1906. Co. LTD. v. ROBERTSON. O'Connor J. exit turnstile, that the passing through of every passenger was H. C. OF A. automatically registered by the turnstile, and that the automatic register was a check on the cash taken by the officer. He himself THE BALMAIN in speaking to one of the officers said, "If it is the question of NEW FERRY putting out the tally of your turnstiles I can squeeze through there," referring to the eight and a-half inch space before mentioned. Having travelled on many occasions backward and forward by the company's boats, and, as he says, paid his fare to the officers at the turnstiles, he must have been aware that the company's method of conducting their business was to release the turnstiles only on payment of a penny, and that in every case where there was a departure from that method " the tally of the turnstile," as he terms it, would be thrown out. Such being the condition of the company's premises, and such being their method of carrying on their business, the plaintiff paid his penny to the officer and went through the entry turnstile on to the wharf. The first question is, what is the contract to be implied from the plaintiff's payment at and passing through the turnstiles under these circumstances? It is that in consideration of that payment the company undertook to carry him as a passenger to Balmain by any of their ferry boats from that wharf. That is the only contract which could be implied from those circumstances, and the plaintiff was permitted to enter the wharf for the purpose of that contract being performed. It is not denied that the company were ready to perform their part, but the plaintiff, as far as one party can do so, rescinded the contract and determined to go back from the wharf to the street. What then were his rights? They were, in my opinion, no more and no less than they would have been if he had landed from his own boat at the company's wharf. He was on private property. He had not been forced or entrapped there. He had entered it of his own free will and with the knowledge that the only exit on the land side was through the turnstile, operated as a part of the company's system of collecting fares in the manner I have mentioned. If he wished to use the turnstile as a means of exit he could only do so on complying with the usual conditions on which the company opened them. The company were lawfully entitled to impose the condition of a penny payment on all who 1906. Co. LTD. v. ROBERTSON. O'Connor J. H. C. OF A. used the turnstiles, whether they had travelled by the company's steamers or not, and they were under no obligation to make an THE BALMAIN exception in the plaintiff's favour. The company, therefore, NEW FERRY being lawfully entitled to impose that condition, and the plaintiff being free to pass out through the turnstile at any time on complying with it, he had only himself to blame for his detention, and there was no imprisonment of which he could legally complain. Next, had he the right to force his way through the narrow space between the turnstile and the bulkhead? Clearly he had not. If the turnstile had filled the whole space between the bulkheads, it could not be contended that the plaintiff would have been entitled to break it open in order to pass through. The company's officers were, in my opinion, entitled to regard the turnstile as blocking the whole space, not only for the necessary protection of the mechanism of the turnstiles from injury, but also because it was a necessary part of their system of collecting fares on entry and exit that the turnstile should be an effective barrier against entry and exit of any person except on the company's conditions. They were therefore entitled to prevent the plaintiff from squeezing through the space in question, and were justified in meeting the plaintiff's forcible attempt with as much force as was reasonably necessary to defeat it. It is not alleged that they did more, and any assault they may have committed on the plaintiff under these circumstances was justified. In this connection I may observe that it is not necessary to determine whether or not this justification is, strictly speaking, open to the company on the pleadings. The case has been conducted all through on the footing that it is open, and, if it were necessary, the Court would make any amendment required to formally shape the issues in accordance with the way in which both parties regarded them at the trial. In the view I have taken of this case it has become unnecessary to refer to the decisions on notices which were cited on both sides. But I desire to point out that the principle laid down in Butler v. Manchester, Sheffield, and Lincolnshire Railway Co. (1), relied on by Mr. Robertson, has no application. It was in that case common ground that, unless the contract of carriage had been (1) 21 Q. B. D., 207. 1906. Co. LTD. v. ROBERTSON. O'Connor J. determined by the plaintiff's conduct, he was not a trespasser in H. C. of A. the defendants' carriage and could not be forcibly removed. The defendants' contention was that the failure on the part of the THE BALMAIN plaintiff to perform the condition of producing his ticket enabled NEW FERRY the company to regard the contract of carriage as at an end and to treat the plaintiff as a trespasser. The plaintiff's case was that his breach of that condition, although it rendered him liable to an action, did not determine the contract, and that, as long as that subsisted, he was lawfully in the defendants' carriage and could not be treated as a trespasser. The Court of Appeal took the latter view and upheld the plaintiff's contention. The decision turned entirely on the question whether or not the contract of carriage had been determined. In this case it is admitted that the plaintiff himself had abandoned the contract under which he was to be carried in the company's steamers to Balmain. It is unnecessary to decide whether, if he had remained an unreasonable time on the wharf after the contract was at an end, refusing to leave it either by steamer or in compliance with the company's conditions by the turnstile, the company would not have been entitled to treat him as a trespasser and remove him. The company had asserted no right of that kind. If they had done so, the facts would have been more like those in Butler v. Manchester, Sheffield, and Lincolnshire Railway Co. (1) with the important exception that there did not exist in this case any contract such as the contract which in that case gave the plaintiff a right to remain in the railway carriage. Taking then the whole facts in this case together, the plaintiff, in my opinion, was not entitled to succeed, and the verdict which the jury returned in his favour must be set aside. The only remaining question is, whether this Court should grant a new trial, or order the verdict to be entered for the defendants. The Court may make any order which the Supreme Court ought to have made in the first instance. That Court ought, in my opinion, to have directed a verdict to be entered for the defendants. All the material facts were before them as they have been before It is impossible that any jury could on those facts find a verdict for the plaintiff which could stand for one moment if us. (1) 21 Q.B.D., 207. VOL. IV. 26 35 H. C. OF A. questioned. The verdict ought therefore to have been entered 1906. for the defendants, and this Court must now order accordingly THE BALMAIN that the verdict for the plaintiff be set aside and judgment be NEW FERRY entered for the defendants. Co. LTD. SYDNEY, Oct. 11, 12. Griffith C.J., ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. APPEAL from a decision of Walker J., 20th June 1906. The case turned wholly on questions of fact. Appeal dismissed with costs. Decree varied by consent. Appellant to pay respondent's costs of the appeal. Solicitors, for appellant, McCoy & McCoy. C. A. W. MAGISTRATE EXERCISING ON APPEAL FROM THE POLICE Deportation-Extra-territoriality—Admission of aliens as residents upon conditions It is an attribute of sovereignty that every State is entitled to decide what aliens shall or shall not become members of its community. The right of a nation to expel or deport foreigners from the country is as unqualified and undeniable as the right to exclude them from entering the country, whether they are alien friends or enemies. This power could be delegated by the Imperial authority to the Commonwealth Parliament, and was properly delegated by virtue of the Constitution, sec. 51, which gave the Parliament full authority to legislate as a sovereign body on the subject of (inter alia) "naturalization and aliens." Semble In Australia such a power can be exercised by the Executive only when authorized by Statute. Appellant was a kanaka labourer introduced into Queensland under the special conditions of the State Pacific Island Immigration Act (44 Vict. No. 17). Under sec. 8 of the Federal Pacific Islands Labourers Act 1901, a Court of summary jurisdiction, upon being satisfied that a Pacific Island labourer, found in the Commonwealth before 31st December 1906, and reasonably supposed not to be employed under agreement, is not or has not been so employed for a month past, may order his deportation from Australia. Appellant was brought before a police magistrate, who declared himself satisfied, and ordered his deportation. Held, that the right to expel involved the right to do all things necessary to make the expulsion effective, among which was necessarily included the act of deportation, to the extent of the complete extrusion of the alien from the H. C. OF A. 1906. BRISBANE, Oct. 1, 2. Griffith C.J., |