HepSout - Cong ao SCEAR se, CER ASWLRse : i v 0 - [1909] HCA 36 - HCA 1909 case summary — Zoe

CTHHCA

HepSout - Cong ao SCEAR se, CER ASWLRse : i v 0

[1909] HCA 36

High Court of Australia|1909-07-01|Before: Higgins JJ, Isaacs J, Barton J, By O'Connor J, By Isaacs J, By Higgins J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1909-07-01

Before

Higgins JJ, Isaacs J, Barton J, By O'Connor J, By Isaacs J

Source

Original judgment source is linked above.

Judgment (470 paragraphs)

[1]

Cong Cons Refdto 13.0 56 . Feige Bot Hetigs EE See Ge en, SS Whe EES sett peed SRR fae ' 330 HIGH COURT [1908. H. C. oF A. Appeal allowed. Penalty reduced to one pats shilling. Appellant to pay costs of Tue Kine appeal. v. An Lin. Solicitor, for appellant, Crown Solicitor for Queensland.

[2]

Solicitors, for respondent, Morris & Fletcher. Dist = '3 Asche Eom Gersun rsa Fat Rag = al ile H. V. J.

[3]

Wales tefl eee Foll Gage a mracion, Beane? AP TLR Gale wae = AICY Bln fa Seu corer Giese i, i Hae Bet recon Pay ae Appl q R 4 Ff is 2 Comps $iyy i sie 'MB sce A. Dimers AB Wai Sais, AURIS? wea ie So ticn | etic: (Dee 4 a Prosecutions, i a> Gee (ase Mone, tea HepSout - Cong ao SCEAR se, CER ASWLRse : i v 0 Common. mes eh ee 8) wealth 90 'terete (Vie) Gheatley DA aa6 eg ami, ROR Ro oration apple i APP VR [HIGH COURT OF AUSTRALIA.} aire 168CLR1 the Rate PSS Appl ITT ' 5 Peer, Re bh Aon AEE PARKER AND CO. PRO. } APPELLANTS ; fee = femie «= PRIETARY LIMITED. Not Folt QRHLB sso DEFENDANTS, vy Mur AND 'Appl lamris, In the ES Mamage of.6 MOOREHEAD . 7 Ss ' 2 . RESPONDEN'. INFORMANT, Fed, Sth Aust & Westem Aust v - _ - - Common: KER by A APPLETON " 3 a : - . APPELLANT; H.C. or A, DEFENDANT, 1908-9. Ls AND Mexpourng, bans 19, MOOREHEAD . . oui ga eittindetes ae Sine a INFORMANT, October 15,16, 19, 20. a ON APPEAL FROM A COURT OF PETTY SESSIONS OF 1909. s ECR VICTORIA. 10, 11,' 12, Ps LS3 Commonwealth legislation, validity of - Iuterference with internal trade and com- merce of States - Power to make laws with respect to " foreign corporations, and Grime 0.3. trading or financial corporations formed within the limits of the Commonwealth" O'Connor, - Limits of power - Creation of corporations - Control of corporations, their

[65]

they give a power to interfere with the internal trade and H.C. ba A. commerce of the States, the implied prohibition is of no avail. paises Sees. 5 and 8 are really legislation dealing with corporations. It Honparr, is similar to a provision that federal public servants should not Parkes & Co. join seeret societies. The mere fact that the Act was called one up dealing with secret societies would not affect its character or Moom:trap. validity as an Act dealing with federal public servants. Amunancte The provisions of sec. 158 do not interfere with the right to ©

. : 4 se MooreHEap. trial by jury provided for in sec. 80 of the Constitution. That a man shall not be compelled to incriminate himself is not an incident of trial by jury,and the Commonwealth Parliament may compel him to do so if it chooses just as has been done in the States and elsewhere: Hvidence Act 1890 (Vict.) see, 56; BR. v. MCooey (1); Callan v. Wilson (2); Cooley's Constitutional Limitations, 6th ed., pp. 379, 389 ; Miller's United States Consti- tution, pp. 313, 485 ; Phipson on Evidence, 4th ed., p. 197. [Isaacs J. referred to United States v. Patterson (3).] The inquiry authorized by sec. 158 is not judicial. It is the duty of the Comptroller to find out whether an offence has been committed and by whom, and he is given the power in sec. 15B with the object of getting information from any person to enable him to give that information to the Minister. No judicial pro- ceeding is begun until the Attorney-General directs a prosecution. Kilbourn y. Thompson (4) does not support the contention that this is a judicial proceeding. It only decided that, in investigat- ing a matter as to which it had no power of investigation, Congress had no power to commit for contempt. Where the subject matter was in the jurisdiction of the Senate it was held in In re Chapman (5) that there was power to commit for contempt. It is essential to a judicial proceeding that rights of some sort shall be determined or that the Court must be in a position to determine something. [Isaacs J. referred to R. v. Local Government Board (6); Miller's Lectwres on the United States Constitution, pp. 313-315.] The determination of the Attorney-General to prosecute is not judicial, and this inquiry is merely to enable him to come to a

[72]

to something which differentiates corporations from individuals, it is within sec. 51 (xx.). Corporations always have been the subject of special legislation. See Customs and Inland Revenue Act 1885 (48 & 49 Viet. ¢. 51), sec. 11. The prohibition in sees. 5 and 8 of the Australian Industries Preservation Act 1906 bear a real relation to the peculiar qualities of corporations as dis- tinguished from individuals, and the Court should not say that the law is not one relating to corporations unless it is clearly shown that no such relation exists. Under sec. 51 (xx.) the Parliament can forbid the corporations from engaging in intra- State trade at all, and so it can permit them to engage in that trade on certain conditions only. The Parliament can prohibit those companies from doing what the laws of the States permit, although it is not contended that it can authorize the doing of acts which a State law forbids. The express power given by sec. 51 (xx.) must not be cut down by the powers reserved to the States: The King v. Burger (1); Citizens Insurance Co. of Canada v. Parsons (2). Under see. 158 the forming by the Comptroller of a belief is the only condition precedent to the inquiry. He need not have any complaint. The forming of a belief is not an exercise of the judicial power: R. v. Arndel (3); nor is the mak- ing an inquiry: Clough v. Leahy (4). If see. 158 is to be regarded as legislation as to evidence, it is authorized by sec. 51 (xxxix.) as being incidental to a power vested in the federal judicature: Fong Yue Ving v. United States (5). If sec. 15B enables a person on his trial to be questioned, it does no more than is done lawfully under the Customs Act 1901. The section does not infringe the provisions in the Constitution as to trial by jury. Under English law admissions made at a Coroner's inquiry may be used at the trial of the person who makes them: Avchbold's Criminal Practice, 22nd ed., p. 300, and also those made by a bankrupt: R. v. Scott (6). The Commonwealth may as to criminal procedure depart from that which ordinarily prevails: Riel v. The Queen (7). He also referred to Moses v. Parker (8);

[179]

within the limits of the Commonwealth," The respondent urges that this power is so general in its terms that it is ample to authorize the regulation of these classes of corporations to the extent attempted - that is, even as to their dealings in internal State trade ; so that the federal Parliament may prohibit and penalize any kind of such trade dealings even when the State within whose competence they are sanctions them, either expressly or by silently leaving them to the operation of the common law. It is argued that the sub-section gives all this power because where there is authority to incorporate there is power to impose condi- tions on the grant of incorporation ; and that the words are so general, and by themselves so unrestricted, that the power to incorporate must be included. I leave aside the question as to the imposition of conditions, because that is only material to the argument quoted if the words themselves give power to create the classes of corporations enumerated. As to foreign corpora- tions, the creative power exists elsewhere, ex vi termini. That being so, there is no good reason given why the Constitution should be taken to have intended to give that power in respect of the other class - trading or financial corporations formed within the limits of the Commonwealth - within which class the appellant company falls, because it is incorporated under the company laws of the State of Victoria. 1 think the sub-section is carefully framed to place this class of corporations on the same footing as foreign corporations with regard to the stage at which they become subject to federal legislation. Before a foreign corpor- ation can become so subject, it must have been formed in the country of its origin; before a trading corporation ean become so subject, it must have been "formed within the limits of the Com- monwealth"; but not under the authority of the Commonwealtlr any more than its foreign congener. On this construction " formed within the limits of the Commonwealth" means formed under the law of a State, and this I take to be the true meaning, I add two further considerations. First, finding associated as the sub- jects of the power, a class as to which creative powers could not possibly be conferred, and a separate class as to which such a power might if intended be granted, one would expect such an intention, if it existed, to be expressed in something like definite

[190]

Sections such as 5 (1) (a) and 8 (1) might have been sustained in the United States had they been, to use other words of Chase C.J. in the sentence just quoted (1), "a necessary and proper means for carrying into execution some other power expressly granted or vested" - that is, some power other than the trade and commerce power - or, as he put it elsewhere in the same judgment (1), "an appropriate and plainly adapted means" to that end. The Australian Constitution in see. 51 (xxxix.) gives expressly a corresponding power as to " matters incidental to the execution of any power vested by this Constitution in the Par- liament," &e. The term "incidental" is at least as wide as the term "necessary and proper." Sub-sec. (xxxix.) is no doubt made an express power for more abundant caution, although it would certainly have been implied in the absence of express bestowal. But before this legislation can be justified under that power, we must be satisfied that the State field of commerce has only been entered incidentally to the execution of the power granted by sub-see. (xx.). That is to say, the primary object of the legislation must be, not the interference with the forbidden subject of State trade, but the control of the corpora- tions the subject of the grant. If that were not so, the substan- tive power and the incident would be made to exchange places, an operation which no one will attempt to support as a valid exercise of power. Now the object (I say nothing of the motive) of the Acts of which these sections form part is proclaimed by their whole purview to be truly stated in their title. It is "the preservation of Australian industries and the repression of destructive monopolies." The provisions as a whole are directed to the attainment of that object by means of prohibition, punish- ment and machinery. By sec. 2 the legislation is divided into three parts - L., Preliminary ; IL, Repression of monopolies ; IIL, Prevention of dumping. It is, therefore, by the repression of monopolies that Part II. essays to carry out the object of the Acts. The provisions, even apart from the heading and the title, leave no room for argument on that point. By sees. 4(1) (a) and

[212]

power of creating such corporations is not in the Commonwealth, but in the foreign country or Australian State from which they may respectively derive their existence as legal bodies. But, taking them as being in existence, it is contended that the Par- liament can at least regulate the conditions under which they shall be allowed to carry on business within the limits of the Commonwealth. It is claimed that the power to regulate those conditions includes that of controlling the corporations in the conduct of their business within the Commonwealth, and that it is within the limits of such a power to impose conditions com- pelling them to refrain from entering into the class of contracts forbidden by sees. 5 and 8 of the Australian Industries Preserva- tion Act 1906. It may well be that the authority conferred by the sub-section is in reality a power to prescribe the conditions under which these corporations shall be allowed to enter upon business within the Commonwealth. But, as I shall point out later, the Constitution, taken as a whole, necessarily limits that power. The respondent, however, claims that under it any con- ditions whatever may be prescribed, that it enables Parliament to enact with respect to any of these corporations, even those engaged solely in trade and commerce confined within the limits of one State, laws for the regulation of every detail in the trans- action of their business. Whether such a claim can be supported depends entirely upon the true meaning of sub-sec. (xx.) as read with every other part of the Constitution. Before entering upon an examination of the sub-section, it will be well to bear in mind the principle now firmly established in this Court that the Con- stitution, like any other instrument, must be construed asa whole. Where it confers a power in terms equally capable of a wide and of a restricted meaning, that meaning will be adopted which will best give etfect to the system of distribution of powers between State and Commonwealth which the Constitution has adopted, and which is most in harmony with the general scheme of its structure. The case of the Attorney-General for New South

[213]

Wales vy. The Brewery Employés Union of New South Wales (1), generally known as the Union Label Case, which is one of the latest instances of the application of the rule, may be quoted as illustrating also an underlying principle of the Constitution of vital importance in the interpretation of the sub-section now under consideration. In that case the matter at issue was whether the word "trade mark" was to be interpreted in the wide sense as meaning any mark used in trade, or in the narrower sense which it has acquired as a legal expression by common consent of legis- latures, Courts, and International Trade Conventions for many years. In the judgment of my learned brother the Chief Justice, after referring to the terms in which the power to deal with "Commerce with other countries, and among the States " has been conferred by see. 51 (1) of the Constitution, this passage occurs (2): - * It follows that the power does not extend to trade and commerce within a State,and consequently that the power to legislate as to internal trade and commerce is reserved to the State by the operation of sec. 107, to the exclusion of the Com- monwealth, and this as fully and effectively as if sec. 51 (1) had contained negative words prohibiting the exercise of such powers by the Commonwealth Parliament, except only, in the words of Chase ©.3. execution some other power expressly granted.'" We must, therefore, recognize at the outset that the Constitution, while empowering the Parliament of the Commonwealth to legislate with respect to foreign corporations and financial and trading corporations formed by the Jaws of any State, also vests in each State exclusive control over its own purely internal trade and commerce. The grant of power to the Parliament must thus be so construed as to be consistent as far as possible with the exclusive control over its internal trade and commerce vested in the State. Bearing in mind these principles, I now turn to the sub-section, but before considering its language it may be well to advert for a moment to the subject matter with which it purports to deal. In this connection it will be useful to bear in mind one aspect of the law as to corporations to which Westlake has directed attention in his book on Private International Law,

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consideration. It is true that the power as conferred extends beyond that necessity, and includes that of making laws with respect to the conditions under which a business or financial cor- poration may trade in the State which created it. That additional authority, however, was necessary to secure for the people of the whole Commonwealth the advantage of uniformity in the con- ditions under which all such corporations should be recognized and allowed to trade throughout Australia. In the light of the circumstances it may fairly be taken that the framers of the Con- stitution intended by the sub-section under consideration to confer on the Parliament of the Commonwealth just that power which was wanting in the legislative bodies then existing in Australia - the power of making a uniform law for regulating the conditions under which foreign corporations, and trading or financial corpora- tions created under the laws of any State, would be recognized as legal entities throughout Australia. As part of that power there would be necessarily implied the authority to impose on those corporations all such conditions on admission to recognition as would be appropriate or plainly adapted to the object of the sub- section and not forbidden by the Constitution. (See the judg- ments of this Court in the Jwmbunna Case (1) ). Recognition of a corporation as a legal entity involves a recognition of its right to exercise throughout Australia its corporate functions in accord- ance with the law of its being, that is, the law by which the foreign or State law gave it existence as a legal body. Recogni- tion may be absolute or on conditions. It is unnecessary here, -even if it were possible, to make a comprehensive statement of the matters which might be the subject of such conditions, but it may be stated generally that Parliament is empowered to enact any law it deems necessary for regulating the recognition throughout Australia of the corporations described in the section, and may, as part of such law, impose any conditions it thinks fit, so long as those laws and the conditions embodied in them have relation only to the circumstances under which the corporation will be granted recognition as a legal entity in Australia. It may, for instance, prohibit altogether the recognition of corpora- tions whose constitutions do not provide certain safeguards and

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securities for payment of their creditors. It may impose conditions on recognition to attain the same ends. Asa preliminary to recog- nition it may insist upon compliance with any conditions it deems expedient for safeguarding those dealing with the corporation. In the effecting of objects within these limits it must have the right to encroach on State powers to such an extent as it may deem necessary. But when once recognition has been granted - when once the corporation has, in Australia, the status of a legal entity - the limit of the power conferred by the sub-section is reached, 'The corporation then becomes a legal entity within the Commonwealth, subject to the laws of the Commonwealth and of the States in the same way as any other legal entity. In respect of trade carried on entirely within the limits of any one State it is within the cognizance of State laws and State administration in the same way and to the same extent as any other legal entity within the State would be in the like circumstances. By such interpretation only can full effect be given to the power conferred by the sub-section on the Parliament without derogating from the power to control its own internal trade and commerce which the Constitution leaves exclusively in the hands of the State. For these reasons I am of opinion that the power conferred by sub-see. (xx.) must be construed as being limited to the making of laws with respect to the recognition of corporations as legal entities within the Commonwealth, and that its provisions do not justify the making of laws for regulating and controlling the business of a corporation coming within the section when once the corporation has been recognized as a legal entity within the Commonwealth, and is exercising its corporate functions in carry- ing on its business within Australia. It follows that the appellant corporation, having been recognized as a legal entity and as such having entered into the internal trade of a State, cannot be con- trolled in the carrying on of its business as attempted in sees. 5 and 8 of the Statutes now under consideration. I am, therefore, of opinion that in so far as the internal trade of the State is concerned there was no power in the Commonwealth legislature to create the offences mentioned, and therefore no valid founda- tion for the proceedings taken under sec. 158.

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H.C. or A. enacting all provisions necessary to secure their efficient adminis- oes tration and observance. Sec. 61 expressly vests in the Govern- ment of the Commonwealth all executive powers necessary for the execution and maintenance of Commonwealth laws. Apart i from other objections, and leaving sec. 101 for the moment out of Moontnnan. consideration, it could not be denied that these provisions would Arpieros @™power the Parliament to confer on any officer of the Executive ee Government all powers necessary for maintaining and enforcing all such laws. Can it be successfully contended that sec. 101 erronnert- ents down the general powers thus vested in the legislature ? It is true that with regard to the appointment of an Inter-State Commission the words of the section are mandatory. But there is no obligation imposed on the Parliament to vest in the Inter- State Commission, even if it were constituted, any more power than they may deem necessary for the execution and maintenance ; of the provisions of the Constitution relating to trade and com- merce. Bearing in mind that it was universally known when the Constitution was framed that it was to be applied as an operative instrument to the trade and commerce of Australia immediately on the inauguration of the Commonwealth, and that many months would necessarily elapse before laws could be enacted or even a Parliament got together, it is difficult to see how full effect could be given to the Constitution as a whole by construing sec. 101, not as an enabling section enlarging the powers conferred by secs. 51 and 61, but as a restrictive section, as indicating an intention in the framers of the Constitution that the powers essential for the execution and maintenance of laws relating to trade and commerce should remain in abeyance until the necessary Statutes had been passed for the constitution of an Inter-State Commission. Having regard to these considera- tions I am of opinion that sec. 101 is entirely enabling, and that it no way cuts down the power of the Parliament under secs. 51 and 61 to enact such a provision as that now under consideration for the administration and enforcement of laws relating to Inter-

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facts in such cases by some such method is essential to the ripen- ing of matters for executive action. In Australia the Common- wealth Statutes relating to defence, the publie service, and the acquisition of land for public purposes are instances in which such quasi judicial powers have been conferred on executive officers in aid of administration. An illustration of another kind is the ordinary magisterial inquiry which may result in the com- mittal for trial or in the release of persons charged with offences, and in which, as was decided in Cox y. Coleridge (1), the magis- trate exercises not judicial but ministerial functions. In America the wide powers of the Inter-State Commission, which rest entirely upon the mght of Congress to make laws for the regula- tion of Inter-State trade, are a striking illustration of the same kind, Another is to be found in the Statutes referred to in the case of United States v. Ferreira (2). Those Statutes directed the Judge of the Territorial Court of Florida to receive and adjudicate upon certain claims by Spanish officers arising under a treaty between the United States and Spain, and to report his decision thereon to the Secretary of the Treasury, together with the evidence, upon which the latter, on being satisfied that a claim was just and equitable, was authorized to pay the amount. It was held by Chief Justice Taney, delivering the judgment of the Court, to be too clear for argument that the learned Judge of the Territorial Court did not act judicially, but only as a Commissioner, to ascertain and adjust on behalf of the Executive Government and for their information the amount, if any, to be paid to claimants under the treaty. Turning now to sec. 71 of the Constitution it is plain that, whatever may be covered by the expression " judicial power" as used in that section, it cannot include the making of inquiries such as I have described in aid of the execution and maintenance by the Government of the laws of the Commonwealth. The making of such inquiries by the Executive Government or by authorities appointed and constituted by them are, as I have pointed out, well known functions of an Executive Government, and neces- sary for the efficient discharge of their duty. The right to make laws vesting such powers of inquiry in executive officers ()1B.&C., 37 (2) 13 How., 40,

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where necessary must therefore be taken as included in every power of legislation conferred by the Constitution. The Com- monwealth legislature have in the exercise of their power with respect to trade and commerce deemed it expedient to vest these functions of inquiry in the Comptroller-General of Customs. In doing so they have, in my opinion, acted within the authority conferred by the Constitution, and they have done no more than equip that portion of the Executive which administers the A us- tralian Industries Preservation Acts 1906-1907 with powers of effective inquiry which are particularly needed in the administva- tion of an Act of that kind. So far I have dealt with the matter on the basis of the power conferred by see. 158 as being included in the necessary equipment of every properly constituted Execu- tive, and as being therefore necessarily included in the powers conferred on the Parliament and Executive of the Commonwealth, It was, however, contended by Mr. Mitchell, on behalf of the appellants, that even admitting that the Comptroller-General or his officers were not themselves acting judicially, yet in the use that could be made of the section the power was one not in aid of executive admistration, but of judicial proceedings. He argued that as answers extracted from a person interrogated might, if he were subsequently tried, be used in evidence against him, the pro- ceeding was analogous to the taking of evidence de bene esse by a Commissioner acting under the order of the Court, that although the Commissioner in such a proceeding is not himself acting judici- ally, yet the taking of the evidence is clearly a part of the judicial proceedings in the cause, and that similarly the power exercised by the Comptroller-General being in aid of prosecutions or civil proceedings under the Act was an exercise of federal power within the meaning of sec. 71 of the Constitution. The obvious answer is that there is an essential difference between the two proceedings. When a Judge orders the examination of a witness by commission the evidence is taken on behalf of the Court by its representative, under its order, in a cause pending, and is clearly part of the procedure in that cause. When the Comptroller makes his requirement under 158 there can be no proceeding pending in a Court. He is not empowered to use the section with reference to an offence when once it has been

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brought within the cognizance of the Court. The power to pre- vent any such interference by the Executive with a case pending before the ordinary tribunals is undoubtedly vested in this Court by the Constitution. I take it therefore as clear that, at the stage when the Comptroller-General is authorized to apply the provisions of the section, the suspected or alleged offence is no more within the cognizance of a Court than if it were under preliminary consideration by the Police Department. At that stage it is merely a subject of departmental inquiry in respect of which no member of the public has any right to interfere. The Comptroller-General may act on his own initiative or he may act on a complaint in writing. He can act only when he has arrived at a belief that an offence has been committed. But he is not bound to apply his mind to arriving at a belief, nor is he bound to act when he has arrived at a belief. He may disregard all information he may have on the subject, and refuse to take any action. The answers when obtained may be put in evidence on the trial of any issue in which they would, according to the ordinary rules of evidence, be admissible. The difference made by the Act is this: On the trial of the person interrogated for an offence under the Act, if his answers are otherwise admissible against him, he will not be permitted to take the objection that they tend to criminate him. On the other hand, there is nothing to compel the Comptroller to put the answers in evidence, nor has the person interrogated any greater right to call for their pro- duction in evidence than he would have in regard to any other documents in the hands of the Government. Such being the scope, purposes, and incidents of the interrogation, I have come to the conclusion that there is no ground for the contention that the section confers any judicial power on the Comptroller, or that it empowers him to act in aid of judicial proceedings. I have been unable to find in the proceedings any of the characteristics of the exercise of judicial power no matter how widely that expression may be construed. Nor can I see in the section any- thing more than a provision for conferring on the Comptroller- General the power of rendering inquiries in the administration of the Acts in question as effective as those which are authorized by similar provisions in the Customs Act 1901, and in the other i : | '

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Prentis v. Atlantic Coast Line (1) where Holmes J. says: - "The nature of the final act determines the nature of the previous inquiry." Still in the domain of purely British jurisprudence there is to be found sufficient to elucidate the problem. The term "judicial power" is essentially a British phrase. It was not invented by those who in 1787 framed the American Con- stitution. Many of those distinguished men were trained in the science of the law, and 'were familiar with the Commen- taries of Sir William Blackstone published in 1768. In those Commentaries the student of American law can find the basis of much that has been decided by the Courts. And among other things we may there find the threefold division of "legislative power," which the learned author says is "vested by our Con- stitution" in Parliament (vol. I. p. 147), the " executive power," which he says (p. 190) is "vested" in the King or Queen, and the "judicial power"; and as to this the learned author says (p. 267) " by the long and uniform usage of many ages, our Kings have delegated their whole judicial power to the judges of their several Courts," and he adds that this jurisdiction "the Crown itself cannot now alter but by Act of Parliament." In other words, he points out that the judicial power is by constitutional usage and law vested in the judicature. At p. 269 occurs this important passage : - " In this distinct and separate existence of the judicial power in a peculiar body of men, nominated, indeed, but not removeable at pleasure, by the Crown, consists one main preservative of the public liberty ; which cannot subsist long in any State, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power." This is enlarged upon by the learned commentator, but it is sufficient to observe in passing that the phrase "judicial power" is repeatedly used by him, but always to indicate what he calls "the administration of common justice." This is shown by one sentence (p. 269): - " Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any

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What, then, on ordinary principles of construction, is the extent of the power to make laws in respect of "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth ?" I speak of the direct power, not of what is ancillary to the power, as, for instance, the incidental power of providing a penalty for disobedience. This case makes the ques- tion one not of ancillary powers, but of actual direct power. In the first place, it is a separate and independent power complete in itself, and additional to the commerce power. The commerce power is exerciseable wherever that subject exists, whether individuals or corporations are engaged in it. The power over corporations is exerciseable wherever these specifie objects are found, irrespective of whether they are engaged in foreign or Inter-State commerce, or commerce confined to a single State. Next, it is clear that the power is to operate only on corporations of a certain kind, namely, foreign, trading, and financial corpora- tions. For instance, a purely manufacturing company is not a trading corporation; and it is always a preliminary question whether a given company is a trading or financial corporation or a foreign corporation. This leaves entirely outside the range of federal power, as being in themselves objects of the power, all those domestic corporations, for instance, which are constituted for municipal, mining, manufacturing, religious, scholastic, charit- able, scientific, and literary purposes, and possibly others more nearly approximating a character of trading; a strong cireum- stance to show how and to what extent the autonomy of the States was intended to be safeguarded. The federal power was sufficiently limited by specific enumeration, and there is no need to place further limits on the words of the legislature. Another thing is clear, that corporations to come within the legislative reach of the Commonwealth must be corporations already existing. It is not a power to create corporations. When such a power was intended to be given it was expressly mentioned as in paragraph (xiii.), and federal incorporation necessarily includes a granting of all capacities and the enactment of all ancillary provisions for

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tution has handed over to the Federal Parliament is simply the body of company law. That would include all the prohibitory and creative provisions contained in the State Statutes; it would also include the power to alter the conditions of a company's existence, which is equivalent to creation, and to annihilate the corporation altogether - which I think is, equally with creation, outside the region of federal competency. (See Westlake on Private International Law, 4th ed., p. 359). All this, I think, the language of the Constitution has left to the States. I take the power to legislate "for the peace, order, and good government of the Commonwealth with respect to foreign corporations, and trading and financial corporations formed within the limits of the Commonwealth" to be a power to act upon certain beings,-which are found and remain in actual existence, possessing a fixed identity, a defined ambit of potentiality, having certain capacities and faculties unalterable by the Commonwealth, beings ready to act within their sphere of capabilities in relation to the people of the Commonwealth. Necessarily you cannot legislate for such corporations except with respect to some extraneous circum- stances or events, whether trade, or finance, or contracts, &e., and there is nothing in the Constitution which says anything about the object, primary or secondary. I adhere to my view regarding purpose, motive, and objects expressed in Burger's Case (1). The power does not look behind the charter, or concern itself with purely internal management, or mere personal preparation to act; it views the beings upon which it is to operate in their relations to out- siders, or, in other words, in the actual exercise of their corporate powers, and entrusts to the Commonwealth Parliament the regu- lation of the conduct of the corporations in their transactions with or as affecting the public. Many of the matters that in one aspect are internal - such as balance sheets, registers of members, payment of calls, & - may in another aspect and in certain cir- cumstances be important elements in connection with outward transactions, and have a direct relation to them, and so fall incidentally within the ambit of federal power. The same may be said of legal proceedings, remedies, and so on, including wind- ing up proceedings so far as necessary to satisfy creditors, but (1) 6C.L.R., 41.

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of the most notable characteristics of modern life. They are incorporated in one State, and can take the capacity to trade in all, and the freedom of Inter-State trade introduced by the Constitution increased the likelihood of their doing so. Not only have they many advantages expressly and directly flowing from the language of the law, but by their inherent nature, and proceeding from their very magnitude, their wealth, the influence that mere numbers inevitably bring, they possess a power which few individuals can hope for. This power may be exerted for the publie good, but it may not, and, where it is not, the danger is proportionate to the power. The mere fact of combination is therefore a feature of so much commercial importance as to create in itself strong ground for the dis- tinction in sub-sec. (xx.) of sec. 51 of the Constitution. Said Lord Maecnaghten in Quinn v. Leatham (1): - * That a con- spiracy to injure - an oppressive combination - differs widely from an invasion of civil rights by a single individual cannot be doubted. I agree in substance with the remarks of Bowen LJ. and Lords Bramwell and Hannen in the Mogul Case (2). A man may resist without much difficulty the wrongful act of an individual. He would probably have at least the moral support of his friends and neighbours ; but it is a very different thing (as Lord Fitzgerald observes) when one man has to defend himself against many combined to do him wrong." So, too, Harlan J. in Northern Securities Co. v. United States (3): - * If Congress legislates for the protection of the public, may it not proceed on the ground that wrongs when eftected by a powerful combination are more dangerous and require more stringent supervision than when they are to be effected by a single person?" And at p. 340, quoting from another ease : - "Men can often do by the combina- tion of many what severally no one could accomplish, and even what when done by one would be innocent. . . . There is « potency in numbers when combined, which the law cannot over- look, where injury is the consequence." Add to the power of numbers, the facilities of extension, the comparative personal