learned colleagues :- The duties of common carriers in respect of the safety of their employees, while both are engaged in commerce among the States and the liability of the former for injuries sustained by the latter while both are so engaged, have a real or substantial relation to such commerce and are therefore within the range of this power. Per POWERS, J., 19 C.L.R., at pp. 337-340.

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Commonwealth not to give preference.

99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference169 to one State or any part thereof over another State or any part thereof.

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§ 169. PREFERENCE TO ONE STATE."

Exemptions from Federal Excise Tax.

The proviso to section 2 of the Excise Tariff 1906 (No. 16), exempts from taxation goods which are manufactured by any person in any part of the Commonwealth under certain conditions as to the remuneration of labour. These conditions are divided into four categories:-(a), (b), (c), (d). From these conditions it appears that the legislature not only purported to authorize the prescribing of conditions reasonable according to the circumstances of locality, but intended, and indeed prescribed, that discrimination according to locality might be made. Any other rule would be manifestly unjust. Yet this is the thing which, so far as regards liability to taxation, is prohibited by the words under consideration. It was suggested that, though the Act thus authorizes discrimination between States and parts of States, it does not itself discriminate, since, it is said, the conditions actually prescribed by any or all of the specified authorities might in fact be identical throughout the Commonwealth. The legislature may in some cases delegate the power of fixing the incidence of taxation: Powell v. Apollo Candle Co., 10 App. Cas., 282, but it would be a strange thing to hold that, while it cannot itself discriminate between localities, it can, by delegation, confer power to make such discrimination. If different rates had been fixed by the divers authorities, or by the same authority as to different localities, what would be the conditions to be observed by a manufacturer? Might he claim the benefit of the lowest rate of wages fixed for the time being in any part of the Commonwealth? If so, every authority would, in effect, have

power to over-rule the decisions of every other authority. It is not conceivable that such a result was intended. It is clear that Parliament cannot by delegation do that which it is forbidden to do directly. It follows that, if there were no other objection to the Act in question, it would be invalid as transgressing the provisions of section 51 (II.) and section 99 of the Constitution: High Court judgment in The King v. Barger, (1908) 6 C.L. R., at p. 80.

Different rates of pay in different States.

In the Federated Saw Mill Case, 8 C.L.R., 468, the schedule of wages submitted by the claimants to the employers, and rejected, contained an additional 15 per cent. claimed for the employees in Western Australia, in these words :-" West Australia-15 per cent. to be added on above rates for extra cost of living." The question submitted by the President for the opinion of the High Court was: "Has the Council and Arbitration Court power to make any enforceable award so far as regards the Western Australian employees?" An attempt was made to show that the power of awarding, in settlement of the dispute, different rates of wages or other differing conditions of employment would be in violation of section 99 of the Constitution. But the argument was not seriously pressed. It is plain that a direction as to such wages or conditions. in an award is not a law or regulation of trade or commerce giving preference to one State or any part thereof over another State or any part thereof," and cannot therefore be within the prohibition of that section. Per O'CONNOR, J. in the Federated Saw Mill &c. Employees of Australasia v. James Moore & Son Proprietary Limited, (1909) C.L.R., at p. 507.

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Mr. Justice ISAACS said :- I should not omit to notice one further contention based on section 99 of the Constitution, viz., that the Act was a regulation of trade and commerce, which gives preference to one State over another. In my opinion it is not a regulation of trade and commerce: see United States v. E. C. Knight & Co., 156 U.S., 1": 8 C.L.R., at p. 539.

Nor abridge right to use water.

100. The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers 170 for conservation or irrigation.

§ 170. "RIGHTS OF STATE TO USE WATERS OF RIVERS."

LEGISLATION.

INTER-STATE COMMISSION ACT 1912, Section 17.

River Questions.

The Commission may investigate all matters affecting the extent of diversions or proposed diversions, or works or proposed works for diversions, from any river and its tributaries, and their effect or probable effect on the navigability of rivers, that by themselves or by their connexion with other waters, constitute highways for inter-state trade and commerce; the maintenance and the improvement of the navigability of such rivers; the abridgment by the Commonwealth by any law or regulation of trade or commerce of the rights of any State or the residents therein to the reasonable use of the waters of rivers for conservation or irrigation; the violation by any State, or by the people of any State, of the rights of any other State, or the people of any other State, with respect to the waters of rivers. In this section diversions includes obstructions, impoundings, and appropriations of water that diminish or retard the volume of flow of a river.

Rights of Commonwealth and State in respect of Inter-State Rivers.

No recent decision of the Supreme Court of the United States has been a source of greater interest than the case of Kansas v. Colorado, 206 U.S., 46. Apart from its importance as a controversy between two sovereign States, it is especially noteworthy on account of the claims put forward on the part of the Federal Government to control an inter-state river.

The State of Kansas brought a suit in the Supreme Court to restrain the State of Colorado from diverting the water of the Arkansas River for the purpose of irrigation of lands in Colorado. It was contended that this artificial diversion diminished the natural and customary flow of the river into and through Kansas. The United States Government filed an intervening petition claiming the right to control the waters of the river to aid in the reclamation of arid lands.

The argument of counsel for the Government was-that the control of such a stream, valuable for irrigation purposes, was necessary for the furtherance of the Government's policy as to irrigation.

This being conceded, the Federal Government would properly have control of such a stream under that provision of the Constitution which gives Congress all the incidental and instrumental powers necessary and proper to carry into execution all the express powers: Const., art. I., sec. 8, cl. 18; Story on Const., sec. 1243.

This brought up for the consideration of the Court the question as to whether the right to reclaim arid lands was one of the powers granted to Congress by the Constitution. No proposition, of constitutional law is more thoroughly settled than that the Federal Government is a Government of delegated powers. And the right to legislate for the reclamation of arid lands, aside from those the ownership of which is vested in the Federal Government, is not one of the powers expressly delegated to Congress. Counsel for the Government next endeavoured to sustain the right of Congress to legislate for an inter-state stream, which is not navigable, by the doctrine of sovereign and inherent power. This doctrine of inherent power was expressly negatived in Kansas v. Colorado.

Mr. Justice BREWER said :- This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment. This amendment, which was seemingly adopted with prescience of just such a contention as the present, disclosed the wide-spread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. It reads:- The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people. The argument of counsel ignores the principal factor in this article, to wit: the people.' Its principal purpose was not the distribution of power between the United States and the States, but a reservation to the people of all power not granted. The powers affecting internal affairs of the States not granted to the United States by the Constitution, not prohibited by it to the States are reserved to the States respectively, and all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States."

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The petition of the Federal Government to be allowed to intervene was disposed of on the ground that the Government had no legal interest in the subject-matter of the suit. On the main ques

tion the Supreme Court found that the damage done to the State of Kansas by the diversion of the water of the river had not been sufficient to justify the granting of an order restraining the State of Colorado from using the water for irrigation purposes.

Inter-State Commission.

101. There shall be an Inter-State Commission, with such powers of adjudication171 and administration as the Parliament deems necessary for the execution172 and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.

§ 172. “EXECUTION AND MAINTENANCE.”

LEGISLATION.

Enabling not exclusive power.

The language of section 101 is somewhat similar to that of section 61, which declares that the executive power of the Commonwealth extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth." It has been held that the provisions of section 101 conferring on the Inter-state Commission power of adjudication and administration deemed necessary for the execution and maintenance of the provisions of the Constitution relating to trade and commerce are enabling and supplementary to section 51 (1.) and section 61 and do not confer on the Commission any exclusive power.

In the case of Huddart Parker & Co. Proprietary Ltd. v. Moorhead, (1909) 8 C.L.R., 331, objection was taken to the validity of section 15в of the Australian Industries Preservation Act which authorizes the Comptroller-General to call upon certain persons and corporations to answer questions as to whether they are engaged in contracts in restraint of trade to the detriment of the public. The ground of the objection was that this legislation vested in the Comptroller-General powers and functions which belong exclusively to the Inter-state Commerce Commission. It was contended that section 101 is in effect an exception from, or proviso to, section 61, so far as relates to the execution and maintenance of laws relating to trade and commerce, and that pending the appointment of the Commission the execution and maintenance of these laws, whatever