They are both or 1906. THE FEDERATED AMALGAM ATED GOVERNMENT AND TRAM v. SOUTH WALES RAIL WAY TRAFFIC the clause is useless. It must extend to disputes not connected H. C. OF A. with interstate commerce. There is no reason why it should be limited. Disputes extending beyond one State, but not connected with interstate commerce, affect the welfare of the Commonwealth just as much as if the disputes were connected with interstate commerce, and whether the industrial enterprise is carried on RAILWAY by a State or by private individuals. The only questions are, wAY SERVICE does the industry extend beyond one State, and does the dispute ASSOCIATION extend beyond one State? Here the industry is that of carrying. THE NEW The businesses carried on by the Railways Commissioners in Victoria and New South Wales are the same. common carriers. An industrial dispute extending beyond one State is not limited to a dispute between one employer and the employés of one employer. All the Constitution looks at is, what is the fact at the time of the dispute? Does the dispute in fact extend beyond one State? If there were disputes between pastoralists and shearers all over Australia as to the rate of wages without any combination between either employers or employés, that would be a dispute extending beyond one State. There must, however, be unity of action on each side. As to the meaning of "industrial dispute," see Sidney Webb's Industrial Democracy, ed. of 1902, p. 241; Mr. and Mrs. Sidney Webb's History of Trades Unionism, 5th ed., p. 446; Report of Royal Commission on Strikes (N.S.W.), p. 27; Arbitration Act 1894 (South Australia), No. 589; Arbitration Act 1894 (N.Z.), No. 18; Conciliation Act 1896 (Eng.) (59 & 60 Vict. c. 30); Conspiracy and Protection of Property Act 1875 (Eng.) (38 & 39 Vict. c. 86); Conspiracy and Protection of Property Act 1889 (Tas.), No. 28; Arbitration Act (1900) (W.A.), No. 20; H. D. Lloyd's Country without Strikes, p. ix. A business carried on by a State may extend beyond one State, for the State may authorize a corporation of its own creation to carry on businesses in another State. There must at the present time be running agreements between the Commissioners of Railways of Victoria and New South Wales, and those of Victoria and South Australia. Sec. 51 (XIII.) of the Constitution provides expressly for "State banking extending beyond the limits of the State concerned," and if the State banking does extend beyond those limits, the Commonwealth VOL. IV. 34 1906. THE FEDERATED AMALGAM ATED GOVERNMENT V. H. C. OF A. Parliament has power over the whole of the State banking. Similarly in sec. 51 (XIV.) as to State insurance. So also sec. 98 assumes that State railway business may extend beyond one State. The government of a State may assume any function it chooses, but it cannot by assuming a function lessen the power of the Commonwealth. The only express limitation WAY SERVICE Contained in the Constitution on the power of the CommonASSOCIATION Wealth to interfere with State property is that contained in sec. THE NEW 114 as to taxation: See Clark's Australian Constitutional Law, SOUTH WALES RAIL- 2nd ed., p. 175. The language of sec. 51 (XXXV.) being unqualified, it is for the other side to show that limitations are to be implied in ASSOCIATION. favour of State railways. So far as the carrying industry of Australia is concerned, the power in sec. 51 (xxxv.) would fail if the limitations contended for are adopted. The true course is to leave the words at large, and unencumbered, and leave their application to the good sense of the people, exercised through the federal legislature. No one can say that it is a dangerous thing to leave the settlement of disputes in the interstate carrying industry to the control of the only body which has any means of dealing with them effectively at one stroke. WAY TRAFFIC EMPLOYES [They also referred to Interstate Commerce Commission v. Brimston (1); Legal Tender Cases (2); Clark's Australian Constitutional Law, 2nd ed., p. 148; Judson on Interstate Commerce, p. 4; Collector v. Day (3); Carr v. State (4).] Rolin was allowed to reply to the arguments for the Commonwealth, the right of general reply being reserved to the respondents. The fact that no exception in favour of the States is made in sec. 51 (xxxv.), while in other sections such an exception is expressly made, is no reason for saying that such an exception is not to be implied in sec. 51 (xxxv.). The express exceptions are made ex abundanti cautelá. Gorton Local Board v. Prison Commissioners (5). [O'CONNOR J. referred to Victorian Railways Commissioners v. Brown (6). (1) 154 U.S., 447, at p. 472. (3) 11 Wall., 113, at p. 126. (4) 22 Amer. St. Rep., 624. GRIFFITH C.J. referred to Roberts v. Ahern (1).] H. C. OF A. 1906. THE FEDERATED AMALGAM The same principle is laid down in Hornsey Urban Council v. Hennell (2). The rule there laid down and which applies to the Crown being bound by a domestic Act may be stated in the same words with regard to State instrumentalities and the Constitution. The intention that a State instrumentality is to be bound RAILWAY must clearly appear. ATED GOVERNMENT AND TRAMWAY SERVICE v. THE NEW SOUTH [O'CONNOR J.-A State instrumentality may be affected with- ASSOCIATION out interfering with its efficiency. It may be that for some purposes a Government railway may be interfered with. But if WALES RAILthe instrumentality would be affected in its efficient exercise the EMPLOYES rule referred to might apply: Railroad Co. v. Peniston (3).] In that case the tax was on property only. But such a corporation, although for some purposes an instrumentality, is not so for all purposes. [BARTON J.-The Constitution is intended to delimit the respective powers of the Commonwealth and of the States, and, where an intrusion by the Commonwealth on the States is intended, you expect it to be expressly provided or necessarily implied.] See also Tiedemann's State and Federal Control of Personal Property, 2nd vol., p. 989; Central Pacific Railroad Co. v. California (4); Thomas v. Pacific Railroad (5). It is said that the power given by the Commonwealth Conciliation and Arbitration Act 1904 over State railways is in aid of the States and does not impose a burden on them, but that might be said of all federal Acts. The State railways are State instrumentalities, just as the post office is: Whitfield v. Lord Le Despencer (6); and the banks which were the subject matter of consideration in M'Culloch v. Maryland (7); and Osborne v. Bank of United States (8). See also United States v. Railroad Co. (9); State of Georgia v. Atkins (10); South Carolina v. United States (11); Harvard Law Review, Feb. 1906, p. 287; Ambrosini v. United States (12). The fact that the State has chosen to vest the (1) 1 C.L.R., 406. (2) (1902) 2 K. B., 73, at p. 80. (3) 18 Wall., 5. (7) 4 Wheat., 316. (8) 9 Wheat., 738. (9) 17 Wall., 32, at p. 329. (10) 1 Abbott, 22. (11) 199 U.S., 437. WAY TRAFFIC ASSOCIATION. 1906. H. C. OF A. railways in persons who have a discretion does not render the railways any the less a State instrumentality. To hold the contrary would be to shut out the judiciary from being a governmental function: See Dunbar v. Guardians Ardee Union (1). Any Government can appoint its own agents and may make them liable to be sued or not as it chooses. THE FEDERATED AMALGAM ATED GOVERNMENT RAILWAY AND TRAMWAY SERVICE ASSOCIATION V. THE NEW WALES RAIL- ASSOCIATION. [Higgins K.C.—A railway is not an essential function of the States.] Nor is a bank, but the principle applies to it. The power to control this Government function does not at any rate extend so EMPLOYES far as conciliation and arbitration. Inasmuch as conciliation and arbitration are dealt with in sec. 35 of the Constitution, and Government railways are not referred to there, the power of conciliation and arbitration as to Government railways will not be implied from secs. 51 (1.) and 98. The same principles must be applied to the construction of the Constitution as apply to any other Act: State of Tasmania v. Commonwealth of Australia (2). The maxim expressum facit cessare tacitum applies: Norton on Deeds, pp. 116, 500; Noke's case (3); Aspdin v. Austin (4); Hure v. Horton (5); London Association of Shipowners and Brokers v. London and India Docks Joint Committee (6). There it was held that the express grant of powers operated as a limitation. As to the application of the maxim generalibus specialia derogant, see Dwarris on Statutes, 2nd ed., p. 605, citing Warden of St. Paul's v. Dean of St. Paul's (7); Sutes v. Knight (8); Kidston v. Empire Marine Insurance Co. (9); Black's Interpretation of Laws, p. 139; Citizens' Insurance Co. of Canada v. Parsons (10). The whole subject of conciliation and arbitration is taken out of the trade and commerce clause, and is dealt with in sec. 51 (xxxv.). From sec. 101 it may be inferred that whatever matters were intended to be included in sec. 51 (I.) were such as could be dealt with by the Inter-State Commission under sec. 101, and that would not include conciliation and arbitration. As to what is interstate (1) (1897) 2 I. R., 76. (2) 1 C. L. R., 329, at p. 338. (3) 14 Rep., 806. (4) 5 Q.B., 671. (5) 5 B. & Ad., 715. (6) (1892) 3 Ch., 242, at p. 250. (7) 4 Price, 78. (8) 3 T.R., 442. (9) L.R. 1 C.P., 535, at p. 546. 1906. THE FEDERATED ATED GOVERNMENT AND TRAM v. SOUTH WAY TRAFFIC commerce, see Hopkins v. United States (1); Hooper v. Cali- H. C. OF A, fornia (2); Paul v. Virginia (3). Railways are not interstate commerce, but transportation by rail is, and the relations between the owners of railways and their employés are not part AMALGAMof commerce, but are only incident to it. The Commonwealth Parliament may legislate so as to prevent interference with inter- RAILWAY state commerce, but it cannot legislate to prevent something WAY SERVICE which possibly may, as one of its results, interfere with interstate ASSOCIATION commerce. As to the argument based on laws in the United THE NEW States relating to seamen, they cannot apply, for such laws are WALES RAILnot under the trade and commerce clause, but are made under the EMPLOYES Admiralty jurisdiction. Prentice and Egan's Commerce Clause, ASSOCIATION. p. 95; In re Garnett (4). Assuming that laws relating to employment in interstate commerce might be made under the trade and commerce clause, this particular law is not so made, for it includes other matters in such a manner that it is impossible to. disassociate the matters which would properly come under the trade and commerce clause from the other provisions. The Act must therefore be held to be unconstitutional so far as the trade and commerce clause is concerned. In other words, assuming that the Commonwealth Parliament has power to deal with the relationship of master and servant in matters connected with interstate commerce, it has in this Act dealt with that relationship in so broad a way that it might be affected apart altogether from interstate trade. The provisons of the Act are plainly not severable: Trade Marks Cases (5). The power under the trade and commerce clause goes no further than regulating interstate traffic, and does not extend to interference with the wages or conditions of employment of persons engaged in interstate traffic. Western Union Telegraph Co. v. Pendleton (6). The power is really to secure the carrying out of the provision in sec. 92 of the Constitution that trade, commerce, and intercourse among the States shall be absolutely free. The actual transportation is the only thing which directly has to do with interstate trade and commerce. The connection between wages or conditions of (1) 171 U.S., 578, at p. 593. (2) 155 U.S., 648, at p. 655. (3) 8 Wall., 168. (4) 141 U.S., 1, at p. 15. |