rights of appeal from the High Court resolves itself into (1) the right of a party to claim an appeal to the Queen in Council; (2) the prerogative right of the Queen to grant leave of appeal to herself in Council.

APPEAL AS OF RIGHT.-An appeal as of right can only be created by statute; and the words of this section expressly negative the existence of such an appeal.

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The creation of a new right of appeal is plainly an act which requires legislative authority. The Court from which the appeal is given, and the Court to which it is given, must both be bound, and that must be the act of some higher power. It is not competent to either tribunal, or to both collectively, to create any such right. Suppose the Legislature to have given to either tribunal, that is, to the Court of the First Instance, and to the Court of Error or Appeal respectively, the fullest power of regulating its own practice or procedure, such power would not avail for the creation of a new right of appeal, which is in effect a limitation of the jurisdiction of one Court and an extension of the jurisdiction of another." (Per Westbury, L.C., Att.-Gen. v. Sillem, 10 H.L.C., p. 720. See also Mayor of Montreal v. Brown, 2 App. Ca. 174, 184.

It has been held by the Privy Council in Canadian cases that the words "final and conclusive," or the word "final" only, are apt words, even in a Canadian statute, to take away an appeal as of right" to the Queen in Council, and to prevent the Court of Appeal in Canada from granting leave to prosecute such appeal. In Cushing v. Dupuy (5 App. Ca. 409), it was held that a provision in a Dominion Act that the judgment of the Court of Appeal in matters of insolvency should be " final," excluded appeals as of right to the Privy Council, though it did not take away the Queen's prerogative right to grant leave of appeal. Sir Montague E. Smith, in the course of delivering the judgment of the Privy Council, said (at p. 416):—

"Then it was contended that if the Parliament of Canada had the power, it did not intend to abolish the right of appeal to the Crown. It was said that the word 'final' would be satisfied by holding that it prohibited an appeal to the Supreme Court of Canada, established by the Dominion Act of the 38 Vic. c. 11. Their Lordships think that the effect of the word cannot be so confined. It is not reasonable to suppose that the Parliament of Canada intended to prohibit an appeal to the Supreme Court of Appeal recently established by its own legislation, and to allow the right of immediate appeal from the Court of Queen's Bench to the Queen to remain. Besides the word 'final' has been before used in colonial legislation as an apt word to exclude in certain cases appeals as of right to Her Majesty. (See the Lower Canada Statute, 34 Geo. III., c. 30.) Such an effect may, no doubt, be excluded by the context, but there is none in the enactment in question to limit the meaning of the word. For these reasons their Lordships think that the Judges below were right in holding that they had no power to grant leave to appeal." (See also Johnston v. Minister of St. Andrew's Church, Montreal, 3 App. Ca. 159.)

APPEAL AS OF GRACE.-The law however is clear that the Queen's prerogative to entertain appeals from colonial courts (see Note, § 310, infra) cannot be taken away without express words. Cuvillier ». Aylwin, 2 Knapp 72, which seems an authority to

the contrary effect, was questioned in Re Louis Marois, 15 Moore P.C. 189, and may be considered as overruled on that point. The true principle was laid down clearly in an Indian case, Modee Kaikhooscrow Hormusjee v. Cooverbhaee, 6 Moo. Ind. App. 448, and is now well established (see Theberge v. Laudry, 2 App. Ca. 102; Johnston v. Minister of St. Andrew's Church, Montreal, 3 App. Ca. 159). The authorities are reviewed in Cushing v. Dupuy, 5 App. Ca. 409 (cited above) when Sir Montague E. Smith, delivering the judgment of the Privy Council, after holding that the appeal as of right was taken away, went on to say (p. 416):-"The question of the power of the Queen to admit the appeal, as an act of grace, gives rise to different considerations. It is, in their Lordships' view, unnecessary to consider what powers may be possessed by the Parliament of Canada to interfere with the royal prerogative, since the 28th section of the Insolvency Act does not profess to touch it; and they think, upon the general principle that the rights of the Crown can only be taken away by express words, that the power of the Queen to allow this appeal is not affected by that enactment."

The Canadian Act establishing the Supreme Court (38 Vic. c 2, sec. 47) provides that its judgments shall be "final and conclusive, saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her Royal prerogative." In Johnston v. Ministers of St. Andrew's Church, Montreal, 3 App. Ca. 159, no attempt was made to argue that the saving words preserved anything more than the appeal as of grace.

$309. "The Conditions of and Restrictions on Appeals."

By "conditions of appeals" seems to be meant the conditions or requirements which have to be satisfied before an appeal is admitted, the terms on which leave will be given, and the terms on which its prosecution will be allowed; by "restrictions on appeals,” the limitations as to the judgments from which an appeal will lie, the appealable amount, the time for appealing, and so forth. Both expressions, from different points of view, must at least be construed to extend to so much of the rules and practice of the several Supreme Courts and of the Privy Council as go to the questions whether leave to appeal can be given, on what terms it ought to be given, and subject to what conditions it ought to be prosecuted. How far the words incorporate the rest of the existing practice and procedure of Privy Council appeals may be a matter of some doubt; but it would certainly be prudent on the part of litigants to conform to that practice in every possible way.

The effect of the provision is practically to adopt, as a piece of preliminary federal legislation, separate codes of rules to govern appeals to the High Court from each State. As a matter of fact, these separate codes are to a great extent identical, so that there will from the outset be a considerable degree of uniformity; but complete uniformity can only be secured by federal legislation.

The Parliament has power, under this section, to prescribe exceptions to, and regulations for, the right of appeal. By virtue of the words "until the Parliament otherwise provides," it has also (sec. 51-xxxvi.) power to legislate as to " conditions of and restrictions on appeals ;" but the latter power seems to be wholly included in the former. The Parliament also has (sec. 51 -xxxix.) power to legislate on matters incidental to the execution of any part of the judicial power. It therefore has full power to regulate the right of appeal, both by direct legislation, and by empowering the Judges of the High Court to frame rules of practice and procedure.

In the meantime, appeals from the Supreme Court of any State to the High Court will be subject, under this section, to the same “conditions and restrictions" as appeals from such Court to the Privy Council. For information as to these, the reader is referred to Macpherson's Practice of the Privy Council, and to the text-books on the practice of the Supreme Courts in the several colonies.

Appeal to Queen in Council 310.

74. No appeal shall be permitted to the Queen in Council from a decision of the High Court312 upon any question, howsoever arising313, as to the limits inter se of the Constitutional powers314 of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify315 that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution. shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative316 to grant special leave of appeal from the High Court to Her Majesty in Council17. The Parliament may make laws limiting the matters in which such leave may be asked318, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure319.

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CANADA. The judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any court of appeal established by the Parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard; saving any right which Her Majesty may be graciously pleased to exercise by virtue of her royal prerogative.— Dominion Statute, 38 Vic. c. 2, sec. 47 (establishing Supreme Court).

HISTORICAL NOTE. -The Commonwealth Bill of 1891 provided that the Federal Parliament might require that any appeals which have hitherto been allowed from the State Courts to the Queen in Council should be brought to the Federal Supreme Court. The judgment of the Supreme Court was to be final, but the Queen was to have some power to grant leave of appeal to herself "in any case in which the public interests of the Commonwealth, or of any State, or of any other part of the Queen's dominions, are concerned." The limitation of the prerogative right to grant leave of appeal was objected to by Mr. Wrixon, who moved the omission of the words, but the amendment was negatived on division. (Conv. Deb., Syd., 1891, pp. 785-7 [and see Historical Note, sec. 73].)

Adelaide Session, 1897 (Debates, pp. 968-89, 1202).-The clause as framed at the Adelaide Convention prohibited any appeal to the Privy Council, either from the State Courts or the federal Courts, "except that the Queen may, in any matter in which the public interests of the Commonwealth, or of any State, or of any other part of Her Dominions, are concerned, grant leave of appeal to the Queen in Council from the High Court." This meant that appeals from the State Courts direct to the Privy Council were to be abolished altogether; that there was to be no appeal "as of right" from the High Court to the Privy Council; and that the Queen's right to grant leave of appeal was to be limited to the cases specified.

A proposal by Sir George Turner to omit the words "in any matter in which the public interests, &c. are concerned," and so leave a right to grant leave of appeal in all cases, was negatived by 17 votes to 14. A general debate on the clause followed. Sir Edward Braddon and Sir Joseph Abbott appealed strongly for the retention of an appeal to the Privy Council, on the grounds that this was one of the last links with the Empire, that it represented the right of the people of Australia to approach the throne, and that the decisions of the Privy Council would command greater respect than those of the High Court. On the other hand, Mr. Symon and Sir John Downer led the argument in favour of a final federal court of appeal. The clause was eventually carried by 22 votes to 12.

Melbourne Session, 1898 (Debates, pp. 333-48, 2286-2341, 2415-9; 2453-6).—A suggestion by the Legislative Councils of New South Wales and Victoria to omit (in the preceding section) the words making the judgment of the High Court "final and conclusive was negatived (Debates, p. 333). No one attempted to argue that there should be an appeal from the High Court to the Privy Council "as a matter of right,” and the retention of these words embodied the decision of the Convention that -whatever right might be reserved to the Queen (i.e., the Privy Council), to grant leave of of appeal "as of grace"-the parties should have no absolute right of appeal.

Sir George Turner, however, while not wishing to make the right of appeal to the Privy Council absolute, wished to vest in the High Court itself, as well as in the Queen in Council, a power to grant leave of appeal; and accordingly he moved to add, after "final and conclusive," the words "saving in cases where an appeal may be allowed either by the Queen in Council or the High Court." Mr. Wise proposed to amend this suggestion so as to read "saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her royal prerogative "-thus placing the prerogative right of granting leave to appeal on the basis of the Canadian Act of 1875. Mr. Symon opposed this, and wished to take away the prerogative right altogether, on the ground that the Privy Council, as a court of appeal for the colonies, was "an anachronism and an absurdity."

Mr. Wise's amendment of Sir George Turner's proposal was agreed to, but when the amended proposal was put to the vote it was easily defeated (pp. 333-47). All these proceedings took place in connection with the words "final and conclusive in the preceding clause. The "Appeals to Privy Council" clause was immediately afterwards passed without amendment; so that the result was that at this stage the question of appeal was left precisely as it had been at Adelaide. (Conv. Deb., Melb.,

pp. 333-48.)

The whole question came up again on recommittal after the second report (pp. 22862341). Sir Joseph Abbott moved again that after "final and conclusive" (in the preceding section) should be added the words "saving any right that Her Majesty may be pleased to exercise by virtue of Her royal prerogative." The whole question of appeal to the Privy Council was debated over again, the argument in its favour being now supported by a number of petitions from various Chambers of Commerce and Manufactures, and other associations representing mercantile interests. Mr. Symon again led the opposition to the amendment, while Mr. Carruthers supported it. Mr. O'Connor pointed out that the question was not that of abolishing appeals to the Privy Council, because the following clause expressly allowed them in certain cases; it was a question of limiting them. He could see no consistency in the limitation as it stood, because it allowed an appeal to the Privy Council in the very cases which were specially of a kind to be finally decided in Australia-cases, namely, in which the interpretation of the Constitution was involved; and he announced himself ready to support a proposition to the effect that no appeal to the Privy Council should be allowed in those cases; a suggestion which Mr. Kingston also heartily approved. (For an earlier suggestion to the same effect, see a paper read by Mr. R. R. Garran before the Australasian Association for the Advancement of Science, Proceedings, 1895, p. 694.) Eventually, Sir Joseph Abbott's amendment was carried by a majority of one. A