Special Powers Under Imperial Acts.

Certain of these limitations, however, have been removed by Imperial Acts, and certain powers not incident to a mere local legislature have been conferred upon the Parliaments of the Colonies. Other Imperial Acts have conferred powers to vary the Imperial law, or to supplement

  ― 292 ―
it. Section 107 serves to make it clear, that the special powers of legislation in regard to these matters, conferred upon the Colonial Parliaments before the institution of the Commonwealth, remain to the States Parliaments. Some of them, however, fall within the exceptions of section 107—they are by the Constitution withdrawn from the States, or vested exclusively in the Commonwealth Parliament. By section vii. of the Act, the powers conferred upon the Colonial Parliaments by the Colonial Boundaries Act, 1895, are withdrawn, and the Commonwealth is to be taken to be a self-governing Colony for the purposes of that Act. Another power withdrawn is that over coinage (section 115). The special powers conferred by Imperial Acts in relation to defence, inland posts, customs, and a few other matters, belong solely to the Commonwealth Parliament, because the subjects themselves are declared to be within the exclusive power. With regard to any special powers, which may be conferred by the Imperial Parliament on Colonial legislatures in the future, there is room for some doubt as to the authorities which may exercise them in Australia. The Interpretation Act, 1889, section 18 (3), provides, that in all subsequent Acts, unless the contrary intention appears, “the expression ‘colony’ shall mean any part of Her Majesty's Dominions exclusive of the British Islands and of British India, and when parts of such dominions are under both a central and a local legislature, all parts under the central legislature shall for the purposes of this definition be deemed to be one colony.” By section 18 (7) “the expression ‘colonial legislature,’ and the expression ‘legislature,’ when used with reference to a British possession, shall respectively mean the authority other than the Imperial Parliament or Her Majesty in Council, competent to make laws for a British possession.” If the special power granted relates to a matter within the legislative power of the Commonwealth Parliament—as, for instance, if extended powers were granted to colonial legislatures to vary or suspend the operation of the Imperial Copyright

  ― 293 ―
Acts in that possession—it will be exerciseable by the Commonwealth Parliament exclusively. But if it relates to a subject not within the power of the Commonwealth Parliament, but in the residuary power of the States—as, for instance, if it gives power to colonial legislatures to make laws punishing crimes committed out of their territory—it is doubtful whether the State Parliament or the Commonwealth Parliament would take the power as the authority competent to make laws for the possession.

The Courts of the States, of course, continue to apply the doctrines of Private International Law in proper cases; but as part of their own law which the State Parliaments may alter. That the “rule of comity,” however, becomes a rule of Constitutional Law in one case, has been seen in dealing with the effect of section 118 under “Judicature.” The power of the State Parliament is also restrained by section 117, whereby

“A subject of the Queen resident in any State shall not be subject in any other State to any disability or discrimination, which would not be equally applicable to him if he were a subject of the Queen resident in such other State.”

It is a general characteristic of the Constitution that, as a rule, it does not impose any restraint upon government, except to further some federal purpose. Section 117 aims, not at the protection of individual right against government interference, but at the prevention of discrimination by one State against those who are sometimes referred to as the “subjects” of the other. The section aims at equality, and if the laws of a State refrain from disabling provisions and injurious distinctions affecting the subjects of other States, the section is fulfilled. It is, therefore, very different in character from those provisions of the Constitution of the United States, which forbid the States to pass any Act of Attainder, ex post facto law, or law impairing the obligation of contracts, and from the Thirteenth, Fourteenth, and Fifteenth Amendments to that Constitution, which, as protecting the States' own citizens, are essentially national, as distinguished from federal provisions.

  ― 294 ―
It must be compared with Art. iv., sec. 2, of the United States Constitution, whereby “the citizens of each State are entitled to all privileges and immunities of citizens in the several States”; and the sole purpose of that clause, as declared by the Supreme Court, is the sole purpose of section 117—“to declare to the several States that whatever those rights as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your jurisdiction.”note

There is a difference in form between section 117 and the privileges and immunities clause in the United States Constitution. Section 117 does not purport to grant anything, but merely protects against deprivations and injurious distinctions, while the United States Constitution uses terms of grant, and “privileges and immunities” might certainly include, if they did not suggest, the enjoyment of every kind or advantage open to citizens. The American Courts have, however, put a much narrower construction on the clause, and the terms of section 117 not inaptly express, so far as any general terms can, the nature of the uses to which the American provision has been put. It has been held that the “privileges and immunities” clause only secures those fundamental advantages which belong of right to the citizens of all free governments, and these have been enumerated as implying “protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole.” These rights are more particularly instanced by a reference to “the right of a citizen of one State to pass through, or to reside in, any other State for purposes of trade, agriculture, professional pursuits or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in

  ― 295 ―
the courts of the States; to take, hold, and dispose of property either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State,” “to which may be added the elective franchise as regulated and established by the laws or Constitution of the State in which it is to be exercised.”note An example of an obvious discrimination is to be found in an attempt by a State to give a preference to local creditors over creditors in other States.note

Distinctions based on “fundamental rights” are not very helpful in the solution of every-day problems in the application of law; and it is easier to see, that some limit will be put upon section 117, than to lay down any single principle on which it can be established. In the later decisions the United States Courts deprecate the attempt to state formally the limits of Art. iv., sec. 2, and are disposed to treat each case on its merits. In Corfield v. Coryell the Supreme Court refused to admit, that “the citizens of the several States are permitted to participate in all the rights, which belong exclusively to the citizens of any other particular State, merely on the ground that they are enjoyed by those citizens, much less that in regulating the use of the common property of the subjects of such State, the legislature is bound to extend to the citizens of all such other States the same advantages as are secured to its own citizens.” Accordingly, in 1876, the Court supported a law of Virginia limiting the enjoyment of the oyster fishery in that State to citizens of Virginia.note The same application of the doctrine in the Commonwealth would operate so as to enable a State to refuse a miner's right, or a right to select Crown land, to residents in another State, for in both cases the State is dealing with its property rights. The American doctrine seems to receive support from the decision of the Judicial Committee in Attorney General for the Dominion of Canada v. Provinces of Ontario, Quebec

  ― 296 ―
and Nova Scotia, a case which goes very far in the protection of the proprietary rights of the Provinces, in the adjustment of governmental powers.note

Other cases in the United States support different treatment of residents and non-residents, on the ground that there is some valid reason of justice or convenience for the discrimination, and that the distinction violates no sound principle. Thus the Supreme Court has supported a provision in a State Statute of Limitations, that the absence of the defendant from the State prevents time running against a creditor resident in, but not against a creditor resident out of, the State.note It has been held that the common requirement, that a plaintiff resident in another State shall give security for costs, is not ultra vires.note Again, the section does not annihilate the distinctions of persons known to Private International Law, rules of reason established by the Courts to do justice between the parties.note It does not enlarge the jurisdiction, which is ordinarily assumed on well settled principles; nor does it require the Courts to apply their local law to causes, which are properly governed by the law of some other State. Thus, a State is within its powers in limiting relief in divorce to cases where the parties are domiciled in the jurisdiction. Again, where the law of Louisiana established community of goods between persons married or having their matrimonial home in the State, it was held that the privileges and immunities section did not govern the rights of persons married and living in another State in regard to property in Louisiana.note Referring to cases of another class, it has been said that the “privilege of citizens is qualified and not absolute, for they cannot enjoy the right of suffrage or eligibility to office without such

  ― 297 ―
term of residence as shall be prescribed by the Constitution and Laws of the State into which they shall remove.”note