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§ 448. “Any Matter Within the Powers of the Parliament.”

The preceding section declares how the Federal Constitution will affect the powers of the Parliament of a State; it provides that those powers not exclusively vested in the Federal Parliament, or withdrawn from the States, continue as at the establishment of the Commonwealth. This section declares how the Federal Constitution will affect the laws in force in a colony which has become a State. The powers of a Parliament are those conferred on it by its Constitution. The laws of a Parliament are its acts passed in the exercise of its powers. The possession of power is different from the exercise of power; powers may not conflict, but their exercise may; in the event of a conflict the laws of the Union are supreme. (Lewis, Fed. Power Over Commerce, p. 39.)




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Every law in force in a colony, relating to any matter within the power of the Federal Parliament, continues in force, subject to the Federal Constitution. In considering what laws remain in force and how long, regard must be had to the distinctions between different classes of powers.

As regards laws of the States relating to matters in which the Federal Parliament is given concurrent powers, no difficulty arises. Such laws clearly remain in force except so far as they may be inconsistent with laws passed by the Federal Parliament in the exercise of its concurrent power. When a conflict arises, the federal law prevails; but unless there is a conflict, the State law holds good.

As regards laws passed by a colony, or a State, in respect of any matter which has subsequently come within the exclusive jurisdiction of the Federal Parliament, we have already distinguished between (1) matters as to which the Federal Parliament is given “exclusive power to make laws,” and (2) matters as to which the Federal Parliament is given “power to make laws”—not expressed to be exclusive—and as to which the States are expressly or by necessary implication prohibited from acting. In the first case, what is prohibited to the States is merely the making of laws, and laws already made are not affected, unless inconsistent with federal laws; in the second case, the States are prohibited from either legislative or executive action, and existing laws purporting to authorize them to deal with these matters cease to have effect. (See Note, “Exclusive Power,” § 234, supra.)

Thus the power to raise or maintain a naval or military force; the power to coin money; the power to make anything but gold and silver coin a legal tender in payment of debts, are all denied to the States and granted to the Federal Parliament; therefore, they become exclusively Federal powers from the establishment of the Commonwealth, and all State laws relating thereto are dislodged and displaced once and for all.

There may thus be a distinction between two different degrees of exclusiveness, as regards the operation of the exclusive power upon State laws passed before the character of exclusiveness attached. But the exclusive powers of the Federal Parliament all have one common quality; that with respect to any matter within such exclusive power the State Parliaments, after the exclusiveness of the power attaches, are absolutely deprived of power. The laws which they have previously made may hold good; but they cannot extend, modify, alter, or repeal those laws in any way whatever, because their legislative power is gone.

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