R v Vizzard

[1933] HCA 62

50 CLR 30

Ex PARTE HILL. Constitutional Law-Freedom of trade, commerce, and intercourse among the States

-Regulation of facilities for transport-Licensing of public motor vehicles- Motor car engaged on inter-State journey-Validity of State Act-The Constitution MELBOURNE,

(63 &64 Vict. C. 12), sec. 92-State Transport (Co-ordination) Act 1931 (N.S.W.) Oct. 3, 4, 5.

(No. 32 of 1931)*, secs. 3, 12. SYDNEY,

The appellant conveyed goods from Melbourne to Wagga Wagga in New South Wales in a motor lorry which was used exclusively in transporting goods from Melbourne to Wagga. The motor lorry was not licensed under the State Transport (Co-ordination) Act 1931 of New South Wales and had not been granted an exemption from the requirement that it should be SO licensed. The appellant was charged under sec. 12 of that Act, which makes it an offence to operate in New South Wales a public motor vehicle which is neither licensed by the Board nor exempt. The Act also provided that it should be read and construed SO as not to exceed the legislative power of the State. * The State Transport (Co-ordination)

thereof would, but for this subsection, Act 1931 of New South Wales, entitled

have been construed as being in excess An Act to provide for the improve-

of that power, it shall nevertheless be ment and for the co-ordination of means

a valid enactment to the extent to which it is not in excess of that power.' transport; to constitute a Board of

Sec. 12 (1) " Any person who after Commissoners for that purpose; to

a date appointed by the Governor and amend the Government Railways Acts,

notified by proclamation published in 1912-1930, and certain other Acts and

the Gazette operates a public motor for purposes connected therewith,"

vehicle shall, unless such vehicle is provided ********

licensed under this Act by the board Sec. 3 (2) "This Act shall be read

and unless he is the holder of such and construed SO as not to exceed the

license, be guilty of an offence against legislative power of the State to the

this Act: Provided that this sub- intent that where any enactment

section shall not apply to a public

50 CLR 31

Held, by Gavan Duffy C.J., Rich, Evatt and McTiernan JJ. (Starke and Dixon JJ. dissenting), that the provisions of the State Transport (Co-ordination) Act did not contravene sec. 92 of the Constitution as interfering with the freedom of inter-State trade, commerce, and intercourse.

The question whether sec. 92 of the Constitution binds the Commonwealth The question whether sec. 92 of the Constitution precludes the Parliaments of the States from in any way regulating or controlling, trade, commerce, and intercourse among the States discussed.

Observations on the tests to be applied in consideration of the question whether legislation of a State infringes the provision of sec. 92.

W. &A. McArthur Ltd. v. State of Queensland, (1920) 28 C.L.R. 530, con- James v. Cowan, (1932) A.C. 542 47 C.L.R. 386, applied.

RULE NISI for prohibition.

Frederick William Vizzard, an officer of the Commissioner for Road Transport and Tramways, laid an information under sec. 12 of the State Transport (Co-ordination) Act 1931 (New South Wales) against Price Alexander Hill of Wagga Wagga in the State of New South Wales alleging that on 30th April 1933 the defendant was guilty of an offence against the State Transport (Co-ordination) Act 1931 in that he did at Wagga Wagga operate a public motor vehicle not then being licensed under the said Act by the Commissioner for Road Transport and Tramways and he the said defendant not then being the holder of a licence under the said Act in respect of the said public motor vehicle contrary to the Act or regulation in such case made and provided. motor vehicle that is being operated

Sec. 22. (1) "The board may, on payment of the prescribed fees, issue exemption from the requirement of

permits, for such period as it thinks being licensed granted under section

fit and subject to any conditions that nineteen or a permit granted under

may be prescribed or imposed by the section twenty-two of this Act."

board, permitting the carrying on a Sec. 19. (1) "The board may grint

motor vehicle of persons in or over exemption from the requirements to

specified districts or routes. be licensed under this Act in respect of

(2) " Any such permit may be re- any public motor vehicle or class of

voked or varied at any time by the public motor vehicles in such cases and under such conditions as they think fit.

(3) Any person who commits a (2) The board may from time to

breach of any of the conditions of a time vary or revoke any such exemp-

permit shall be guilty of an offence against this Act."

50 CLR 32

Price Alexander Hill and Alexander James Hill, trading under the name of A. J. Hill &Son at Wodonga in the State of Victoria, conducted a carrying business between Victorian and New South

VIZZARD;

Wales towns and had branch offices at Albury and Wagga Wagga. On 30th April 1933 a motor lorry belonging to A. J. Hill &Son and bearing a Victorian number plate was stopped by a police constable in a public street at Wagga Wagga with a load of goods which had been conveyed from Melbourne via Albury and The Rock. The lorry was used exclusively to convey goods from Melbourne to Wagga Wagga. The vehicle was registered under the Motor Car Act 1930 (No. 3901) (Victoria) and also under the Motor Traffic Act 1909-1930 (New South Wales), but was not licensed under the State Transport (Co-ordination) Act 1931 of New South Wales, nor was Price Alexander Hill or Alexander James Hill the holder of a licence under the last mentioned Act for such vehicle.

The information was heard at Wagga Wagga by a Police Magistrate. The defendant pleaded not guilty and, in addition to a number of defences based on the insufficiency of the allegations in the informa- tion and the insufficiency of the evidence, contended that as the vehicle on the trip in question, was engaged in inter-State trade, the provisions of sec. 12 of the State Transport (Co-ordination) Act 1931 of New South Wales did not apply on the ground that that section was ultra vires by virtue of secs. 90 and 92 of the Common- wealth Constitution.

The Police Magistrate overruled these contentions and convicted the defendant who was fined £100 and 8s. costs, in default 201 days' imprisonment with hard labour.

Price Alexander Hill subsequently obtained a rule nisi from the Supreme Court of New South Wales directed to the informant and the Police Magistrate calling upon them to show cause why a writ of prohibition should not issue to restrain further proceedings upon the conviction. Subsequently upon the application by the Attorney- General for the Commonwealth under sec. 40 of the Judiciary Act 1903-1932 the High Court ordered that the matter be removed into the High Court, and leave to intervene was obtained by the Common- wealth and the State of Victoria.

50 CLR 33

The State Transport (Co-ordination) Act 1931 was amended by the Transport (Division of Functions) Act 1932, but the amendments are not material to this report.

Spender (with him Holmes), for the applicant. The evidence disclosed that this particular lorry was used exclusively to transfer goods from Melbourne to Wagga Wagga. The State Transport (Co-ordination) Act 1931 does not apply to anything more than purely intra-State transport. No offence has been disclosed by the appellant (Willard v. Rawson 1 ). The Court should apply the "pith and substance" test and having determined that should refer the Act to the trade and commerce power and if it directly regulates transport should inquire whether it regulates inter-State transport. The Act applies to domestic transport only, but if it applies to inter-State transport it is in conflict with sec. 92 of the Constitution. The Act and the regulations made thereunder do not carry the matter further than this, that the Act deals with trade, intercourse, and commerce, and is a direct regulation of transport and as such is an infringement of sec. 92 of the Constitution. If the Act does not apply to anything more than domestic trade we have not infringed the Act; if it does, it infringes sec. 92 of the Constitu- tion (New South Wales v. The Commonwealth [No. 3] 2; Australian Railways Union v. Victorian Railways Commissioners 3 ). The Act is ultra vires because its subject matter is trade, commerce, and intercourse within the meaning of sec. 92 of the Constitution. The appellant is consequently entitled to succeed under Willard V. Rawson, and Peanut Board v. Rockhampton Harbour Board 4. The test in both those cases is-if you find that a statute deals with trade, commerce, and intercourse and if it deals with inter-State trade, commerce, and intercourse it is invalid, i.e., if it would interfere with trade, commerce, and intercourse. Applying the test in Willard v. Rawson this Act is one that definitely regulates inter-State trade and commerce. The subject matter of this Act is a direct interference with trade and commerce (Crutcher v. Kentucky 5 ). In Roughley v. New South Wales Ex parte Beavis 6 the

1(1933) 48 C.L.R. 316. 2(1932) 46 C.L.R. 246. 3(1930) 44 C.L.R. 319, at p. 386. 4(1933) 48 C.L.R. 266. 5(1890) 141 U.S. 47, at pp. 56, 58, 6(1928) 42 C.L.R. 162. 50 CLR 34

Act was simply dealing with a domestic business which related to

the exercise of a particular business in Sydney and the subject matter of the statute had nothing to do with inter-State trade and commerce (Adams Express Co. v. New York 1; Sprout v. South Bend 2 ). The present Act cannot be held valid as an exercise of police power, as it is not an attempt at administrative regulation, but is directed only to the regulation of trade and commerce (Buck V. Kuykendall 3 ). The police powers are such as refer to the health &. of the citizens but do not go to the length of regulating the whole sphere of trade. This Act is aimed at regulating transport and the prevention of competition with State railways (Bush Co. V. Maloy 4 ). Inter-State trade should be free to take any route it chooses (W. &A. McArthur Ltd. v. State of Queensland 5 ). The United States decisions say that State legislation may deal with inter-State trade and commerce but only if it does SO incidentally. Transportation from a place in one State to a place in another State comes within the description of trade and commerce (Harvard Law Review (1931), vol. 44, p. 530). In W. &A. McArthur Ltd. v. State of Queensland 6, the State purported to regulate trade in general terms. Roughley v. New South Wales; Ex parte Beavis 7 and Ex parte Nelson [No. 1] 8 applied W. &A. McArthur Ltd. v. State of Queensland. In Ex parte Nelson [No. 1] and Roughley v. New South Wales Ex parte Beavis the Court was determining what was the subject matter of the legislation. In Ex parte Nelson [No. 1] the Court did consider the subject matter of the Act and the pith and substance of it. On the face of this Act it is a law in respect of trade generally. The control of the channels of trade in this respect constitutes a restriction on trade, commerce, and intercourse.

[EVATT J. referred to Farnell v. Bowman 9.] This Act directly restricts and hinders inter-State transport and the rule nisi should be made absolute on that ground. There is no evidence before the Court that the appellant did operate the

1(1913) 232 U.S. 14, at pp. 16, 24, 2(1927) 277 U.S. 163, at p. 169. 3(1924) 267 U.S. 307, at pp. 314, 4(1925) 267 U.S. 317. 25, 31. 5(1920) 28 C.L.R. 530, at p. 543. 6(1920) 28 C.L.R. 530. 7(1928) 42 C.L.R. 162. 8(1928) 42 C.L.R. 209. 9(1887) 12 App. Cas. 643. 50 CLR 35

truck in question on a public street in contravention of the Act H. C. (Houston v. Wittner's Pty. Ltd. 1 ).

[Counsel also referred to the State Transport (Co-ordination) Act 1931, secs. 4, 8, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 25, 26, 28, 29, 30, 37, 38, 40, 47, 49, and to the Regulations made under such Act; Metropolitan Traffic Act 1900, dealing with the ordinary regulation of traffic; Motor Tax Management Act 1914, providing for the assessing and taxing of motor cars; Motor Traffic Act 1909- 1930; Motor Vehicles Taxation Act 1924-1926.]

Sir Robert Garran K.C. (with him Nicholas), for the Common- wealth intervening. The State Transport (Co-ordination) Act is valid. Two matters assume very great importance, one is the collective marketing of goods, and the other is the very large question which has arisen owing to the great growth of motor traffic, i.e., the method of dealing with competition between roads and railways. The effect of the decisions since W. &A. McArthur Ltd. V. State of Queensland 2 is that sec. 92 of the Constitution binds the States and the States only, and prevents them from legislating in any way SO as to interfere with inter-State commerce. W. &A. McArthur Ltd. v. State of Queensland 3 goes too far. The expression trade and commerce, in sec. 51 (I.) of the Constitution extends not only to the transport of goods but also to negotiations which go to the making of a contract which is the very foundation of inter-State commerce, which is just as much a part of trade and commerce as the other. The theory is that sec. 92 practically makes sec. 51 (I.) an exclusive power of the Commonwealth Parlia- ment. There is no law relating to inter-State commerce. The law of contract covers both domestic and inter-State trade. The effect of this theory would be completely to interfere with State legislation. It is for this reason that W. &A. McArthur Ltd. v. State of Queensland is too wide. Within the limits to which sec. 92 should be confined it would bind the Commonwealth (James v. Cowan 4 ). There is no satisfactory answer to the question-What law governs inter- State commerce ? State Parliaments have concurrent power to

1(1928) 41 C.L.R. 107. 2(1920) 28 C.L.R. 530. 3(1920) 28 C.L.R., at pp. 552, 558. 4(1930) 43 C.L.R. 386, at pp. 424, 425. 50 CLR 36

OF A. make laws with respect to inter-State commerce. Whatever power

the State has to make laws with respect to inter-State commerce is not taken away from it by sec. 51 (I.). Laws within the scope of sec. 51 (I.) are not taken away from the legislative power of the State except SO far as they come within the prohibition of sec. 92. The power given by sec. 51 (1.) is a concurrent power (Roughley V. New South Wales Ex parte Beavis 1 ). Sec. 92 was not a lawyer's clause at all. It is substantially in the same form as existed in the first draft of the Constitution suggested by Parkes in the Convention of 1891 (Quick and Garran on the Australian Constitution (1901), p. 125). The meaning of "free" must be gathered partly from the context and partly from the subject matter "free trade (Oxford Dictionary). In this context "free" imports a free border.

The whole idea is directed to the conception of a fence of some kind at the border (Duncan v. State of Queensland 2 ). That case is sound but the meaning of the word "restrictions" goes too far. There may be restrictions which are not a violation of free trade between the States. A reasonable toll on a Murray bridge, if imposed on all persons using the bridge would not be an interference with inter-State free trade. Sec. 92 aims at anything in the nature of a prohibition or that is directed to preventing people from crossing the border such as a customs or other pecuniary impost. Sec. 92 means that there shall be no border fence to interfere with inter-State trade. The impost need not be imposed at the border (The Commonwealth and Commonwealth Oil Refineries Ltd. v. South Australia 3 ). The reasons upon which the cases go afford no reasonable ground for excluding contract from the operation of sec. 92. State legislation in respect of inter-State trade continues until it is superseded by Federal legislation. The general commercial law is State law. The expression "trade and commerce ,, is narrower in sec. 92 than in sec. 51 (I.), except SO far as "intercourse " is wider than "trade and commerce." Sec. 92 binds the Common- wealth as well as the States. Although in secs. 51 and 92 "trade and commerce' mean precisely the same thing the sections do not cover the same ground. Sec. 92 is simply an affirmation that there

1(1928) 42 C.L.R. 162. 2(1916) 22 C.L.R. 556, at pp. 573, 574. 3(1926) 38 C.L.R. 408. 50 CLR 37

should be free trade between the States. Free trade is a political H. C. term used to convey a political idea, and does not mean the whole sphere of trade and commerce. If the words "absolutely free " are isolated, then there arises a philosophical speculation as to the meaning of "freedom" and "absolute" in the expression as applied to trade. Sec. 51 (I.) gives power to the Commonwealth Parliament to deal with trade and commerce and sec. 92 simply prevents the Commonwealth and the States from interfering with the freedom of trade whatever laws they make.

[DIXON J. referred to the Act of Union (1706), 5 Anne c. VIII., art. IV. [EVATT J. referred to the Privy Council's Report on Federation between the Australian Colonies, made in 1850. This document refers to "absolute freedom" in regard to trade.]

The word "among" was substituted for the word 'between." In Fox v. Robbins 1 and in Rex v. Smithers; Ex parte Benson 2, the words have been read in their natural meaning. In Duncan V. State of Queensland 3 Isaacs J. said that sec. 92 applied to both Federal and State authorities.

[DIXON J. referred to Ex parte Nelson [No. 2] 4.] W. &A. McArthur Ltd. v. State of Queensland 5 is wrong and sec. 92 applies to both the Commonwealth and the States. Sec. 92 covers customs duties, any other kind of pecuniary imposts and prohibition of entry. Sec. 92 would prevent interference with leaving as well as entering States. "Free trade" means free in political sense. James v. Cowan 6 decides that where the real object of expropriation is to prevent goods from crossing from one State to another that is a prohibition which amounts to a barrier and which is a violation of inter-State free trade. It is only when the real purpose of expropriation is to prevent inter-State free trade that the prohibition arises. If they were expropriated for the purpose of terminating trading in the goods in question it would not be an interference with trade. If the purpose of the Act is to erect a barrier to inter-State trade, then sec. 92 is infringed. If goods were expropriated to feed an army the expropriation would

1(1909) 8 C.L.R. 115, at p. 123. 2(1912) 16 C.L.R. 99, at p. 117. 3(1916) 22 C.L.R., at p. 624. 4(1929) 42 C.L.R. 258, at p. 270. 5(1920) 28 C.L.R. 530. 6(1932) A.C. 542 ; 47 C.L.R. 386. 50 CLR 38

A. be good because it is not aimed at the exercise of trade. As regards

the South Australian Dried Fruits Acts, until the goods are in some way set aside for inter-State trade the State can deal with them as it wants to. The only case in which James was interfered with was where he was trying to get goods out of the jurisdiction (James V. Cowan 1 ). If there is no discrimination the Act may still be directed to inter-State free trade. Discrimination is not in itself a final test but is a circumstance to be taken into account (James V. Cowan 2 ). W. &A. McArthur Ltd. v. State of Queensland 3 does not correctly state the position. Sec. 92 deals only with the hypothetical fence along the borders of the States. It is a question for decision on the facts of each case whether there is an interference with inter-State free trade. The States may expropriate for use but not for profit. State of New South Wales v. The Commonwealth (Wheat Case) 4 is distinguishable from James v. Cowan because it is necessary to look at the real object of the Act. Peanut Board V. Rockhampton Harbour Board 5 and State of New South Wales V. The Commonwealth (Wheat Case) are illustrations of the necessity for drawing a very fine line. Peanut Board v. Rockhampton Harbour Board may or may not have overruled State of New South Wales v. The Commonwealth (Wheat Case). It is possible to prevent the passing of diseased cattle over State boundaries (Ex parte Nelson (No. 1] 6 ). As to the control of transport by the present Act. There are two modes of transport, the railways and the roads, the relations of which to one another have become of importance because of the great increase in motor traffic. The State could monopolise transport on the roads as it does on the railways, but subject to the inter-State trade and commerce clause. The State can make or close roads or charge tolls or it can license cars and base its charges on any ground it thinks fit. There is nothing in the Constitution to prevent the State from making those laws, and the Commonwealth could step in and make highways if there were not sufficient, and in the business of Federal legislation there is nothing to prevent the State dealing with this matter. The Commonwealth could only deal

1(1932) A.C., at p. 554; 47 C.L.R., 2(1932) A.C. 542 ; 47 C.L.R. 386. 3(1920) 28 C.L.R., at p. 546. at p. 392. 4(1915) 20 C.L.R. 54. 5(1933) 48 C.L.R. 266. 6(1928) 42 C.L.R. 209. 50 CLR 39

50 C.L.R.]

OF AUSTRALIA. with the matter on the basis of inter-State traffic, and the natural method of dealing with the position is for the State to deal with it and for the Commonwealth to watch the freedom of inter-State free trade (Harvard Law Review (1931), vol. 44, p. 530-Regulation of the Contract Motor Carrier under the Constitution, at p. 562 (note 80) ). The general purpose of the State Transport (Co-ordination) Act 1931 is, as appears from the title, for the improvement and co-ordination of means of and facilities for transport. The only discrimination that appears in the Act is between road and rail transport. If it were attempted to stop inter-State traffic under this Act that would be an interference with inter-State free trade. There is no intention in this Act to discriminate against a State or to impose any sort of barrier. There must be a direct as distinct from an indirect interference with inter-State free trade. The question is-Is the real object of the Act to interfere with inter-State free trade ? As to severability, sec. 15A of the Federal Acts Interpretation Act provides for the severance of the good from the bad parts of an Act and the States have adopted that legislation, but the Court cannot be asked to dissect a statute SO as to unravel an obnoxious Act. If the Court holds that anything has been done wrongly in this Act it is wholly bad and is not saved by the clause in the Acts Interpretation Act. Willard v. Rawson 1 is indistinguishable from the present case and is in conformity with the above remarks. As to the pith and substance rule, it is necessary to find the primary thing which the Act regulates and it is important to consider the real object in any Australian Act under the Constitution, where the mass of powers are retained by the States and some are handed over to the Commonwealth. The question has to be decided by reference to what is the real subject matter of the Act. Where it is a question whether the enactment comes within the special subject matters of sec. 51 the test is what is the real subject matter of the enactment, and where the question is whether under sec. 92 the enactment has a certain effect restraining inter-State trade, then the question is what is the effect of the enactment. The subject matter is the test in the first case, and the result that the Act attains is the test in the second case.

1(1933) 48 C.L.R. 316. 50 CLR 40

Wilbur Ham K.C. and Fullagar K.C. (with them Leaver), for the respondent. Two aspects are to be considered, one if the Court feels itself open to review W. &A. McArthur Ltd. v. State of Queens- land 1 and the other cases in line with it, and the other, if the Court does not do SO. Apart from authority it is necessary to consider the actual test. Sec. 92 is primarily aimed at securing free trade within the Commonwealth. The fact that it is in the same part which deals with uniform duties and excise all point to the fact that one of the objects of the people in federating was to get away from border duties. Sec. 92 also covers prohibitory and discrimin- atory legislation impeding the entry of goods or persons from one State into another. On the face of it sec. 92 includes more than the imposition of pecuniary imposts as it deals with "trade, commerce, and intercourse." The requirement that intercourse shall be absolutely free points to something more than the imposition of pecuniary imposts (James v. Cowan 2 ). That is confirmed if sec. 92 is compared with secs. 90, 95 and 99. Sec. 92 has to be read with sec. 107 which is very emphatic in its protection of State powers except where expressly taken away. Sec. 92 is not to be taken as destroying the legislative powers of the States except SO far as necessary. The only reason for suggesting that the Common- wealth was not bound was the erroneous interpretation of the words "absolutely free ' in sec. 92. Sec. 92 applies to both the Common- wealth and the States. It is the freedom of movement which is emphasized. In W. &A. McArthur Ltd. v. State of Queensland it was freedom of trade that was emphasized. The object of federation was that persons and goods should be free to move from State to State without any restriction on such movement. If W. &A. McArthur Ltd. v. State of Queensland is wrong, Roughley V. New South Wales; Ex parte Beavis 3 falls with it. If the Court comes to the conclusion that there is sufficient warrant to say that sec. 92 applies to the Commonwealth, then the test in W. &A. McArthur Ltd. v. State of Queensland is wrong. It may well be that sec. 92 does apply to the Commonwealth as well as to the States. If the Court decides in favour of this view such a decision

1(1920) 28 C.L.R. 530. 2(1932) A.C. 542 47 C.L.R. 386. 3(1928) 42 C.L.R. 162. 50 CLR 41

OF AUSTRALIA would be consistent with Fox v. Robbins 1 Duncan v. State of H. C. Queensland 2; James v. South Australia 3; Ex parte Nelson [No. 1] 4 James v. Cowan 5 Peanut Board v. Rockhampton Harbour Board 6 and Willard v. Rawson 7. W. &A. McArthur Ltd. v. State of Queensland 8 is in conflict with Fox v. Robbins 9; Duncan v. State of Queensland and Willard v. Rawson. Even if this Court is bound by W. &A. McArthur Ltd. v. State of Queensland, that case must be applied in the light of subsequent modifications. In James v. Cowan, the Privy Council agreed with the judgment of Isaacs J., but this does not mean that the Privy Council agrees with W. &A. McArthur Ltd. v. State of Queens- land, because the Privy Council leaves open the question of the meaning of the words "absolutely free " and also the question whether sec. 92 applies to the Commonwealth. So far as the expressed agreement with the judgment of Isaacs J. is concerned, there is nothing to show that the Privy Council agrees with W. &A. McArthur Ltd. v. State of Queensland in full. The Act in James V. Cowan was directly aimed at restricting inter-State commerce. The Privy Council goes no further than the High Court did in James V. South Australia. Alternatively, the Court should follow W. &A. McArthur Ltd. v. State of Queensland, as explained in Ex parte Nelson [No. 1] James v. Cowan Peanut Board V. Rockhampton Harbour Board and Willard v. Rawson. The prin- ciple of those cases has been variously explained. Sec. 92 is not infringed unless the State Act is in respect of trade and commerce and is designed to fetter inter-State trade and not merely to affect it incidentally (Willard v. Rawson 10 ) or unless pointed directly at the place of entry. If the Court is to be bound by W. &A. McArthur Ltd. v. State of Queensland it should also be bound by Willard v. Rawson. The Act must aim directly at inter-State trade and commerce to be contrary to sec. 92 (James V. Cowan 11 Roughley v. New South Wales; Ex parte Beavis 12

1(1909) 8 C.L.R. 115. 2(1916) 22 C.L.R. 556. 3(1927) 40 C.L.R. 1. 4(1928) 42 C.L.R. 209. 5(1932) A.C. 542 ; 47 C.L.R. 6(1933) 48 C.L.R. 266. 7(1933) 48 C.L.R. 316. 199, 204. 8(1920) 28 C.L.R. 530. 9(1909) 8 C.L.R. 115. 10(1933) 48 C.L.R., at pp. 320, 323, 11(1932) A.C., at p. 559 47 C.L.R., at p. 397. 12(1928) 42 C.L.R., at pp. 193, 194, 50 CLR 42

Peanut Board v. Rockhampton Harbour Board 1; Ec parte

Nelson [No. 1] 2 ). If the pith and substance of this Act is considered on these principles its pith and substance is to regulate motor transport in New South Wales. It is in the interests of transport that it should run efficiently. This is an Act to regulate transport in New South Wales and not transport into New South Wales. The Act only regulates motor transport while it is in New South Wales in common with all other transport (Peanut Board V. Rockhampton Harbour Board 3 ). If the authorities under Act were putting restrictions on inter-State trade such action would be illegal. This case falls directly within Willard v. Rawson 4 and is governed by it. Both in this case and in Willard v. Rawson the Acts are general in terms and are not aimed at inter-State trade. They both regulate trade in the State and not trade entering into the State. There is no reason for saying on the face of it This Act is aimed at inter-State trade. It is an Act for regulating the domestic law of motor transport and, therefore, there is nothing to distinguish it from Willard v. Rawson.

Fullagar K.C. There are two aspects to W. &A. McArthur Ltd. V. State of Queensland 5, one is that the legislation might be hit by sec. 92 as it deals with both intra-State and inter-State trade, the other, that an Act which fixes prices in Queensland cannot affect inter-State freedom of trade. The proper view is that an Act fixing prices at which commodities may be sold is not obnoxious to sec. 92 as it leaves trade and commerce absolutely free. So legislation as to contracts, and gaming and wagering leaves trade and commerce absolutely free. If the Act is obnoxious to sec. 92 it is not because it operates to prevent persons trading in a particular way. The State in this case surveys the transport facilities that are available within its borders. It may see ruinous competition going on. It makes a survey of the whole system and if its power is used for any object affecting inter-State trade it is said that the Act falls to the ground. James v. Cowan 6 decided that sec. 92

1(1933) 48 C.L.R,. at p. 284. 2(1928) 42 C.L.R., at pp. 218, 219. 3(1933) 48 C.L.R., at p. 285, 4(1933) 48 C.L.R. 316. 5(1920) 28 C.L.R. 530. 6(1932) A.C. 542 47 50 CLR 43

did not apply to any legislation which dealt alike with domestic and inter-State trade and that sec. 92 applied only if inter-State trade was aimed at by the legislation. It is not necessary to bring an Act within sec. 92 that an express distinction should be drawn between domestic and inter-State trade in the legislation in question. James V. Cowan 1 decided no more than this - that if State legislation considered in the ordinary way is directed at inter-State trade and prohibits inter-State trade then it is struck by sec. 92. If you find an Act dealing with domestic and inter-State trade prima facie that Act is not struck by sec. 92, but it is not necessary to bring a case within sec. 92 that there is a distinction drawn between domestic and inter-State trade. Also, if an Act properly construed is directed at inter-State trade and prohibits that trade, actual or potential, it is struck by sec. 92. James v. Cowan decided (a) with respect to enabling or empowering legislation, if the real object of that legislation is to enable interference with inter-State trade it is invalid and carries no legal consequences, (b) if the power itself is used to interfere with inter-State trade that exercise is invalid and carries no legal consequences. In the former case the legislation is bad, and in the latter the exercise is bad. State of New South Wales v. The Commonwealth (Wheat Case) 2 is still good. It is not affected by James v. Cowan (1), because the Privy Council held that the power conferred by the Act had been used for the purpose of interfering with inter-State trade (James v. Cowan 3 ). An Act which deals equally with domestic and inter-State trade is prima facie valid. James v. Cowan is not inconsistent with W. &A. McArthur Ltd. v. State of Queensland 4. The test is whether trade is rendered unfree. Sec. 10 of the State Transport (Co-ordination) Act 1931 shows that the object and purpose of the Act is not interference with the freedom of trade. It shows that the State is regulating and co-ordinating the traffic facilities available within it. Sec. 102 of the Constitution permits the States to take some powers to protect their railways and to some extent to discriminate in SO doing. That view would not be necessary if an extended meaning were given to sec. 92.

1(1932) A.C. 542 ; 47 C.L.R. 386. 2(1915) 20 C.L.R. 54. 47 C.L.R., at pp. 388, 393, 394. 3(1932) A.C., at pp. 549, 555, 556; 4(1920) 28 C.L.R. 530. 50 CLR 44

Bailey, for the State of Victoria, intervening. I adopt the arguments for the respondent and the Commonwealth. Sec. 92 interpreted in the light of its context and as free from authority

VIZZARD;

should be construed more narrowly with regard to the words "absolutely free " than it has been since 1920. The correct way to interpret the meaning of the words "absolutely free " is to separate the phrases. The term "free trade " in itself refers not SO much to conduct as to the movement of goods. Sec. 92 struck at financial advantages, prohibitions and discriminatory legislation against other States. The general category into which all those matters may be said to fall may be described as a differential treatment of domestic trade as against inter-State trade or vice versã. Absolutely free trade means trade free from differential treatment and means freedom from differential treatment as between one State and another. Sec. 92 is in the middle of ten successive sections in which the fiscal régime of the new Commonwealth is prescribed, and this points to the narrower meaning of the words " free trade." Sec. 95 emphasizes this view and sec. 102 suggests a narrower meaning. Secs. 51 (1.), 92, 98 and 102 suggest that the States could create discriminations under the overriding power of the Commonwealth Parliament. In exercising the powers with regard to railways the Commonwealth can only interfere if the Inter-State Commission finds that the differentiations are unreasonable. Sec. 112 also suggests a narrower meaning for sec. 92 than free from all legislative interference because sec. 92 recognizes the inspection laws of the States. The American decisions suggest that the inspection laws must not be discriminatory (Voight v. Wright 1 ). Sec. 112 recognizes the existence of the inspection laws and thereby negatives the view that the States are unable to make such laws.

[DIXON J. referred to Foster v. Master, etc., of New Orleans 2.] Spender, in reply. James v. Cowan 3 does not say anything about prohibiting trade and adopts the test suggested by the respondent. If the legislation extends to inter-State trade that would be enough to bring it under sec. 92. The effect of James V.

1(1890) 141 U.S. 62. 2(1876) 94 U.S. 246. 3(1932) A.C. 542; 47 C.L.R. 386. 50 CLR 45

Cowan 1 is that the legislation armed the Minister or the board with power to strike at inter-State trade, and that is just as bad as legislation which interferes with such trade. If a minister or a board is armed with power to interfere with inter-State trade, the legislation granting such power would be invalid under sec. 92. This legislation directly strikes at transport and that includes both domestic and inter-State transport. The purpose of the Act was to hit at the business and the act of transport in globo. Where legisla- tion gives into the hand of a particular board power to do an act which would conflict with sec. 92 the legislation is ultra vires (James v. Cowan 2; James v. Cowan 3 ). Sec. 92 is to bear a broad construction because the Privy Council approves of the judgment of Isaacs J. but this must be limited to that part of the judgment which deals with the matter before the Privy Council. W. &A. McArthur Ltd. v. State of Queensland 4 is in no way cut down. The Court should not reconsider that case having regard to the cases in which it has been accepted. To give sec. 92 the restricted construction contended for is completely to recast the section. It cannot be limited to pecuniary imposts, discriminatory legislation and prohibitions as the respondent seeks to do. Trade must be untrammelled by legal restrictions. It is necessary to consider the real object of the legislation, and having ascertained that, it can be decided whether it comes within sec. 92.

[DIXON J. referred to Pullman Co. v. Kansas 5.] The fact that there are no words in sec. 92 as to discrimination is a reason why sec. 92 should be given a wide reading. Sec. 102 deals with a specific difficulty and was designed to meet any difficulty in the matters referred to by an inquiry as to the facts. Sec. 113 was directed to protecting inter-State commerce (Fox v. Robbins 6; Voight v. Wright 7 ).

Cur. adv. vult.

1(1932) A.C. 542 47 C.L.R. 2(1932) A.C., at pp. 555, 558, 3(1930) 43 C.L.R., at p. 406. 4(1920) 28 C.L.R. 530. 5(1909) 216 U.S. 56. 559, 560 47 C.L.R., at pp. 393, 396, 6(1909) 8 C.L.R., at p. 124. 397, 398. 7(1890) 141 U.S. 62. 50 CLR 46

GAVAN DUFFY C.J. Thirteen years ago this Court, in the case of W. &A. McArthur Ltd. v. State of Queensland 1, laid down the following propositions with respect to sec. 92 of the Constitution of the Commonwealth of Australia :-(1) The section in no way limits or restricts the legislative power of the Commonwealth. (2) The section precludes the Parliaments of the States from in any way regulating or controlling trade, commerce, and intercourse among the States. Since then members of this Court in various and varying judgments have attempted to explain or attenuate the second proposition but the validity of both propositions has remained without any formal challenge until the present case.

The Parliament of New South Wales passed an Act-State Transport (Co-ordination) Act, No. 32 of 1931, as amended by the Transport (Division of Functions) Act, No. 31 of 1932, intituled

An Act to provide for the improvement and for the co-ordination of means of and facilities for locomotion and transport to constitute a Board of Commissioners for that purpose to amend the Govern- ment Railways Acts 1912-1930, and certain other Acts; and for purposes connected therewith." It contained the following pro- visions :-Sec 3 (2). "This Act shall be read and construed SO as not to exceed the legislative power of the State to the intent that where any enactment thereof would, but for this subsection, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power." Sec. 12 (1). " Any person who after a date appointed by the Governor and notified by proclamation published in the Gazette operates a public motor vehicle shall, unless such vehicle is licensed under this Act by the board and unless he is the holder of such license, be guilty of an offence against this Act: Provided that this subsection shall not apply to a public motor vehicle that is being operated under and in accordance with an exemption from the requirement of being licensed granted under section nineteen or a permit granted under section twenty-two of this Act." Sec. 19 (1). "The board may grant exemption from the requirements to be licensed under this Act in respect of any public motor vehicle or class of public motor vehicles in such cases and under such conditions

1(1920) 28 C.L.R. 530. 50 CLR 47

50 C.L.R.]

OF AUSTRALIA. as they think fit." The applicant used a motor car in the course of inter-State trade without having obtained either a licence or an exemption, and was convicted under sec. 12 1. He is clearly within the words of this section, and the question for our consideration is whether he is removed from its operation by sec. 92 of the Constitu- tion and sec. 3 (2) of the Act. In this case the Commonwealth and the State of Victoria obtained leave to intervene and on the hearing all parties were asked to discuss McArthur's Case (1). They did SO and an elaborate argument was addressed to us on the true meaning of sec. 92. The result of our deliberations on this question have been unsatisfactory. It appears to be impossible to obtain a distinct ruling by a majority of the Court but my brothers Evatt and McTiernan and I are of opinion that neither of the propositions I have mentioned is justified by the language of sec. 92. We think, however, that it would be undesirable that their validity should be affected by the casting vote of the presiding Judge in an equally divided Court and having expressed our opinion, we pass on to consider the present case on the hypothesis that those propositions correctly expressed the law.

The cases cited by my brothers Evatt and McTiernan afford ample authority for the proposition that before determining that an Act of the legislature is forbidden by sec. 92 of the Constitution the Court must be able to say that the real intention of the legislature as expressed in the statute was to interfere with freedom of trade, commerce, and intercourse between the States. If the intention of the legislature is merely to deal with a subject within its own juris- diction the fact that the enactment indirectly results in an interfer- ence with inter-State trade does not bring it within the prohibition implied in sec. 92. In this case I think that the intention of the Legislature was that stated in the title of the Act, namely to provide that transport within the State should be carried on in the most effective and economic manner and to co-ordinate the means for carrying on such transport SO as to obtain the best available services. This being the intention, sec. 3 (2) provides against any unconstitu- tional exercise of the powers conferred by the Act and sec. 19 (1) enables anyone who because he is engaged in inter-State transport,

1(1920) 28 C.L.R. 530. 50 CLR 48

or who should, for any other reason, be free of the provisions of the

Act, to obtain an exemption from those provisions. In other words, the Act of Parliament recognizes that the State officials cannot distinguish persons operating motor cars who are subject to the laws of the State with respect to transport from those who are not

SO subject and inflicts a penalty not for travelling without a licence, but for travelling without either obtaining a licence or obtaining an exemption from the necessity for having a licence. Again, distinction has been made between interfering with trade, commerce and intercourse and interfering with the methods by which they are carried on. No one would suggest that the State must furnish such roads or other conveniences as the inter-State traveller may desire, nor, I think, would any one suggest that the State must leave unaltered all conveniences for travelling which are already in exist- ence. It has been said that the Legislature is not necessarily controlling or regulating inter-State trade when it prescribes the facilities it will offer for carrying on trade generally, though if, on examination, it appears that the object of the Legislature is really to prejudice inter-State trade, its enactment may be invalid.

Again, some of the Justices who were parties to the decision in McArthur's Case 1 have stated that what is forbidden by sec. 92 is any State law which obstructs or restricts the freedom of trade or commerce among the States and the law may control in some degree the conduct and liability of persons engaged in inter-State commerce. Now, for anything disclosed in the evidence, this Act of Parliament may on the whole benefit not only inter-State trade and commerce at large but even that part of inter-State trade and commerce which is carried on by the applicant. It is true that the obtaining of a licence and the payment of a licence fee cannot of themselves be regarded as beneficial to the licensee, but the rights acquired by and the other consequences which follow from the possession and exclusion of others from such possession may be of very great value to the licensee and his business.

On the whole, having regard to the liberal interpretation which the Justices who formulated the second proposition have chosen to put upon it, I feel at liberty to say that the conviction was right and the rule should be discharged.

1(1920) 28 C.L.R. 530. 50 CLR 49

RICH J. This case calls upon us once more to apply the vague H. C. language of sec. 92 of the Constitution. It arises upon a new aspect of the legislation relating to the use of roads, vehicles and railways- an aspect which could scarcely have struck the minds of those who resorted to the emphatic but uncertain terms of sec. 92. In Peanut Board v. Rockhampton Harbour Board 1 and in Willard v. Rawson 2 I stated or restated the interpretation of sec. 92 which I adopted and adhered to. I still consider that what sec. 92 forbids is govern- ment action (State action) in respect of trade, commerce, and inter- course when it operates to restrict, regulate, fetter or control it and to do this immediately and directly as distinct from giving rise to some consequential impediment. In so far as inter-State trade, commerce, and intercourse are included within the operation of such government action that action is rendered ineffectual by sec. 92. The question whether the Commonwealth is governed by sec. 92 does not arise in this case at any rate, directly, but as counsel for the Common- wealth, which intervened by leave, presented an argument which involved a return to the view that sec. 92 does apply to the Common- wealth I think it is right to say that the opposite conclusion has been adopted by this Court both in McArthur's Case 3 and in James v. The Commonwealth 4 and I do not think we ought to depart from those decisions. If they are wrong they can be set right in the Privy Council. In Willard v. Rawson 5 I said at the conclusion of my judgment "I intend in no way to depart from the doctrine of McArthur's Case, which is that, when State legislation attempts to restrain commercial dealings of a description wide enough to embrace inter-State operations, it is void to the extent to which it would affect acts, conduct or transactions, part of trade, commerce and intercourse among the States." I realize that there has been much difference of judicial opinion in the application of that decision and that in cases where State legislation has been upheld Judges who dissented from that conclusion have done SO upon the grounds inter alia that it involved an inconsistency with the principle of McArthur's Case. But whether the majority of the Court reasoned well or ill from the major premise stated in McArthur's Case to

1(1933) 48 C.L.R., at pp. 274-275. 2(1933) 48 C.L.R., at p. 322. 3(1920) 28 C.L.R. 530. 4(1928) 41 C.L.R. 442. 5(1933) 48 C.L.R., at p. 324. 50 CLR 50

A. their conclusion they did not, I think, intend to deny the validity

of that premise. The difficulty is, I think, to enunciate any general interpretation of sec. 92 which, if precise, does not err in stating that which is not expressed in sec. 92, or if general, is not SO wide as to admit of varying applications. McArthur's Case 1 denied the correctness of certain contentions as to the meaning of sec. 92, which has been put forward. It denied, for instance, that sec. 92 was limited to emancipating inter-State trade from differential or discriminatory laws. It denied that it was limited to freedom from pecuniary imposts and prohibitions of importation. It denied that trade between the States was limited to mere inter-State movement of persons or things and it explained how wide is the conception of inter-State trade. But it did not formulate a precise and inflexible interpretation of the words of the section. It did not profess to substitute a legal formula or legal formulae expressed with technical exactness for the language of the section. This serves to explain the differences of opinion which have been experienced by this Court in the attempt to perform the extremely difficult task of deciding what State statutes have been and what have not been obnoxious to the provision. In the present case the statute is entitled State Transport (Co-ordination) Act. Its long title describes it as an Act to provide for the improvement and for the co-ordination of means and facilities for locomotion and transport, and to constitute a Board of Commissioners for that purpose. It is directed to secure an ordered system of public transportation in which the integers (not the least important of which are State railways) do not engage in mutual slaughter by irrational competition. As part of the means to this end it sets up a licensing system for motor vehicles which act as common carriers or which otherwise engage in the carriage of goods. The grounds upon which a licence may be granted or with- held are concerned with the public need for such transport, the suitability of routes, the mutual relation of the proposed service with other services and other matters which attend the co-ordination of a random system of transport. The appellant complains of a conviction for operating a public motor vehicle without a licence and he has proved that upon the occasion when he offended he was

1(1920) 28 C.L.R. 530. 50 CLR 51

performing an inter-State journey. The operation of the Act in no way depends upon the inter-State character of his journey it applies uniformly to transport in New South Wales and does not concern itself with the difference between inter-State and intra-State traffic. I should think that a law of this character which did differentiate between the two kinds of traffic might well be held directly to restrain inter-State trade. The fact that it does not SO differentiate does not establish that its operation is indirect or consequential. But the question whether it is direct or indirect must be determined by a consideration of the nature of the statute and the character of the act or transaction which it affects. The statute professes to be, and in fact is, an attempt not to suppress but to regulate transportation and to do SO in such a way as to help rather than to retard or obstruct the movement of commercial goods throughout New South Wales. It takes a broad view of what does in the long run facilitate and help commercial transportation, and adopts the assumption that a superabundance of means of transport to-day followed by a consequential insufficiency or inappropriateness to-morrow cannot aid but must hamper trade, commerce, and intercourse. The acts or transactions with which the statute is concerned, and upon which it operates, are not actual commercial dealings, the actual transfer of goods from one place to another and the actual movement of individuals. No one is required, not to go here or there, not to send his goods here or there, not to make this or that bargain or not to engage in this or that communication. The material parts of the statute deal with vehicles in a double sense. The motor cars or trucks are the instruments-the vehicles for accomplishing these ends. No one can doubt their importance as means to trade, commerce, and intercourse inter-State or intra-State, but they are aids or implements to effect the thing, they are not the thing itself. The question which I have to ask myself is whether, in a scheme which allows complete freedom to go or to send from one place to another but in the process of co-ordinating the means and of rationalizing the facilities, denies a completely unregulated choice of means, a direct restraint upon or interference with trade, commerce, and intercourse is imposed. In answering this question

I do not think one should concentrate on the individual to the

50 CLR 52

A. exclusion of the position of other individuals. In modern social

conditions the consideration expressed in the maxim sic utere tuo ut alienum non laedas cannot be confined to the occupation and use of property. A regulation of an incident of commerce which is calculated to guide the stream but not to obstruct it does not impose a direct restraint merely because it conditions the individual's exercise of rights which previously existed. Courts of justice ought not to be blind to realities. To concentrate upon the inhibition of which the present appellant complains, and upon the indisputable fact that it prevents him carrying goods in New South Wales in the course of a journey from a point outside that State to a point within it, is to lose sight of the fact that if all were permitted to carry goods where and how they liked there might soon be none who could provide any systematic means of carrying the constant stream of inter-State freight at all. The considerations in the present case which may be stated in favour of the view that the interference is direct are, no doubt, weighty, and, I hope, I have not overlooked any of them. But taking into account the fact that the statute deals only with the means of inter-State carriage, that the policy disclosed is to organise and co-ordinate all means of transportation, and that it is not open to the objection that it discriminates and looking at inter-State trade as a whole in which one integer is not to be considered to the exclusion of others I have come to the conclusion that any burden which the statute imposes on or any restriction which may result to inter-State trade or commerce is not sufficiently direct to render it obnoxious to sec. 92.

For these reasons I am of opinion that the rule nisi should be discharged.

STARKE J. This is a rule or order nisi for a writ of prohibition made by the Supreme Court of New South Wales and removed into this Court under sec. 40 of the Judiciary Act 1903-1932. Hill was charged with an offence against sec. 12 of the State Transport (Co-ordination) Act 1931 of New South Wales in that he did operate a public motor vehicle not then being licensed under the Act and he not being the holder of a licence under the Act in respect of the vehicle. It appears that the firm of which Hill was a member

50 CLR 53

operates motor vehicles and transports goods between Victoria and New South Wales, but that neither the vehicles nor the drivers of those vehicles are licensed as required by the provisions of the Act. Hill was convicted of the offence charged (see, as to evidence, sec. 44). The question for the consideration of the Court is whether that conviction can stand in view of the provisions of sec. 92 of the Constitution.

The State Transport (Co-ordination) Act 1931 is described in its preamble as " ' An Act to provide for

the co-ordination of means of and facilities for locomotion and transport." It provides for the appointment of a Board of Commissioners to carry into effect the objects and purposes of the Act (sec. 4). It prohibits any person operating a public motor vehicle unless the vehicle is licensed by the Board and unless he is the holder of such licence (sec. 12). A public motor vehicle means (sec. 3) a motor vehicle (as defined in the Act) "used or let or intended to be used or let for the conveyance of passengers or of goods for hire or for any consideration or in the course of any trade or business whatsoever," or "plying or travelling or standing in a public street for or in hire or in the course of any trade or business whatsoever." The Act also requires the licensing of any person who acts or carries on or advertises or notifies that he acts or carries on the business of an agent for persons operating a public motor vehicle &. (sec. 20). It gives the Board wide discretionary powers as to the issue of licences. Routes areas or districts and terms and conditions may be prescribed, as may fares freights and charges'and the use of the vehicle, whether as to passengers only or goods only or goods of a specified class or description only, and as to the circumstances in which conveyance may be made or may not be made, including the limiting of the number of passengers or the quantity weight or bulk of the goods that may be carried on the vehicle (secs. 15-17). The Board may impose conditions that the licensees make certain payments to it in respect of passengers or goods carried (sec. 18 (4), (5) ). It may require any applicant for a licence to give reasonable security for due compliance with the conditions of the licence (sec. 18 (7) ). A fund called the State Transport Co-ordination Fund is created (sec. 26 (1) ), and to the credit of this fund are placed any moneys

50 CLR 54

A. appropriated by Parliament and moneys directed by the Act or

any other Act to be paid into such fund. Payments may be made out of the fund with the approval of the Minister as subsidies in respect of any feeder services to railways or tramways or to the Government Railways Fund (sec. 26 (6) ), but otherwise the fund may be applied to the purposes for which they are appropriated by Parliament (sec. 26 (8) ).

But the Constitution, sec. 92, provides that trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. The State Act here in question assumes complete control of public motor transport. Its object is to co-ordinate the means and facilities of transport and possibly to protect the State railways from ruinous competition. It does not actually prohibit the transport of passengers or goods from one State to another, but it penalizes persons engaging in such transport, whether inter-State or domestic, unless the vehicle is licensed and the person operating it is the holder of such licence. The object and necessary effect of the Act is to regulate and control transport by motor vehicles, and persons are penalized for engaging in that transport without a licence in order to effect that object and no other. In my opinion such an Act is, according to the decisions of this Court, in contravention of the provisions of sec. 92 of the Constitution, in SO far as it affects inter-State trade or commerce. The decision in W. &A. McArthur Ltd. v. State of Queensland 1 establishes, SO far as this Court is concerned, four propositions 1. The expression " ' trade and commerce in sec. 92 of the Constitu- tion includes all commercial dealings and accessory methods adopted to initiate continue and effectuate the movement of persons and things from State to State. It is not limited to the mere act of transportation over territorial frontiers 2. 2. The words "absolutely free " in sec. 92 cannot be confined to pecuniary enactments or customs laws, but must have their natural meaning of absolute freedom from every sort of impediment, regulation or control by the States with respect to trade, commerce, and inter- course between them 3. 3. A general restriction or prevention of

1(1920) 28 C.L.R. 530. 2(1920) 28 C.L.R., at p. 549. 3(1920) 28 C.L.R., at pp. 550-554. 50 CLR 55

trade and commerce, e.g. domestic inter-State and foreign trade, does not avoid the operation of sec. 92 1. It is not essential that the restriction be discriminatory or be conditioned on the fact that such trade or commerce is carried on between the States. 4. The provision of sec. 92 does not affect the legislative power of the Commonwealth 2. It appears to me that the decision in James V. Cowan 3 supports the first and third propositions, and also the second proposition in SO far as it asserts that sec. 92 cannot be confined to pecuniary enactments or customs laws. The cases of The Commonwealth and Commonwealth Oil Refineries Ltd. v. South Australia 4; James v. South Australia 5; Roughley v. New South Wales; Ex parte Beavis 6 Ex parte Nelson [No. 1] 7 Peanut Board v. Rockhampton Harbour Board 8; and Willard V. Rawson 9, are but illustrations of one or other of these four propositions, in various circumstances. It may be that the proposi- tions were not always rightly applied, but that is no reason for disregarding them. In Roughley's Case, the majority of the Court rest upon a denial-as I understand the reasoning-that the farm produce agents there concerned were engaged in inter-State trade and commerce. In Nelson's Case there was an even division of opinion, but the decision rests upon a denial that a law restricting the introduction into New South Wales of stock from any country or State in which there was reason to believe any infectious or contagious disease in stock existed was a regulation of inter-State trade and commerce, though it controlled in some degree the conduct and liability of those engaged in the trade and commerce. Willard V. Rawson rests upon the interpretation given to the Act there in question the object of the Act was not restrictive of trade but protective, and consequently the imposition of registration and licence fees was not in contravention of sec. 92. But the direct object and effect of the State Transport (Co-ordination) Act 1931 of the State of New South Wales, whatever the political motive may be, is to restrict, regulate and control transport, or the movement of

1(1920) 28 C.L.R., at pp. 551-552. 2(1920) 28 C.L.R., at pp. 556-558. 3(1932) A.C. 542 47 C.L.R. 386. 4(1926) 38 C L.R. 408. 5(1927) 40 C.L.R. 1. 6(1928) 42 C.L.R. 162. 7(1928) 42 C.L.R. 209. 8(1933) 48 C.L.R. 266. 9(1933) 48 C.L.R. 316. 50 CLR 56

passengers and goods in motor vehicles, whether engaged in domestic or inter-State trade and commerce. Transport is, as I said in Willard's Case 1, an essential element of trade and commerce,

VIZZARD;

and the burdening of inter-State transport by means of taxes, duties or imposts, or impeding regulating or controlling it by the requirement of licences, is obnoxious to the provisions of sec. 92 as interpreted by this Court in W. &A. McArthur Ltd. v. State of Queensland 2.

The State Act, however, provides (sec. 3 (2) ): " This Act shall be read and construed SO as not to exceed the legislative power of the State to the intent that where any enactment thereof would, but for this subsection, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power." This is a legislative declaration that the Act shall operate on SO much of its subject matter as Parliament might lawfully have dealt with, and SO as not to exceed the legislative power. (See Newcastle and Hunter River Steamship Co. v. Attorney-General for the Commonwealth 3.) It excludes, I think, from its operation any interference or control of trade and commerce obnoxious to the provision of sec. 92 of the Constitution. But, whether by reason of this sub-section or by the direct operation of sec. 92 itself, the conviction of Hill cannot stand, and as the parties have raised no objection in this case to the procedure by a rule or order nisi for a writ of prohibition, the rule should be made absolute.

DIXON J. A. J. Hill &Son, a firm of carriers, conveyed goods or merchandise from a depot in Swanston Street, Melbourne, in the State of Victoria to a depot in Wagga Wagga in the State of New South Wales. The articles were carried in a motor lorry which was used solely in transporting goods from Melbourne to Wagga Wagga. The motor lorry was registered under the Motor Traffic Act 1909-1915 of New South Wales, but was not licensed under the State Transport (Co-ordination) Act 1931-1932 by the State Transport Co-ordination Board, and had not been granted an exemption from the requirement

1(1933) 48 C.L.R., at p. 325. 2(1920) 28 C.L.R. 530. 3(1921) 29 C.L.R. 357. 50 CLR 57

that it should be SO licensed. It is an offence under sec. 12 of the Act to operate in New South Wales a public motor vehicle, which is neither licensed by the Board nor exempt. Any mechanically propelled vehicle is a motor vehicle unless used on a railway or a tramway and the expression includes aircraft. If a motor vehicle is used for the conveyance of passengers or of goods for hire or for any consideration or in the course of any trade or business whatso- ever, it is a "public motor vehicle" and if it carries passengers or goods for hire or for any consideration or in the course of any trade or business whatsoever, it is 'operated' (sec. 3 (1) ).

The members of the firm were convicted under sec. 12, and, upon the facts stated, it is clear that its express terms were contravened. But the express terms of the section, in common with the rest of the statute, are restrained by the provision contained in sec. 3 (2), which requires that the Act shall be read and construed SO as not to exceed the legislative power of the State to the intent that where any enactment thereof would, but for the sub-section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power. It follows that no provision of the State enactment is meant to apply where to do SO would amount to an invasion of the freedom secured to trade, commerce, and intercourse among the States by sec. 92 of the Commonwealth Constitution. Thus the question SO raised for our decision is whether sec. 12 can operate to prohibit the use of a motor vehicle for the carriage of goods between a place in New South Wales and a place in another State, and, yet, leave trade, commerce, and intercourse by internal carriage absolutely free. The statute makes all carriage of goods for reward, or in the course of trade, unlawful if done by motor transport unless authorized by the Board either by licence or by exemption. The Board consists of a Chief Commissioner and three other Commissioners appointed by the Governor (sec. 4). The first duty imposed upon it was to report upon the steps to be taken to co-ordinate the services of the Railway Commissioners, the Commissioner of Road Transport, the Management Board appointed under the Transport Act 1930 and the Main Roads Board and to place the services under one body (sec. 10). Next, after its concern with these governmental agencies,

50 CLR 58

the Board's most important duty appears to be the control of

commercial transport by road and air. This control is given by the provisions which prohibit, except under licence or exemption, the carriage of passengers or goods by motor vehicle including aircraft, for reward or in the course of trade, the carriage in a motor vehicle of the proprietor's or driver's own goods unless they have not been sold and are not intended for sale by him, and the consign- ment or despatch of goods by motor vehicle (secs. 12 (1) and (2) and 13). The Board has complete authority to grant or refuse a licence (sec. 17 (4) ). If a licence is granted, it may confine the vehicle to a specified route or routes or authorize it to operate anywhere except on specified routes (sec. 15 (1) ). The licence may be subject to conditions relating to the tariff or charges and these conditions may fix either maximum or minimum or specified rates. The licence may be limited to the carriage of passengers or of goods or of particular descriptions of goods (secs. 17 (1) and (2) and 48 (8) (a) ). Further, the licence may impose a condition that the licensee shall make payments to the Board. The amounts to be levied are in the discretion of the Board, but they may not exceed specified limits, which, however, are sufficiently high to be often prohibitive. In the case of passengers, the payments are calculated at a sum per passenger mile, not exceeding a penny, and, in the case of goods, or goods and passengers together, the sums may be ascertained in any manner, but the total burden must not exceed three pence per ton mile of the vehicle and freight (sec. 18 (4), (5) and (6) ). An exemption from liability to these impositions may be granted if the route involves a journey of not more than twenty miles, or, in the case of goods, if the vehicle feeds the nearest prac- ticable railway (sec. 18 (8) and (9) ). The payments go to a fund, which may be applied in costs of administration, in subventions to the Government Railways Fund and to the general fund of a transport trust, and in subsidies to public motor vehicles used to provide feeder services to railways or tramways. The matters to be con- sidered by the Board in refusing or granting an application for a licence include the extent to which the proposed service is necessary or desirable in the public interest, local needs, the elimination of unnecessary services and the co-ordination of all forms of transport

50 CLR 59

including that by rail and tram (sec. 17 (3) (b), (c) and (d) ). Finally, the Board is given a discretionary power to grant exemp- tions from the obligation to obtain a licence (sec. 19 (1) ).

The effect of these provisions is to suppress mechanical road trans- port for commercial purposes, except in cases where an agency of the State Government thinks fit to allow it. It is suppressed in virtue of its commercial character. The ground upon which the prohibition against operating the vehicle rests is that it carries passengers or goods for reward or otherwise in the course of trade. The discretion to licence it is exercisable upon considerations which may include the competition of State railways for the trade borne by mechanical road transport and must include the railway facilities existing. Finally, transportation may be taxed when it is licensed. If unaffected by sec. 92, the suppression is "pointed at " inter-State carriage as well as domestic carriage. It is true that the prohibition in sec. 12 does not differentiate between inter-State and intra-State transportation. But uniformity or absence of discrimination is not a criterion, and, even if it were, is scarcely a quality to be ascribed to provisions, which enable a government authority to discriminate between vehicles and routes upon any basis which it chooses.

In my opinion, it is inconsistent with the absolute freedom of trade, commerce, and intercourse between Victoria and New South Wales to allow the prohibition of sec. 12 to include the carriage of goods by road upon a continuous course of transportation between a place in Victoria and a place in New South Wales. There is, I think, no act or transaction which better answers the description trade, commerce, and intercourse between the States than the carriage of merchandise from a place in one State across the border to a place in a neighbouring State. It is at once commerce and intercourse, commercial intercourse. Movement of persons and things from one State to another is the very thing to which absolute freedom is given. It is not the mere act of crossing the border which must be unobstructed. "Among the States" means between any part of one State and any part of another. Between places situated in different States, from commencement to completion, the transfer of goods and the passage of persons alike are free.

50 CLR 60

Before the establishment of the Commonwealth, the Parliament of New South Wales possessed a legislative power, which was plenary and, except for the territorial limitation, unrestrained by reference

VIZZARD;

to subject matter or otherwise, Among other encroachments upon that undefined mass of power made by the Federal Constitution, positive prohibitions were imposed upon any exercise which would produce specified effects, or amount to legislation of a particular description. Examples are contained in secs. 90, 114, 115, and 117 as well as sec. 92. Power to make such laws under any guise or for any purpose was withdrawn as effectually as if the disabling provision had from the beginning stood in the Colonial constitution as part of the grant of legislative power. Sec. 92 is not expressed in terms of restraint, but, whatever else it does, it disables the States from any exercise of legislative power inconsistent with the absolute freedom of trade, commerce, and intercourse among the States. These considerations, which lie on the surface, do not aid in determin- ing what amounts to an inconsistency with that freedom, but they do appear to me to make it clear that the purpose which the State legislature had in view in making the law, its description and nature, and the category to which it may be referred in a classification of legislation, are beside the question. The State legislature can have no power which it may exercise SO as to impair the freedom of inter-State commerce and intercourse. There are no competing powers to be reconciled. There is no defined area or specified subject of State legislative authority which is placed outside the range of the inhibition: no apparent or possible repugnancy between a specific grant of power and a specific restraint. Not only does the position appear to contain nothing to call for the application of the principles or methods by which the provisions of secs. 91 and 92 of the British North America Act 1867 have been harmonized, but it appears actually to be the converse case. Whatever be the end which the prohibition of carrying merchandise by motor vehicle, unless under licence, was designed to promote, as an end it, doubtless, is one to which the State legislature is entitled to address itself. But to whatever end it addresses itself, the State legislature may not adopt means which infringe upon the freedom of inter-State commerce and intercourse. When a restraint or prohibition is imposed upon

50 CLR 61

acts or conduct, which, from their very nature, form part of trade, H. commerce, or intercourse, the restraint or prohibition must be a derogation from the freedom of trade, commerce, and intercourse, and, therefore, cannot extend to inter-State transactions. Trade, commerce, and intercourse may suffer effects from the regulation or burdening of acts or things which are not in themselves part of trade, commerce, or intercourse. A law which apparently does no more, may, upon a full examination, prove to have an actual operation upon trade, commerce, and intercourse as distinguished from producing consequences of an economic, business, or other character which are prejudicial to it. Similarly, an administrative order may, upon a proper understanding of its application to the circumstances, turn out to be an attempt to control or restrain trade, commerce, or intercourse although, upon its surface, it may not appear to do SO. Thus, in James v. Cowan 1, the State legislation gave to the Minister a power of compulsorily acquiring dried fruits for the purposes of the statute, but not SO as to interfere with the freedom of inter-State trade. In delivering the opinion of the Privy Council, Lord Atkin said 2: It may be conceded that, even with powers granted in this form, if the Minister exercised them for a primary object which was not directed to trade or commerce, but to such matters as defence against the enemy, prevention of famine, disease and the like, he would not be open to attack because incidentally inter-State trade was affected." But their Lordships thought it was made plain that the direct object of the exercise of the powers was to interfere with inter-State trade. Distinctions in respect of scope, object, purpose, immediacy or indirectness of operation, and remoteness or proximity of effects may be material in such cases. But there appears to me to be no warrant for applying such considerations to statutory provisions which prescribe duties or impose liabilities or burdens by reference to acts or conduct which go to constitute trade, commerce, and intercourse including that of an inter-State character. The present law requires all persons, unless specially licensed by the State Government authority, to refrain from carrying out in New South Wales an ordinary transaction

1(1932) A.C. 542 ; 47 C.L.R. 386. 2(1932) A.C., at pp. 558-559; 47 C.L.R., at pp. 396-397. 50 CLR 62

A. of commercial intercourse. It forbids it by reference to the exact

characteristics of commercial intercourse. It is rendered unlawful because of these characteristics. It follows that when the commercial intercourse is between a place in another State and a place in New South Wales, then, the enactment purports to render acts of inter State commerce and intercourse unlawful, and it does SO by reference to the characteristics of commerce and intercourse. If sec. 92 does not protect it, the transportation of goods and persons in the course of inter-State commerce by an ordinary means is stopped, except in

SO far as an agency of the State thinks fit to permit it and even then it is liable to a pecuniary impost. To say that the State of New South Wales can forbid SO much of the transportation of merchandise by motor vehicle between a place in Victoria and another in New South Wales as lies within its territorial jurisdiction is to affirm a proposition, which, in my opinion, is flatly opposed to the constitu- tional declaration that trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

The chief reason given in argument against this view depends upon a restrictive interpretation of the constitutional provision. It is said that the expressions in sec. 92 are composite, that it is a mistake to inquire what constitutes inter-State trade and insist upon freedom for what composes it, and that it should be understood in the same way as would a convention estab- lishing free trade between independent countries. "Free trade is defined in a dictionary of political economy as "that system of commercial policy which draws no distinction between domestic and foreign commodities, and, therefore, neither imposes additional burdens on the latter nor grants any special favours to the former" (Prof. C. F. Bastable in Palgrave's Dictionary of Political Economy, vol. II., p. 143). But it is not now, if it ever was, possible to construe sec. 92 as confined to giving immunity from restraints upon the introduction of commodities or the entry of persons into a State: For the legislation condemned as invalid in James V. Cowan 1 restrained exportation. The contention, however, is that what sec. 92 does is to establish mutual free trade

1(1932) A.C. 542 47 C.L.R. 386. 50 CLR 63

between the States and that it does no more and SO should be interpreted by reference to that economic doctrine. Accordingly, the freedom it confers is only from restrictions and burdens which are not also suffered by domestic trade. Attempts have often been made to induce this Court to interpret sec. 92 as preventing nothing but the differential treatment of inter-State commerce, whether inward or outward, the imposition of burdens not shared by domestic commerce. Except in Duncan's Case 1, they have always failed. Such a contention is inconsistent with the decision in Foggitt Jones &Co. v. State of New South Wales 2, with the judgments of Barton and Isaacs JJ. in Duncan's Case, which were upheld in McArthur's Case 3, with James v. South Australia 4 (where this Court dealt with sec. 20 of the Dried Fruits Acts 1924 and 1925 (South Australia) as a uniform restraint), and with Peanut Board v. Rockhampton Harbour Board 5. Further, it appears to me to be inconsistent with the opinion of the Judicial Committee in James v. Cowan 6 delivered by Lord Atkin. In that case, an argument had been advanced before the Judicial Committee that the power under sec. 20 of the Dried Fruits Act to determine where and in what quantities the output of dried fruit should be marketed, and the determinations under the power that only ten or fifteen per cent should be marketed within Australia, " did not affect inter-State trade as such, since it imposed upon it no restriction not imposed upon intra-State trade" " 7; that in deciding how sec. 92 operated "the true test is whether what is complained of discriminates between intra-State trade and inter-State trade, and so interferes with inter-State trade as such" (7), and that, accordingly, the decision of this Court in James v. South Australia 8 was wrong (7). In reference to this argument, Lord Atkin said 9 It appears to their Lordships unnecessary to undertake the difficult task of defining the precise boundaries of the absolute freedom granted to inter-State commerce by sec. 92. In the present case they are clearly of opinion that sec. 20 and the

1(1916) 22 C.L.R. 556. 2(1916) 21 C.L.R. 357. 3(1920) 28 C.L.R. 530. 4(1927) 40 C.L.R. 1, at p. 39. 5(1933) 48 C.L.R. 266. 6(1932) A.C. 542 47 C.L.R. 386. 7(1932) A.C., at p. 546. 8(1927) 40 C.L.R. 1. 9(1932) A.C., at p. 555 ; 47 C.L.R., 50 CLR 64

determinations made under it were directed at inter-State commerce

as such. They were intended to prevent persons in South Australia from selling more than the fixed quota in any of the Australian States.

VIZZARD;

The quota was fixed by reference to the needs of all the States: and the prohibition of the sale of the surplus was against selling to any of the States. As the determination said, 'The proportion which may be marketed in the Commonwealth of Australia shall not be more than' the prescribed proportion. If this leaves inter-State commerce absolutely free, the constitutional charter might as well be torn up. Their Lordships have no hesitation in agreeing with the decision of the High Court on this point." By this passage I understand his Lordship to mean, not that the South Australian provision, or the determinations under it, imposed upon sales for export to another State a restraint not applied equally to sale for domestic consumption, for the section plainly forbade both alike, but that sale for delivery into another State suffered, although in common with sale for delivery or consumption within South Australia, a restriction imposed by reference to the very characteristics which were essential to its existence as inter-State trade. In the same way in Attorney-General for Manitoba v. Attorney-General for Canada 1, quoted by Isaacs J. in James v. Cowan 2, their Lordships entirely rejected absence of discrimination as an answer to the impairment of the status and capacities of Dominion companies which was produced by the Provincial enactment prohibiting the sale of shares issued by any company. Viscount Sumner 3 said :-

selected the class of persons who alone could lawfully conduct the business of selling primary produce consigned from other States, and, for all practical purposes, it cut down the pre-existing right of the inter-State trader to select his own selling agent. By the Act, his area of selection was restricted to licensed agents. The unlicensed agent was completely debarred from co-operating in the inter-State trade.

Therefore the decision in Roughley's Case 1 shows that it is not every regulation and control by the State of the methods of conduct- ing inter-State commerce, which is forbidden by sec. 92. Roughley's Case is entirely inconsistent with the notion that, by sec. 92, every person who is engaged, even solely, in inter-State trade is given an unconditional right to choose his own method of conducting that trade within the borders of each and every State. The case proceeds upon the contrary hypothesis that the State may prescribe general rules for the conduct of trade and business and to these rules all persons must conform without sec. 92 being in any way affected. Roughley's Case is analogous to the present in that the unlicensed produce agent there corresponds to the unlicensed carrier here, and the inter-State owner of the farm produce there, corresponds to the owner of the commodities carried by the present applicant.

Nor is Roughley's Case in any way inconsistent with the decision of the Privy Council in James v. Cowan 2. No doubt James v. Cowan decides that it is possible for inter-State trade, commerce, and intercourse to be interfered with contrary to sec. 92, although the State law may also restrict purely domestic trade. But it also shows that the action of South Australia was held to be unlawful, not merely because it took certain action in relation to inter-State trade, but because its action was of a hostile character and carried out the predetermined State policy of limiting and prohibiting the marketing of dried fruits in the other States of the Commonwealth. James v. Cowan nowhere suggests that the laws of the States must never trespass in any way upon the domain of inter-State trade. By the Privy Council's close investigation of the marketing policy of South Australia, the judgment rather lends

1(1928) 42 C.L.R. 162. 2(1932) A.C. 542; 47 C.L.R. 386. 50 CLR 92

support to the view that the validity of State action depends upon whether the impugned State legislation or administration was directed against inter-State trade by fencing off the inter-State market.

The principle that the Parliaments of the States may legislate in relation to matters which relate to and concern and affect inter-State trade, commerce, and intercourse, SO long as- such legislation leaves trade, commerce, and intercourse among the States absolutely free, is therefore recognized by Roughleys' Case 1. Further, the various State Sale of Goods Acts which govern contracts whether or not they call for the delivery of goods from one State to another, are obvious illustrations of laws which deal (inter alia) with matters affecting inter-State trade and commerce but do not offend against sec. 92.

Moreover, as appears from Nelson's Case [No. 1] 2, even if State laws deal solely with matters persons or things connected with inter- State trade, nevertheless the laws may be found not to offend against sec. 92. It is difficult to see how any real impediment would be imposed upon commerce or intercourse among the States if, for instance, for purposes of statistics or perhaps of police, a State required certain particulars to be furnished by persons arriving from other States, or if persons passing into a State with cattle were required to cross the border at prescribed places. It is quite consistent with this view that in all such cases, and whether the State laws deal solely with inter-State trade and intercourse or with trade in general, it may be found possible to show that sec. 92 is being infringed, because the real purpose of State intervention is to destroy or limit inter-State trade or intercourse. For there is hardly any legislative or executive power of the State which is not capable of being used for a purpose forbidden by sec. 92.

There are many State laws which relate to, and concern, not only trade, commerce, and intercourse, but other subject matters. It is often of importance to examine the nature and character of all State laws which are challenged as being contrary to sec. 92 in order to ascertain and measure the relationship and degree of relationship between them and inter-State trade, commerce, and intercourse (Nelson's Case [No. 1] (2) ). Absence of discrimination against inter- State trade and intercourse, and the presence of legislative purposes

1(1928) 42 C.L.R. 162. 2(1928) 42 C.L.R. 209. 50 CLR 93

other than the purpose of dealing with trade and commerce may tend to show that the State is not erecting barriers against, or placing embargoes upon, inter-State trade and intercourse. If a State law THE discriminates against inter-State trade and intercourse SO as to prohibit it, it will be invalidated by sec. 92 (Fox v. Robbins 1 ). And such discriminatory legislation may exist although, in form, the law is of general application. Thus a State may attempt to enact a general law fixing the price of commodities which, in fact, are produced in only one other State, the price operating SO as to destroy all trade in such commodities between the States. Such discrimina- tory effect is, of course, provable by evidence. Sec. 92 also confers rights upon individuals in the sense that any person may invoke its aid in an appropriate case; but it gives no constitutional right either to individuals engaged solely in the inter-State trade, or to individuals whilst they are SO engaged, to determine for themselves the manner in which and the means by which, they will conduct their business or commerce in each State (Roughley's Case 2 ). Nor are traders or carriers who are engaged solely in the inter-State trade entitled by virtue of sec. 92, so to dedicate and use their motor vehicles in inter-State trade as to procure an immunity from the operation of general State laws dealing with the taxation of motor vehicles (Willard v. Rawson 3 ), or the regulation of the business of commercial transport within the State. But, if it is established that State laws which regulate transport or the vehicles used therefor or trade or business conducted within a State are designed for the express purpose of restricting or prohibiting inter-State trade and commerce, and have such effect, the State laws, by whatever name called, or with whatever subjects they deal, are inconsistent with sec. 92 (James v. Cowan 4 ).

The New South Wales State Transport (Co-ordination) Act affects and relates to certain acts, things and matters which are intimately bound up with inter-State trade, commerce and intercourse. It controls and regulates the methods by which the services of commercial transport within New South Wales must be conducted. The main purpose of the Act is to secure a better and more economical

1(1909) 8 C.L.R. 115. 2(1928) 42 C.L.R. 162. 3(1933) 48 C.L.R. 316. 4(1932) A.C. 542 47 C.L.R. 386. 50 CLR 94

system of public transport by land within New South Wales, the scheme of organization being to compel co-operation between the transport services provided by the Government railways and road

VIZZARD;

transport services. The statute seeks to secure better facilities for all trade and commerce and intercourse. For all practical purposes the State has already monopolized rail and tram transport, and it must be remembered that the railway systems of the States are themselves the main instrumentalities for conducting trade, commerce and intercourse among the States. There is no evidence in this case, either upon the face of the Act or otherwise, that the system of licensing public motor vehicles using New South Wales roads was intended to, or by administration had the effect of, disadvantaging, discriminating against, or even limiting, inter-State trade or commerce in any commodity.

Sec. 92 does not guarantee that, in each and every part of a transaction which includes the inter-State carriage of commodities, the owner of the commodities, together with his servant and agent and each and every independent contractor co-operating in the delivery and marketing of the commodities, and each of his servants and agents, possesses, until delivery and marketing are completed, a right to ignore State transport or marketing regulations, and to choose how, when and where each of them will transport and market the commodities.

One of the results of the contrary view, recently rejected by this Court in Willard v. Rawson 1, would be to exempt the inter-State carrier from the payment of motor vehicle taxation in either of two States, although he makes a very extensive use of the roads of both. The argument rejected in that case assumes that sec. 92 primarily protects persons, but its real object is to secure the free flow and passage and marketing of commodities among the States and to secure the right of passage of persons from State to State. Absolute freedom is ascribed to trade, to commerce and to intercourse, and is not ascribed to traders or to travellers, considered merely as individuals.

In the United States, for reasons which need not be examined, a doctrine was enunciated that inter-State trade and commerce is

1(1933) 48 C.L.R. 316. 50 CLR 95

exclusively a matter for Federal control and regulation, and that, as a consequence, any dealing with that subject by the State was regarded as a trespass upon the domain of Federal power. But, as time went on, exceptions had to be engrafted upon this principle in order to prevent chaotic and absurd results. But in Australia the situation is, or should be, entirely different. Upon the States, as well as the Commonwealth, has been conferred legislative power over the subject matter of inter-State trade and commerce. Common- wealth laws are given supremacy in the case of inconsistency, and the State, and, in my opinion, the Commonwealth also, should observe the general command laid down in sec. 92.

In the present case the question is whether it can truly be said

Before this Act was passed, trade and commerce in all commodities and the intercourse of persons between New South Wales and Victoria was absolutely free, but since this Act it has ceased to be absolutely free." All that has been shown is that owners of public vehicles may be refused a New South Wales vehicle licence, even if the vehicle is used upon inter-State journeys. But it has not been shown that a single vehicle SO used has not been licensed upon application made. And, even if the present applicant had deigned to request a licence for his vehicle and his request had been refused, that would not prove an infringement of sec. 92.

The order nisi should be discharged.

McTIERNAN J. In my opinion, the order nisi for prohibition should be discharged. It is unnecessary to reiterate in detail the facts proved before the Magistrate or the provisions of the State Transport (Co-ordination) Act 1931 (Act No. 32 of 1931) as amended by Act No. 31 of 1932. The applicant attacked his conviction for an offence against sec. 12 of this Act on two grounds. (1) That the Magistrate was in error in finding that the evidence was sufficient to support the allegation that the applicant operated the vehicle on the relevant occasion. (2) That by force of sec. 92 of the Constitution of the Commonwealth and sec. 3 (2) of the State Transport (Co-ordina- tion) Act he was not bound by the provisions of sec. 12 of this Act even if he did in fact operate a public motor vehicle " in New South Wales in the circumstances which were proved before the

50 CLR 96

Magistrate. In my opinion the first ground is untenable. It IS

sufficient to say that there was evidence upon which the Magistrate was entitled to find that the applicant did operate the motor vehicle on the occasion in question. I have nothing to add to the reasons which have been given by my brother Evatt, for declining to quash the conviction on this ground.

The applicant's second ground of attack raises a question of great constitutional importance. It was contended on his behalf that upon the true construction of sec. 92 of the Constitution, sec. 12 of the State statute is in excess of the legislative power of the State, if any person is read to include a person who " operates a public motor vehicle" within New South Wales in the course of an inter-State journey. The question, therefore, is what is the true construction of sec. 92 In James v. Cowan 1 the Judicial Committee said "It appears to their Lordships unnecessary to undertake the difficult task of defining the precise boundaries of the absolute freedom granted to inter-State commerce by sec. 92. " Their Lordships added 2 "In the present case they are clearly of opinion that sec. 20 and the determinations made under it were directed at inter-State commerce as such. They were intended to prevent persons in South Australia from selling more than the fixed quota in any of the Australian States." The boundaries of the "absolute freedom" " granted to inter-State commerce by sec. 92 do not appear to have been precisely defined in the judgments of this Court. Indeed, in James v. Cowan 3, Isaacs J., as he then was, issued a warning against making such a definition. He said 4 "I would say for myself that a paraphrase is especially dangerous in the case of a Constitution. In my opinion it would under the best of circumstances be unfortunate to adopt that or any other supposed verbal equivalent for the words of the Common- wealth Constitution itself." In Huddart Parker Ltd. v. The Common wealth 5, Dixon J. drew attention to the course recommended by Viscount Haldane L.C. in John Deere Plow Co. v. Wharton 6, of confining decisions upon questions on constitutional interpretation

1(1932) A.C., at p. 555 ; 47 C.L.R., 2(1932) A.C., at p. 555 ; 47 C.L.R., 3(1930) 43 C.L.R. 386. at p. 393. 4(1930) 43 C.L.R., at p. 417. 5(1931) 44 C.L.R., at p. 514. at pp. 393-394 6(1915) A.C. 330, at p. 338. 50 CLR 97

to concrete questions and avoiding general definitions of expressions occurring in the Constitution. We were therefore treated to an elaborate argument by counsel as to the nature of the prohibition implied by sec. 92. The terms of this section are perhaps more characteristic of the platform than the draftsman's desk. The difficulty of measuring its terms exactly, SO that nothing is added or subtracted is a perplexing one. The nature of a Constitution, as Chief Justice Marshall said in M'Culloch v. State of Maryland 1, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." Sec. 92 appears to be deficient even according to that standard.

The applicant, however, relies mainly on certain propositions enunciated in McArthur's Case 2 and submits that they conclude the constitutional question in his favour. This case further decides that sec. 92 does not bind the Commonwealth. The propositions in McArthur's Case as to the nature of the prohibition which sec. 92 imposes upon the State Legislatures are stated in a number of ways. "Absolutely free-The primary meaning of these words used as they are with reference to governmental control, is that the subject matter of which they are predicated is to be 'absolutely free from all governmental control by every governmental authority to whom the command contained in the section is addressed. The expression absolutely free' naturally means 'free' as 'trade, commerce, and intercourse,' and does not extend beyond the subject matter spoken of. It is not said of 'goods' or ' persons,' but of the acts which constitute trade, commerce, and intercourse 3.

The State cannot, in our opinion, either by laws directly and openly applying to trade and commerce, or by laws creating discrimination, which is the same thing (see per White J. in Pullman v. Kansas 4 ), impose a prior restraint on trade, commerce, and intercourse among the States " 5. 'The words absolutely free' in sec. 92 cannot, therefore, be confined to pecuniary exactions or customs laws, but in order to have any substantial effect must, unless some better reason be found, have their natural meaning of absolute

1(1819) 17 U.S.. 316, at p. 407; 2(1920) 28 C.L.R. 530. 3(1920) 28 C.L.R., at p. 550. 4 L.Ed. 579, at p. 601. 4(1909) 216 U.S. 56, at p. 65. 5(1920) 28 C.L.R., at p. 551. 50 CLR 98

freedom from every sort of impediment or control by the States

with respect to trade, commerce and intercourse between them. considered as trade, commerce and intercourse ' 1. Sir Robert Garran who appeared for the Commonwealth, which intervened in these proceedings, attacked the proposition which these passages express as to the nature of the constitutional prohibition imposed by sec. 92 and the further proposition laid down by the case that the section does not bind the Commonwealth as well as the States. These propositions are not, I think, justified by the language of sec 92. But as they should not now be overruled the present application must proceed upon the basis that they are right.

Trade, commerce and intercourse includes the carriage of passengers or goods for hire or in the course of any trade or business. The terms "operate" and "public motor vehicle " are defined in sec. 3 (1) of the State Transport (Co-ordination) Act. Sec. 12, therefore, unless it is read down by sec. 3 2, affects both inter-State and domestic trade and commerce. Its effect is to regulate and control such trade and commerce to some degree. Although this is the effect of the section, the constitutional question is not, in my opinion, concluded in favour of the applicant by the proposition laid down in McArthur's Case (2) as to the nature of the constitutional prohibition implied by sec. 92. In a further passage in this case Knox C.J., Isaacs J. and Starke J. expressed their view as to the meaning of absolute freedom" in respect of inter-State trade and commerce. They said 3 it "does not connote privilege to break all other laws. Liberty is not equivalent to anarchy or licence. Though there is 'absolute freedom' in every Victorian to cross into New South Wales and mingle with his fellow Australians there without the least hindrance or condition on the part of the State of New South Wales, it is his

' intercourse only which is unfettered, not the man himself under all circumstances. If the man, while in New South Wales, steals or cheats or begs

or is in such a condition as to constitute a danger to his fellows-matters wholly distinct from intercourse he is as amenable to the laws of the State on those subjects, SO far as they are unaffected by sec. 109 of the Constitution, as any permanent

1(1920) 28 C.L.R., at p. 554. 2(1920) 28 C.L.R. 530. 3(1920) 28 C.L.R., at pp. 550-551. 50 CLR 99

resident of the State. If he brings goods into the State, he is free to do so, and to pass through the State with them (say) to Queensland, equally without hindrance or condition by State law, SO far as regards the passage through. But if, for instance, the goods are dangerous, as gun-powder, or wild cattle or a mad dog, or are stolen or offensive, he cannot deny his obligation to submit in respect of them to whatever laws are in force in the State on those subjects. The constitutional freedom predicated begins and ends with respect to the act of 'trade, commerce, and intercourse." The principles expressed in this passage were applied by Knox C.J., Gavan Duffy J., as he then was, and Starke J. in Ex parte Nelson [No. 1] 1. In affirming that the Stock Act 1901 of New South Wales did not contravene sec. 92 their Honors said 2 In a measure it must be conceded that the Stock Act of New South Wales does regulate the free flow of inter-State trade and commerce in stock.

The seeming conflict may be resolved, in our opinion, by considering the true nature and character of the legislation in the particular instance under discussion. The grounds and design of the legislation, and the primary matter dealt with, its object and scope, must always be determined in order to ascertain the class of subject to which it really belongs; and any merely incidental effect it may have over other matters does not alter the character of the law.

The Stock Act of New South Wales is not in itself a regulation of inter-State commerce, though it controls in some degree the conduct and liability of those engaged in the commerce.

In truth, the object and scope of the provisions are to protect the large flocks and herds of New South Wales against contagious and infectious diseases, such as tick and Texas fever: looked at in their true light, they are aids to and not restrictions upon the freedom of inter-State commerce. They are a lawful exercise of the constitutional power of the State. There are passages in W. &A. McArthur Ltd. v. Queensland 3 which in our opinion support this view." Their Honors cited from the passages at pages 550-551, in which the meaning of "absolute freedom in respect of inter-State commerce is explained. The decisions since McArthur's Case 4 have explained, perhaps

1(1928) 42 C.L.R. 209. 2(1928) 42 C.L.R., at pp. 218-219. 3(1920) 28 C.L.R., at pp. 550-551. 4(1920) 28 C.L.R. 530. 50 CLR 100

liberalized the principles upon which the Court proceeded in that

case in outlining the class of State laws which are untouched by sec. 92. These decisions are binding equally with McArthur's Case 1. In Roughley's Case 2 it was decided that the provisions of the Farm Produce Agents Act 1926 of New South Wales were not obnoxious to the provisions of sec. 92. Knox C.J. stated 3: " It is manifest from the provisions of the Act that its sole object is to ensure, as far as may be practicable, honest dealing on the part of persons described as farm produce agents towards their principals and to prevent the owners of farm produce, whether resident in New South Wales or in other States, from being defrauded by persons who carry on the business of selling farm produce." Continuing, the Chief Justice said 4 It may well be that the Parliament of New South Wales is prevented by sec. 92 of the Constitution from either prohibiting the owner of goods produced in another State or the servant of such an owner bringing such goods into New South Wales or selling them there, and from imposing conditions on the exercise of his right to do SO. But it does not follow that a State law regulating the conduct of auctioneers or commission agents carrying on their business in New South Wales, or requiring them to be licensed, or prescribing rules for the regulation of traffic in the streets of its towns is rendered inoperative by that section whenever the auctioneer, or agent, or carrier is in fact dealing with goods consigned from another State for sale in New South Wales. What is forbidden by sec. 92 is any State law which obstructs or restricts the freedom of trade or commerce among the States. A law may control in some degree the conduct and liability of persons engaged in inter-State commerce without being itself a regulation of inter- State commerce (Judson on Inter-State Commerce, 2nd ed., p. 50) and a person whose business consists wholly or in part of affording facilities for the transaction of inter-State commerce is not necessarily engaged in inter-State commerce SO as to prevent the regulation by State legislation of his conduct in connection with that business." Higgins J. said 5 :- " But the State Legislature is subjected to another veto by sec. 92: it must not make a law

1(1920) 28 C.L.R. 530. 2(1928) 42 C.L.R. 162. 3(1928) 42 C.L.R., at p. 177. 4(1928) 42 C.L.R., at p. 179. 5(1928) 42 C.L.R., at pp. 193-194. 50 CLR 101

which infringes the provision that trade, commerce and intercourse among the States shall be 'absolutely free.' Freedom is really a negative idea I take it as meaning that there shall be no restraint, no obstruction, no control of trade, &., between the States. This cannot mean, if we are to give due effect to sec. 107, that State laws which merely affect such trade indirectly are vetoed; for all legisla- tive action of the State must affect inter-State commerce. State laws for public works, for public order, for police, for roads, for railways, for finance, even education or for morality, must, more or less, have an influence on inter-State commerce." In Willard V. Rawson 1 it was not questioned that the provisions of the Motor Car Act of Victoria there in question did by their operation affect inter-State trade and commerce. But the Court decided that the appellant was not excused by sec. 92 from obedience to them. This case was decided after James v. Cowan 2 and certain principles enunciated by the Judicial Committee were resorted to for the purpose of distinguishing between legislation which sec. 92 was intended to prohibit and legislation which the State Legislatures were left free to enact, although it affected trade and commerce. These principles were stated by Lord Atkin 3. His Lordship said If the real object of arming the Minister with the power of acquisition is to enable him to place restrictions on inter-State commerce, as opposed to a real object of taking preventive measures against famine or disease and the like, the legislation is as invalid as if the Legislature itself had imposed the commercial restrictions. conceded that, even with powers granted in this form, if the Minister exercised them for a primary object which was not directed to trade or commerce, but to such matters as defence against the enemy, prevention of famine, disease and the like, he would not be open to attack because incidentally inter-State trade was affected."

These authorities, in my opinion, establish that the absolute test of invalidity under sec. 92 is not whether the provisions of the State statute in question have the effect of regulating, or controlling trade and commerce, including inter-State trade and commerce. Although no precise, or exact statement of the true nature of the prohibition

1(1933) 48 C.L.R. 316. 2(1932) A.C. 542 47 C.L.R. 386. 3(1932) A.C., at pp. 558-559 47 C.L.R., at pp. 396-397. 50 CLR 102

emerges from the present state of the decisions, yet, they furnish

clear guidance in an inquiry into the question whether the provisions of a State Act contravene sec. 92. An Act which discriminates against inter-State trade is invalid. An Act which affects inter-State and domestic trade indiscriminately is wholly bad unless severable, if it directly affects such trade or in other words affects it as trade. An Act affects trade directly which is passed with a real or primary object directed to trade of prohibiting, regulating, controlling, restricting or burdening trade as opposed to a real or primary object not directed to trade, which is within the acknowledged power of the Legislature to accomplish. The real or primary object of an Act is to be gathered from what it enacts. See Peanut Board V. Rockhampton Harbour Board 1, and cases there cited. When the real or primary object of an Act is not directed to trade and commerce, but trade and commerce are incidentally affected by the Act such an incidental effect does not render the Act void under sec. 92.

The Commonwealth and the States respectively may enact legislation in the same terms with respect to subjects within their legislative powers respectively. But it does not follow that each Parliament would be exercising a power of legislation with respect to the same subject. The Commonwealth, for example, may as a regulation of commerce enact that motor vehicles engaged in inter- State trade should be licensed. But an Act of a State Legislature in similar terms, with respect to all motor cars which are driven in its territory should not be described as a regulation of commerce as such. The tests, which have just been outlined and which should, in my opinion, be applied in the present inquiry as to the validity of sec. 12 really depend upon a recognition of the distinct powers of legislation reserved to the States by the Commonwealth Constitution. It remains to apply these tests to the provisions of the State Act now in question.

The State Transport (Co-ordination) Act is described by the preamble as An Act to provide for the improvement and for the co-ordination of means of and facilities for locomotion and transport to constitute a Board of Commissioners for that purpose to amend the Govern- ment Railways Acts 1912-1930, and certain other Acts; and for

1(1933) 48 C.L.R., at pp. 309-310, 50 CLR 103

purposes connected therewith." Sec. 4 empowers the Governor to appoint a Board to carry out objects and purposes which are substantially those stated in the preamble. The Board is directed by sec. 10 (2) to report to the Minister as to the steps, which they consider desirable to co-ordinate and unify the control of, the facilities and means for locomotion provided by various Governmental bodies namely the Railway Commissioners, constituted under the Government Railways Acts 1912-1930, the authorities constituted under the Transport Act 1930 for the control of tramways and road transport, and the Main Roads Board, constituted under the Main Roads Act 1924-1929. The Government Railways of New South Wales are practically a monopoly and were built out of money borrowed on the public credit. An examination of the Government Railways Acts shows the direct connection between the Government of the State and its railways and how closely interwoven are govern- mental and railway finance. The Transport Act provides for the creation of transport trusts for defined areas. These trusts are concerned with the supervision, regulation and co-ordination of all public transport and omnibus services in their respective areas. The powers of the Railways Commissioners in relation to tramways are transferred to these trusts. Another authority set up by the Act is the Commissioner of Road Transport. Part XV. of the Act vests the administration of the provisions of the Motor Traffic Act of the State relating to the registration of motor vehicles and the control and supervision of them in this authority. The Management Board is constituted to conduct transport services established by the trusts for the carriage of passengers. The Main Roads Board is a road construction authority. The Main Roads Act provides for the classification of the roads of the State. The cost of construc- tion and maintenance is borne by special funds established by the Main Roads Act. These funds are built up by public moneys derived from sources mentioned in the Acts. The real or primary object of the provisions of the State Transport (Co-ordination) Act relating to the licensing of public motor vehicles which the applicant ignored, is not in my opinion, directed to trade and commerce at all. These provisions empower the State through its instrumentality, the State Transport (Co-ordination) Board, to limit, upon the principles

50 CLR 104

laid down in the Act, the number of vehicles plying for hire on the roads of the State or using the roads in the course of any trade or business. That, in my opinion, is not a regulation of trade and commerce as such, although trade and commerce may be incidentally affected by it. The information directed to be furnished to the Board in an application for a licence and the particular matters. which the Board is directed to consider in dealing with the applica tion, clearly show that the provisions attacked have a real and necessary connection with the objects and purposes which are declared in the preamble, and which are to be gathered from the enactment itself. An examination of the provisions of the Act and the Acts constituting the various public bodies whose activities and services it was passed to co-ordinate and improve shows that the real object of arming the Board with the powers of granting or refusing licences to persons desiring to operate public motor vehicles on the roads of New South Wales was to protect the utility of the public facilities for transport, to save the publicly owned railways of the State from the destructive effect of the uncontrolled or unrestricted use of the facilities for travelling provided by the State out of public moneys and to protect the public finances and the credit of the State. It is, in my opinion, within the legislative power reserved to the States to enact the provisions which are now in question and such provisions are not affected by sec. 92.

This Court, while recognizing the difference between the Australian and American Constitutions has frequently referred to the decisions of the Supreme Court of the United States which were given in cases where State legislation was attacked on the ground of conflict with the commerce clause of the American Constitution. This precedent encourages reference to some of these decisions. In Sproles v. Binford 1 the Supreme Court of the United States, in dealing with the provisions of a motor vehicle Act of the State of Texas said 2 :- It is said that the exception was designed to favor transportation by railroad as against transportation bv motor trucks. If this was the motive of the Legislature, it does not follow that the classification as made in this case would be invalid. The State has a vital interest in the appropriate utilization

1(1932) 286 U.S. 374 76 L.Ed. 1167. 2(1932) 286 U.S., at p. 394 76 L.Ed., at p. 1182. 50 CLR 105

of the railroads which serve its people as well as in the proper maintenance of its highways as safe and convenient facilities. The State provides its highways and pays for their upkeep. Its people make railroad transportation possible by the payment of transporta- tion charges. It cannot be said that the State is powerless to protect its highways from being subjected to excessive burdens when other means of transportation are available. The use of highways for truck transportation has its manifest convenience, but we perceive no constitutional ground for denying to the State the right to foster a fair distribution of traffic to the end that all necessary facilities should be maintained and that the public should not be inconvenienced by inordinate uses of its highways for purposes of gain." This state- ment applies with special force where the railways as well as the roads are built and maintained out of public funds and are owned and managed and controlled by the State. In Frost v. Railroad Commission 1 the " effect" of the State Act in question was " to offer a special privilege of using the public highways to the private carrier for compensation upon condition that he shall dedicate his property to the quasi-public use of public transportation." Mr. Justice Sutherland said 2, in delivering the opinion of the Court :- It is very clear that the Act, as thus applied, is in no real sense a regulation of the use of the public highways. It is a regulation of the business of those who are engaged in using them. Its primary purpose evidently is to protect the business of those who are common carriers in fact by controlling competitive conditions. Protection the highways is not involved." In my opinion, in view of the public ownership of the railways in New South Wales the opinion of Mr. Justice Holmes who dissented throws more light on the constitutional question arising in the present case. He said 3 The point before us seems to me well within the legislative power. We all know what serious problems the automobile has introduced. The difficulties of keeping the streets reasonably clear for travel and for traffic are very great. If a State speaking through its Legislature should think that, in order to make its highways most useful, the business traffic upon them must be controlled, I suppose that no one would doubt

1(1926) 271 U.S. 583 ; 70 L.Ed. 1101. 2(1926) 271 U.S., at p. 591 ; 70 L.Ed., at p. 1104. 3(1926) 271 U.S., at p. 601; 70 L.Ed., at p. 1108. 50 CLR 106

that it constitutionally could, as, I presume, most States or cities

do, exercise some such control. The only question is how far it can go. I see nothing to prevent its going to the point of requiring a

VIZZARD;

licence and bringing the whole business under the control of a railroad commission SO far as to determine the number, character and conduct of transportation companies and SO to prevent the streets from being made useless and dangerous by the number and lawlessness of those who seek to use them." In the State of New South Wales the uncon- trolled use of the roads by an inordinate number of public motor vehicles' is calculated to be dangerous to the efficiency of the railways and directly injurious to the interest of the State. Mr. Justice Brandeis concurred with Mr. Justice Holmes, and Mr. Justice McReynolds also dissented in a separate opinion in which he repeated in substance the views which he expressed as a dissentient in Bush &Sons Co. v. Maloy 1. In that case he made a noteworthy statement of the problem arising from the increase of motor vehicles in a State where the railways are not publicly owned. In Louisville and Nashville Railroad Co. v. Kentucky 2, the Court referred to the difference between State legislation affecting the instruments of commerce and legislation with respect to the commerce itself. In the course of its judgment the Court said But little need be said in answer to the final contention of the plaintiff in error, that the assumption of a right to forbid the consolidation of parallel and competing lines is an interference with the power of Congress over inter-State commerce. The same remark may be made with respect to all police regulations of inter-State railways. All such regulations interfere indirectly, more or less, with commerce between the States, in the fact that they impose a burden upon the instruments of such

These are, however, like the taxes imposed upon railways and their rolling stock

but are still within the competency of the Legislature to impose certain intimations in some of our opinions, which might perhaps lead to an inference that the police power cannot be exercised over a subject confined exclusively to Congress by the Federal Constitution. But while this is true with respect to the commerce itself, it is not true with respect to the instruments of such commerce." Finally

1(1925) 267 U.S. 317 ; 69 L.Ed. 627, at p. 629. 2(1895) 161 U.S. 677, at p. 701. 50 CLR 107

in Missouri Pacific Railway Co. v. Larabee Flour Mills Co. 1 the H. C. Court dealt with the power of the State over the vehicles of inter- State commerce. It quoted and approved the following statement from Cleveland &. Railway Co. v. Illinois 2 :- Few classes of cases have become more common of recent years than those wherein the police power of the State over the vehicles of inter-State commerce has been drawn in question. That such power exists and will be enforced, notwithstanding the constitutional authority of Congress to regulate such commerce, is evident from the large number of cases in which we have sustained the validity of local laws designed to secure the safety and comfort of passengers, employees, persons crossing railway tracks, and adjacent property owners, as well as other regulations intended for the public good." The Court then gave a digest of such cases.

For these reasons, I am of the opinion that the application to make absolute the order nisi, should be dismissed.

Rule nisi discharged. Solicitor for the appellant, C. Throsby Young, agent for Lusher, Young &Stellway (Wagga Wagga).

Solicitor for the respondent, F. W. Bretnall, Solicitor for Transport.

Solicitor for the Commonwealth (intervening), W. H. Sharwood, Crown Solicitor for the Commonwealth.

Solicitor for the State of Victoria (intervening), F. G. Menzies, Crown Solicitor for Victoria.

1(1909) 211 U.S. 612, at pp. 621, 2(1900) 177 U.S. 514, at p. 516