HIGH COURT OF AUSTRALIA

                                                         James

                                                           Vs.

                                              State of South Australia

                         (Isaacs A.C.J., Gavan Duffy, Powers, Rich and Starke JJ.)

                                                   22 August 1927

Isaacs A.C.J. and

Powers J.

Resolved into its ultimate form, the main and dominant question presenting itself in this case may
be thus stated: it is whether a "matter" arises under the Commonwealth Constitution or involves its
interpretation, so as to enable this Court to adjudicate upon it under the power conferred by the
Parliament in sec. 30 of the Judiciary Act 1903-1926, when an Australian citizen complains that
contrary to sec. 92 of the Constitution, declaring inter-State trade to be "absolutely free," a State
Executive has deliberately and systematically prevented him, and, still insisting on its right to do so,
threatens to continue preventing him from carrying on his legitimate inter-State trade. Questions
which may be called intermediate and of less comprehensive import arise, including the
construction of State legislation and the constitutional effect of the State relying on its legislation to
support its executive acts. But State legislation per se and unexecuted would not interfere with trade
operations, and a private individual could not invoke the interposition of a Court merely because
some impeachable enactment found its way into the Statute Book. It is only action--that is, either
State Executive action, or else individual action resting on the de facto authority of the State,
legislative or executive--which could offend against sec. 92 of the Constitution. State Executive
action, however--that is, action by the State Executive with all the actual force of the political
community behind it--if applied, may so offend, whether applied directly or indirectly, and whether
based on the assumed authority of legislation under the State Constitution, or on the direct
provisions of that Constitution, or of the inherent power, de jure or de facto, of the State Executive
by virtue of its existence under that Constitution. As we view the whole position, we should not find
it necessary on the merits to examine further than to ascertain whether in reality the State Executive
had so acted towards the plaintiff as to obstruct, hamper, or interfere with his inter-State trade, in
derogation from the absolute freedom predicated by sec. 92 of the Constitution. It is quite
immaterial from our point of view whether, if that be so, the State does or does not set up a State
enactment, and, if it does, whether that enactment is itself valid or invalid, for it can never be valid
to sustain State action of the nature predicated. But contrary opinions are held which, though
commanding respect, we are unable to share, and therefore, though the central question comes in the
end to that we have stated, it is desirable to give primary attention to intermediate questions.

This action was instituted in this Court in its original jurisdiction by Frederick Alexander James, a
resident of South Australia, against the State of South Australia and the Dried Fruits Board of that
State. The statement of claim sets out the circumstances in respect of which the plaintiff seeks
redress. Whether the Board is now in existence we do not consider. We direct our attention to the
State as defendant. For present purposes what is averred in the statement of claim is to be accepted
as true. On that basis the plaintiff contends that the defendant State has in various ways violated sec.
92 of the Commonwealth Constitution and has threatened to do so in future, and he asks this Court
to protect him. The defendant State contends that, assuming all the plaintiff alleges is true, it has not
infringed sec. 92, and that no case has been made out entitling this Court to determine the present
controversy or any part of it. It says that all the plaintiff alleges does not arise under the Constitution
or call for its interpretation. It will be convenient, therefore, at once to state without detailed
narration the substance of the facts which in this proceeding are taken to be true.

The plaintiff has for several years carried on and, so far as not prevented by the defendant State, is
still carrying on in South Australia the business of growing fruits, drying them, buying other dried
fruits, and then selling all his dried fruits--with insignificant exceptions--to purchasers in other
States, namely, New South Wales, Victoria and Western Australia. In the course of that business,
and between 28th December 1926 and 19th February 1927, he entered into various inter-State
contracts to sell and deliver dried fruits. The contracts are not set out; but it is stated, and we must
accept the statement, that these sales were sales of part of the dried fruits he then acquired and
delivery was contractually to be made by him to his purchasers f.o.b. at Port Adelaide, out of the
said dried fruits. All that time, and for some little time afterwards, there were in existence three
State statutes referring to dried fruits. Two of these, namely, No. 1657 of 1924 and No. 1702 of
1925, are material. The first is the principal statute, the second amends the first; and so the two may
be treated as one enactment. Purporting for the most part to act under the authority of this
legislation, both before and after its expiration, the State, according to the averments, acted in
relation to the plaintiff in various ways, which may be classed as follows: (1) compulsorily
"acquired," by the forcible taking from time to time in quick succession of, all the dried fruits which
the plaintiff had in his packing shed or in the hands of his vendors or agents for the purpose of his
inter-State business; (2) compulsorily "acquired," by the forcible taking of, his dried fruits required
for filling his inter-State contracts, and in some cases, expressly specifying those marked "I.S.C." or
"Required for Inter-State Contracts"; (3) prosecuted him for making inter-State sales in excess of the
limits determined by the Board, the prosecutions being adjourned ultimately at the request of the
Board pending the result of this action; (4) compulsorily "acquired" and forcibly removed at the
plaintiff's packing shed dried fruits already actually placed on lorries for transit to merchants in
Sydney, this "acquisition" being accomplished by the simple act of forcible seizure without any
attempt at formal notice; (5) threatened, notwithstanding warnings and full knowledge that the
plaintiff's dried fruits are the subject of inter-State trade, to continue taking them as before. The
result of these acts is stated to be, and naturally is, that the plaintiff's whole business is brought to a
standstill, and he has incurred liabilities and loss generally. The State says that all this raises no
interference with the plaintiff's "absolute freedom" of inter-State trade, and no case for the original
jurisdiction of this Court.

Viewing the connected series of acts in the light of ordinary human reason and experience, the
State's contention appears to us impossible of acceptance. At every point of the plaintiff's inter-State
trade--where he purchases, where he acquires and stores, and as fast as he acquires and stores,
where he despatches in pursuance of contracts, when he begins to despatch, when he marks his
goods for inter-State trade and fulfilment of inter-State contracts, and as fast as he does so--he is
followed up, obstructed, deprived of the means of carrying on his trade, and sought to be punished
for venturing to carry it on free from the restrictions with which the State authority has endeavoured
to surround it. We unhesitatingly agree with the observation of Sir Edward Mitchell that if this
series of acts, unexplained, is not an interference with inter-State freedom of trade, it is difficult to
imagine what would be. That the defendants are discriminating against inter-State trade is clear. Par.
18 of the statement of claim says:--"Neither of the defendants has made any similar orders or
authorized the seizure of any dried fruits of any of the other persons in South Australia who in fact
carry on similar kinds of businesses to what the plaintiff does."

The State, among other objections, has raised the formal contention that this case, either in its
totality or as to any limited portion, is not a matter within the original jurisdiction of this Court.
During the argument a question of considerable general importance was raised and debated, as to
whether such a contention could be raised by demurrer. It is, we think, desirable to say a few words
on this point. By Order XXIV., r. 1, of the Rules of this Court, it is prescribed that "Any party may
demur to any pleading of the opposite party ... on the ground that the facts alleged do not show any
cause of action ... to which effect can be given by the Court as against the party demurring." These
words, in our opinion, aptly cover a case like the present, where it is to be determined whether,
supposing the plaintiff has any cause of action at all, it is one "to which effect can be given by the
Court." The rule so interpreted is in harmony with the law as enounced by Willes J. in advising the
House of Lords in Mayor &c. of London v. Cox[1], in a passage quoted at length by Lord Herschell
L.C. in British South Africa Co. v. Companhia de Mo¸cambique[2], and approved by the House of
Lords. In the Divisional Court[3] Wright J. (whose judgment was restored by the House of Lords)
also quoted that passage, and added that the objection to the jurisdiction "could have been taken by
demurrer to the statement of claim." In the Court of Appeal Lord Esher M.R., whose dissenting
judgment was upheld, after speaking of cases where a dilatory plea to the jurisdiction of a Court
having general jurisdiction is proper, says[4]: "But there is a larger objection to jurisdiction, which
need not be pleaded, but which, if pleaded, is a plea in bar." And in support of that the learned
Master of the Rolls quotes the passage from Willes J. already referred to. The simple truth is that as
soon as it appears to the Court that it has no jurisdiction the mode in which that appears is of no
consequence. In Spooner v. Juddow[5] Lord Campbell for the Judicial Committee first presumed
that the defendant under the plea of "not guilty" would not have been able to adduce the facts
ousting the Court's jurisdiction, yet, as the plaintiff in his case proved those facts, his Lordship
proceeded: "Supposing, upon these facts, the Court had no jurisdiction to try the cause, was the
Court to try it, and give judgment for the plaintiff, because the defendants had omitted to plead
specially?" The question is no less cogent if the plaintiff sets out his facts in the statement of claim.
We therefore cannot doubt that the demurrer in this case is a competent pleading to raise the
question of the Court's jurisdiction.

Dealing first with that question, the only head under which our original jurisdiction can attach in
this case is under sec. 30 of the Judiciary Act and sec. 76 (I.) of the Constitution, namely, a "matter
arising under the Constitution or involving its interpretation." In our opinion this is a "matter"
coming under both heads. Story in his Constitution, vol. II., sec. 1647, says: "Cases arising under
the Constitution, as contradistinguished from those arising under the laws of the United States, are
such as arise from the powers conferred, or privileges granted, or rights claimed, or protection
secured, or prohibitions contained in the Constitution itself, independent of any particular statute
enactment" (and see sec. 1641). The right to conduct inter-State business "absolutely free" from
State interference is at once a right, a protection and a prohibition, referable directly to the
Constitution itself, and therefore this matter arises under the Constitution. The common law right to
trade generally is not a right free from State interference; on the contrary, it is, apart from the
Commonwealth Constitution, entirely subject to State legislative control under the State
Constitution. The "absolute freedom" guaranteed by sec. 92 against State molestation with inter-
State trade is a purely Federal constitutional right, so far limiting the State constitutional power.
Sec. 92 is thus a limitation, not simply of State legislative power, but of State constitutional power
generally--that is, of State power, however manifested. That, it will be seen presently, was the
opinion expressed in McArthur's Case[6].

That this case, as to a very material portion of it at least, involves the interpretation of the
Commonwealth Constitution, seems to us scarcely open to argument, either on principle or
authority. The reason is that this case cannot, at all events entirely, be determined without construing
and applying the Federal Constitution to the Constitution and law of the State and the facts alleged.
The plaintiff's case challenges the conduct of the State in various ways. First, he says the legislation
referred to was, at least to the extent necessary for this case, invalid, because in conflict with sec. 92
of the Constitution. Next, he says that, so far as the legislation is valid and is relied on to justify the
State's conduct complained of, it fails because that conduct itself is an interference with the absolute
freedom of inter-State trade protected by sec. 92 of the Constitution. Thirdly, he says, as to the
conduct complained of which took place since the Acts expired, including the threats of
continuance, that the State by its executive action apparently asserted, and still asserts, that under or
by virtue of the State Constitution it is empowered to subject the plaintiff to the treatment he has
suffered. Each position will be dealt with separately. The first position, attacking the validity of the
legislation, concentrates on (1) sec. 28 and sec. 29 and (2) sec. 20. The second, which assumes
legislative validity, consists of the events ending on 31st March 1927. The third consists of the
subsequent events. We shall deal with each position in order.

1.

Invalidity of Legislation.--The compulsory taking of property is justified under sec. 28 and sec. 29.
Sec. 28 is introduced by the governing words: "Subject to sec. 92 of the Commonwealth of
Australia Constitution Act," which we take to mean "subject to sec. 92 of the Constitution of the
Commonwealth." Clearly those words strictly limit the powers contained in the section to powers
that do not conflict with sec. 92 of the Commonwealth Constitution. It was contended that,
notwithstanding these words, the subsequent words "and for the purposes of this Act" introduced all
purposes of the Act, whether they violated sec. 92 or not. That might be said if the words were "but
in any case for the purposes of the Act." The words actually used, however, are themselves limiting
words; that is, the powers to be mentioned are not for any other purposes than those of the Act. But
it is clear that, in the presence of the first introductory words, any purposes of the Act which violate
sec. 92 of the Constitution are not to be supplanted or aided by sec. 28 or sec. 29. This part of the
case, which is the first complaint under the first position, must therefore be determined against the
plaintiff. The introductory words as to sec. 28 both exclude illegality in so far as sec. 92 of the
Constitution is concerned, and exclude any necessity of interpreting sec. 92; and those words are not
overcome by any later words.

The second complaint under the first position impeaches the validity of sec. 20 as the foundation of
the determinations for breach of which the prosecutions were instituted. Sec. 20 is not verbally
excluded from sec. 92 of the Constitution, and it stands on its own basis as a cause of complaint.
Sec. 20, as amended, stood thus:--"(1) The Board shall also have power, in its absolute discretion,
from time to time to determine where and in what respective quantities the output of dried fruits
produced in any particular year is to be marketed, and to take whatever action the Board thinks
proper for the purpose of enforcing such determination. (2) Notice of every such determination shall
be given (a) by public notice; or (b) by sending by post," &c. Sec. 31, as amended, was as follows:
"If any of the following persons, that is to say--(a) any grower; (b) any dealer; or (c) any person
being the owner or occupier or person in charge of any packing shed, sells or otherwise disposes of
any dried fruits contrary to any determination of the Board applying to such fruits and notified to
him in manner prescribed, such person shall be liable to a penalty not exceeding five hundred
pounds." In the year 1926 the Board, acting under sec. 20, made three determinations fixing the
maximum proportions of currants, sultanas and lexias produced by growers, which might be
"marketed in the Commonwealth of Australia," at 15, 20 and 20 per cent; 15, 30 and 30 per cent;
and 30, 45 and 60 per cent--respectively. In September 1926 the Board summoned the plaintiff for
exceeding the limits so prescribed, and three summonses, as already stated, await the decision of this
Court as to the validity of the relevant sections. It was not contested at the Bar--the reason for this
we are not concerned with--but it nevertheless has to be considered, whether this matter, so far as it
relates to the validity of sec. 20 or the validity of the determination of the Board under that section,
is a matter within or outside the original jurisdiction of this Court. That is to say, whether it is or is
not within the words of sec. 76 of the Constitution "a matter arising under the Constitution or
involving its interpretation." McArthur's Case[7] is clear and definite authority for what we should
think inherently plain, namely, that if at any point the interpretation of the Constitution becomes, in
some event to be judicially determined, an issue necessary to the success of one side or the other, so
that the "matter" in controversy may for one side or the other be incapable of determination without
that interpretation, the "matter" falls within the original jurisdiction of this Court. If, to use the
expression of Harlan J. in Railroad Co. v. Mississippi[8], the constitutional question "forms an
ingredient of the original cause," it is within the judicial power (see also Brooks v. United States[9]).
The question is an "ingredient" if in some event as the cause stands it is an issue, and that it is an
issue in the circumstances just stated, we shall presently make clear. That this matter falls within the
original jurisdiction of this Court, so far as to determine whether sec. 20 of the State Act conflicts
with sec. 92 of the Constitution, appears transparent, and we proceed to consider whether such
conflict exists.

The method of approach for this purpose of conflict is marked out by the case of McArthur[10], and
we accordingly follow it. First, we examine the language of sec. 20 and the determinations, to
ascertain its purport apart from any restraining considerations of Constitutions, either State or
Federal: next, if necessary, we interpret, which includes its application, the State Constitution
(Macleod v. Attorney-General for New South Wales[11]); and lastly, if that be also necessary, and
only if necessary, we interpret and apply the Federal Constitution (McArthur's Case). Confining
ourselves, in the first instance, to the language of the instruments--section and determination--the
central word is "marketing." The determination of the Board is to regulate "marketing," as to (1)
"where," or (2) "in what respective quantities" the output of dried fruits may be "marketed." The
word "marketed" in the determination must be given the same meaning as it has in the Act
(Richards v. Attorney-General of Jamaica[12]). "Marketing" of dried fruits is indeed the central
purpose of the Act, as may be seen by reference to its title, to sec. 19 (b), to sec. 20 and to sec. 34,
sub-secs. 1 (a) and 1 (c). Other provisions are substantially ancillary to the control of "marketing."
The true interpretation of the disputable words when all proper canons of interpretation are applied,
is this:--"Marketed" means some commercial act done in South Australia, such as sale,
consignment or otherwise, having the effect of supplying the economic demand for dried fruits in
some markets. "Where" is universal. It refers to any place in the world where such demand exists.
The relation of the two words in sec. 20 is comparable to the relation between firing a bullet from a
gun of unlimited range in South Australia at a target situate anywhere. The remaining language of
the section is not open to controversy. The construction of the first sub-section, then, is as
follows:--The Board has power to determine in what market for dried fruits in the world, and in
what respective quantities, dried fruits are to be marketed--that is, so sold, consigned or otherwise
commercially dealt with in South Australia as to be thereby supplied to any market for dried fruits
anywhere in the world, &c. The determination as an exercise of that power says that so marketing
within the Commonwealth, the stated proportional quantities are not to be exceeded. In interpreting
the word "marketed" we have not been unconscious of the danger the community runs of having its
legislative measures designed for meeting new needs and circumstances of its progress and
development frustrated by the comparative want of judicial acquaintance with the current coin of
commercial intercourse. The mintage of commercial words and phrases is so rapid, new or
specialized values are so frequently given to the verbal coin already in circulation, that Courts may
easily fail to perceive the intended meaning of expressions in modern statutes. Parliament is in
necessarily closer touch with the ordinary streams of commercial thought and modes of expression
than is the Judiciary, and therefore the full connotation of the word "marketed," as used in this
connection, has given us much reason for consideration. But one thing is quite clear. The term
"market" and, necessarily, its correlatives "marketing" and "marketed" have in recent years
considerably expanded with the enlargement and adjustment of international commerce. Even since
1908, when the relevant volume of the Oxford Dictionary appeared, the literature of the subject
shows a noticeable alteration in the connotation of the terms "market" and its cognate expressions.
Webster's Dictionary (1923 and 1926), when contrasted with the Oxford Dictionary of 1908 and the
Webster (say) of 1883, shows the great enlargement in the connotation of the word "market." From
denoting the very limited locality itself where the mutual operations of buying and selling took
place, it has come to bear also the world-wide conception as the recent Webster in the sixth meaning
has it, "the economic extent of the commercial demand for commodities." The seventh meaning is
also modern, namely, "opportunity for selling or buying of commodities, or the rate or price offered
for them; also, the phase or course of commercial activity by which the exchange of commodities is
effected." To a purchaser the terms "market" and "marketing" represent the field of opportunity and
the exercise of commercial activity for his requirements. To the seller--which is the aspect with
which we are presently concerned--they represent his opportunities and activities. For instance, a
wool-sale in Melbourne, attended by American, French, German and Japanese buyers, is a "market"
answering both descriptions. To the buyers it represents commercially, as well as locally, the
Australian market--the selling market. To the sellers it represents commercially, that is, practically,
the markets of the buyers--the buying market. The prices which the buyers are prepared to give are
determined eventually by the demand conditions of the consumers on the commercial field occupied
by the buyers--conditions of quantity, quality, style, price, &c., as well as circumstances of
transport, storage, &c., relevant to that commercial field. Unaffected by any restricted canon of
interpretation, the words "marketed" and "where" are universal in respect of locality. But there is
one recognized canon of interpretation, namely, that a Legislature is presumed, in the absence of
express statement or necessary implication to the contrary, to intend validity, and thereby to intend
acting within the limits of its jurisdiction. Legislation of the British Parliament as to bigamy is
primarily intended to cover a bigamous marriage by a British subject anywhere in the world (Trial
of Earl Russell[13]). The British Parliament, by its grant of a Constitution to South Australia, might
have authorized the Parliament of that State to legislate as widely. It is necessary, therefore, to
examine and interpret the Constitution in order to ascertain whether it has done so. Interpretation of
that Constitution being necessary, it is found that legislative jurisdiction is limited to South
Australia. Macleod's Case[14] establishes the canon of construction that, there being no reason of
express statement or implication to the contrary, the enactment should be read down to the extent,
and only to the extent, necessary to its validity. Applying that canon, it is necessary and proper to
read down "marketed" to commercial acts in South Australia only. Express limitation is out of the
question. Necessary implication is, however, admissible. "Necessary implication," according to the
opinion of Lord Eldon, adopted in Hill v. Crook[15], "means, not natural necessity, but so strong a
probability of intention that an intention contrary to that which is imputed ... cannot be supposed."
When we come to consider the probability of the legislative intention to apply the word "where"
outside South Australia, as well as inside, the strength of that intention is undeniable. Sub-sec. 2 of
sec. 2 looks to corresponding legislation in Victoria, the competing State in dried fruits as defined.
Renmark and Mildura are representative areas. If sec. 20 is confined to South Australian markets the
first difficulty is, why trouble about Victoria? What has one State to do with the purely internal
trade arrangements of another State? What does it matter to South Australia whether Victoria does
or does not restrict the dried fruit trade between Mildura and Bendigo, so long as Mildura is free to
trade outside Victoria? Again, if the "marketing" contemplated by the Act is to places purely intra-
State, what is meant by "concerted action in the marketing of dried fruits produced in Australia"
(sec. 19 (b))--that is, produced anywhere in Australia? "Concerted action," which is entirely
separate and distinct, and therefore necessarily unconnected, is an extraordinary phenomenon, which
we are unable mentally to picture. "Simultaneous" action of the kind we could understand, but
"concerted" action adds an element that is contradicted by hypothesis of mutual restriction to the
one State. One might as well speak of concerted action on the part of the inhabitants of a street in
taking their several morning baths or evening dinners. Then there is another peculiarity that finds no
raison d'être in the assumption that the Act is confined to intra-State marketing. On that assumption,
how can we account for the right of the dispossessed owner of dried fruits under sec. 28 to receive
London price less adjustments? If sec. 20 necessarily leaves him entirely free to sell anywhere
outside South Australia, why select London as the sole test of value? If, however, Australian trade is
intended to be controllable, and London left free, or practically enforced and assisted by brands and
labels, a good reason is shown for providing for London value. The presumption would be that
compulsory taking was to ensure marketing in the London market, where that was not intended
voluntarily. It is also a significant fact that sec. 20 is not preceded by the prefatory words of sec. 28
in respect of sec. 92 of the Federal Constitution. On the whole, the construction of sec. 20 of the
statute seems to us overwhelmingly opposed to restricting it to control of intra-State trade. Its
natural construction, apart from all constitutional considerations, is unlimited as to space. Macleod's
Case[16], while restricting penalization to acts done within the jurisdiction, does not limit the area
of the commercial effect of the acts struck at. Before Federation the State Parliaments could validly
prohibit the sale of goods for, or their despatch to, any part of the Commonwealth, or India or
Patagonia. Therefore, stopping at State law, the determinations which, properly construed, cover for
the same reasons precisely the same ground as the section, so far as this case is concerned, are
lawful restrictions on inter-State trade. No commercial man--and the determination is intended for
commercial men--would for a moment think that it was intended to affect a transaction by him
actually entered into outside the limits of South Australia. It refers to the "output produced by each
grower." But there is not in the Act or the determination any express limitation of "grower" to South
Australia. Nevertheless, everyone would understand "grower" to be limited to South Australia in
both instruments; and similarly as to the transactions necessary for "marketing." The words "in the
Commonwealth of Australia" would mean to any commercial man, having regard to the context,
that the "market" to be supplied was "in the Commonwealth of Australia." He would not
unnecessarily attribute absurdity either to Parliament or to Board. The result, then, is that certain
acts of trade and commerce in South Australia are so far penalized if they are directed either to
forbidden intra-State or inter-State trading. This position reached, it at once, and without dispute,
compels the interpretation and application of sec. 92 of the Constitution. The matter is consequently
within the original jurisdiction of the Court. Exercising that jurisdiction, the result as to sec. 20 and
its attendant determinations is that they are invalidated at least pro tanto in respect of the plaintiff's
inter-State trade.

2.

State Executive acts under the Statute.--The second position assumes the validity of the State
statute in every respect, and therefore its insufficiency to justify even under State law the conduct of
the State, but still claims the protection of sec. 92 of the Constitution in respect of the administrative
acts complained of. The first branch, as we divided those acts, relates to the period ending 31st
March 1927, when the statutes expired by reason of their self-limitation. As to this branch the acts
impeached consist entirely of seizures of goods as authorized by compulsory acquisition orders and
directions purporting to have been made and given under sec. 28. Sec. 28, as already stated, is
prefaced by a limitation which guards it from infringing sec. 92 of the Constitution. But, granting
that restriction, the State claims that the compulsory taking was within the authority of the section;
the plaintiff denies that proposition. The test of the rival contentions is whether or not the acts
complained of were interferences with inter-State trade. If they were, then of course the enactment
supporting them must be pro tanto invalid. Whether they were or not depends again in the first
place upon the interpretation of the Constitution, sec. 92, and consequently the present "matter" as
to this part of the controversy is equally within the original jurisdiction of the Court. In the exercise
of that jurisdiction the law of sec. 92, properly interpreted, must be applied to the facts. It would be
strange, indeed, if a State, relying on an enactment as authorizing compulsory taking, could escape
Federal jurisdiction by failing to sustain its own construction of the statute, and thereby failing to
establish the only justification it ever asserted. Further, in judging of the facts, that is, of the facts up
to and including 31st March 1927, so as to ascertain their true quality and character, the subsequent
events are very material, because they disclose a connected scheme to prevent the plaintiff engaging
in inter-State trade at all, in the way already described. Up to the end of the first period, roughly
over 230,000 lbs. weight of fruit were seized; after that period, over 650,000 lbs. weight at least
were taken. In the subsequent period, not only are the sources of his supply intercepted where
possible, but accumulated stocks are taken piecemeal, and some of them taken specifically because
they were marked "I.S.C." or "Required for Inter-State Contracts." These acts, like the personal
prosecution, gave an undeniable inter-State character to the acts complained of all through. (See, by
way of analogy, Western Union Telegraph Co. v. Foster[17] and Frick v. Pennsylvania[18].)

3.

State Executive acts under General Constitutional Power.--The third position, however, which
raises the main question very distinctly, might at first sight be thought to be so different in principle
as not to attract the original judicial power of the Commonwealth. But on analysis the principle is
found to be fundamentally the same. Where Executive conduct is complained of, as obstruction to
freedom of inter-State trade, a State may deny the facts alleged and may in the event of their
existence seek to justify them under a local Act; and the alleged justification may be in turn
disputed, first on mere construction of the statute, and next, if on construction it would justify the
conduct complained of, then because of sec. 92. Now, it is clear from what has been already said
that it is no ground of objection to Federal original jurisdiction that the State tribunals could
determine (1) the existence of the facts and (2) the construction of the statute; and if either issue
were found for the defendant, there would be no necessity to deal with the constitutional ground. It
might as well be said the construction of the State Act was not involved because it might be found
that the acts complained of were never committed. But that is involved as an issue raised, and in the
same way is the interpretation of the Constitution involved as an issue before the Court, or an
"ingredient" in the cause. The "matter"--assuming the State persisted in asserting its right to pursue
the conduct complained of--could not repel the Commonwealth judicial power on the ground that
the other issues were triable by State tribunals, and might, if decided in its favour, end the
controversy. Similarly in the third position here. The State by demurring admits the facts and admits
that the conduct complained of was that of the Executive of the State itself; and this involves
necessarily a claim for immunity by the law of the State (in this part of the case, the Constitution, or
some other statute not yet disclosed), and the State admits that it intends to pursue the same conduct
in future, which is necessarily not a claim of lawlessness, but a claim directly under the State
Constitution or some other undisclosed indirect authority. If a State takes up that attitude in relation
to inter-State trade, and in fact brings into action the whole administrative forces of the State to
compel submission, how can it say in limine that it is not the action of the State and that sec. 92 of
the Constitution does not protect the plaintiff? The threats are at once an assertion of right by State
law to pursue the conduct in question and a challenge to test the matter (Brisbane City Council v.
Attorney-General for Queensland[19]; Dyson v. Attorney-General[20], and Wigg v. Attorney-General
of the Irish Free State[21]). The analysed reasoning of the matter has been frequently stated by the
Supreme Court of the United States, and what is there set out is as applicable to Australia as to
America. Notably I may mention the case of Home Telephone and Telegraph Co. v. Los Angeles[22].
That case arose under the Fourteenth Amendment, which prohibits a State to deprive any person of
life, liberty or property without due process of law. It was objected there (inter alia) that the
unauthorized act of a State agent was not State action within the meaning of the Fourteenth
Amendment and so the case did not arise under the Constitution of the United States. White C.J.,
delivering the judgment of the whole Court, reasoned the matter out in a way quite opposed to the
present demurrer. He pointed out[23] the legal contention of the defendant "that where, in a given
case, taking the facts averred to be true, the acts of State officials violated the Constitution of the
United States and likewise because of the coincidence of a State constitutional prohibition were
presumptively repugnant to the State Constitution, such acts could not be treated as acts of the State
within the Fourteenth Amendment, and hence no power existed in a Federal Court to consider the
subject until by final action of an appropriate State Court it was decided that such acts were
authorized by the State and were therefore not repugnant to the State Constitution." The Chief
Justice proceeds[24] to analyse some of the conceptions on which the proposition must rest. First, as
he said, it would apply to the exercise of Federal judicial power under all circumstances. We have
already pointed that out by analysing the position with regard to the earlier positions. Next, as White
C.J. pointed out, it would paralyse Federal judicial action by compelling it to await State decisions.
The third step is summarized on pp. 288 and 289, and we shall, in quoting the passage substitute
"sec. 92" for the "Fourteenth Amendment." With that substitution, the passage reads thus:--"Where
a State officer under an assertion of power from the State is doing an act which could only be done
upon the predicate that there was such power, the inquiry as to the repugnancy of the act to" sec. 92
"cannot be avoided by insisting that there is a want of power. That is to say, a State officer cannot on
the one hand as a means of doing a wrong forbidden by" sec. 92 "proceed upon the assumption of
the possession of State power and at the same time for the purpose of avoiding the application of
the" section "deny the power and thus accomplish the wrong. To repeat, for the purpose of enforcing
the rights guaranteed by the" section "when it is alleged that a State officer in virtue of State power
is doing an act which is permitted to be done prima facie would violate the" section, "the subject
must be tested by assuming that the officer possessed power if the act be one which there would not
be opportunity to perform but for the possession of some State authority." The rest of the judgment
proceeds to recall the truth that the "State" means the political body by whatever instruments or in
whatever modes its action may be taken. If a State Constitution places actual power and opportunity
to do wrong in the hands of its Government or any subordinate official, it cannot for this present
purpose deny that the acts complained of, being done by a person so placed in authority, were acts
of the State itself. At one time it was thought that an employer was not liable for the negligence or
fraud of his employee because he had not authorized either. But better reasoning has since prevailed;
and its analogy is found here. Imagine, as was put during the argument, a State Government, quite
apart from any statute, but entrusted with power by force of the State Constitution so that no official
dares to disobey, placing a cordon of police along its border and forcibly preventing
intercommunication of any kind with any other State, and claiming to have a right to do so, and to
continue doing so: could it, with any show of reason, be said that a question whether sec. 92 had
been violated had not arisen, and that this Court had no jurisdiction to afford redress by means of
the original judicial power of the Commonwealth? The guarantee of sec. 92 being against State
interference, it matters not for the purposes of that section that the interference has behind it a
supposed law authorizing it. In any case, there cannot be such a law, and the existence of some
paper and ink purporting to be a law is nothing to the point. The material thing is that the organized
force of the community called a State is repressing Australian national trade; and against this, as the
Constitution by sec. 92 forbids such repression, the claim for redress both arises under the
Constitution and involves its interpretation. The reasoning of White C.J., which has since been
affirmed in other cases (Cuyahoga Power Co. v. Akron[25] and Fidelity and Deposit Co. v.
Tafoya[26]), is so cogent and so apposite that there seems scarcely room for another opinion. It
would indeed be both an absurd and an alarming doctrine that would concede to Australian inter-
State trade the protection of sec. 92 against a State where a State Executive claimed authority to
interfere indirectly under the State Constitution--that is, through the medium of a State
enactment--and yet would deny that protection if only the State Executive asserted the authority of
the Constitution directly--that is, as the Government of the State. It would greatly impair the
simplicity and the effectiveness of the Constitutional provision. In our opinion, where actual State
interference is shown to exist, the prohibition of sec. 92 is contravened and its protection at once
attracted by means of the Commonwealth judicial power. We do not think that there is any need to
follow the serpentine considerations of whether the State interference is prima facie backed by
invalid legislation, or whether some part of it is and other part is not, and therefore whether the
systematic destruction of a business is to be split up as is sought to be done in this case. State
power--actual and coercive power--has been exerted in open defiance of a plain Constitutional
guarantee, and, in our view, that is enough. The contrary doctrine finds no foothold in sec. 92 or in
McArthur's Case[27]. That case, it must be remembered, was concerned directly with legislative
interference only, because what was there done, and what was threatened to be done, was claimed to
be supported by valid State legislation. Nevertheless, the reasoning of the Court was not confined to
protecting inter-State trade from legislative interference. It extended to the exclusion of all State
interference. Otherwise, inter-State trade could not be "absolutely free." McArthur's Case
accordingly, in various passages, indicates the entire prohibition of all forms and kinds of State
action in derogation of inter-State trade. (a) At p. 545 it is said: "In our Constitution, sec. 92 was
designed to ensure that inter-State trade and commerce should be national and beyond controversy."
(b) At p. 550 it is said:--"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." (c) At p. 554: "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
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." (d) At p. 556 it is said:
"The true office of sec. 92 is to protect inter-State trade against State interference, and not to affect
the legislative power of the Commonwealth." (e) At p. 557: "Its meaning is that from the moment
the Commonwealth assumed legislative control on a national basis of the customs, all State
interference with inter-State trade and commerce should for ever cease, and for that purpose
Australia should be one country." No doubt sec. 92 does not direct itself to individuals who, on their
own authority, obstruct other individuals in inter-State commercial operations, and therefore it
cannot be said to establish a universal right of protection. But it does operate to shut off all forms of
State obstruction and to confer upon the individual a right to be protected against all form of State
action amounting to, or authorizing anyone to commit, such obstruction. The persistence of a State
in maintaining its attitude of interference without any State legislation behind it, only seems to us to
make the matter one more urgently calling for the vindication against the State itself of the
guarantee of sec. 92. It cannot, of course, fail to be noticed how different the present considerations
are from the cases relative to whether decisions of inferior Courts were in Federal jurisdiction or
not, so as to attract the appellate power of this Court. There a decision having been arrived at, it
could be at once determined whether the interpretation of the Constitution was involved or not. But
here, as White C.J. says, all Federal jurisdiction based on the matter involving the interpretation of
the Constitution would be paralysed if it be a good objection that certain primary questions have to
be determined, and may be determined in a way rendering constitutional interpretation unnecessary,
though if determined the other way, the constitutional interpretation would be essential. If, for
instance, the State were to be set up in its defence some alleged State constitutional right, or some
other enactment as justification, there could be no doubt.

Obviously, also, this class of case is distinguished from the cases provided for in secs. 38A and 40A
of the Judiciary Act. Those sections, which ex facie are intended to preserve the principle of sec. 74
of the Constitution, have been expounded on several occasions. It is sufficient to say that they take
away from the Supreme Court of a State the jurisdiction it normally has, only when the "question"
predicated both in sec. 74 of the Constitution and the quoted sections of the Act in fact arises for
actual decision. The language of the legislation and its transparent purpose so indicate. Until that
event arrives the State Court's jurisdiction is not taken away. Naturally, it does not follow that,
merely because there is State jurisdiction in a given matter, there is not also Federal jurisdiction (see
Lorenzo v. Carey[28]). In the present case, the "matter" as a controversy within original Federal
jurisdiction already exists on the face of the statement of claim, the necessary circumstances existing
to bring it within sec. 30 of the Judiciary Act. How widely the two classes of case differ in this
respect may be seen by considering the result of confusing them. If, for instance, it were held that
sec. 76 (II.) of the Constitution did not apply except where the constitutional "question" actually and
necessarily presented itself for decision, then, as already mentioned, if only the facts were disputed,
or if the authority of the State statute relied on were contested on its construction, there would be no
"matter" falling within the constitutional category referred to--merely to pick up matters when so
much had been decided would not satisfy the contents of sec. 76 (II.). The distinction thus appearing
appears to us to make the view above presented with reference to the present case practically
conclusive.

It may not be unimportant, though it forms no part of our reasoning, to observe that the formal
defence as a whole contests the whole case, in fact and in law. It forms what seems to us an
excellent practical illustration of what would be the consequence of holding contrary to the view we
have expressed. We mean that the defendant State could ride off on an assumption, which the
plaintiff could not remove, that it was unjustified by State law, and so escape Federal judicial
investigation, and then proceed in the State Court to demonstrate, so far as possible, the impropriety
of the assumption. For ourselves, we do not see how this Court, without at least holding the State to
be without legal justification under State law, which is deciding the case, can allow the demurrer
objecting to its so deciding, nor how, if it allows the demurrer, it has jurisdiction to determine
whether the State is or is not justified under State law. Inconsistency obtrudes itself.
The Wheat Case.--To prevent any possible misconception as to the relation of this case to the
Wheat Case[29]:--In that case the expropriation of wheat by the Government was held to be good,
because it appeared that it was made without reference to inter-State trade or inter-State contracts as
a criterion or as influencing the operation of expropriation, and without discrimination. Otherwise
the contrary would have been held. (And see McArthur's Case[30].) Here, as shown, the purpose for
which the goods were seized was direct interference with inter-State trade, and inter-State contracts
not only influenced the governmental action but formed its criterion. In Municipal Council of
Sydney v. Campbell[31] Duff J., speaking for the Judicial Committee, said: "A body such as the
Municipal Council of Sydney, authorized to take land compulsorily for specified purposes, will not
be permitted to exercise its powers for different purposes, and if it attempts to do so, the Court will
interfere. As Lord Loreburn said in Marquess of Clanricarde v. Congested Districts Board4(1914)
79 J.P. 481.: Whether it does so or not is a question of fact. Where the proceedings of the Council
are attacked upon this ground, the party impeaching those proceedings must, of course, prove that
the Council, though professing to exercise its powers for the statutory purpose, is in fact employing
them in furtherance of some ulterior object." Here the Government of South Australia has made it
perfectly plain, and without the slightest attempt at concealment, that it was expropriating the
plaintiff's property to enforce sec. 20 of the Act, that is, to obstruct and prevent his inter-State trade,
and not for any general State purpose independent of the direct object mentioned. This case,
therefore, is the antithesis of the Wheat Case[33].

Constitutional Result.--If it be assumed that, the dilemma above stated being disregarded, the
demurrer is allowed as to any of the acts complained of, what is necessarily implied? Either (1) that
the State is legally responsible to make redress for the acts of the individuals committing them, or
(2) that the State is not responsible at all. If the State is legally responsible to make compensation--
and by assumption in the State Courts and by State law--that must be because by law the State was
injuring the plaintiff by those individuals, and so comes within the principle respondeat superior.
But if so, that law must be statutory, because it must ex necessitate be either the statute of the State
Constitution or some statute made under it, as, for instance, the Public Service Act. That involves
the legal implication that though statutory powers were exceeded, the State was purporting to act,
and was generally acting, within them, just as it did while the Marketing Acts were in force. To
attempt a constitutional distinction between those categories of statutes would, as it seems to us, be
to

... distinguish and divide

A hair, 'twixt south and south-west side.

Either, then, on the assumption that the State is responsible at all in this case, the demurrer should
be wholly allowed or wholly overruled.

The alternative assumption--complete absence of State responsibility for the acts of trespass since
31st March 1927--would be startling. It would mean that sec. 92 of the Constitution could never be
enforced, because the State had not in law authorized the act complained of, and the individual
acting without State authority was not within the ambit of the section. The most extreme optimism
would be hard pressed to find a means to surmount the difficulty. Even the first assumption--State
responsibility for actual authorization--that is, responsibility assumed to be under State law alone,
presents a serious obstacle. If it be now decided that sec. 92 does not affect the case here, because
not in issue in any way, then necessarily it would still be so in the State Court, and equally so in
appeal to this Court. So that sec. 92 is shut out on every side. And there would be cut away all
liability of a State whatsoever under the Federal Constitution in such a case. At common law the
Crown is not liable for an unauthorized taking by an individual, and the view we reject would leave
it entirely within the power of a State to deny all recourse to itself or even the individual for redress.
The true position of the whole matter, however, seems to us, as we have said much earlier, so plain
that only its serious consequences and our respect for the opposite opinion justify this elaborate
exposition.

In our opinion, the demurrer should be entirely overruled.

Gavan Duffy, Rich and Starke JJ.

The plaintiff has commenced an action against the defendants in the original jurisdiction of this
Court. He filed a statement of claim alleging that he is a grower of and dealer in dried fruits
engaged in inter-State trade. He claims that determinations of the Dried Fruits Board of South
Australia as to the proportion of the output of currants, sultanas and lexias produced by the growers
in the year 1926 which may be marketed in the Commonwealth are invalid and also that acquisitions
made by the Government of South Australia on and between 5th March and 9th May of large
quantities of dried fruits belonging to the plaintiff are invalid. The defendants demurred to this
statement of claim and also raised an objection to the jurisdiction of the Court as to part of the
plaintiff's claim. The plaintiff's contention is that the determinations and acquisitions already
mentioned were made under and in pursuance of the Dried Fruits Acts 1924 and 1925 and that those
Acts are invalid because they contravene the provisions of sec. 92 of the Constitution. The Dried
Fruits Acts 1924 and 1925 continued in operation only until 31st March 1927, and, consequently,
determinations or acquisitions made or effected after that date cannot be referred to those Acts. The
plaintiff in his statement of claim wrongly assumed that the Acts of 1924 and 1925 had been
continued in operation by the Dried Fruits (Continuation of Operation) Act of 1926; but the
continuation in operation of these Acts has not been proclaimed under the authority of the 1926 Act
and therefore they have not been in operation since 31st March 1927. On discovering the true fact
the plaintiff amended his statement of claim. The consideration of his position with respect to the
acts of the defendants alleged to have taken place after 31st March 1927 may be postponed for the
present.

It is necessary, in the first place, to consider the meaning of the South Australian legislation and
how far the acts alleged by the plaintiff are warranted by the terms of that legislation. It appears to
form part of a scheme, in which the Commonwealth and the States of Victoria and South Australia
have joined, to regulate and control the marketing and sale of dried fruits. The Commonwealth
regulates the export of dried fruits--the external trade of the Commonwealth (Dried Fruits Export
Control Act 1924)--whilst the States by their legislation regulate or attempt to regulate the internal
trade (Dried Fruits Acts 1924 and 1925 Vict.; Dried Fruits Acts 1924 and 1925 S.A.). The
legislation of the States should be construed so as to uphold it rather than defeat it; to keep it within
the legislative power of the Parliament of the States rather than beyond them (Wheat Case[34]).
Now, it is clear enough that the legislation does not transcend the territorial jurisdiction of the
Parliament of South Australia--it is confined to persons, property or acts within the territorial limits
of South Australia; but that does not advance us very far as regards the provisions of sec. 92 of the
Constitution, for State legislation may deal with acts within its territorial limits and yet contravene
the provisions of sec. 92 of the Constitution that trade, commerce and intercourse among the States
shall be absolutely free.

The South Australian statute must now be examined in detail. It provides for the constitution of a
Dried Fruits Board consisting of five persons--three representatives of the growers, that is, persons
who produce dried fruits for sale or barter, and two official members, one of whom is to be
chairman of the Board. It confers extensive powers upon the Board. Thus sec. 19 gives the Board
power to make contracts in respect to the sale or purchase of dried fruits produced in Australia, to
open shops for the sale of dried fruits, to encourage the consumption of dried fruits and create a
greater demand therefor. The validity of these powers, taken singly, was not challenged during the
argument, but it was said that sub-secs. (b) and (f), taken either singly or together with various other
provisions of the statute, notably secs. 20, 26, 28 and 29, were in contravention of sec. 92 of the
Constitution. The sub-sections which were challenged enact as follows: Sec. 19--"The Board shall
have power in its absolute discretion from time to time (b) to enter into contracts with Boards
appointed under legislation in force in other States with objects similar to those of this Act for
concerted action in the marketing of dried fruits produced in Australia and for purposes incidental
thereto, and to carry out such contracts... (f) to fix the maximum prices to be charged on the sale of
dried fruits, whether wholesale or by retail." The plaintiff has not alleged in his statement of claim
that the Board made any such contracts or fixed any such prices. In substance he alleges that he
might be prejudiced in his inter-State trade if the powers conferred by the said sub-sections were
exercised. So far, no right of the plaintiff is alleged to have been invaded under those sub-sections.
The jurisdiction of the Court to declare a statute or parts of a statute in contravention of the
Constitution can be invoked only when it is found necessary to secure and protect the rights of a
party before it against unwarranted exercise of legislative power to his prejudice (Attorney-General
for New South Wales v. Brewery Employees Union of New South Wales[35]).

Next, sec. 20 of the statute must be considered. It enacts that the Board shall have power in its
absolute discretion from time to time to determine where and in what respective qualities the output
of dried fruits produced in any particular year is to be marketed and to take whatever action it thinks
proper for the purposes of enforcing such determination. The statement of claim alleges that the
Board has exercised this power and, to take one instance, determined in August 1926 that the
proportion of the output of currants, sultanas and lexias produced by each grower which may be
marketed in the Commonwealth of Australia should not be more than the following: for currants 20
per cent, for sultanas 30 per cent, for lexias 60 per cent. Such a determination undoubtedly affects
and prejudices the right of the plaintiff to conduct his business as he thinks expedient. The first
question therefore is whether the section authorizes the determination. On ordinary principles of
construction the section must be confined to dried fruits produced within the territorial jurisdiction
of South Australia, and it would be within the constitutional competence and authority of the
Parliament of South Australia, subject to any overriding provisions of the Constitution, to control
the marketing of dried fruits produced within its territory and to prohibit persons subject to its
jurisdiction from marketing more than a certain proportion of such produce in the Commonwealth.
The provisions of sec. 20 properly construed do, in our opinion, delegate that power to the Dried
Fruits Board. The Act contemplates the concerted action of the Commonwealth and the States in the
marketing and control of dried fruits to the fullest extent within the competence of the several
authorities. If the powers in sec. 20 be confined to persons and dried fruits within the confines of
South Australia, still as applied to those persons and to that subject matter the word "where" is
without restriction or limitation of any kind and is applicable to places outside as well as to those
within South Australia. Such a construction is consistent with the objects of the Act and does not
transcend the territorial jurisdiction of South Australia. Consequently, the determination of the
Dried Fruits Board is warranted by the provisions of sec. 20 of the Act. The effect, then, of this
determination is to prohibit growers in South Australia from marketing their produce or engaging it
in inter-State or other trade in Australia beyond the proposition mentioned. Such a prohibition
contravenes sec. 92 of the Constitution as expounded in McArthur's Case[36]: "The prohibition by a
State Legislature of inter-State sales of commodities either absolutely or subject to conditions
imposed by State law is ... a direct contravention of sec. 92 of the Constitution"[37].

The provisions of secs. 28 and 29 next fall for consideration. They give authority to purchase by
agreement or to acquire compulsorily on behalf of His Majesty any dried fruits in South Australia
grown or dried in Australia which are not held for export under licences granted by the
Commonwealth pursuant to the Dried Fruits Export Control Act of the Commonwealth. The Wheat
Case[38] is a binding and conclusive authority that such a law does not violate the provisions of sec.
92. It was pointed out, however, that the acquisition authorized by sec. 28 of the South Australian
Act was an acquisition for the purposes of the Act or of any contract made by the Dried Fruits
Board; and, consequently, it was argued that if any of those purposes were or might be in violation
of the provision of sec. 92 the whole section must necessarily be invalid. We need not consider the
effect of this limitation on the right of acquisition because sec. 28 conditions the power of
acquisition by its opening words, "Subject to section 92 of the Commonwealth of Australia
Constitution Act," in effect providing that the power of acquisition shall not be exercised so as to
violate sec. 92 of the Constitution. Consequently, whatever the purposes of the Act may be, whether
in violation of sec. 92 of the Constitution or not, the acquisition authorized by sec. 28 can never
violate sec. 92, for it can operate only in accordance with, and not in violation of, the provisions of
that section. An acquisition not within the Constitution is not authorized by sec. 28, but, in our
opinion, the acquisitions effected in this case are strictly within the limitation imposed on the
operation of sec. 28 and are therefore authorized by that section.

It remains only to consider the objection to the jurisdiction of this Court which was argued with the
demurrer. This Court has original jurisdiction in all matters arising under the Constitution or
involving its interpretation (Judiciary Act, sec. 30); and on that provision the jurisdiction of this
Court is rested. Matters arising under the Constitution or involving its interpretation are those in
which the right, title, privilege or immunity is claimed under that instrument, or matters which
present necessarily and directly and not incidentally an issue upon its interpretation. It is quite clear
that the interference alleged in par. 21 of the statement of claim and the compulsory acquisition of
the plaintiff's dried fruits after the expiration of the Dried Fruits Act on 31st March 1927 raise no
question on the Constitution or involving its interpretation. The defendants' acts are rightly stated as
trespasses, and the causes of action are not founded on the Constitution but upon the plaintiff's
possessory rights in his dried fruits. We say that these acts of the defendants are rightly alleged as
trespasses because we think the plaintiff must have failed if he had relied on those acts as giving
him a right of action for damages for breach by the defendants of the provisions of sec. 92 of the
Constitution. In our opinion, no such action would lie. Sec. 92 was defined in McArthur's Case[39]
as applying only to the States, and we think that it is no more than an inhibition addressed to the
Parliaments of the States preventing them from legislating so as to interfere with the freedom
prescribed by that section. It gives no right to the citizens of the Commonwealth except the right to
ignore, and, if necessary, to procure the assistance of the judicial power in resisting, any such
legislation. The defendant cannot justify those trespasses by invoking the Constitution or any statute
of South Australia, which involves the interpretation of sec. 92 or of any other section of the
Constitution. So far as pleadings go, it is quite impossible to say that any provisions of the
Constitution touch the case, and, to found jurisdiction, the facts alleged in the pleadings must
distinctly and clearly raise the issue of constitutionality. Equally clear is it that the allegations in the
pleadings relating to the determination fixing the proportion of the output of currants, sultanas and
lexias which may be marketed in the Commonwealth, raise an issue directly involving the
interpretation and application of sec. 92 of the Constitution, and therefore within the jurisdiction of
this Court.

The allegations as to the validity of secs. 28 and 29 and the acquisitions of the plaintiff's dried fruits
under those sections also in our opinion raise an issue directly affecting the interpretation of the
Constitution; they raise the same question as was raised in the Wheat Case and the application of
sec. 92 to a section somewhat differently framed. The result is that the objection as to the
jurisdiction should be upheld in so far as it relates to the unlawful taking alleged in par. 21 of the
statement of claim and to the compulsory acquisition of dried fruits after the expiration of the Dried
Fruits Act on 31st March 1927, and not otherwise; that the demurrer should be overruled in so far as
it relates to the cause of action based on the determinations fixing the proportion of the output of
currants, sultanas and lexias produced by each grower in 1926 which may be marketed in the
Commonwealth, and allowed as to all other causes of action in the pleadings mentioned within the
jurisdiction of this Court.

Demurrer overruled so far as it relates to the cause of action based on the determinations fixing the
proportion of the output of dried fruits produced by each grower in 1926 which might be marketed
in the Commonwealth. Demurrer otherwise allowed.

Solicitors for the plaintiff, Madden, Butler, Elder & Graham.

Solicitor for the defendants, A. J. Hannan, Crown Solicitor for South Australia.

Solicitor for the intervener, Frank G. Menzies, Crown Solicitor for Victoria.

[1] (1867) L.R. 2 H.L. 239, at p. 261.

[2] (1893) A.C. 602, at pp. 621-622.

[3] (1892) 2 Q.B. 358, at pp. 370-371.

[4] (1892) 2 Q.B., at p. 403.

[5] [1850] EngR 300; (1850) 6 Moo. P.C.C. 257, at pp. 278-279.

[6] [1920] HCA 77; (1920) 28 C.L.R. 530.

[7] [1920] HCA 77; (1920) 28 C.L.R. 530, particularly at p. 543.

[8] [1880] USSC 144; (1880) 102 U.S. 135, at p. 141.

[9] [1925] USSC 83; (1925) 267 U.S. 432.

[10] [1920] HCA 77; (1920) 28 C.L.R. 530.

[11] (1891) A.C. 455.

[12] [1848] EngR 705; (1848) 6 Moo. P.C.C. 381, at p. 398.

[13] (1901) A.C. 446.

[14] (1891) A.C. 455.
[15] (1873) L.R. 6 H.L. 265, at p. 277.
[16] (1891) A.C. 455.
[17] [1918] USSC 126; (1918) 247 U.S. 105, at p. 114.
[18] (1925) 268 U.S. 473, at p. 495.
[19] [1908] HCA 8; (1908) 5 C.L.R. 695, at p. 734 [1909] UKPCHCA 2; ; (1909) 8 C.L.R. 767, at
p. 778.
[20] (1912) 1 Ch. 158.
[21] (1927) 43 T.L.R. 457, at p. 459.
[22] [1913] USSC 61; (1912) 227 U.S. 278.
[23] (1912) 227 U.S., at p. 282.
[24] (1912) 227 U.S., at p. 284.
[25] [1916] USSC 93; (1916) 240 U.S. 462.
[26] [1926] USSC 68; (1926) 270 U.S. 426, at p. 434.
[27] [1920] HCA 77; (1920) 28 C.L.R. 530.
[28] [1921] HCA 58; (1921) 29 C.L.R. 243, at p. 252.
[29] [1915] HCA 17; (1915) 20 C.L.R. 54.
[30] (1920) 28 C.L.R., at p. 551.
[31] (1925) A.C. 338, at p. 343.
[32] (1914) 79 J.P. 481.
[33] [1915] HCA 17; (1915) 20 C.L.R. 54.
[34] (1915) 20 C.L.R., at p. 96.
[35] [1908] HCA 94; (1908) 6 C.L.R. 469.
[36] (1920) 28 C.L.R., at p. 550.
[37] (1920) 28 C.L.R., at p. 555.
[38] [1915] HCA 17; (1915) 20 C.L.R. 54.
[39] [1920] HCA 77; (1920) 28 C.L.R. 530.

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