If, therefore, the State Courts in the matters before us were exercising federal jurisdiction, it must be by authority of the grant in sec. 39 of the Judiciary Act 1903 , for no other enactment purports to confer it.

The validity of that section has been impeached, and must be considered. It has been held by the Privy Council in Webb v. Outtrim [78], that it is ultra vires of the federal Parliament to take away the right of appeal to His Majesty in Council in respect of the jurisdiction conferred by sec. 39 (2). This, it is urged, invalidates the whole section, and, by destroying at once the exclusion of the State jurisdiction and the grant of federal jurisdiction, leaves the decision of every State Court other than the Supreme Court outside the appellate jurisdiction of this Court. The reasoning by which this argument is supported rests upon the assumption that sec. 39 is indivisible, that its various parts are so interdependent that if one portion is annihilated no other portion can survive.

A fair examination of this section shows that this is a misconception.

Sec. 77 (II.) of the Constitution confers power on the Parliament with respect to matters involving constitutional interpretation to make laws defining the extent to which the jurisdiction of any federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States. Sec. 39 of the Judiciary Act begins with the exercise of that power. By the first sub-section the jurisdiction of the High Court is made exclusive of that of the State Courts, except such as is found later on in the section. This it will be observed is not a conditional exercise of power, it is absolute; the exclusion of the jurisdiction of other Courts is complete and unqualified unless a valid exception is to be found later on. The subsequent portion of the section by virtue of sec. 77 (III.) invests the State Courts with "federal jurisdiction."

It appears necessary at this point to guard against an error which may easily arise. "Jurisdiction" is a generic term and signifies in this connection authority to adjudicate. State jurisdiction is the authority which State Courts possess to adjudicate under the State Constitution and laws; federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws.

The first is that which "belongs to" the State Courts within the meaning of sec. 77; the latter must be "vested in" them by Parliament. Now sec. 77 (II.) is a power to exclude jurisdiction, and this power has been exerted in this first sub-section of sec. 39, the result being that, so long as that provision stands unrepealed, no State jurisdiction can exist. Sec. 77 (III.) on the other hand, is a power to invest with federal jurisdiction, not to restore State jurisdiction, and an exercise of that power insub-sec. (2) of sec. 39 of the Judiciary Act is no contradiction of the deprivation contained in the prior sub-section, and works no restoration of the State jurisdiction. It is, therefore, clearly an error to say that the federal Parliament has in the same section purported to take away and to return the same jurisdiction, with or without the power of appeal to the Privy Council, or that the conjoint effect of sub-secs. (1) and (2) of sec. 39 of the Judiciary Act is to leave the jurisdiction of the State Courts as it previously stood. They still have jurisdiction in respect of the same subject matters, but their authority to exercise judicial power with regard to those matters springs from another source quite as much as if an Imperial Act had enacted by one section that their State jurisdiction should cease, and by the next section that henceforth they should have similar jurisdiction but should exercise it under the authority of that Statute. The authority which is given by sec. 39 - namely federal jurisdiction - had never been taken away, because it had never "belonged" to a State Court; that which was taken away - namely State jurisdiction - has never even nominally been returned. Sec. 39 (2) confers "federal jurisdiction" only; none other is in the power of the Commonwealth Parliament to grant, and in the result either the State Courts possess federal jurisdiction only in these matters or they possess none at all.

Federal jurisdiction to the extent vested in sub-sec. (2) of sec. 39 is the exception referred to in the earlier part. It is conferred upon the various Courts of the State severally, that is to say, as if each were named separately and independently of each other, and within the limits of their several jurisdictions. The grant is expressed to be "subject to the following conditions and restrictions."

Then follow four separate and distinct provisions. The first relates to the Supreme Court alone and applies, needless to say, to federal jurisdiction only. The second relates to inferior Courts from which an appeal lies to the Supreme Court; the third to inferior Courts whether an appeal lies to the Supreme Court or not; the last to Courts of summary jurisdiction. Conceding, without deciding, that sub-sec. 2 (a) is ultra vires, the only necessary effect of that is to leave the appeal from the Supreme Court by special grant still available, as in Prince v. Gagnon [79]. If that sub-section be regarded as an inseparable condition of the grant of federal jurisdiction to the Supreme Court, the only further consequence would be to destroy that grant, and leave the tribunal without any jurisdiction at all in the matter specified. But to carry the vitiating effect even so far appears to me entirely without warrant. The Colonial Laws Validity Act (28 & 29 Vict c. 63) restricts the invalidity to the extent of the repugnance to Imperial law, and that is satisfied by regarding sub-paragraph (a) as "absolutely void and inoperative." But it is sought, by reason of the phrase "conditions and restrictions," to utilise sub-sec. 2 (a) first to invalidate the grant to the Supreme Court, next by this means to infect the investiture of the Inferior Courts, thereby destroying the whole of sub-sec. 2; and ultimately to carry on the destructive process so as to nullify the whole section.

It needs but very slight reflection to be satisfied that this contention is altogether untenable. The underlying presumption is that the legislature would not have made the grant of federal jurisdiction to the Supreme Court, or to any of the inferior Courts, unless all appeals through the Supreme Court to the Privy Council had been cut off, and all appellants from the State tribunals in constitutional matters were compelled to come into the High Court. There are many considerations which at once place that view outside the pale of probability.

Inability to cut off access to the Privy Council from the Supreme Court still leaves open to litigants the option to appeal to the High Court whether the Supreme Court jurisdiction be State or federal. If then, as was plainly the case, the object of the federal Parliament was to ensure, as far as it legally could, that cases of a constitutional nature should find their ultimate solution in the High Court, why should the legislature refrain from pursuing its object in regard to the inferior Courts, from which, without the investing of federal jurisdiction, no appeal at all would lie to the High Court? To attribute an intention to the federal Parliament, at once so senseless and opposed to the admitted purpose of the section, is to furnish an answer to the argument itself. A strict examination of the wording of the section is equally fatal to the contention. The expressions "conditions and restrictions" in the connection in which they are found cannot be meant as conditions or restrictions of jurisdiction in the vitally destructive sense attributed to them, any more than so called conditions of sale of land are conditions in the sense that, if any one is broken in any particular, the whole sale is necessarily at an end. There was abundant reason for investing the Supreme Court with federal jurisdiction quite apart from the question of appeal to the Privy Council. Once the jurisdiction became federal the Commonwealth Parliament could at will regulate the procedure and control the method and extent of relief, and, indeed, under sec. 79 of the Constitution could even prescribe the number of Judges by whom the invested jurisdiction should be exercised. So far as sub-sec. 2 (a) is concerned it assumes that a decision has been given which, apart from a possible but not inevitable appeal of some kind, would be of full force and effect.

Its provisions, even if valid, are necessarily of later application than the determination of the Court appealed from, and are plainly a mere continuation of the effort to secure complete federal control of the subject matter and not a sine quâ non of all federal intervention.

If this portion of the enactment be eliminated, there still remains a consistent perfect working set of provisions, as complete as the federal power can make them, and capable of useful and beneficial operation.

That a Court should annul a clear, purposeful, and workable legislative enactment, which is admittedly within the competency of Parliament, apart from a specific and severable portion negligible under the authority of the Colonial Laws Validity Act , is a step not lightly to be undertaken, and, so far as I know, is without British precedent.

I feel no doubt that the State Courts in these cases possessed, and necessarily exercised federal jurisdiction, and that these appeals are competent.

But, though the Court is seized of the appeal, there next arises the question - which I conceive to be by far the most important we have to determine - whether, assuming a case is one within the 74th section of the Constitution , this Court should proceed to give judgment upon its own view of the law, or whether, finding the matter already decided by the Privy Council, it should hold itself bound to follow that decision without more. The duty of this Court has been variously presented by the learned counsel for the respondents in the respective cases. Sir Julian Salomons rested much of his argument upon the practically coercive pressure of the circumstances, leaving the Court nominally, but not really, a power of determination according to its own opinion, and pressed upon us the view that it would be highly improper - even though technically lawful - for the High Court to depart from any interpretation of the Constitution at which the Privy Council had arrived. He supported his position by reference to two cases. The first was Lavy v. London County Council [80], where Lindley L.J. said the Court of Appeal of three Judges was bound by a previous decision of the Court of Appeal of two Judges, his Lordship being a member of the Court on both occasions. It seems to me, if this passage is an authority for anything, it is an authority for adhering to the previous decision of this Court.

The second case was Pledge v. Carr [81], in which the Court of Appeal held that it could not overrule a previous decision of a co-ordinate Court. That case, if applicable at all, is applicable only on the assumption that upon this question the Privy Council and this Court are co-ordinate, and that the Privy Council in Webb v. Outtrim [82] should not have differed from the decision of the High Court in Deakin v. Webb [83]. I think, however, that neither of these cases really affords any assistance in the matter now under consideration.

Mr. Irvine, on the other hand, would have nothing to do with any obligation of an intermediate nature incapable of definite and precise legal expression; he stoutly maintained that, as there cannot be two Constitutions for Australia, or differently phrasing it, as there cannot be two differing and yet accurate interpretations of the Constitution, it necessarily follows, in order to avert a chaotic situation, that there must reside in some tribunal the power of ultimately and authoritatively declaring the interpretation so as to bind all other Courts. He urged that, as there cannot under any possible circumstances be an appeal from the Privy Council to this Court, and there may, under circumstances contemplated and defined by Statute, be an appeal from this Court to the Privy Council, the latter tribunal must of necessity be that ultimate and binding authority. He then further contended that, as the Privy Council had now placed its interpretation upon the Constitution, it followed as a logical and legal consequence of the earlier branch of his argument - to depart from which would be an actual breach of law - that this Court, if it entertained the appeal at all, should not any longer stop to consider the matter, but should at once give judgment according to the interpretation found in the decision of the Privy Council.

Respondents in both cases leant for support of their arguments upon the superiority of the status of the Judicial Committee of His Majesty's Privy Council, and upon what they regarded the analogy afforded by English precedents in legislation whereby in varying language appeals to superior tribunals are forbidden except by leave.

What, then, is the duty placed by the Constitution on this Court in all controversies coming before it of the nature marked out in sec. 74?

If the present cases are not of that nature then I agree that this Court is bound by the decision of Webb v. Outtrim [84]. Unless there can be found expressly or by necessary implication in a valid enactment an abrogation of the common law or statutory right of the Sovereign to review the judgments of his Courts in His Majesty's oversea Dominions, that right remains. So long as that power subsists, but no longer, and to the extent that it continues, and no further, the Privy Council is the ultimate Court of Appeal, and it is the manifest legal duty of every tribunal subject to its controlling power to acknowledge without question the law as pronounced by its determination.

Every individual subject of the King is bound to respect and obey the law, still more is it incumbent upon every Court to loyally recognize and apply it, whether the law is to be gathered by the Court's own unfettered apprehension of its commands, or whether it has been expounded by some other tribunal whose interpretation upon that subject the law itself has invested with compelling authority in relation to the Court.

The position of this Court, with respect to questions comprised within the terms of sec. 74, is unique. Approaching the construction of that section with no other aid than is afforded by the Constitution Act itself, always remembering that it is not a casual piece of legislation, but an instrument of government, I hold the opinion that, as a matter of law, this Court has a right to decline to follow the decision of the Privy Council in the class of questions referred to. The words of the section appear to me too plain to admit of any hesitation in this regard, either in point of literal construction, or of the broad intent of the legislature.

If the history of the section were to be called in aid, as was done by the Privy Council itself in Webb v. Outtrim [85], the conclusion is strengthened. For the present purpose I think the words themselves, by their inherent force, are clear enough and strong enough to satisfy the mind as to the duty of the Court when such a question as the present is submitted to it. Sec. 74 finds no parallel in British legislation. It selects a certain class of controversies and places them apart from all others as proper for separate and unprecedented judicial treatment.

They are selected, not because they are trifling or frivolous, or of a limited effect or passing interest, but by reason of their inherent magnitude, and because they are of the highest concern, on the one side to the development of Australian nationhood, and on the other to the preservation of the States. Their influence is permanent and far reaching, not confined to the immediate litigants nor to a special class in the community, nor even to a State, but extends so far as to affect the political relations of the whole people, when considered in conflicting groups, as citizens of different States, or as citizens of both States and Commonwealth. The determination of these questions touches the very root of the federal principle, namely, the distribution as between State and State, and Commonwealth and State of that total mass of governmental power, which the Imperial Parliament has granted, and over which, outside the reservations to be found in the Constitution itself, the Imperial authority does not assume or exercise control.

All these questions when pronounced upon by the Supreme federal tribunal constituted and sitting in Australia are declared by sec. 74 to be free from the intervention of even the Royal prerogative. Unless and until the High Court certifies that a question, determined by it and included within the terms of the section, ought to be decided by the Privy Council, which, however eminent, is nevertheless a tribunal constituted and sitting outside Australia, the Constitution insists that it ought not to be and must not be so decided, and until that event occurs - if it ever should occur - the supreme law of the Empire knows no judicial authority in relation to that question superior to this Court.

Provided only that the cause answers the description of a question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or of two or more States, it matters not how the question arises, whether as to parties or procedure, whether singly or in conjunction with other questions, whatever the nature of the dispute, whatever the amount involved, whether it concerns the affixing of a penny stamp to a document, or the control and destination of the river waters of the Continent. In all such cases the decision of the High Court, either in the exercise of its original or its appellate jurisdiction, is absolutely final and beyond the power of revision by any tribunal but itself.

The argument that endeavours to place on the same level as these provisions of sec. 74 of the Australian Constitution ordinary legislative restrictions upon appeals such as those from the County and Divisional Courts - legislation interpreted in cases of such high authority as Lane v. Esdaile [86] and Ex parte Stevenson [87] to be a check on unnecessary and frivolous appeals, and in Ex parte Gilchrist [88], as meaning that if the decision is one of principle and new, leave should be given - entirely overlooks, not merely the striking difference of language, but still more the vital distinction of aim, purpose and effect.

The opening words of sec. 74 are in the negative: "No appeal shall be permitted to the Queen in Council from a decision of the High Court." This makes the Privy Council incompetent to hear such an appeal, just as in the North British Railway Co. v. Wauchope [89] Lord Westbury L.C. said the House of Lords was by very similar words not competent to hear that appeal.

Much of the argument of respondents in both cases rested upon their construction of the word "decision." They contended for the narrow interpretation, that is to say, they regarded it as equivalent to "judgment, decree, order or sentence" - in other words as the formal order whatever name it bears, working out the final details of the cause between the immediate parties, providing for and directing the specific acts or forbearances necessary in the opinion of the Court to do justice as between the particular litigants, and not operating beyond them either in its direct effect or its indirect authority.

They contend, therefore, that it does not mean the declaration of the law as affirmed by the Court.

Having gone so far, counsel necessarily carried his submission to this point, that "decision" meant the final judgment of the Court in any case where the prescribed question was raised between the parties, no matter how it was decided, and no matter whether that was the sole question or one with many others of a totally different character, and counsel maintained that it was quite immaterial upon which of those many questions the judgment ultimately rested.

An unsuccessful party before the High Court could not appeal to the Privy Council even by special leave of their Lordships, it was said, if the constitutional point were raised and determined, even though that point were determined in his favour, and if his only cause of dissatisfaction were some ordinary point of mercantile law, or the construction of a Statute such as the Income Tax Act of a State. Before the unsuccessful party could appeal in such a case on the real decision he questioned, he must, it was contended, obtain from the High Court the certificate required by the 74th section, though no one desired or intended to challenge the decision upon the constitutional question.

Such a construction cannot, in my opinion, be seriously contemplated. It would follow from that as a necessary consequence that, even if the High Court were now to follow in favour of the respondents the Privy Council decision in Outtrim's Case , but founded its judgment on other points in favour of the appellants, the case according to respondents' argument would still be unappealable on those other points without a certificate as to the constitutional point, a certificate which, under the circumstances, would be absurd in the extreme.

"Decision of the High Court upon any question," in this section means, in my opinion, what the Court decides to be the law with regard to that question; what it holds to be the proper answer to that particular question. That is the sense in which the word "decision" is frequently used by the House of Lords and the Privy Council; as in Ridsdale v. Clifton [90]; Read v. Bishop of Lincoln [91], and London Street Tramways Co. v. London County Council [92]. A case before the High Court may present many questions for decision. If it includes one of the nature indicated by sec. 74, the decision upon that question is the only one to which the special provision applies. It may be that it is impossible to appeal from that for the reason that the party, against whom the decision on that question passes, succeeds by reason of some other point - as if the defendants (appellants) here were to succeed only on the construction of the Income Tax Acts, or on a question of fact as to amount of income. But assuming a party is otherwise in a position to appeal from an adverse decision which forms the sole ground, or one of the grounds, for judgment against him, then the special provisions of sec. 74 intervene to deprive him of that right or to except from his general right the decision on the specific point of constitutional conflict, unless he obtains the required certificate.

The argument ab inconvenienti founded upon the possibility of two conflicting interpretations of the Constitution was strenuously pressed upon us. It is an argument of great weight if addressed to lawmakers; or even to a Court, if words be of doubtful meaning. But they are not so here: I know of no clearer words in the Constitution, or words having a more obvious purpose. Sec. 74 is one of the pillars of the Constitution. Unless it stands firm, much of the true meaning of that document is lost. In the Constitution itself can be discerned as a matter of legal construction the expectation that no conflict of final interpretation would arise, because the State Courts, through whom an alternative channel of construction is possible, were not at once deprived of jurisdiction to interpret the Constitution; still the possibility of conflict was guarded against by empowering the national legislature in case of need to close that channel. While the Constitution lasts in its present form, nothing however can alter the finality of a decision of the High Court upon this class of question. That is a fixed principle, embedded in the Constitution as a fundamental fact, capable of extension in its application but not of restriction, and to my mind should be the governing consideration in such a case as the present.

The Court is not bound to yield to the views of the Judicial Committee on this branch of the Constitution.

But we have been appealed to, in the first case, to accept those views however strongly we disagree with them, because it would tend to consistency of interpretation, and because the Privy Council, being the body to which other questions are appealable, and even these questions if a certificate is given, it would be in some undefined way the desirable course to pursue.

Unity of interpretation, if lawfully obtainable, is, of course, much to be desired. But adherence to that rule is by no means universal. In Leask v. Scott [93], the English Court of Appeal declined, even on a question of mercantile law, to follow a decision of the Privy Council. And this is surely the right course to pursue by any Court which is not legally subject to authoritative correction by the other tribunal, and which has a distinct opinion contrary to the decision cited.

Every Court within the ambit of its functions is the delegate of the Sovereign and has its own duty to perform. The 74th section has placed a very special duty upon this Court. In framing the Constitution, the creation of the High Court was made an integral part of the federal structure, and while apportioning the powers to the several authorities as definitely as circumstances would permit, this Court was made the federal arbiter in all disputes coming before it, regarding the apportionment, unless for special reasons it considered that the Privy Council should be appealed to. To this Court was committed, not only the function of decision in the first instance, but the duty also of looking over and beyond the strife of the parties themselves, and of judging if the public interests would be better served by remitting the controversy to His Majesty in Council for determination, which should for all times bind this Court as the supreme judicial organ of the Commonwealth, and through it the whole Australian people. But we are now asked by the respondents to lay aside all these serious considerations and to regard only the circumstance that by another avenue a decision has in fact been reached which does not accord with a former decision of this Court. We are invited to say because that has happened, although without the opinion of this Court, that the Privy Council ought to decide such a question, and in the face of the express opinion of this Court in Deakin v. Webb [94], that it ought not, this High Court should now ignore its constitutional duty, virtually for this purpose treat the 74th section as repealed, and accept without question the contrary opinion of the Privy Council.

My answer to that is this. The possibility or existence of a diversity of judicial opinion which can only last during the pleasure of the Commonwealth Parliament as to these questions - and similarly (subject only to the requirement of reservation for the Royal Assent) with regard to all other constitutional questions - cannot justify this Court in abandoning the trust with which, as it appears to me, it has been by law invested. It has no discretion to sacrifice or weaken any part of the Constitution. The 74th section is as much a part of the Constitution as any other, and if its true meaning be, as I hold it is, that unless for some most exceptional reason which does not now present itself, and one to be certified according to law when it does, it is the judgment of this Court alone which, in the matters we are considering, is intended to bind the Commonwealth and States alike, to delimit their powers and restrain any excess of jurisdiction. In the absence of any special reason for certifying under the section, there is no power to substitute the decision of another tribunal, for that of the arbiter appointed by the Constitution. Such a course would amount to a distinct contravention of the command of the Sovereign in his Imperial Parliament.

Counsel for the respondents in both cases, however, contend that in any event the questions arising here did not fall within the class prescribed in sec. 74. Shortly stating their position, they admitted, of course, that the validity of the respective Income Tax Acts as applied to the appellants was in dispute, but they argued that their validity depended, not on any conflict of powers, but on whether there was a repugnancy between those Statutes and the Commonwealth legislation fixing the remuneration of its servants. I agree with them that a question of repugnancy as they aver does arise, because it is contended for the Commonwealth that, for a State to levy an income tax upon federal officers proportioned to their federal salaries, is to clash pro tanto with the federal enactment that their remuneration shall be the full sum granted them by the Commonwealth.

But there is involved in the dispute another and a deeper question which is quite independent of all Commonwealth legislation. The repugnancy already alluded to is met by sec. 109 of the Constitution which, recognizing that Commonwealth legislation may encounter State legislation on a concurrent field, gives paramountcy to the former to the extent of conflict. That, however, being on the concurrent field, is not a question simply of competition for or conflict of powers, but of the supremacy of admitted powers when exercised. This views the matter as if it only concerned the relations of the taxpayer to the State.

There is, however, also raised the further question, in which the Commonwealth as a governing authority is interested, and as to which it has intervened, namely, that from its standpoint, the alleged taxpayer is a federal officer, an instrumentality, and a means of government, whose services the Commonwealth is entitled to without impairment, but which are or may be affected by the diminution of his salary. It is urged that the diminution, if not checked at the beginning, may be carried to any distance, even to absolute deprivation if the State legislature thinks fit. Regarded from this standpoint, we look out, not upon two admitted powers meeting on a concurrent field, but upon State authority encroaching upon a Commonwealth exclusive field, namely, the Federal Executive Government. In Dobbins v. Commissioners of Erie County [95], the Court recognized the distinction between these several views, and gave them separate treatment.

When an officer's services are lessened the Government, that is the Crown administering the federal government, is obstructed in its operations, and one argument for the appellants and intervenant is that the Income Tax Acts here, if applied to the federal officers' salary, is an illegal entry into the domain of federal administration, and that consequently a question arises as to the limits inter se of the constitutional powers of the Commonwealth and the respective States. Whether the Acts do actually amount to such an encroachment or not, whether they do pass the limits permitted by law, and overstep the boundary line of the field of Commonwealth administrative power, is a matter to be decided, but it seems to me indisputable that the question whether or not they are to be considered as trespassing upon the region exclusively assigned to the Commonwealth is distinctly raised. The cases consequently fall within the purview of the 74th section.

Summing up the views I have already expressed, I arrive so far at the following conclusions: - 1. This Court is properly possessed of these appeals. 2. Our duty is to determine all causes within sec. 74 according to our own understanding of the Constitution, unless there has been first a certificate under sec. 74, and upon that a decision of the Privy Council. 3. These cases do fall within sec. 74.

I have already pointed out that the Income Tax Acts are impeached upon two grounds - first because, so far as they purport to apply to the appellants, they are pro tanto repugnant to Commonwealth Statutes, and are therefore struck at by sec. 109; and secondly, because, independently of any legislative direction by the Commonwealth, they invade the federal field of power, by requiring a federal officer to surrender a portion of the means provided by the Commonwealth for his support.

The first ground of attack is outside sec. 74, and, if that were the only one, I should, in accordance with what I have already said, feel compelled to follow without discussion the decision in Webb v. Outtrim [96], by which it has been held that such Acts are not repugnant to the Commonwealth legislation.

But the second ground raising a question within sec. 74, I proceed to consider, free from any coercive authority of Webb v. Outtrim [97], whether those Acts are invalid as constituting an invasion of Commonwealth exclusive jurisdiction. It is true that the point has already been determined by this Court in Deakin v. Webb [98], and under ordinary circumstances I should be indisposed to re-open a question previously decided. Still, the rule laid down by the Privy Council in Ridsdale v. Clifton [99], and Tooth v. Power [100] is a proper one for this Court to follow. Since Deakin v. Webb [101] there has been the contrary decision in Webb v. Outtrim [102], and the respect and weight due to a judgment of the Judicial Committee is a fact which compels reconsideration. I approach the subject therefore with an open and independent mind, but with a desire to profit by the reasons upon which the two opposing decisions are founded.

These Acts imposing taxation on persons resident in the respective States are primâ facie valid. If ultra vires on the ground of their intrusion into the exclusive field of the federal power, two positions must be sustained by the appellants. The field must be shown to be exclusive, or, in other words, there must exist a prohibition expressed or implied against intrusion by the State upon such a field, and, if that is established, the Acts must then be shown to contravene the prohibition.

If the judgment in Outtrim's Case is to be understood as deciding that - because the Constitution does not expressly say so - a State is not prohibited from interfering with the operations of the federal Government, or with the means it employs to effectuate its powers, I most respectfully dissent. If that judgment is to be taken as laying down the rule that, provided a law would have been within the competency of the State Parliament before Federation, it is still within its competency unless the power to pass it has been expressly withdrawn by the Constitution, I again respectfully differ. The word "expressly" is not found before the word "withdrawn" or elsewhere in sec. 107, and it would of course be a contradiction in terms to imply it. Such a construction in my opinion would certainly tend to destroy the Constitution. I agree with the rule formulated in D'Emden v. Pedder [103], that "when a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control or interfere with, the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution, is to that extent invalid and inoperative."

In M'Culloch v. Maryland [104], Marshall C.J. laid down some principles and arrived at a decision which are not only in consonance with the rule just quoted, but are in strict accord with the most authoritative pronouncements of English law. His doctrines have under the circumstances of the American Constitution received a later application extending the doctrine of necessary implication to cases which the Australian Constitution does not, in my opinion, require or warrant to be brought within it.

But his propositions, first, that the grant of enumerated powers impliedly carries with it the grant of all proper means, not expressly forbidden, to effectuate those powers; and next, that, conversely, as such a grant of these powers and means would be entirely illusory unless their full and free exercise were intended, there arises a necessary implication that no State, even to the least extent, can derogate from the grant by usurping or opposing the powers, or, what is the same thing, by obstructing the means of carrying them into execution, not only commend themselves to the reason, but are supported by the principles enunciated in such cases as Kielley v. Carson [105]; Doyle v. Falconer [106]; Barton v. Taylor [107]; and Fielding v. Thomas [108]. Kielley v. Carson [109] was heard before a most powerfully constituted Board. The Crown had by its Commission under the Great Seal created a Legislative Assembly for Newfoundland, and the question arose as to what powers were impliedly conferred upon the local legislature. Parke B., who delivered the judgment, said [110]: - "Their Lordships see no reason to think, that in the principle of the common law, any other powers are given them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it was competent for the Crown to perform. This is the principle which governs all legal incidents. Quando lex aliquid concedit, concedere viditur et illud, sine quo res ipsa esse non potest. In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of legislative functions, they are justified in acting by the principle of the common law." The Board held that the power to punish for contempt was not necessary, and therefore not an incident.

But to interrupt or impede the exercise of its functions was illegal; to obstruct a Court of Record is illegal and the Court has inherent, that is implied, power to prevent it as well as to punish it - even a public meeting, as was pointed out by Lord Blackburn in Barton v. Taylor [111], has implied power to remove obstructions to its proceedings.

How then can it be denied that the Central Government of Australia is by necessary implication to be free from any impediment to the full and perfect performance of the National functions assigned to it?

It would indeed have been an idle task to carve out of the existing State Constitutions the jurisdiction to erect administrative departments for specified services, to vest this in a central authority for the common welfare, and still to leave it within the capacity of each individual State within its own territory, and consequently with varying effect, to harass and impede the functions and operations of the General Government.

No aid to argument leading to so futile a result is lent by the language of the Constitution. By sec. 106 the Constitution of each State is declared to continue but "subject to this Constitution," and by sec. 107 it is expressly recognized that powers exclusively vested in the Parliament of the Commonwealth are no longer within the power of the State Parliament. What power can be more exclusively vested in the Commonwealth Parliament than the regulation and control of Commonwealth administration? And, if this be once conceded, the mere admission that the effect of any specified State Act is to impede or impair the public operations of a federal officer is sufficient to stamp it as unlawful.

Up to this point I am, for the reasons I have given, in entire accord with the majority of the Court.

When, however, I come to apply these principles to the Income Tax Acts I have the misfortune to find myself unable to share their opinion. These Statutes do not appear to me to infringe the doctrine of non-interference. They do not on the face of them, and they do not, I think, in their necessary and reasonable effect transcend the limits of any federal power. The income tax is demanded from all citizens alike; it is obviously not levelled at the federal authority, and I cannot persuade myself that by reason of the impost there is actually, or will probably be, any diminution or impairment of service rendered to the Commonwealth.

The reasoning of the Supreme Court of the United States in the case of Dobbins v. Commissioners of Erie County [112] as to the effect of the tax undoubtedly supports the appellants' contention that these Acts are invalid. But I am not able to adopt that reasoning.

It has been thought essential under the American Constitution to place such cases within the principle of actual interference as laid down by Marshall C.J. In the United States there exists no authority whatever to set aside a valid law but that which enacted it; and this fact has apparently induced the Supreme Court to apply rigidly the standards of interpretation which are found so eloquently and lucidly expounded in M'Culloch v. Maryland [113]. In the various Australian Constitutions, Federal and State, there are found, as part of these Constitutions themselves, provisions enabling, and sometimes requiring, a bill to be reserved for Royal Assent, and enabling the Crown to disallow an Act that was quite within the power granted, and therefore of full validity.

Whether the exercise of these powers be frequent or rare, whether on legal or political grounds, with whatever motive the King may be pleased to put these prerogatives into action, is no concern of a Court of law; but a power which finds its place even in the latest Constitution of all - our own - cannot be disregarded. It must, as it seems to me, be taken into account in interpreting the document of which it forms a part. It is clearly immaterial for the purpose of ascertaining the field of Commonwealth power, or for determining the principles upon which that field is to be maintained supreme and secured from interruption; but it may affect the consideration of whether a given Act of State authority ought to be regarded as an invasion of Commonwealth power.

The additional means of averting peril to Commonwealth and State by conflicting exertions of power, may in Australia modify the necessity which American Courts have experienced, and have acted upon, by striking down at once an enactment which, though harmless enough in itself, might, if held valid, lead the way to actual and dangerous interference with the General Government. As was said by the Earl of Selborne in Barton v. Taylor [114]: - "The principle on which the implied power is given confines it within the limits of what is required by the assumed necessity."

If by any fair and reasonable intendment these Statutes could be read as impairing the usefulness or efficiency of the officers concerned to serve the Government, I should be prepared to apply the principle of D'Emden v. Pedder [115], and hold them so far ineffective. If it were shown that federal servants were singled out from the rest of the community for specially heavy taxation it would not be difficult to detect antagonism to the Commonwealth.

Indications of the attitude which a Court would adopt towards Acts of State legislatures if, in the language of Lord Coke, "because they could not do it de directo they attempted to do it ex obliquo," are to be found in the jurisprudence of both England and America: Brewers and Malsters' Association of Ontario v. Attorney-General for Ontario [116]; Home Insurance Co. v. New York [117].

But the State Act touches no function of the officer, it intrudes its operations into no public act that he performs, it affixes no condition and imposes no qualification upon the discharge of his duties, it makes no demand upon his public time, and seeks no service at his hands; it merely requires of him his just share of the ordinary burden of his fellow citizens in return for the protection and benefits the State affords him.

If this be so, the Statute attacked in each case has not intruded into the exclusive domain of Commonwealth executive action, it has not invaded the powers, interfered with the means, or interrupted the operations of the central Government, and therefore should, in my judgment, be declared to stand as a valid exercise of State legislative authority.

I am of opinion that the appeal should be dismissed. The appeal is from an order of a District Court in New South Wales, directing payment of income tax by the appellant. The appellant was admitted to be a resident of New South Wales and an officer in the customs department of the Federal Government in that State. The learned Judge thought that the judgment of the King in Council in Webb v. Outtrim [118] bound him; and he therefore gave judgment for the plaintiffs, the commissioners of taxation of Sydney. It is desired by the appellant that his appeal shall be confined to this one point - does the fact that he is a federal officer exempt him from income tax in respect of his official salary? The appellant does not wish to raise the objection that the Land and Income Assessment Act 1895 (N.S.W.) is not, as a matter of construction, applicable to him; and I shall therefore proceed on the assumption that it is. I shall also assume, in favour of the appellant, that under sec. 39 (2), (b) of the Judicary Act 1903 this Court is competent to entertain this appeal without special leave, and that the question involved comes within that very elusive term "federal jurisdiction." In the view that I take of the case I may concede also, for the purposes of argument, that the question is one arising as to the limits inter se of the constitutional powers of the Commonwealth and those of a State, within the meaning of sec. 74 of the Constitution .

I come at once to what I regard as the main question. What is the duty of this Court when it finds that the King in Council differs from the view which the Court had taken with regard to a question coming within sec. 74? In Deakin v. Webb [119] this Court held that the salary of a federal officer is not subject to State income tax; and there was no appeal from that decision, for this Court refused to certify, under sec. 74, that the question was one which ought to be determined by the King in Council. Subsequently, the Victorian Commissioner of income tax sued a federal officer, Outtrim, for income tax; the Supreme Court of Victoria followed the ruling of the High Court; and the Commissioner appealed to the King in Council. The Judicial Committee of the Privy Council reported to the King in Council to the effect that Outtrim was liable to the tax; and the King in Council adopted the report of the Committee and gave judgment against Outtrim. In their statement of the reasons for their report (Webb v. Outtrim ) [120] the Judicial Committee has clearly intimated its opinion that Deakin v. Webb [121] was wrongly decided. This appeal was taken to the King in Council direct from the Supreme Court, by virtue of the Act 7 & 8 Vict. c. 69, and the Order in Council of 9th June 1860 made thereunder. The Commonwealth Government, which was allowed to intervene in the argument before the Judicial Committee, urged strongly that the appeal could not be entertained by the King in Council, because of sec. 39 of the Judiciary Act 1903 . This section purported to take away jurisdiction in certain matters from the Courts of the States (including the Supreme Court of Victoria), and then to re-invest such Courts with federal jurisdiction, subject to this condition (inter alia) that every decision of the Supreme Court "shall be final and conclusive except so far as an appeal may be brought to the High Court." I have never been able to see how this exclusion of the King in Council from entertaining appeals from the Supreme Court of a State - whether appeals as of right or appeals by special leave - can be treated as within the power of the Commonwealth Parliament as conferred by the Constitution. No power has been conferred on the Commonwealth Parliament by the Constitution to repeal or alter the Acts 9 Geo. IV. c. 83, and 7 & 8 Vict. c. 69, and the Orders in Council made thereunder, allowing appeals as of right. But now the King in Council has expressly held that the provision is beyond the power of federal Parliament, and void; and it has entertained the appeal in Webb v. Outtrim [122], without even giving special leave to appeal.

Under these circumstances I have now no hesitation in expressing the view that, although by sec. 77 (2) of the Constitution the Commonwealth Parliament can exclude State Courts from federal jurisdiction, it cannot exclude the King in Council from such jurisdiction, or from any jurisdiction which the Supreme Court or other State Court has exercised; and that, if the Supreme Court of a State become seised of a cause, and decide it, the defeated litigant has under the British Acts 9 Geo. IV. c. 83, or 7 & 8 Vict. c. 69, and the Orders in Council made thereunder, a right to appeal to the King in Council, no matter whether the Supreme Court derive its jurisdiction from the State, or from the British Parliament, or from the federal Parliament; and no matter what the federal Parliament may enact to the contrary.

It has not been contended before us that the decision of the King in Council in Webb v. Outtrim [123], is ultra vires and void, although, if sec. 39 of the Judiciary Act were valid in so far as it purports to prevent appeals from the Supreme Court to the King in Council, the decision must be void. I understand, however, the theory to be that sec. 39 (2) (a) was merely meant to apply to appeals as of right from the Supreme Court; that it was not meant to affect the appeal by special leave; and that if the King in Council entertain the appeal in fact, without formally giving special leave, that is a matter of mere procedure, not affecting the validity of the judgment. The appellant, therefore, merely urges that the decision of the King in Council is wrong as to the merits of Deakin v. Webb [124], and that it should not be followed by the High Court. This latter is the main question to which I address myself.

Now, what is the duty of this Court when it finds that its view of the law as to the liability of State officers to income tax has been condemned by the King in Council? I have already stated that I assume everything else in favour of the appellant. Are we to adhere to the principle of Deakin v. Webb [125], or are we to submit to the law as laid down in Webb v. Outtrim [126]? I conceive it to be my duty not to let my personal opinion as to the merits of Deakin v. Webb [127] weigh with me in the slightest degree in determining the question. I should have gladly and dutifully accepted the well considered judgment of the original Judges of this Court, and treated it as a guide for all Courts within Australia, but for the contrary decision of the King in Council. It is true that I have held, and still hold, a strong opinion with regard to the judgment of Marshall C.J. in M'Culloch v. Maryland [128] - the judgment on which Deakin v. Webb [129] was based - although I utter the opinion with a feeling that it will be regarded by some as almost blasphemy. I regard it as being the utterance rather of the statesman than of the lawyer. I think that the doctrine of necessary implication was pressed beyond the logical limits recognized by British law. I think that if anything was to be necessarily implied in the United States Constitution, when the State of Maryland was found to be making a deliberate attack on a federal "instrumentality," the United States Bank, the thing to be implied was either (a) a power in the Courts to declare a State taxation Act fraudulent and void if and so far as passed for purposes foreign to the State power to tax State citizens: Duke of Portland v. Topham [130]; or else (b) a power on the part of the federal Congress to protect the Bank, and any other federal "instrumentality" or federal agent - a power to isolate them, wholly or partially, from State interference, just as Congress could isolate a fort or an arsenal. (See also Commonwealth Constitution , sec. 52 (2)). This would not be to "annul" a State Act. The State Act would remain, but the Court or the federal Congress, as the case may be, would say, in effect: - "Hands off! You must not attack the federal agent under a pretence of taxing the State citizen." I concur with my brother Isaacs in the view that it is not an improper interference with a federal agent for a State to collect from him a tax upon his income, on the same scale as from other citizens of the State, even though his salary as a federal agent has to be included in his return. But it is only just to my learned colleagues, the original Justices of this Court, to say that if the reasoning in M'Culloch v. Maryland [131] is right, and if it ought to be applied to the Australian Constitution, I do not see how they could have given any decision other than that which they gave in Deakin v. Webb [132]. (See in particular the words of Marshall C.J. [133]). But I do not wish to base my decision on my personal opinion as to M'Culloch v. Maryland [134], and I approach the main question in this case with an unprejudiced mind - what is the duty of the Court when the King in Council decides differently? I concur with the Chief Justice in thinking that there is nothing in the reasoning of the Law Lords in Webb v. Outtrim [135] calculated to satisfy men who are familiar with the long line of decisions in the United States that Deakin v. Webb [136] was wrong. The Earl of Halsbury points to secs. 106 and 107 of our Australian Constitution , and says that these sections leave no room for implied prohibitions, such as a prohibition of State income tax. But in the United States Constitution there was equally strong reason against such implication. Article I., sec. 10, contained the numerous express prohibitions affecting the powers of States to legislate; and Article X. reserved to the States the powers not prohibited to them by the Constitution. This consideration was present to the minds of the members of this Court when they delivered judgment in Deakin v. Webb [137]; but, if I may say so with all respect, it seems not to have been noticed by the Law Lords. This inadequacy of the reasons used by the Judicial Committee adds greatly to our difficulty; but still the question remains, which opinion ought to guide us in our present judgment? I have, of course, no right to allow my mind to be swayed by my view of expediency. I admit that, before taking my seat on this bench, I thought that it would be wiser to leave, as far as possible, the interpretation and the application of Australian laws to Australian Courts, as the making of those laws is left to the Australian Parliament; in effect, to put full responsibility on Australian shoulders. But my duty here is to accept the law as I find it.

Now, I cannot help thinking that much of the difficulty in this case arises from certain preconceived ideas as to federation and as to the function of the chief Court in a federation. The Supreme Court of the United States has been described by its admirers as the guardian of the Constitution, the final interpreter of the Constitution. Whatever may have been the appropriateness of the title in the case of the highest federal Court in States which had severed their allegiance to the British Crown, there is nothing in the Australian Constitution that lends countenance to such a title, unless it be found in sec. 74. What does sec. 74 say? Those who have been accustomed to hear the phrases used as to the High Court - "the guardian of the Constitution" - "the final authority on constitutional points" - "the final arbiter of the Constitution" - will be surprised to find how little there is in the Constitution to justify such language. Sec. 73 enables the High Court to hear appeals from Supreme Courts and other Courts on any subject; and, if the appellant choose to appeal to the High Court instead of appealing to the King in Council, the High Court's decision is to be final. If we are to infer the purpose of this Court from the mere words of the Constitution, it would seem, so far, as if its main purpose were to act as a Court of appeal on ordinary subjects for Australia - not a Court for merely federal and constitutional subjects as in the United States. Then sec. 74 provides: -

No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers 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 certify that the question is one which ought to be determined by Her Majesty in Council.

The section also provides that, except as therein provided, the Royal Prerogative to grant special leave to appeal from the High Court to the Queen in Council shall not be impaired. That is all. When the litigants have had the advantage of a decision of the High Court on a certain limited class of constitutional subjects of a peculiarily Australian character, there is to be no appeal, even by special leave, to the King in Council - the only possible Court of Appeal - unless the High Court see fit to certify that the question is one which ought to be determined by the King in Council. In other words, the only curtailment of the powers of the King in Council, the only diminution of the prerogative right of the King in Council to entertain appeals from all Courts in the Colonies or Dependencies, is this, that when the High Court has made a pronouncement in any case with regard to matters of the character referred to in sec. 74, there is to be no appeal from the High Court in that case except with the High Court's approval. The King in Council still retains his preeminence as the final Court of Appeal, and the final exponent of the law, for all his colonial subjects. The King in Council still has, by virtue of his prerogative, power to entertain an appeal from any and every decision of the High Court as well as of any or every colonial Court, and on all kinds of subjects, constitutional or not, within sec. 74 or not; and the only qualification of that power is that in a certain class of cases - the limited class mentioned in sec. 74 - the appeal from the High Court must be sanctioned by the High Court. But still, as between the two Courts, the King in Council is the appellate Court, it is competent to hear any and every appeal from the High Court, and the High Court is the Court from which the appeal can be brought. No appeal can ever be brought from the King in Council to the High Court. The King in Council is on a higher platform than the High Court, although the High Court may prevent the litigant from ascending that higher platform. The law which Australians are to obey is one consistent whole. The law, if we can only find the true law, cannot speak finally with two inconsistent voices; and when an appellate Court says one thing, and the Court from which an appeal may lie has said another, the latter Court must thereafter accept the view of the appellate Court, and act upon it. This is no new doctrine. A jurist so cautious and so well equipped as Sir Frederick Pollock has expressed it thus: - "Decisions of an appellate Court of last resort are binding on all Courts from which an appeal lies to it, and, of course, on all tribunals inferior to them." And again ... "A Court of Appeal not only can reverse or vary decisions from which an appeal is brought, but can overrule previous decisions of Courts below which have not been appealed from." (First Book of Jurisprudence , pp. 322, 324.) There are analogous cases in British jurisprudence. For instance, in bankruptcy matters there is no appeal from the Court of Appeal to the House of Lords - the King in his High Court of Parliament - except by leave of the Court of Appeal (Bankruptcy Act 1883 sec. 104). But if the House of Lords, on an appeal from some other Court, should decide a point of law differently from the Court of Appeal acting in a bankruptcy matter, can anyone doubt that the Court of Appeal would thereafter accept the ruling of the House of Lords? There was no appeal from the Court of Crown Cases Reserved to the House of Lords - even with leave: 11 & 12 Vict. c. 78; Judicature Act 1873 , sec. 47. But no one can conceive of the Court of Crown Cases Reserved continuing to act on its own opinion, after the House of Lords, in other proceedings, has pronounced against that opinion. In The City of Chester [138], Lindley L.J., went even further. He was sitting in the Court of Appeal in Admiralty; and the decisions of the Privy Council were not binding on that Court. But he pointed out the inconvenience of any conflict between the decisions of the Judicial Committee and of Courts of Appeal in England, in matters of mercantile and admiralty law, which are professedly the same in England and in the Colonies; and he said that, even if he doubted the correctness of the decision of the Privy Council, he would be disposed to follow it rather than introduce a diversity of practice. No doubt, the King's Bench Division in England does not regard itself as bound by the decision of the King in Council: Leask v. Scott [139]; Dulieu v. White & Sons [140]; and the King in Council is not bound by the decision of the King's Bench Division: Reg. v. Bertrand [141]. But there never can, under any circumstances, be an appeal from the King's Bench to the King in Council or vice versâ. The two Courts act in parallel lines which never meet. They never stand in the relation of precedence and sequence. They have jurisdiction over different areas, and over different persons; there never can be an appeal from one Court to the other; and even if the Courts do follow conflicting rules, there is no double-headed law as a result. It is true that the old Courts of King's Bench, Common Pleas, and Exchequer operated over the same area, and yet did not consider themselves bound by one another's decisions. But these Courts were not final Courts - a dissatisfied litigant could still appeal to the House of Lords for a final statement of the law. If, however, the High Court is to continue to act on one principle, assuming to be bound by no opinion but its own on subjects within sec. 74, and if the King in Council continue to act on the opposite principle, it is easy to imagine the difficulties which will arise to plain men who want to obey the law. They will be treated as doing right, if their case be taken to one Court, and as doing wrong if it be taken to the other. In my opinion, the Commonwealth Constitution Act does not force us to such a result.

I know that it is asked: "What is the use of sec. 74 if it does not mean that the High Court is to be the final arbiter as to these constitutional points?" I can only answer that sec. 74 is clear and specific. It puts a check on a litigant who has had his case discussed before the High Court and has been defeated. He cannot go to the King in Council unless the High Court approve of his doing so. To this extent the section tends to prevent appeals from being carried from the High Court to London. This result the section expressly achieves; this is the object of the section; and I am of opinion that there is nothing else necessarily implied. I lay emphasis on the word "necessarily;" for I think I see a tendency to forget its full stringency. We have no right, in interpreting sec. 74, to treat it as containing what we conjecture, or may conjecture, to have been intended, by the Australian Convention, by the Australian voters, by the Australian delegates in London, by the British law officers, or by the Houses of the British Parliament. A certain form of words was agreed to after keen discussion: what is their meaning? They give a definite meaning as they stand. There is nothing ambiguous about them. I am told also that it is my duty to look at the intention of the Act, and to see that that intention be not defeated. If the intention alleged be to make the High Court the final arbiter as to constitutional matters (within a certain limit), my answer is that I cannot find that intention. Such reasoning involves a petitio principii. As Lord Watson said in Salomon v. Salomon & Co. [142]: - ""Intention of the Legislature" is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a Court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication." Where words are unequivocal as they stand, we have no right to enlarge their meaning, or to treat other words as implied by reference to the object, or supposed object, of the framers, or to expediency, or to the policy, or supposed policy, of the measure. Our function is to construe the Act, not to improve it, or to alter it on the ground of probable intention: In re Sneezum [143]; London County Council v. Aylesbury Dairy Co. [144]; and, above all, we should avoid extending the Act where the proposed construction would infringe the prerogative rights of the Crown, or fundamental principles. (See Maxwell's Interpretation of Statutes , 4th ed., Ch. 3; United States v. Fisher [145]; Hardcastle, Statute Law , 3rd ed., pp. 76, 77 ). The truth is that this limitation in sec. 74, of the appeals from the High Court to the King in Council, would have, in fact, for all practical purposes made the High Court the final arbiter as to the constitutional matters referred to in sec. 74, if at the same time suitors in the Supreme Courts had been compelled by the Constitution to bring their appeals to the High Court - if suitors, thinking themselves aggrieved in the Supreme Courts, had been, by the Constitution, deprived of their right to appeal direct to the King in Council. I have no right to refer to what took place in the federal Convention on this subject. It is now admitted as beyond question, unless sec. 39 (2) (a) of the Judiciary Act 1903 is valid, that a litigant in the Supreme Court retains the right of appeal to the King in Council direct; and, in my opinion, sec. 74 merely restrains litigants who have been heard by the High Court - litigants who have had the benefit of a decision of the High Court on certain constitutional points - from taking the case to the King in Council without the approval of the High Court.

I am aware, of course, of the inference sought to be drawn from the words of sec. 74 when closely scrutinised - that no appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the constitutional powers, &c. It is urged that the word "decision" does not refer to the judgment or order of the High Court, but to a point of law decided; and that the section prohibits the King in Council from questioning in any proceedings the correctness of a ruling of the High Court in any other proceeding. For instance, the argument is that in Webb v. Outtrim [146], the King in Council had no power to question, much less to overrule, the doctrines laid down by the High Court in Deakin v. Webb [147]. As I understand the argument in its best form, there is nothing to prevent the King in Council from giving special leave to appeal from the High Court from any judgment so far as it involves questions other than those mentioned in sec. 74; and there is nothing to prevent an appeal direct from the Supreme Court of a State to the King in Council, even when it involves questions of the kind mentioned in sec. 74. In the latter case, the King in Council may even decide questions within the ambit of sec. 74. But in all cases, it is said, as soon as the High Court has pronounced on a question within the ambit of sec. 74, that pronouncement is final, and the King in Council must accept it as law, unless the High Court certify for determination by the King in Council. This scheme for subordinating the King in Council to the High Court as regards these questions has the merit of being clear and consistent; but it is not to be found in the Constitution. The natural way of expressing the scheme would be something like this: - "No pronouncement of law made by the High Court shall be subject to be revised or overruled in the same case, or in any other case, by the King in Council, if it be made upon any question arising as to the limits inter se of the constitutional powers," &c. But do the words of sec. 74 allow of such a paraphrase? As for the force given by the argument to the words "decision ... upon any question, howsoever arising, as to the limits," &c., it may be that the argument is right. I should have thought, indeed, that the word "decision" merely sums up, in one word, what had been referred to in the previous section in the cumbrous phraseology of "judgment, decree, order or sentence"; although, perhaps, the word "decision" applies to the judgment in its aspect of expounding the law rather than in its function of directing a litigating party to do or not to do an act. Sec. 74, as it relates to the King in Council, ought to be read with the general Act prescribing the machinery for appeals to the King in Council, &c. - 3 & 4 Wm. IV. c. 41: and in this Act the word "decision" is clearly used as an equivalent for "determination, sentence, rule, or order" of the Colonial Court (cf. preamble, and secs. 3, 21, 24). But let the meaning of the word "decision" be conceded to the appellant, how much further does it carry him? He omits to recognize the essential force of the word "appeal." What is forbidden is only an appeal from the High Court, and there is no appeal except in the identical case which the High Court has decided. If a point of law be decided by the High Court in an action A. v. B. , and if the same point of law came up for discussion - say on an appeal from a Supreme Court - in C. v. D. , that is not an appeal from the High Court, or from a decision of the High Court. It is not an appeal from the High Court when a party who is beaten in the Supreme Court appeals from the Supreme Court to the King in Council, even though he question the law as laid down by the High Court in another case. An appeal is defined in Wharton's Law Lexicon as "the removal of a cause from an inferior to a superior Court, for the purpose of testing the soundness of the decision of the inferior Court." The old expression was that A. appeals B. (Fr. appeler), calls or summons him to the higher Court, with regard to a judgment or order made or refused. The "appeal" must be in a cause between the parties; not in a cause between other parties. This is the natural, obvious, primary and technical meaning of the word; and there is no ground for giving it any other meaning in sec. 74, especially when it is used in that natural, obvious, primary and technical meaning, repeatedly, in the preceding sec. 73. Unless the words of sec. 74 are to be distorted so as to fit some preconceived theory as to the High Court, the construction proposed to be given to the section is, to my mind, absolutely impossible; and if there is any case in which, more than any other, we are not justified in adopting a strained interpretation, it is in a case such as this, in which the strained interpretation would further limit the prerogative of the King, as the fountain of justice, as the final expounder of his laws.

This consideration leads me naturally to a brief review of the historical and constitutional position of the King in Council. According to the theory of British law, the King is the fountain of justice - the supreme magistrate - and the Courts are his delegates. "All jurisdiction exercised in these kingdoms that are in obedience to our King is derived from the Crown; and the laws, whether of a temporal, ecclesiastical, or military nature, are called his laws; and it is his prerogative to take care of the due execution of them. Hence, all Judges must derive their authority from the Crown, by some commission warranted by law." (Bacon's Abridgment, Prerogative, D. 1). The jurisdiction of the King in Council has its origin in the common law of England. The Great Council of the King gradually branched off into Parliament; and partly by Statute, partly by usage, final appeals of suitors in Great Britain and Ireland are (nearly all) brought to the King in the House of Lords. Even to this day the appellant petitions that the matter of the judgment appealed from may be reviewed before "the King in his Court of Parliament." But the final appeals from the Dominions beyond the seas have always been brought to the King in His Privy Council. The King in Council has always had authority to hear appeals from and finally review the decisions of all Colonial Courts whensoever erected, and on any and every subject: The Queen v. Joykissen Mookerjee [148]; Falkland Islands Co. v. The Queen [149]; In re Lord Bishop of Natal [150]; Reg. v. Bertrand [151]; In re Dillet [152]; Anson, Constitution , 2nd ed., p. 465 ; Safford and Wheeler Privy Council Practice , pp. 699, 720. By the Act 3 & 4 Wm. IV. c. 41, a permanent Judicial Committee was created out of the Privy Council to hear the colonial and other appeals; and in the recitals of the Act appears an authoritative statement of the position: - "And whereas from the decisions of various courts of judicature in the East Indies, and in the plantations, colonies, and other dominions of His Majesty abroad, an appeal lies to His Majesty in Council: And whereas matters of appeal or petition to His Majesty in Council have usually been heard before a committee of the whole of His Majesty's Privy Council, who have made a report to His Majesty in Council, whereupon the final judgment or determination hath been given by His Majesty." This recital applies unquestionably to decisions of all kinds, given by Courts of all kinds, whensoever created or to be created; and it applies to the High Court, except so far as the prerogative of the King is qualified, expressly or by irresistible inference, by secs. 73 and 74 of our Constitution . Under this Act of Wm. IV. all the appeals are referred to the Judicial Committee, and this Committee makes a report or recommendation to His Majesty in Council "for his decision thereon as heretofore." It will be noticed that, legally, the decision rests with the King in Council. He is not under any compulsion to adopt the report of the Judicial Committee. "The judgment is the King's only; but by way of advice the councillors deliver their opinion, which he increaseth or moderateth at his royal pleasure": Hudson's Collectanea Juridica, II. , siii. The order made is the order of the King in Council, although it recites the report of the Judicial Committee. He still remains "the fountain of justice," the ultimate exponent of the law, the highest and final Court of appeal. It is his duty to exercise an appellate jurisdiction with a view, not only to ensure, so far as may be, the due administration of justice in the individual case, but also to preserve the due course of procedure generally: Reg. v. Bertrand [153]. Are the words of sec. 74 of the Constitution sufficient to deprive the King in Council of this prerogative? Nay, more - are they sufficient to oblige the King in Council to accept as law whatever the High Court may decide as to matters within sec. 74; or do these words merely effect what they expressly say - prevent a suitor, who has had the advantage of the opinion of the High Court, from taking his case further to the King in Council, without the approval of the High Court? It has to be remembered that no prerogative right of the King can be taken away except by precise words; or, as it is sometimes put, an intention to diminish the prerogative cannot be inferred from an Act of the British Parliament, unless the terms are explicit to that effect, or are such as to make the inference irresistible: Théberge v. Laudry [154]; Cushing v. Dupuy [155].

This is a question as to the operation of a New South Wales Income Tax Act . How far do the provisions for the appeal to the King in Council from New South Wales Courts affect the matter? By the Act 9 Geo. IV. c. 83, sec. 15, His Majesty was empowered to make an order in Council, allowing "any person or persons feeling aggrieved by any judgment, decree, order, or sentence of the Supreme Court (of New South Wales), to appeal therefrom to His Majesty in Council in such manner, within such time, and under and subject to such rules, regulations, and limitations as His Majesty by any such ... orders in Council shall appoint and prescribe." Under this Act, an Order in Council was made November 13th 1850 prescribing that it shall be lawful for "any person or persons" to appeal to Her Majesty in Her Privy Council "from any final judgment, decree, order, or sentence of any such Court," provided that the matter in dispute is over £500 in value, and provided that security be given for the prosecution of the appeal, and for costs, to the satisfaction of the Supreme Court. It will be observed that the words of this Act, and of the subsequent Act 7 & 8 Vict. c. 69, and of the Orders in Council thereunder are universal - any person aggrieved in the Supreme Court may appeal from any judgment. There is no limit as to subject matters, although there is a limit as to amount or value. These Acts are made by the same authority as the Commonwealth Constitution Act - the King and Houses of Parliament of Great Britain and Ireland - and these Acts and the Constitution Act must be read so as to give full effect to both, so far as the Constitution Act does not repeal the prior Acts expressly or by necessary implication. There is certainly no express repeal, no express amendment, of these prior Acts by the Constitution Act . There is nothing in the Constitution Act to show any intention to limit or qualify the right of appeal from the Supreme Court in respect of any judgment, or any point or matter in that judgment, whether it come under federal jurisdiction, or within the limited class of subjects referred to in sec. 74, or within any class of subjects whatsoever. The King in Council is not shorn of his authority to entertain the appeal of his New South Wales subjects from the Supreme Court, or of his right, on that appeal, to form and express his own conclusions on all relevant issues of law and of fact. He is not bound to accept the view of the High Court as expressed in cases which have gone to the High Court. He still retains his pre-eminence as the final interpreter of the law. He cannot, it is true, reverse an actual decision of the High Court unless the cause in which that decision has been given came before him by way of appeal, and it cannot come before him on appeal from the High Court, unless with the High Court's approval. In such a case - as for example in Deakin v. Webb [156] - the decision of the High Court is final as between the parties to that cause. But though the King in Council cannot reverse a decision of the High Court in a case which has not come before him, there is nothing, that I can find, to limit his power to review, and, if need be, to overrule, any pronouncement of law made by the High Court, or by any other Court of his Dominions beyond the seas; and inasmuch as the King in Council has overruled the decision of this Court in Deakin v. Webb [157], I think it to be the duty of this Court to accept His Majesty's official opinion as finally stating the law. I am therefore of opinion that this appeal should be dismissed.

An application was made for a certificate of the High Court under sec. 74 of the Constitution .

Appeal allowed. Judgment below reversed. Judgment for the defendant with costs. Respondents to pay costs of appeal.

Solicitor, for respondents, the Crown Solicitor for New South Wales.

Solicitor, for intervener, Powers , Commonwealth Crown Solicitor .

[1] (1907) A.C., 81.

[2] [1904] HCA 57; 1 C.L.R., 585.

[3] [1904] HCA 1; 1 C.L.R., 91.

[4] [1819] USSC 5; 4 Wheat., 316.

[5] [1904] HCA 57; 1 C.L.R., 585.

[6] [1842] USSC 6; 16 Peters, 435.

[7] [1870] USSC 24; 11 Wall., 113.

[8] 4 C.L.R., 488.

[9] [1904] HCA 57; 1 C.L.R., 585.

[10] (1907) A.C., 81.

[11] 3 Rep., 7a, at p. 7b.

[12] (1898) A.C., 571, at p. 573.

[13] (1906) A.C., 419, at p. 426.

[14] [1816] USSC 34; 1 Wheat., 304, at p. 326.

[15] (1907) A.C., 81.

[16] [1904] HCA 1; 1 C.L.R., 91, at p. 113.

[17] [1904] HCA 57; 1 C.L.R., 585, at p. 606.

[18] [1905] HCA 22; 2 C.L.R., 593.

[19] [1898] UKHL 1; (1898) A.C., 375, at p. 379.

[20] (1907) A.C., 81.

[21] [1904] HCA 1; 1 C.L.R., 91.

[22] [1904] HCA 1; 1 C.L.R., 91.

[23] [1904] HCA 57; 1 C.L.R., 585.

[24] (1907) A.C., 81.

[25] (1907) A.C., 81.

[26] [1904] HCA 57; 1 C.L.R., 585.

[27] [1819] USSC 5; 4 Wheat., 316.

[28] (1906) A.C., 542.

[29] 4 C.L.R., 488.

[30] [1904] HCA 1; 1 C.L.R., 91.

[31] [1904] HCA 57; 1 C.L.R., 585.

[32] [1829] USSC 1; 2 Peters, 1, at p. 18.

[33] (1907) A.C., 81.

[34] [1904] HCA 1; 1 C.L.R., 91, at p. 113.

[35] [1904] HCA 57; 1 C.L.R., 585, at p. 606.

[36] [1904] HCA 57; 1 C.L.R., 585, at p. 605.

[37] (1907) A.C., 81, at p. 88.

[38] [1819] USSC 5; 4 Wheat., 316.

[39] [1904] HCA 57; 1 C.L.R., 585.

[40] [1904] HCA 1; 1 C.L.R., 91.

[41] [1904] HCA 57; 1 C.L.R., 585.

[42] [1819] USSC 5; 4 Wheat., 316.

[43] [1905] USSC 184; 199 U.S., 437.

[44] [1885] USSC 161; 114 U.S., 525, at pp. 531, 539.

[45] [1837] EngR 882; 1 Moo. P.C.C., 460.

[46] (1906) A.C., 542.

[47] 21 Q.B.D., 52, at p. 65.

[48] [1904] HCA 1; 1 C.L.R., 91.

[49] [1819] USSC 5; 4 Wheat., 316.

[50] [1904] HCA 1; 1 C.L.R., 91, at p. 111.

[51] (1907) A.C., 81.

[52] [1904] HCA 57; 1 C.L.R., 585.

[53] (1907) A.C., 81.

[54] [1819] USSC 5; 4 Wheat., 316.

[55] [1842] USSC 6; 16 Peters, 435.

[56] [1870] USSC 24; 11 Wall., 113.

[57] [1905] USSC 184; 199 U.S., 437, at pp. 455, 465.

[58] [1819] USSC 5; 4 Wheat., 316, at p. 431.

[59] [1819] USSC 5; 4 Wheat., 316.

[60] [1824] USSC 39; 9 Wheat., 738.

[61] [1829] USSC 27; 2 Peters, 449.

[62] [1862] USSC 27; 2 Black, 620.

[63] [1864] USSC 11; 2 Wall., 200.

[64] [1868] USSC 6; 7 Wall., 16.

[65] [1842] USSC 6; 16 Peters, 435.

[66] [1886] USSC 81; 117 U.S., 151.

[67] [1870] USSC 24; 11 Wall., 113, at p. 127.

[68] [1819] USSC 5; 4 Wheat., 316.

[69] 15 Mich., 505.

[70] 100 U.S., 257, at p. 264.

[71] [1821] USSC 18; 6 Wheat., 264, at p. 379, per Marshall C.J.

[72] [1885] USSC 199; 115 U.S., 248, at p. 257.

[73] 9 Wheat., 737, at p. 824.

[74] (1907) A.C., 81.

[75] 4 C.L.R., 488, at p. 546.

[76] [1904] HCA 57; 1 C.L.R., 585.

[77] [1876] USSC 38; 93 U.S., 130.

[78] (1907) A.C., 81.

[79] 8 App. Cas., 103.

[80] (1895) 2 Q.B., 577, at p. 581.

[81] (1895) 1 Ch., 51.

[82] (1907) A.C., 81.

[83] [1904] HCA 57; 1 C.L.R., 585.

[84] (1907) A.C., 81.

[85] (1907) A.C., 81.

[86] (1891) A.C., 210.

[87] (1892) 1 Q.B., 394.

[88] 17 Q.B.D., 521, at p. 528.

[89] 4 Macq. H.L. Cas., 352.

[90] 2 P.D., 276.

[91] (1892) A.C., 644, at pp. 654, 655.

[92] [1898] UKHL 1; (1898) A.C., 375, at p. 379.

[93] 2 Q.B.D., 376.

[94] [1904] HCA 57; 1 C.L.R., 585.

[95] [1842] USSC 6; 16 Peters., 435.

[96] (1907) A.C., 81.

[97] (1907) A.C., 81.

[98] [1904] HCA 57; 1 C.L.R., 585.

[99] 2 P.D., 276.

[100] (1891) A.C., 284.

[101] [1904] HCA 57; 1 C.L.R., 585.

[102] (1907) A.C., 81.

[103] [1904] HCA 1; 1 C.L.R., 91, at p. 111.

[104] [1819] USSC 5; 4 Wheat., 316.

[105] [1842] EngR 593; 4 Moo. P.C.C., 63.

[106] L.R. 1 P.C., 328.

[107] 11 App. Cas., 197.

[108] (1896) A.C., 600.

[109] [1842] EngR 593; 4 Moo. P.C.C., 63.

[110] [1842] EngR 593; 4 Moo. P.C.C., 63, at p. 88.

[111] 11 App. Cas., 197, at p. 201.

[112] [1842] USSC 6; 16 Peters, 435.

[113] [1819] USSC 5; 4 Wheat., 316.

[114] 11 App. Cas., 197, at p. 204.

[115] [1904] HCA 1; 1 C.L.R., 91.

[116] (1897) A.C., 231.

[117] [1890] USSC 127; 134 U.S., 594, at p. 598.

[118] (1907) A.C., 81.

[119] [1904] HCA 57; 1 C.L R., 585.

[120] (1907) App. Cas., 81.

[121] [1904] HCA 57; 1 C.L R., 585.

[122] (1907) A.C., 81.

[123] (1907) A.C., 81.

[124] [1904] HCA 57; 1 C.L.R., 585.

[125] [1904] HCA 57; 1 C.L.R., 585.

[126] (1907) A.C., 81.

[127] [1904] HCA 57; 1 C.L.R., 585.

[128] [1819] USSC 5; 4 Wheat., 316.

[129] [1904] HCA 57; 1 C.L.R., 585.

[130] [1864] EngR 339; 11 H.L.C., 32, at pp. 54, 55.

[131] [1819] USSC 5; 4 Wheat., 316.

[132] [1904] HCA 57; 1 C.L.R., 585.

[133] [1819] USSC 5; 4 Wheat., 316, at p. 430.

[134] [1819] USSC 5; 4 Wheat., 316.

[135] (1907) A.C., 81.

[136] [1904] HCA 57; 1 C.L.R., 585.

[137] [1904] HCA 57; 1 C.L.R., 585.

[138] 9 P.D., 182, at p. 207.

[139] 2 Q.B.D., 376.

[140] (1901) 2 K.B., 669.

[141] L.R., [1867] EngR 20; 1 P.C., 520, at p. 532.

[142] (1897) A.C., 22, at p. 38.

[143] 3 Ch. D., 463.

[144] (1898) 1 Q.B., 106.

[145] 2 Cranch, 202.

[146] (1907) A.C., 81.

[147] [1904] HCA 57; 1 C.L.R., 585.

[148] [1862] EngR 927; 1 Moo. P.C.C. (N.S.), 272, at p. 295.

[149] [1863] EngR 705; 1 Moo. P.C.C. (N.S.), 299, at p. 313.

[150] [1864] EngR 864; 3 Moo. P.C.C. (N.S.), 115.

[151] L.R. [1867] EngR 20; 1 P.C., 520.

[152] 12 App. Cas., 459.

[153] L.R. [1867] EngR 20; 1 P.C., 520, at p. 530.

[154] 2 App. Cas., 102, at pp. 106, 108.

[155] 5 App. Cas., 409, at p. 417.

[156] [1904] HCA 57; 1 C.L.R., 585.

[157] [1904] HCA 57; 1 C.L.R., 585.