swarb.co.uk - law index
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Constitutional - From: 1900 To: 1929
This page lists 37 cases, and was prepared on 17 January 2015.Quinn -v- Leathem  AC 495;  UKHL 2
5 Aug 1901
Lord Shand, Lord Macnaghten, Lord Lindley, Earl of Halsbury LC
Torts - Other, Contract, Constitutional
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; HL 1904 - (1904) 7 F (HL) 85
Mortensen -v- Peters (1906) 8 F (J) 93
Scotland, Constitutional, Agriculture
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
(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 - (1908) 98 LT 64; (1908) 24 TLR 610
The Employers' Liability Cases (1908) 207 US 463
(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; HL 10-Dec-1908 -  AC 147; 1909 SC (HL) 10;  UKHL 3; (1908) 16 SLT 619
Rex -v- Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow & Co; 1910 - (1910) 11 CLR 1
Rex -v- Earl of Crewe, Ex parte Sekgome; CA 1910 -  2 KB 576
Leach -v- Rex; HL 1912 -  AC 305
Bowles -v- Bank of England; KBD 4-Nov-1912 -  1 Ch 57;  82 LJ Ch 124;  108 LT 95;  29 TLR 42;  57 Sol Jo 43;  6 Tax Cas 136
Scott -v- Scott; HL 5-May-1913 -  P 241;  AC 417; 29 TLR 520; [1911-13] All ER 1;  UKHL 2
G & C Kreglinger -v- The New Patagonian Meat and Cold Storage Company; HL 20-Nov-1913 -  AC 25;  UKHL 1
In Re Boaler  KB 21
Litigation Practice, Constitutional
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
Taylor -v- Attorney General of Queensland (1917) 23 CLR 457
Barton J, Isaacs, Gavan Duffy, Rich and Powers JJ
(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; HL 1-May-1917 -  UKHL 1;  AC 260
Re the Initiative and Referendum Act  AC 935
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); HL 24-Jan-1919 -  UKHL 1; 1919 1 SLT 149; 1919 SC (HL) 19
Chester -v- Bateson  1 KB 829
Darling J, Avory J
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; PC 1920 -  AC 691
Attorney General -v- De Keyser's Royal Hotel Ltd; HL 10-May-1920 -  AC 508;  UKHL 1;  All ER 80; (1920) 36 TLR 600; (1920) 122 LT 691
Carlton Hotel Co -v- Lord Advocate 1921 SC 237
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; CA 1921 - (1921) 37 TLR 884
Newcastle Breweries Ltd -v- The King; 1921 -  KB 854
Attorney-General -v- Wilts United Dairies Ltd; HL 1922 - (1922) 38 TLR 781
Viscountess Rhondda's Claim  2 AC 339
Viscount Haldane, Lord Birkenhead LC
Litigation Practice, Constitutional, Discrimination
(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
Alexander E Hall & Co v Mackenna  IR 402
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."
Secretary of State for Home Affairs -v- O'Brien; HL 1923 -  AC 603
Attorney General for Ontario -v- Attorney General for Canada  AC 750; 94 LJPC 132; (1924) 4 DLR 520
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.
Prager -v- Blatspiel, Stamp and Heacock Ltd  1 KB 566
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.
Rex -v- Electricity Commissioners, ex parte London Electricity Joint Committee Co (1920) Ltd; 1924 -  1 KB 171
Attorney-General -v- Great Southern and Western Rly Co of Ireland  AC 754
The Fagernes  P 311
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; PC 18-Jan-1927 -  AC 343;  UKPC 2
Great Western Railway Co -v- Mostyn (Owners); HL 1928 -  AC 57; 97 LJP8; 138 LT 403
Edwards and Others -v- The Attorney General of Canada; PC 18-Oct-1929 - Appeal No. 121 of 1928;  AC 124;  UKPC 86
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