Constitutional - 1900- 1929

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This page lists 32 cases, and was prepared on 28 October 2012.

Quinn -v- Leathem [1901] AC 495; [1901] UKHL 2
5 Aug 1901 HL Lord Shand, Lord Macnaghten, Lord Lindley, Earl of Halsbury LC	Torts - Other, Contract, Constitutional	Casemap 1 Cites 1 Citers
	Quinn was treasurer of a Belfast butchers' association. Leathem, who traded as a butcher, employed some non-union men, although when the union made difficulties he asked for them to be admitted to the union, and offered to pay their dues. The union put pressure on Munce, a wholesale customer of Leathem, to stop buying his meat. It also called out Dickie, one of Leathem's employees. The jury found for Leathem, holding that there had been a malicious conspiracy between Quinn and other officers of the union. The Irish Court of Appeal affirmed this. Held. The appeal failed. A conspiracy 'wrongfully and maliciously' to induce customers and servants of the plaintiff not to deal with him was actionable on proof of damage. Though the coming together of a group of people is lawful, even though it results in injury to the interests of others, such an agreement for no purpose other than the pursuit of a malicious purpose to injure another would be unlawful. Any violation of legal rights, including rights under contract, committed knowingly and without justification, is a tortious act. Lord MacNaghten said of Lumley v Gye: "I have no hesitation in saying that I think the decision was right, not on the ground of malicious intention - that was not, I think, the gist of the action - but on the ground that a violation of a legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference." Lord Lindley said that Lumley v Gye tort was an example of causing loss by unlawful means: "If the above reasoning is correct, Lumley v. Gye was rightly decided, as I am of opinion it clearly was. Further, the principle involved in it cannot be confined to inducements to break contracts of service, or indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him." and "a person's liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact - in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified - the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done." Lord Shand distinguished Allen v Flood: "As to the vital distinction between Allen v Flood and the present case, it may be stated in a single sentence. In Allen v Flood the purpose of the defendant was by the acts complained of to promote his own trade interest, which it was held he was entitled to do, although injurious to his competitors, whereas in the present case, while it is clear there was combination, the purpose of the defendants was 'to injure the plaintiff in his trade as distinguish from the intention of legitimately advancing their own interest.'" Earl of Halsbury LC said: ". . a case is only an authority for what it actually decides."
	[ Bailii ]

Rossi -v- Magistrates of Edinburgh (1904) 7 F (HL) 85
1904 HL	Scotland, Licensing, Constitutional	Casemap 1 Citers
	Conditions in an ice-cream vendors' licence which restricted their right to open their shops when they liked and sell what they pleased were held to be ultra vires of the licensing authority. The court applied the rule that while the legislature may make whatever changes to the law that it likes, subordinate legislative authorities can make only such changes in the law as Parliament has empowered them to make. It is a general rule of construction that, while the legislature may make whatever changes to the law that it likes, subordinate legislative authorities can make only such changes in the law as Parliament has empowered them to make.

Mortensen -v- Peters (1906) 8 F (J) 93
1906 Lord Salvesen	Scotland, Constitutional, Agriculture	Casemap 1 Citers
	The Danish master of a Norwegian steam-trawler was prosecuted for using a particular method of fishing in the Moray Firth. He argued that, although the statute banning the method would have caught a British fisherman, it should be construed as impliedly excepting all foreigners fishing from foreign vessels outside the territorial jurisdiction of the British Crown. Held: The defence failed. Lord Salvesen said that it could scarcely be supposed that the British Parliament should pass legislation placing British fishermen under a disability which did not extend to foreigners: "I think, it was a just observation of the Solicitor General that, if legislation of this nature had been proposed, and the words inserted which the Dean of Faculty maintained were implied, it would never have been submitted by a responsible minister or have received the approval of Parliament."

Illinois Central Railroad Co -v- McKendree (1906) 203 US 514
1906 Day J	International, Constitutional	Casemap 1 Citers
	(US Supreme Court) An order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that the same line was fixed as to intrastate shipments by legislation of the state through which it passed. Day J said: "It is urged by the government that it was not the intention of the Secretary to make provision for intrastate commerce, as the recital of the order shows an intention to adopt the state line, when the state by its legislature has passed the necessary laws to enforce the same completely and strictly. But the order in terms applies alike to interstate and intrastate commerce. . . . We do not say that the state line might not be adopted in a proper case, in the exercise of federal authority, if limited in its effect to interstate commerce coming from below the line, but that is not the present order, and we must deal with it as we find it. Nor have we the power to so limit the Secretary's order as to make it apply only to interstate commerce, which it is urged is all that is here involved. For aught that appears upon the face of the order, the Secretary intended it to apply to all commerce, and whether he would have made such an order, if strictly limited to interstate commerce, we have no means of knowing. The order is in terms single, and indivisible."

Mangena -v- Edward Lloyd Ltd (1908) 98 LT 64; (1908) 24 TLR 610
1908 Darling J	Defamation, Constitutional	Casemap 1 Citers
	The plaintiff claimed in defamation after the defendant had republished an extract from a paper laid before parliament. Held: The 'blue book' reflected material laid before both houses of parliament, and reproduction of it was protected under the 1840 Act. As to whether the paper had been printed by malice, Darling J referred to an earlier case where a plea of justification had been placed on the record but the defendant at the trial had offered no evidence in support of it. Darling J added: "A plea of justification ought never to be put on the record unless the person believes in it and is prepared to support it with evidence".
	Parliamentary Privileges Act 1840 3

The Employers' Liability Cases (1908) 207 US 463
1908 White J	International, Constitutional	Casemap 1 Citers
	(US Supreme Court) The court heard together two appeals regarding the range of federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was controversial. Held: (Majority) The statute was unconstitutional. White J said: "Of course, if it can be lawfully done, our duty is to construe the statute so as to render it constitutional. But this does not imply, if the text of an act is unambiguous, that it may be rewritten to accomplish that purpose. Equally clear is it, generally speaking, that where a statute contains provisions which are constitutional and ethers which are not, effect may be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable and not dependent one upon the other, and does not support the contention that that which is indivisible may be divided. Moreover, even in a case where legal provisions may be severed from those which are illegal, in order to save the rule applies only where is is plain that Congress would have enacted the legislation with the unconsitutional provisions eliminated. All these principles are so clearly settled as not to be open to controversy. They were all, after a full review of the authorities, restated and reapplied in a recent case. Illinois Central Railroad v. McKendree, 203 U.S. 514, and authorities cited there."

Nairn -v- University of St Andrews [1909] AC 147; 1909 SC (HL) 10; [1908] UKHL 3; (1908) 16 SLT 619
10 Dec 1908 HL Lord Loreburn LC	Scotland, Constitutional, Elections, Education	Casemap 1 Citers
	Women graduates of St Andrews and Edinburgh, who, as graduates, were members of the general council of their university, sought a declarator that they were entitled to vote under section 27 of the 1868 Act. The section provided that "every person" whose name was on the register of the general council, if of full age "and not subject to any legal incapacity", was to be entitled to vote for the member of Parliament for the university. Held: The section did not confer a right to vote on women graduates. Lord Loreburn LC commented, "It would require a convincing demonstration to satisfy me that Parliament intended to effect a constitutional change so momentous and far-reaching by so furtive a process." Lord Ashbourne said: "If it was intended to make a vast constitutional change in favour of women graduates, one would expect to find plain language and express statement."
	Representation of the People (Scotland) Act 1868 27 - Universities Elections Amendment (Scotland) Act 1881
	Link[s] omitted

Rex -v- Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow & Co (1910) 11 CLR 1
1910 Griffiths CJ, Isaacs J	Commonwealth, Constitutional	Casemap 1 Cites 1 Citers
	The court considered the ability to sever void sections of statutes from other sections. Held: Griffiths CJ: "It is contended, on the authority of decisions of the Supreme Court of the United States, which are entitled to the greatest respect, that the test is this, that if the court, on a consideration of the whole statute, and rejecting the parts held to be ultra vires, is unable to say that the legislature would have adopted the rest without them, the whole statute must be held invalid. With profound deference I venture to doubt the accuracy of this test. What a man would have done in a state of facts which never existed is a matter of mere speculation, which a man cannot certainly answer for himself, much less for another. I venture to think that a safer test is whether the statute with the invalid portions omitted would be substantially a different law as to the subject matter dealt with by what remains from what it would be with the omitted portions forming part of it." Isaacs J said: "If good and bad provisions are wrapped up in the same word or expression, the whole must fall. Separation is there from the nature of the case impossible, and as it is imperative to eject the bad - and this can only be done by condemning the word or phrase which contains it - the good must share the same fate."

Scott -v- Scott [1912] P 241; [1913] AC 417; 29 TLR 520; [1911-13] All ER 1
1912 HL Lord Shaw of Dunfermline, Viscount Haldane LC, Lord Loreburn, Lord Atkinson	Media, Administrative, Children, Contempt of Court, Constitutional	Casemap 1 Cites 1 Citers
	There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer's notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt. Held: The House equated the contempt to a breach of an injunction and held that the Court had jurisdiction to make a punitive order. It emphasised the need for the openness in court proceedings, leading to a presumption in favour of publication. There was however an exception for cases involving children. Because matrimonial proceedings "affect status", the public has a general interest which the parties cannot exclude. Lord Shaw of Dunfermline said: "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.", but explained the reasons for privacy in wardship proceedings: "Upon this head it is true that to the application of the general rule of publicity there are three well recognized exceptions which arise out of the nature of the proceedings themselves. The three exceptions which are acknowledged to the application of the rule prescribing the publicity of courts of justice are first in suits affecting wards; secondly in lunacy proceedings; and thirdly where secrecy . . is of the essence of the cause. The first two of these cases, my Lords, depend upon the familiar principle that the jurisdiction over wards and lunatics is exercised by the judges representing His Majesty as parens patriae. The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognised that an appeal for the protection of the court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs . . But I desire to add this further observation with regard to all these cases, my Lords, that, when respect has thus been paid to the object of the suit, the rule of publicity may be resumed. I know of no principle which would entitle a court to compel a ward to remain silent for life in regard to judicial proceedings which occurred during his tutelage" and "There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure and at the instance of judges themselves." and "The policy of widening the area of secrecy is always a serious one; but this is for Parliament, and those to whom the subject has been consigned by Parliament, to consider." Lord Atkinson: "The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect." Earl Loreburn: "In all cases where the public has been excluded with admitted propriety the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or the parties entitled to justice would be reasonably deterred from seeking it at the hands of the Court." and "the Divorce Court is bound by the general rule of publicity applicable to the High Court and subject to the same exception." Viscount Haldane LC said: "As to the proposition that the Divorce Court has inherited the power to hear in camera of the Ecclesiastical Courts, I am of opinion that, since the Divorce Act of 1857, it has been untrue of every class of case, and not merely of suits for divorce strictly so called. I am in accord with the reasoning of Bramwell B, in the case I have already referred to [H (Falsely Called C) v C (1859) 29 LJ (P&M) 29], which led him to the conclusion that the Court which the statute constituted is a new Court governed by the same principles, so far as publicity is concerned, as govern other Courts" and "The exceptions are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in a particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made. " and "in all cases where the public has been excluded with admitted propriety the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or the parties entitled to justice would be reasonably deterred from seeking it at the hands of the Court."
	Divorce Act 1857

Leach -v- Rex [1912] AC 305
1912 HL	Constitutional, Crime	Casemap 1 Citers
	Save insofar as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make alterations in the common law.

Bowles -v- Bank of England [1913] 1 Ch 57; [1913] 82 LJ Ch 124; [1913] 108 LT 95; [1913] 29 TLR 42; [1913] 57 Sol Jo 43; [1913] 6 Tax Cas 136
4 Nov 1912 KBD Parker J	Constitutional, Income Tax	Casemap 1 Citers
	The House of Commons Ways and means committee resolved to assent to the imposition of income tax at the required rate for the next year. Held. Such a resolution was inadequate to authorise the Crown to levy the tax by its deduction from the Bank's dividends payable to its shareholders. Authority could be granted only by statute. Parker J said: " No practice or custom, however prolonged or however acquiesced in on the part of the subject could be relied on by the Crown as justifying an infringement of the provisions of the unrepealed Bill of Rights."
	Bill of Rights 1689

G & C Kreglinger -v- The New Patagonian Meat and Cold Storage Company [1914] AC 25; [1913] UKHL 1
20 Nov 1913 HL Viscount Haldane, Lord Parker	Constitutional, Contract, Equity	Casemap 1 Cites 1 Citers
	The appellant woolbrokers had lent the respondent £10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The company paid off the loan, but the appellants claimed that they were entitled to continue to exercise their right of first refusal. Held: The right of first refusal not part of the mortgage transaction; but was a collateral contract entered into as a condition of the company obtaining the loan. The appellants could therefore entitled to enforce it. Whilst courts are loathe to interfere with freedom of contract, they will intervene where evidence showed that terms imposed by a mortgagee are unconscientious. To do so, the courts will consider both the form and substance of the transaction. Lord Parker of Waddington discussed the survival of the rule against a clog on an equity of redemption, saying that it was not objectionable for a mortgage to confer a collateral advantage upon a mortgagee: "The last of the usury laws was repealed in 1854, and thenceforward there was, in my opinion, no intelligent reason why mortgages to secure loans should be on any different footing from other mortgages. In particular, there was no reason why the old rule against a mortgagee being able to stipulate for a collateral advantage should be maintained in any form or with any modification. Borrowers of money were fully protected from oppression by the pains always taken by the Court of Chancery to see that the bargain between borrower and lender was not unconscionable. Unfortunately, at the time when the last of the usury laws was repealed, the origin of the rule appears to have been more or less forgotten, and the cases decided since such repeal exhibit an extraordinary diversity of judicial opinion on the subject. It is little wonder that, with the existence in the authorities of so many contradictory theories, persons desiring to repudiate a fair and reasonable bargain have attempted to obtain the assistance of the Court in that behalf. My Lords, to one who, like myself, has always admired the way in which the Court of Chancery succeeded in supplementing our common law system in accordance with the exigencies of a growing civilization, it is satisfactory to find, as I have found on analysing the cases in question, that no such attempt has yet been successful. In every case in which a stipulation by a mortgagee for a collateral advantage has, since the repeal of the usury laws, been held invalid, the stipulation has been open to objection, either (1) because it was unconscionable, or (2) because it was in the nature of a penal clause clogging the equity arising on failure to exercise a contractual right to redeem, or (3) because it was in the nature of a condition repugnant as well to the contractual as to the equitable right." and "The nature of the equitable right [to redeem] is so well known that, upon a mortgage in the usual form to secure a money payment on a certain day, it must be taken to be a term of the real bargain between the parties that the property shall remain redeemable in equity after failure to exercise the contractual right. Any fetter or clog imposed by the instrument of mortgage on this equitable right may properly be regarded as a repugnant condition and as such invalid. There are, however, repugnant conditions which cannot be regarded as mere penalties intended to deter the exercise of the equitable right which arises when the time for the exercise of the contractual right has gone by, but which are repugnant to the contractual right itself. A condition to the effect that if the contractual right is not exercised by the time specified the mortgagee shall have the option of purchasing the mortgaged property may properly be regarded as a penal clause. It is repugnant only to the equity and not to the contractual right itself. But a condition that the mortgagee is to have such an option for a period which begins before the time for the exercise of the equitable right has arrived, or which reserves to the mortgagee any interest in the property after the exercise of the contractual right, is inconsistent not only with the equity but with the contractual right itself, and might, I think, be held invalid for repugnancy even in a Court of Law." As to the doctrine of precedent: "To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect previous decisions of a court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code. When a previous case has not laid down any principle, but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblances in circumstances, and to erect a previous decision into a governing precedent merely on this account. To look for anything except the principle established or recognized by previous decisions is really to weaken and not to strengthen the importance of precedent. The consideration of cases which turn on particular facts may often be useful for edification, but it can rarely yield authoritative guidance." The evolving nature of the equitable jurisdiction is 'to mould the rules which they apply in accordance with the exigencies at the time'. Lord Parker explained the decision in Bradley v Carritt: "The real question, in my opinion, was whether it [the clause in question] was inconsistent with or repugnant to the contractual right of the mortgagee [quære, mortgagor] to have his property restored unfettered if he paid the money secured with interest as provided in the agreement, and the consequential equitable right to have the property so restored if he paid his money with interest and costs at any time. On this point there was room for a difference of opinion . . There is really no difficulty in the decision itself. It is merely to the effect that the case was within the principles of Noakes v Rice. Lords Macnaghten, Davey, and Robertson all thought that if the stipulations in question were binding after redemption the mortgagor would not get back his property intact; in other words, that the stipulation was repugnant both to the contractual right and the equity." Lord Mersey agreeing, said that the equitable doctrine prohibiting the imposition of a clog on the mortgagor's right to redeem is "like an unruly dog, which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be". Viscount Haldane, Lord Chancellor, said: "the other and wider principle remains unshaken, that it is the essence of a mortgage that in the eye of a Court of Equity it should be a mere security for money, and that no bargain can be validly made which will prevent the mortgagor from redeeming on payment of what is due, including principal, interest and costs. He may stipulate that he will not pay off his debt, and so redeem the mortgage, for a fixed period. But whenever the right to redeem arises out of the doctrine of equity, he is precluded from fettering it. This principle has become an integral part of our system of jurisprudence and must be faithfully adhered to." The issue for decision was: "What was the true character of the transaction? Did the appellants make a bargain such that the right to redeem was cut down, or did they simply stipulate for a collateral undertaking, outside and clear of the mortgage, which would give them an exclusive option of purchase of the sheepskins of the respondents. The question is in my opinion not whether the two contracts were made at the same moment and evidenced by the same instrument, but whether they were in substance a single and undivided contract or two distinct contracts." The agreement for a right to purchase the respondent's sheepskins was a collateral bargain "the entering into which was a preliminary and separable condition of the loan".
	Link[s] omitted

In Re Boaler [1915] KB 21
1915 CA Scrutton J	Litigation Practice, Constitutional	Casemap 1 Citers
	The court was asked whether the 1896 Act which permitted a court to make an order that a person could not institute proceedings without the leave of the court, applied to the institution of criminal proceedings. Held: It did not. Scrutton J said: "In the case of this statute the legislature clearly intends to interfere with some rights of persons, and uses words capable of extension to rights of litigation in criminal matters, but in my opinion more suitable to the subject-matter of rights of litigation in civil matters only. In my view, looking at the enacting part of the statute only, the presumption against the interference with the vital rights and liberties of the subject entitles, even compels, me to limit the words to the meaning which effects the least interference with those rights." but "The object of the court is, from the words used, construed in reference to the subject-matter in which they are used, to get at the intention of the legislature and give effect to it. When the legislature has used general words capable of a larger and a narrower meaning, those words may be restricted by innumerable presumptions all designed to give effect to the reasonable intent of the legislature." "One of the valuable rights of every subject of the King is to appeal to the King in his Courts if he alleges that a civil wrong has been done to him, or if he alleges that a wrong punishable criminally has been done to him, or has been committed by another subject of the King. This right is sometimes abused and it is, of course, quite competent to Parliament to deprive any subject of the King of it either absolutely or in part. But the language of any such statute should be jealously watched by the Courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension."
	Vexatious Actions Act 1896

The Zamora [1916] 2 AC 77
1916 Lord Parker of Waddington	Evidence, Constitutional	Casemap 1 Citers
	Lord Parker said: "The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution . . Those who are responsible for the national security must be the sole judge of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public."

Taylor -v- Attorney General of Queensland (1917) 23 CLR 457
1917 Barton J, Isaacs, Gavan Duffy, Rich and Powers JJ	Constitutional, Commonwealth	Casemap 1 Citers
	(High Court of Australia) The 1908 Act provided that, when a bill passed by the Legislative Assembly in two successive sessions had in the same two sessions been rejected by the Legislative Council, it might be submitted by referendum to the electors, and, if affirmed by them, should be presented to the Governor for His Majesty's assent. Upon receiving such assent, the Bill was to become an Act of Parliament in the same manner as if passed by both Houses of Parliament, and notwithstanding any law to the contrary. Held: This was a valid and effective Act of Parliament by virtue of the power conferred upon the Legislature of Queensland by S.5 of the Colonial Laws Validity Act of 1865. It was further held that there was power to abolish the Legislative Council of Queensland by an Act passed by the Legislative Assembly and affirmed by the electors in accordance with the provisions of the 1908 Act. Barton J "The Constitution Act of 1867 provided for all laws passed under it to be enacted "by Her Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly in Parliament assembled", and that the constitution did not recognise the making of laws by any other authority: "It is also true that in general the legislation of a body created by and acting under a written charter or constitution is valid only so far as it conforms to the authority conferred by that instrument of government, and that therefore attempted legislation, merely at variance with the charter or constitution, cannot be held an effective law on the ground that the authority conferred by that instrument includes a power to alter or repeal any part of it, if the legislation questioned has to be preceded by a good exercise of such power; that is, if the charter or constitution has not antecedently been so altered within the authority given by that document itself. … Normally, therefore, in the absence of such a provision as s.5 of the Imperial Act, I should have been prepared to hold that the [1908 Act], which, though it professed to be an amendment of the Constitution Act of 1867, was merely, in view of its provisions, an Act at variance with the constitution, not preceded by a valid extension of the constitutional power, was therefore itself, as it stood, invalid. But in the present case the Imperial provision seems to me to take away the application of the principle I have stated to legislation of the kind which it authorises."
	Queensland Parliamentary Bills Referendum Act of 1908

Rex (at the prosecution of Arthur Zadig) -v- Halliday [1917] UKHL 1; [1917] AC 260
1 May 1917 HL Lord Finlay LC, Lord Shaw of Dunfermline	Constitutional	Casemap 1 Citers
	The applicant was German born but naturalised Englishman who complained of having been interned by a regulation made under the 1914 Act. He said that the regulation was ultra vires. Any order would require recommendation by the appropriate defence authority, and would be subject to representations made by a person affected. Lord Shaw of Dunfermline said: "Whether the government has exceeded its statutory mandate is a question of ultra or intra vires such as that which is now being tried. In so far as the mandate has been exceeded, there lurk the elements of a transition to arbitrary government and therein of grave constitutional and public danger. The increasing crush of legislative effects and the convenience to the Executive of a refuge to the device of Orders in Council would increase that danger twofold were the judiciary to approach any such action by the government in a spirit of compliance rather than of independent scrutiny."
	Defence of the Realm Consolidation Act 1914 - Defence of the Realm (Consolidation) Regulations 14B
	Link[s] omitted

Re the Initiative and Referendum Act [1919] AC 935
1919 PC Viscount Ha;dane	Constitutional, Commonwealth
	The Board heard a referral from the Manitoba government to the Court of King’s Bench for a ruling upon the question of whether the Manitoba Legislative Assembly had jurisdiction to enact a referendum act. Mathers CJ had decided that the legislature had such authority. The Court of Appeal overturned that decision. The parties took the matter directly to the Privy Council without going first to the Supreme Court of Canada. Held. The lieutenant Governor had no such power. Viscount Haldane ruled the legislation unconstitutional. The Act, which would permit an initiative voted upon by voters at large to become law if approved by a majority without passage through the legislature and without royal assent, was unconstitutional. A "legislature may not "create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence" The scheme of the Constitution Act, 1867 was "not to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to establish a central government in which these Provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head." The Board stated (obiter) that while a legislature could delegate legislation to subordinate agencies: "it does not follow that it can create and endow with its own capacity a new legislative power not created by the British North America Act to which it owes it own existence." Viscount Haldane expressed a reservation that the ability to legislate for the government of a territory does not extend to establishing a legislature for a self-governing territory armed with general legislative authority: "No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise."

Sellar -v- Highland Railway Co (No.1) [1919] UKHL 1; 1919 1 SLT 149; 1919 SC (HL) 19
24 Jan 1919 HL Lord Buckmaster	Scotland, Constitutional, Natural Justice	1 Citers
	The House considered whether a judge should recuse himself in a case involving a company in which he owned shares.
	Link[s] omitted

Chester -v- Bateson [1920] 1 KB 829
1920 Darling J, Avory J	Constitutional	Casemap 1 Cites 1 Citers
	A Regulation brought in under the 1914 Act prohibited the bringing of possession proceedings against a munitions worker without the consent of the Minister. Held. The prohibition was unlawful. It was a grave invasion of the rights of the subjects and this could not be achieved by a departmental order. Avory J said: "In my opinion there is not to be found in the statute anything to authorize or justify a regulation having that result; and nothing less than express words in the statute taking away the right of the King’s subjects of access to the Courts of justice would authorize or justify it."
	Defence of the Realm Consolidation Act 1914

McCawley -v- The King [1920] AC 691
1920 PC Lord Birkenhead	Constitutional	Casemap 1 Citers
	The Board was asked whether a Queensland statute authorising the Governor in Council to appoint a judge of the Court of Industrial Arbitration to hold office for seven years, was in fatal conflict with a provision of the 1859 Order in Council and a section of the Constitution Act 1867. Held: It was not, since the legislature of Queensland had power to enact the Queensland statute both under s.5 of the 1865 Act and under clause 22 of the Order in Council. Lord Birkenhead compared and contrasted controlled and uncontrolled constitutions: "… a constitution [is not] debarred from being reckoned as an uncontrolled constitution because it is not, like the British constitution, constituted by historic development, but finds its genesis in an originating document which may contain some conditions which cannot be altered except by the power which gave it birth. It is of the greatest importance to notice that where the constitution is uncontrolled the consequences of its freedom admit of no qualification whatever."
	Colonial Laws Validity Act 1865 5

Attorney General -v- De Keyser's Royal Hotel Ltd [1920] AC 508; [1920] UKHL 1; [1920] All ER 80; (1920) 36 TLR 600; (1920) 122 LT 691
10 May 1920 HL Lord Dunedin	Constitutional, Damages	Casemap 1 Citers
	There is an established general principle, of high constitutional importance, that there is no common law power to take or confiscate property without compensation. The powers of the Judicial Committee of the Privy Council are now governed by the Acts of 1833 and 1844 which must be recognised as superseding the royal prerogative. Lord Dunedin said: "if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules."
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Newcastle Breweries Ltd -v- The King [1920] KB 854
1921 Salter J	Constitutional	Casemap 1 Citers
	The court was asked to consider the validity of regulation 2B of the Realm Regulations made under section 1 of the 1914 Act. Held: The presumption against a statute authorising the expropriation of a subject's property without payment is even stronger in the context of delegated legislation. Absent a clear provision conferring power to make retrospective delegated legislation, the assumption of such a power offends the legality principle. Salter J said: "I do not think that a regulation which takes away the subjects right to a judicial decision , or transfer the adjudication of his claim without his content, from a court of law to named arbitrators, could fairly be held to be a regulation fro securing the public safety and the defence of the realm, or a regulation designed to prevent the successful prosecution of the war being endangered within the meaning of these words in the defence of the realm consolidation Act, 1914".
	Defence of the Realm Consolidation Act 1914 1

Carlton Hotel Co -v- Lord Advocate 1921 SC 237
1921 Lord Dundas	Scotland, Constitutional	Casemap 1 Citers
	Lord Dundas: "This is a summary petition under section 91 of the Court of Session Act, 1868, for an order for specific performance of an alleged statutory duty. The remedy thus sought is peculiar and drastic. It has not, I believe, been frequently resorted to; I am aware of only one reported instance. Those who invoke this remedy must, I think, be careful to aver a clear statutory duty which those on whom its performance is incumbent have refused, or unduly delayed, to perform; and to state in precise terms the order which, by their prayer, is sought from the Court." and "Section 91 was, in my judgment, never intended to provide a medium for the expiscation of intricate and doubtful duties, but rather for the summary enforcement of clearly existing ones, the due performance of which is neglected."
	Court of Session Act 1868 91

Attorney-General -v- Wilts United Dairies Ltd (1921) 37 TLR 884
1921 CA Scrutton LJ, Atkin LJ	Constitutional	Casemap
	The Food Controller had been given power under the Defence of the Realm Acts to regulate milk sales. In granting the dairy a licence to buy milk in Cornwall, Devon, Dorset and Somerset, the Food Controller required the Dairy to pay 2d. per imperial gallon of milk purchased from those counties. The Attorney-General sued for the recovery of the monies which were not paid. The Dairy's objection was that the method adopted by the Food Controller was in its nature a tax which could only be levied or imposed by Parliament. Held: Scrutton LJ said: "It is conceivable that Parliament, which may pass legislation requiring the subject to pay money to the Crown, may also delegate its powers of imposing such payments to the Executive. But in my view the clearest words should be required before the courts hold such an unusual delegation has taken place." After citing Gosling v Veley: "A great deal of time was occupied in arguing whether the requirement of this payment was a "tax". I prefer to use the words of the Bill of Rights which forbids "levying money for the use of the Crown without grant of Parliament," and the requirement of this 2d. appears to me clearly to come within these words. It is true that the fear in 1689 was that the King by his prerogative would claim money; but excessive claims by the Executive Government without grant of Parliament are, at the present time, quite as dangerous, and require as careful considerations and restriction from the Court of Justice." Atkin LJ: "Though the attention of our ancestors was directed especially to abuses of the prerogative, there can be no doubt that this statute declares the law that no money shall be levied for or to the use of the Crown except by grant of Parliament. We know how strictly Parliament has maintained this right - and, in particular, how jealously the House of Commons has asserted its predominance in the power of raising money. In these circumstances, if an officer of the executive seeks to justify a charge upon the subject made for the use of the Crown (which includes all the purposes of the public revenue), he must show, in clear terms, that Parliament has authorized the particular charge." and "It makes no difference that the obligation to pay the money is expressed in the form of an agreement. It was illegal for the Food Controller to require such an agreement as a condition of any licence. It was illegal for him to enter into such an agreement. The agreement itself is not enforceable against the other contracting party; and if he had paid under it he could, having paid under protest, recover back the sums paid, as money had and received to his use."
	Bill of Rights 1688 4

Viscountess Rhondda's Claim [1922] 2 AC 339
1922 HL Viscount Haldane, Lord Birkenhead LC	Litigation Practice, Constitutional, Discrimination	Casemap 1 Cites 1 Citers
	(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act. Held: It is incorrect for a court to draw conclusions from such elements of the Parliamentary history of the legislation as the proposal and rejection of amendments. It is the sole right of the Committee to decide who was entitled to receive the Writ of Summons and Lord Lyndhurst said that if a person is entitled to a writ, but the Crown does not issue one, then his remedy is to petition the House. Lord Birkenhead LC said: "The rule that the words of an instrument shall be taken most strictly against the party employing them - verba chartarum fortius accipiuntur contra proferentem - does not apply to the Crown such a grant is construed most strictly against the grantee and most beneficially for the Crown, so that nothing will pass to the grantee but by clear and express words." It was the duty of the Committee for Privileges to consider whether she was entitled to receive a Writ of Summons: "The writ is not to be issued capriciously or withheld capriciously at the pleasure of the Sovereign or of this House. It is to be issued, or withheld, according to the law relating to the matter, and if, under that law, it appears that there is a debt of justice to the petitioner in that matter, the writ will issue and, if not, it cannot issue." Lord Lyndhurst said: "If a Writ of Summons is improperly withheld, your Lordships can insist upon its being issued. You may address the Crown for that purpose if you think proper. If that address to the Crown is unavailing, there is a remedy that in a remarkable case has been resorted to and which was effectual to attain its object. The Peers in Parliament, in that case, refused to proceed to business until the Writ of Summons was issued and until the House was properly constituted, and the historian who records this fact says that the means adopted were so effectual that the King was induced to issue the Writ of Summons and that the abuse of which they complained never occurred again. That is a remedy when the Writ of Summons is withheld. On the other hand, when a party has obtruded himself upon the House in which he has no right to sit, the remedy is equally plain. It is your duty to direct your Officers to refuse to administer the oaths, or allow the party to take his seat."
	Sex Disqualification (Removal) Act 1919

Attorney-General -v- Wilts United Dairies Ltd (1922) 38 TLR 781
1922 HL Lord Buckmaster	Constitutional	Casemap 1 Cites 1 Citers
	The House heard an appeal by the Attorney-General against a finding that an imposition of duty on milk sales was unlawful. Held: The appeal failed. The levy was unlawful. Lord Buckmaster said: "Neither of those two enactments enabled the Food Controller to levy any sum of money on any of his Majesty's subjects. Drastic powers were given to him in regard to the regulation and control of the food supply, but they did not include the power to levy money, which he must receive as part of the national fund. However the character of the transaction might be defined, in the end it remained that people were called upon to pay money to the Controller for the exercise of certain privileges. That imposition could only be properly described as a tax, which could not be levied except by direct statutory means."
	Bill of Rights 1688 4

Alexander E Hall & Co v Mackenna [1923] IR 402
1923 PC Viscount Haldane	Constitutional	Casemap 1 Citers
	Viscount Haldane discussed the status of the Privy Council: "The Judicial Committee of the Privy Council is not an English body in any exclusive sense. It is no more an English body than it is an Indian body, or a Canadian body, or a South African body, or, for the future, an Irish Free State body . . I mention that for the purpose of bringing out the fact that the Judicial Committee of the Privy Council is not a body, strictly speaking, with any location. The Sovereign is everywhere throughout the Empire in the contemplation of the law."

Prager -v- Blatspiel, Stamp and Heacock Ltd [1924] 1 KB 566
1924 McCardie J	Constitutional, Agency	Casemap 1 Citers
	McCardie J spoke of the demand of an expanding society for an expanding common law. An agent must act bona fide in the interests of his principal.

Attorney General for Ontario -v- Attorney General for Canada [1925] AC 750; 94 LJPC 132; (1924) 4 DLR 520
1924 PC	Commonwealth, Constitutional	1 Citers
	A provincial legislature had exceeded its powers and contravened the British North America Act. Held: Any provision made by the constitution as to the security of status and tenure of the judiciary applies to all individual judges slater appointed in exercise of an analagous jurisdiction, whatever name is actually given to the court in which they sit.

Attorney-General -v- Great Southern and Western Rly Co of Ireland [1925] AC 754
1925 HL	Constitutional	Casemap 1 Citers

The Fagernes [1927] P 311
1927 CA Atkin LJ	Constitutional	Casemap 1 Citers
	Atkin LJ considered whether the islands were a territory of the Crown: "What is the territory of the Crown is a matter of which the Court takes judicial notice. The Court has, therefore, to inform itself from the best material available; and on such a matter it may be its duty to obtain its information from the appropriate department of Government. Any definite statement from the proper representative of the Crown as to the territory of the Crown must be treated as conclusive."

Colonial Sugar Refining Co Ltd -v- Melbourne Harbour Trust Commissioners [1927] AC 343; [1927] UKPC 2
18 Jan 1927 PC Lord Warrington, Lord Darling, Viscont Haldane, Viscount Finlay, Viscount Dunedin	Constitutional	Casemap 1 Citers
	An Act removing the right of appeal to the Privy Council was held not to affect an appeal in litigation pending when the Act was passed and decided after its passing, on the ground that (Lord Warrington) '[t]o deprive a suitor in pending litigation of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure'. And "In considering the construction and effect of this Act the Board is guided by the well known principle that a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms" and "When we are seeking the intention of Parliament that may appear from express words but it may also appear by irresistible inference from the statute read as a whole. But I would agree that, if there is a reasonable doubt, the subject should be given the benefit of the doubt." A statute should not be held to take away property rights without compensation unless the intention to do so is expressed in terms which are clear and unambiguous. Lord MacNaghten: "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."
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