Mandamus-Customs Registration Act (42 Vic. No. 19), s. 47-Imposition of new duties-Resolution of Parliament-Constitutional practice. On the 22nd of December the House of Assembly passed a resolution to impose from the 1st of December customs duties upon certain goods which had previously been admitted to the colony free of duty, and a bill to that effect and retrospective to the 1st of December was introduced. In December, and before the bill became law, the applicants imported certain goods to which the new duties applied. The Collector of Customs having refused to sign the bills of entry for the said goods until the duty was paid, the applicants applied for a writ of mandamus to compel him to do so. The Court refused the writ on the ground that the practice of collecting new duties from the date of the resolution of the House of Assembly and before the bill imposing such duties became law was a well-established and constitutional practice instituted for the protection of the Queen's revenue. The Court is bound in the exercise of its discretion to refuse to grant a writ of mandamus in favour of a person having a strict legal right, when the granting of such writ will prove mischievous and be opposed to a well-established policy. MANDAMUS. The applicants were the importers of certain goods which up to the 1st December, 1891, had been admitted into the colony duty free. The goods in question arrived in Sydney during December, 1891, at which time no Act of Parliament imposing any duties upon goods of the kind had come into force. The Customs Regulation Act (42 Vic. No. 19, s. 47) provides that N.S.W.R., Vol. XIII., Law. A 1892. Feb. 19, 26. The C.J. Windeyer J. and Innes J. 1892. within a certain time after arrival of goods entry thereof shall be Ex parte made, and the bill of entry of any goods when signed by the WALLACE AND Co. Collector or proper officer shall be transmitted to the proper officer and be his warrant for the delivery of the goods therein mentioned." The applicants duly made entry of the goods and applied to the Collector of Customs to sign the entries, in order that they might get possession of the goods. The Collector refused to sign them till certain customs duties were paid. The applicants thereupon obtained a rule nisi for a mandamus to compel the Collector to sign the bills of entry upon the grounds—1. That the said goods were, at the time of the refusal of the said James Powell (being the proper officer for such purpose) to sign the said entries or bills of entry, free goods, and not chargeable with any duty under any law in force in N.S.W., of which said goods the applicants had at the time aforesaid duly made entry, and complied with the provisions of the Customs Regulation Act then in force. 2. That upon the applicants having complied with the provisions of the said Act with reference to the said goods and the entries in regard thereto, the said James Powell was bound to sign the said entries or bills of entry as the warrants for the delivery of the said goods to the applicants. The Collector of Customs filed the following affidavit shewing the grounds of his refusal : In the Legislative Assembly on the 22nd of December last the Colonial Treasurer delivered a message from His Excellency the Governor recommending for the consideration of the Assembly the expediency of making provision for a bill for the establishment of a new Tariff of Customs Duties, which message was thereupon ordered to be printed and referred to a Committee of the whole of the bill. Afterwards in Committee it was moved that those resolutions be received, and after debate the question was put and passed. One of the resolutions referred to was as follows: Resolved-"That towards raising the supply to be granted to Her Majesty there shall be charged, collected and paid from and after the 1st of December, 1891, upon the several articles, goods, wares and merchandise imported into the colony enumerated in schedules A and B, and not enumerated in schedule C (including such as are now in bond), the duties of customs specified against each respectively in lieu of existing customs duties." By the schedule thereunder written certain customs duties were imposed upon the goods the subject of this application. It was subsequently moved by the Colonial Treasurer on the said 22nd of December last that the resolutions be read a second time, and after debate they were read the second time, and on the motion of the Colonial Treasurer agreed to. On the same day it was ordered on motion that a bill, founded on the resolution of ways and means hereinbefore referred to, be brought in, and the Colonial Treasurer presented a bill, a true copy whereof is produced and shewn to me at the time of swearing this affidavit. The bill was read a first time, ordered to be printed, and to be read a second time on a later date. It has always been the practice to collect duties immediately on the introduction of any change in the tariff, and in anticipation of the measure effecting the change passing into law in due course, and subsequently adjustments have been made where necessary between the custom house and importers by refund or otherwise. This course is necessary in the interests of the trading and mercantile community, as otherwise speculation would take place in goods. Commodities would be passed free for the benefit of the importers, who would charge the duty, some persong being thus placed in a position of advantage to the majority. The new duties are at once charged by the importers and in the retail shops. The only inconvenience caused in the event of duties not passing Parliament is that the money has to be paid under protest and is afterwards refunded. I have a large experience in matters pertaining to the collection of customs duties gained here and elsewhere, and I have been connected with the Sydney custom house for upwards of forty years. Sly and Bruce Smith moved to make absolute the rule nisi. Pilcher, Q.C., C. B. Stephen, and Fosbery for the Collector of Customs. Sly. In the first place, there is a statutory duty imposed upon the Collector to sign the bill of entry. Without his signature to the entry we cannot get our goods. See ss. 4, 47, 48 of the Customs Regulation Act, and the definition of "entry" in the interpretation clause: Julius v. Oxford (Bishop) (1). The Secondly, this is not an application against the Crown or against the Collector as an officer of the Crown. He is a public officer appointed by statute, and by statute a peremptory duty is imposed upon him which we seek to compel him to perform. A mandamus will lie to an officer of the Crown to compel him to perform a public duty imposed upon him by statute. Collector here is not acting as agent for the Crown. No obligation is imposed by the Customs Act on the Crown. A mandamus would not lie, I admit, to compel the Collector to give up the goods, but it will lie to compel him to sign the bill of entry, which is the duty imposed by the Act. This very objection was taken as to the Colonial Treasurer, and overruled in Ex parte Gibson (2). The 1892. Ex parte AND Co. |