838 THE FEDERATIONS AND THE UNION [PART IV
and naval purposes, the action of the Commonwealth was
definitely restricted by the grant of the definite powers in
these subsections. Thus the commerce power (i), or the
postal power, could not authorize the building or acquisition
of state railways without the consent of the state and their
control as to running of trains, &c. The matter is compli-
cated by the provisions of ss. 92, 98, and 102-4, and it is
clear that the adoption of the referenda of 1911 would have
simplified matters.
In the case of Peterswald v. Bartley the question was
raised whether brewers’ licence fees under s. 71 of the New
South Wales Liquor Act, No. 18 of 1898, were duties of excise
within the meaning of ss. 86-90 of the Commonwealth Con-
stitution, and therefore not within the power of the State
Parliament to impose. It was, however, held that the impo-
sition of such licence fees was a bona fide exercise of the
police power of the state for the control and regulation of the
trade. It has been held below, in the Supreme Court of
New South Wales? that the licence fee was an excise duty,
but the Commonwealth Court laid stress on the fact that the
Constitution did not provide for the Commonwealth Parlia-
ment interfering with the private or internal affairs of the
states, or restricting the power of the state to regulate the
carrying on of any business or trade within its boundaries.
Such a construction of the Constitution as gave to the Com-
monwealth the power to regulate the internal affairs of the
states in connexion with nearly all trades and businesses
carried on in the states was altogether contrary to the spirit
of the Constitution, and would not be accepted by the Court
unless the plain words of the statute required. Conversely,
in The King v. Barger? the excise there levied by the Common-
wealth was held to be a regulation of internal trade. and not
a real tax at all.
The doctrine of implied prohibition appeared in its
strongest form in that case which arose out of the ‘ new pro-
''1C. L. R. 497. * 48. R. (N. 8S. W.) 290.
6 C. LR. 41; Commonwealth Parl. Pap.. 1907-8, Nos. 134. 147:
[908, No. 16.
