cap. 11] THE COMMONWEALTH OF AUSTRALIA 831 
drawn, and was still accepted in the United States, between 
property held as an instrumentality of Government, and 
property held by the Commonwealth or a state in the carrying 
on of an ordinary business or as an investment. In such 
cases the position of the United States would simply be that 
of an ordinary proprietor. The property in such cases, unless 
used as a means of carrying out the purpose of the Govern- 
ment, was subject to the legislative authority and control of 
the states equally with the property of private individuals. 
Since, then, it was intended that such a distinction should not 
be drawn in the case of the Commonwealth, it was, if not 
necessary, at least highly expedient to deal with the matter 
by express enactment. Moreover, the doctrine of necessary 
implication had been applied to the constitutions of British 
dependencies in the case of Crown Colonies. The High Court 
quoted the case of In re Adam! and the Queensland Consti- 
tutional Case,” and compared the case of Attorney-General v. 
Cain and Gilhula® They added: The maxim Expressum 
facit cessare tacitum has been often evoked in vain in English 
Courts. See for example Colquhoun v. Brooks,* where Lopes 
L.J. called it ‘A valuable servant. but a dangerous 
master °. 
With regard to the criticism that there was a difference 
between the case of the Commonwealth and of the United 
States with regard to a law being unconstitutional, they 
pointed out that they had not asserted a power to declare 
a law invalid on the ground that it was unconstitutional; 
using that word in some vague general sense, and meaning 
something different from a contravention of the written 
Constitution. What they meant by the word unconstitu- 
tional was simply something contrary to and forbidden by 
the Constitution, and the word unconstitutional used in this 
connexion meant no more than ultra vires. They also noted 
the point of the controlling authority involved in the power 
of the sovereign to disallow any Act either of the Common- 
wealth or of any one of the states. They declined to regard 
1 Moo. P. C. 460. 4 C. LR. 1304. 
"1190671 A. C. 572. 21 Q. B. D. 52.