Commonwealth of Australia-Customs and Excise Duties-Exclusive Powers of Commonwealth Parliament-Powers of State Parliaments-Preference of One State over Another-Commonwealth Excise Tariff, 1902 (No. 11 of 1902)Commonwealth of Australia Constitution Act, 1900 (63 & 64 Vict. c. 12), ss. 51, 86, 88, 90, 99. By section 51 of the Commonwealth of Australia Constitution Act, 1900, the Commonwealth Parliament has powers with respect to taxation, but not so as to discriminate between States or parts of States. By section 90: "On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise shall become exclusive . . . and all laws of the several States imposing duties of customs and excise shall cease to have effect." By section Commonwealth shall not 99: "The give prefer ence to one State or any part thereof over another State or any part thereof" :—Held, that the Parliament can make a Tariff Act retroactive and impose duties from the date of the preceding resolution; that section 90 does not prohibit the Parliament from imposing duties of Excise until uniform duties of Customs have been imposed; that there is no inconsistency in the coexistence of Excise duties imposed by the Commonwealth and similar duties imposed by the States even in the interval between the resolution passed by the Commonwealth Parliament and the Act giving effect thereto. By section 5 of the Excise Tariff, 1902, no duties are to be imposed on goods on which Customs or Excise duties have been imposed by State legislation or on which no Excise duty was in any State previously payable-Held, that this constituted no discrimination between the States within the meaning of sections 51 and 99 of the Commonwealth Constitution Act, the inequality arising not from the action of the Parliament, but from the inequalities *Coram, The Earl of Halsbury, Lord Macnaghten, Lord Davey, Lord Robertson, Lord Atkinson, and Sir Arthur Wilson. of the duties previously imposed by the States themselves. Appeal from a judgment of the Supreme Court of Queensland dated September 4, 1903, on a Special Case stated in an action brought by the appellants against the respondent, claiming the return of certain Excise duties levied between October 8, 1901, and July 26, 1902, on sugar, the property of the appellants. The question turned exclusively on the construction of certain sections of the Commonwealth of Australia Constitution Act, 1900, and the Customs Tariff, 1902. The case is reported, [1903] S. R. Qd. 261. Cohen, K.C., Bernhard R. Wise, K.C. (of the New South Wales Bar), and Tyrrell T. Paine, for the appellants. Sir R. B. Finlay, K.C., and Vaughan Hawkins, for the respondent. LORD DAVEY delivered the judgment of their Lordships: This is an appeal from a judgment of the Supreme Court of Queensland dated September 4, 1903, on a Special Case which was stated in an action brought by the appellants against the respondent, claiming the return of certain Excise duties levied between October 8, 1901, and July 26, 1902, on sugar, the property of the appellants. The appellants base their demand for return of the duties on two grounds: (1) That no Excise duties could be lawfully imposed by the Parliament of the Commonwealth of Australia until the actual imposition of uniform Customs duties by the same Parliament, which did not take place until after the passing of the Excise Tariff, by which the duties in question were made exigible. (2) That the duties were imposed in a manner which discriminated between States, or gave a preference to one State over another, in violation of the provisions of the Constitution. The Commonwealth of Australia Constitution Act, 1900, came into force on January 1, 1901. The following sections of the Constitution thereby established are material for the present purpose: "51. The Parliament shall, subject to this Constitution, have power to make COLONIAL SUGAR REFINING Co. v. IRVING. "(ii.) Taxation; but so as not to "86. On the establishment of the Commonwealth, the collection and control of duties of customs and excise... shall pass to the Executive Government of the Commonwealth." "88. Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth." "90. On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise... shall become exclusive, and " on the same event "all laws of the several States imposing duties of customs and excise... shall cease to have effect." "99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof." On October 8, 1901, the Minister for Trade and Customs moved a resolution in Committee of Ways and Means of the House of Representatives that duties of Customs and of Excise should be imposed according to a tariff which included an Excise duty on manufactured sugar, the produce of Australia, of three shillings. per hundredweight. On July 26, 1902, the Excise Tariff, 1902 (No. 11 of 1902), founded on the resolution of October 8, 1901, was assented to, and on September 16, 1902, the Customs Tariff, 1902 (No. 14 of 1902), was assented to. The Excise Tariff contains the following sections: "4. The time of the imposition of uniform duties of excise is the eighth day of October one thousand nine hundred and one at four o'clock in the afternoon reckoned according to the standard time in force in the State of Victoria, and this Act shall be deemed to have come into operation at that time." "6. All duties of excise collected pursuant to any tariff or tariff alteration shall be deemed to have been lawfully imposed and collected, and no additional duty shall be payable on any goods on which duty was so collected merely by reason that the rate at which the duty was so collected is less than the rate of duty specified in this Act, and no duty shall be payable in respect of goods delivered for home consumption free of duty pursuant to any tariff or tariff alteration." By section 5 of the Act all goods dutiable under the schedule which were manufactured or produced in Australia before the time when such duties are deemed to have been imposed, and were at the time subject to the control of the Customs or Excise supervision, or in stock, and on which no duty of Customs or Excise had been paid before that time, are made liable to the scheduled duties. The Between October 8, 1901, and July 26, 1902, the respondent demanded from the appellants, in respect of 6,700 tons of sugar produced in Queensland, sums amounting in the aggregate to 20,100%., as duty imposed on manufactured sugar, in accordance with the resolution. appellants disputed their liability and deposited the amount in accordance with statutory provisions for that purpose. It is unnecessary now to discuss whether the payment of the duty could have been enforced before the passing of the Excise Tariff, 1902, and it is not now disputed that the appellants are liable for the duty if the Act imposing the duty as from October 8, 1901, was within the powers of the Parliament. It should be added that no duty has been paid or was payable on the sugar under the law of Queensland. It is a little difficult to understand the first point taken by the appellants. The Parliament had undoubted power to impose taxation under the express words of section 51 of the Constitution, and it is not now disputed that the Parliament could, if it thought fit, make the Act retroactive and impose the duties from the date of the resolution. That practice is (it is believed) universally followed in the Imperial Parliament, and (their Lordships were told) is common in the Colonial Legislatures in Acts of this description, and for obvious reasons it is convenient and almost necessary. There was nothing, therefore, in either the subject-matter of the Act or in the mode of dealing with it which was beyond the power of the COLONIAL SUGAR REFINING Co. v. IRVING. Parliament. But it is said that by section 90 of the Constitution the Parliament was prohibited (for it must come to that) from imposing duties of Excise until uniform duties of Customs had been imposed. The section referred to does not contain any such prohibition. It is only enacted that on the given event the power to impose Excise duties shall become exclusive. And their Lordships cannot find any implication, necessary or otherwise, of such prohibition in that section or any other part of the Constitution. There is no inconsistency in the co-existence of Excise duties imposed by the Commonwealth and similar duties imposed by the States. All that can be said is, that if some of the States had imposed such duties in the interval between the resolution and the passing of the Customs Act, which must have been collected by the Commonwealth officers, it might have given rise to some complications and occasioned some administrative difficulty. It was further argued that the continued existence of the power of the States to impose Excise duties would defeat the avowed object of the Act to impose uniform Excise duties throughout the Commonwealth from the date of the resolution, and the Act therefore to that extent failed of its purpose and attempted to do something which it could not do. Their Lordships do not find in any of these considerations sufficient reason for holding the Act to be ultra vires, so far, at any rate, as it imposed the duty in question as from the date of the resolution. And with regard to the last point they observe that on the passing of the Customs Tariff, 1902, if not earlier, the provision for uniform duties of Excise became operative by section 90 of the Constitution. It is a plausible conjecture that it was contemplated by the authors of the Constitution that the Customs Tariff would precede the Excise Tariff; but either from oversight or for some reason which does not appear, the Parliament thought fit to pass the Excise Tariff first. Their Lord an ships cannot say that it exceeded its powers by so doing. The second point of the appellants appears to their Lordships to be equally wanting in substance. The argument is to this effect. The effect of section 5 of the Excise Tariff is to exempt from the duties thereby imposed goods on which Customs or Excise duties had been paid under State legislation; but inasmuch as the scale of duties differed in the several States, and in Queensland, for example, no Excise duty was imposed on sugar, the exemption operated unequally on the traders and manufacturers of the several States. The grant of such an exemption was therefore said to be a discrimination between the States within the meaning of the Constitution, and it was added that, whatever might be said about the Excise duties, to grant an exemption for previous payment of Customs duties was arbitrary and indefensible. Their Lordships cannot accede to this argument. The substance of the enactment in question is that goods which have already paid Customs or Excise duties shall not pay over again, and some such provision is obviously necessary in the transition from the old order to the new. The rule laid down by the Act is a general one, applicable to all the States alike, and the fact that it operates unequally in the several States arises not from anything done by the Parliament, but from the inequality of the duties imposed by the States themselves. The exemption from the new Excise duties on the ground of previous payment of Customs duties seems justifiable and right in establishing a system based on the absolute freedom of trade among the States, and the substitution of a uniform Excise for all interStates duties on goods as well as what are strictly Excise duties. Their Lordships will therefore humbly advise his Majesty that this appeal be dismissed, and the appellants will pay the costs of it. Solicitors-Paines, Blyth & Huxtable, for appellants; J. H. Galbraith, for respondent. [Reported by J. Eyre Thompson, Esq., Barrister-at-Law. In an action to set aside a will on the ground of undue influence and incapacity brought by the principal heirat - law against the executors and beneficiaries,— Held-first, that by the law of Jersey the evidence of executors was properly excluded; secondly, that the parochial authorities were wrongly added as parties to the action, and that their evidence was admissible; thirdly, that the fact that the will was prepared by the executors, who took a beneficial interest themselves, was, in the absence of fraud or dishonesty, no ground for impugning its validity; and fourthly, that on the evidence there was no fraud or coercion or want of testamentary capacity. The definition of undue influence given by HANNEN, P., in Wingrove v. Wingrove (55 L. J. P. 7; 11 P. D. 81), that there must be "coercion," and not merely persuasion or inducement, however improper that may be, approved. Appeal from three judgments of the Royal Court of Jersey (Superior Number) in an action by the heir-at-law of Julia Westaway against the executors and trustees and the beneficiaries of her will, to set aside the will on the ground of undue influence. The facts are set out in full detail in the judgment of the Board. Sir E. Clarke, K.C., Jenkins, K.C., Barnard, K.C., and Hawksford, for the appellants. Haldane, K.C., Durell (Solicitor-General for Jersey), and Grazebrook, for the respondents. Sir E. Clarke, K.C., in reply. [In addition to the authorities referred to in the judgment they cited Godfray v. Godfray [1866], Terrien, Commentaires du Droit Civil de Normandie (ed. 1578), *Coram, Lord Macnaghten, Lord Robertson, Lord Lindley, and Sir Arthur Wilson. (1) 35 L. J. P.C. 39; 3 Moo. P.C. (N.S.) 316. p. 393, c. 34; De Temoins, Le Geyt, Commentaries on the Laws of Jersey (ed. 1847), vol. 3, p. 127; Mitchell v. Thomas [1847],2 and Dufaur v. Croft [1840].3] LORD MACNAGHTEN delivered the judgment of their Lordships: This was an appeal from three judgments of the Royal Court of Jersey (Superior Number). The substantial question on the appeal was whether a document propounded as the will of Miss Julia Westaway and purporting to deal with her personal estate, and a codicil thereto of trivial importance, were, or were not, valid testamentary instruments. Incidental to the main question, but arising out of separate judgments in the Royal Court, were two minor questions -one as to the joinder of parties and the other as to the rejection of evidence. The three judgments are dated June 8 and 9 and July 11, 1903. The last is the principal judgment. It set aside and annulled both will and codicil. Julia Westaway died on September 20, 1901, in her eighty-second year, leaving personal estate of the value of 90,0007. and upwards. The will which was impeached bears date of April 27, 1895that is, six years and a-half before her death. The codicil is dated August 31, 1898. Julia Westaway was the daughter of one Nathaniel Westaway, a builder in Jersey, who was in a very small way of business to start with, but a rich man when he died in 1852. He left three children-two daughters, Harriet and Julia, who lived together till Harriet's death in 1892, and a son whose name was John Nathaniel Westaway. On the father's death there were quarrels over the division of his estate. The dispute became so violent, and the feeling in the family so bitter, that Mr. Westaway did not scruple to have his two sisters imprisoned in the public jail in order to enforce a claim which he had established at law, but which they thought unjust. This he did on October 11, 1861. On November 1 following he went further. He reduced his sisters to "short (2) 6 Moo. P.C. 137. (3) 3 Moo. P.C. 136. BAUDAINS v. RICHARDSON. commons." Bound by law to support them in prison, he refused to contribute to their maintenance more than the minimum allowance of 3d. a day. In less than a week Julia's health broke down. Then the sisters submitted to pay, and they were both released. But the entries in the prison books still remained, and indeed are yet extant, recording the incarceration of these two ladies and the scurvy treatment they received at a brother's hands. The indignity was never forgotten. Both the sisters were often heard to declare that Mr. John Nathaniel Westaway and his family should never have anything of theirs but what might be claimed and exacted by law. The law of Jersey, it seems, allows the free disposition of personal estate, but does not permit alienation by will of descended real estate so long as there remains issue of the ancestor who brought the property into the family. The successor in his lifetime may alienate descended real estate, but then his own acquired real estate, or, failing that, his personal estate, becomes liable to make good the loss to the inheritance. Miss Westaway had real estate inherited from her father, some directly, some through her sister, and she had disposed of part by sale. To the extent of the proceeds of the sale and the property unsold she was aware that her brother's family had a legal claim upon her, but she was resolved -so she was in the habit of declaringthat no member of that family should ever get a penny more from her. In pursuance of this resolve, or, at any rate, in accordance with Miss Westaway's declared intentions, the will of April 27, 1895, appears to have been made. It was little more than a repetition of an earlier will dated April 12, 1894. Substantially it gave in charity for the benefit of the poor the whole of her personal estate with the exception of the sum of 1,0007., which was bequeathed to Elizabeth Curwood. Elizabeth Curwood was Miss Westaway's housekeeper, attendant, and companion. She entered Miss Westaway's service on July 15, 1893, and remained with her to the end. Among the actors in this drama Elizabeth Curwood is made to play the leading part. In the attack upon the will her position, her character, and her conduct formed the principal topics of discussion. Her influence was represented as the turning-point on which the case depended. She was evidently a rough, coarse, vulgar, domineering woman, fond of boasting and wholly devoid of education. She could not read or write, nor had she ever had any training as a nurse. She was addicted to drink, and occasionally, if not habitually, to the use of vile and abominable language. On the one hand, she is represented as the real mistress of the house and of everything in it, including Miss Westaway herself. Miss Westaway, it is said, fell completely under her dominion, cowed into abject submission, a mere puppet to her will. That is the case for the attack. For the defence it is maintained that Miss Westaway was alive to her servant's failings, but fully determined of her own free will, in spite of remonstrances, to keep about her one who made her more comfortable than she had ever been in her whole life before. It does seem to be true that in many ways Elizabeth Curwood, with all her faults, was not such a bad servant for what Miss Westaway required. She was attentive to her mistress's wants. kept her rooms clean and tidy, and always took care to supply her table with good food cooked to her liking, and with fruit and other delicacies of the season. And, as one witness said, "she could be gentle and not offensive." There were stories current of gross ill-treatment and barbarous cruelty on the part of Elizabeth Curwood towards her mistress. But, strange to say, the three doctors-Dr. Hind, Dr. Bentlif, and Dr. Bois-who attended Miss Westaway one after the other from the time Elizabeth Curwood entered her service, saw no trace or sign of ill-treatment or cruelty. Dr. Hind, a witness for the plaintiff, who was in attendance when she first came, thought Miss Westaway was not as carefully dressed or washed as he should have wished. But he attributed that to incompetence, not to cruelty. Elizabeth Curwood, he thought, "did her best." Such a case would be "a very severe tax on the nurse." "A certain amount of She |