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"train of a superior class to that for which his ticket Lecture "was issued is hereby subject to a penalty not ex'ceeding forty shillings, and shall, in addition, be "liable to pay his fare according to the class of

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carriage in which he is travelling from the station "where the train originally started, unless he shows "that he had no intention to defraud." X, with the intention of defrauding the company, travelled in a first-class carriage instead of a second-class carriage for which his ticket was issued, and having been charged under the bye-law was convicted in the penalty of ten shillings, and costs. On appeal by X, the Court determined that the bye-law was illegal and void as being repugnant to 8 Vict. c. 20, s. 103, or in effect to the terms of the Act incorporating the company1.

A bye-law of the South-Eastern Railway Company required that a passenger should deliver up his ticket to a servant of the company when required to do so, and that any person travelling without a ticket or failing or refusing to deliver up his ticket should be required to pay the fare from the station whence the train originally started to the end of his journey. X had a railway ticket enabling him to travel on the South-Eastern Railway. Having to change trains and pass out of the company's station he was asked to show his ticket, and refused to do so, but without any fraudulent intention. He was summoned for breach of the bye-law, and convicted in the amount of the fare from the station whence the train started.

III.

Lecture The Queen's Bench Division held the conviction wrong on the ground that the bye-law was for several reasons invalid as not being authorised by the Act under which it purported to be made1.

Now in these instances, and in other cases where the Courts pronounce upon the validity of a bye-law made by a body (e. g. a railway company or a School-board) having powers to make bye-laws enforceable by penalties, it is natural to say that the Courts pronounce the bye-laws valid or invalid. But this is not strictly the case. What the judges determine is not that a particular bye-law is invalid, for it is not the function of the Courts to repeal or annul the bye-laws made by railway companies, but that in a proceeding to recover a penalty from X for the breach of a bye-law judgment must be given on the basis of the particular bye-law being beyond the powers of the company, and therefore invalid. It may indeed be thought that the distinction between annulling a bye-law and determining a case upon the assumption of such bye-law being void is a distinction without a difference. But this is not so. The distinction is not without importance even when dealing with the question whether X, who is alleged to have broken a bye-law made by a railway company, is liable to pay a fine; it is of first-rate importance when the question before the Courts is one involving consider

1 Saunders v. S. E. Ry. Co., 5 Q. B. D. 456. Compare Bentham v. Hoyle, 3 Q. B. D. 289, and L. B. & S. C. Ry. Co. v. Watson, 3 C. P. D. 429; 4 C. P. D. (C. A.) 118.

III.

ations of constitutional law, as for example when Lecture the Privy Council is called upon, as constantly happens, to determine cases which involve the validity or constitutionality of laws made by the Dominion Parliament or by one of the provincial Parliaments of Canada. The significance however of the distinction will become more apparent as we proceed with our subject; the matter of consequence now is to notice the nature of the distinction, and to realise that when a Court in deciding a given case considers whether a bye-law is or is not valid, the Court does a different thing from affirming or annulling the bye-law itself.

British

(ii) Legislative Council of British India.-British Council of India is governed by a Legislative Council having India. very wide powers of legislation. This Council, or as it is technically expressed the "Governor General in Council," can pass laws as important as any Acts passed by the British Parliament. But the authority of the Council in the way of law-making is as completely subordinate to and as much dependent upon Acts of Parliament as is the power of the L. & N. W. Railway Co. to make bye-laws.

The legislative powers of the Governor General and his Council arise from definite Parliamentary enactments. These Acts constitute what may be termed as regards the Legislative Council the constitution of India. Now observe, that under these Acts the Indian Council is in the strictest sense a

1

3 & 4 Will. IV. c. 85, ss. 45-48, 51, 52; 24 & 25 Vict. c. 67, ss. 16-25; 28 & 29 Vict. c. 17.

Lecture non-sovereign legislative body, and this indepenIII. dently of the fact that the laws or regulations made

by the Governor General in Council can be annulled

or disallowed by the Crown; and note that the position of the Council exhibits all the marks or notes of legislative subordination.

First. The Council is bound by a large number of rules which cannot be changed by the Indian legislative itself, and which can be changed by the superior power of the Imperial Parliament.

Secondly. The Acts themselves from which the Council derives its authority cannot be changed by the Council, and hence in regard to the Indian legislative body form a set of constitutional or fundamental laws which, since they cannot be changed by the Council, stand in marked contrast with the laws or regulations which the Council is empowered to make. These fundamental rules contain, it must be added, a number of specific restrictions on the subjects with regard to which the Council may legislate. Thus the Governor General in Council has no power of making laws which may affect the authority of Parliament or any part of the unwritten laws or constitution of the United Kingdom whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom, or the sovereignty or dominion of the Crown over any part of India1.

Thirdly. The Courts in India (or in any other part of the British Empire) may, when the occasion arises,

1 See 24 & 25 Vict. c. 67, s. 22.

pronounce upon the validity or constitutionality of Lecture laws made by the Indian Council.

The Courts treat Acts passed by the Indian Council precisely in the same way in which the Queen's Bench Division treats the bye-laws of a railway company. No judge in India or elsewhere ever issues a decree which declares invalid, annuls, or makes void a law or regulation made by the Governor General in Council. But when any particular case comes before the Courts, whether civil or criminal, in which the rights or liabilities of any party are affected by the legislation of the Indian Council, the Court may have to consider and determine with a view to the particular case whether such legislation was or was not within the legal powers of the Council, which is of course the same thing as adjudicating as regards the particular case in hand upon the validity or constitutionality of the legislation in question. Thus suppose that X is prosecuted for the breach of a law or regulation passed by the Council, and suppose the fact to be established past a doubt that X has broken this law. The Court before which the proceedings take place, which must obviously in the ordinary course of things be an Indian Court, may be called upon to consider whether the regulation which X has broken is within the powers given to the Indian Council by the Acts of Parliament making up the Indian constitution. If the law is within such powers, or in other words is constitutional, the Court will by giving judgment against X give full effect to the law, just as effect is given to the bye-law of a railway company

III.