[1940] EACA 4

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda) and WEBB, C. J. (Tanganyika).

## THE RIGHT HONOURABLE JOCELYN VICTOR HAY, EARL OF ERROLL, *Appellant*

ν.

## THE COMMISSIONER OF INCOME TAX, Respondent Civil Appeal No. 20 of 1939

## (Appeal from the decision of H. M. Supreme Court of Kenya)

Income Tax—Constitutional Law—Validity of Income Tax Ordinance, 1937— Power of Kenya Legislative Council to enact for direct taxation—Laws necessary for the peace, order and good government of the Colony-British Settlements Act, 1887, sections 2 and 3—Letters Patent of 11th September, 1920, Article X.

Appeal from decision in action brought by respondent to recover income tax assessed on the appellant. Appellant had not appealed against the assessment but had refused to pay on the grounds that the Kenya Legislative Council had no power to enact the Income Tax Ordinance, 1937, for the reasons that the enactment of the Ordinance was not necessary for the peace, order and good government of the Colony and that the Kenya Legislative Council did not contain a majority of elected representatives and so could not enact for direct taxation without infringing the Law of England and the rights of the subject under Magna Charta, the Bill of Rights, 1689, the Petition of Right, 1627, and the Act of Settlement, 1700.

Held (26-2-40).—The power invested in His Majesty in Council by section 2 of the British Settlements Act, 1887, to establish laws necessary for the peace, order and good government of the Colony included the power to legislate for direct or indirect taxation and the power of His Majesty in Council under section 3 of the said Act to delegate the powers given by section 2 of the Act had been duly and effectually performed by Article X of<br>Letters Patent dated 11th September, 1920, whereby His Majesty in Council delegated his power to establish laws for the peace, order and good government of Kenya to the Kenya Legislative Council subject to such laws not being repugnant to the Law of England. The powers so delegated included the power to establish legislation for direct or<br>indirect taxation. The Income Tax Ordinance, 1937, was a measure for the peace, order and good government of the Colony and was not repugnant to the Law of England within the meaning of Article X of the said Letters Patent.

Appeal dismissed, decision of Thacker J. affirmed.

Appellant appealed from the decision of Thacker J. which contains a statement of the facts and arguments.

THACKER, J.-In this action the Commissioner of Income Tax is suing the Right Hon. Jocelyn Victor Hay, Earl of Erroll, for the sum of Sh. 4,860 and costs, being the amount of an assessment for the year 1937 for income tax made against the defendant under the provisions of sections 63 and 65 of the Income Tax Ordinance, 1937. The defendant was duly served with a notice of assessment and he has made no objection or appeal against the amount of assessment. The tax assessed became payable on the 26th September, 1938. Included in the sum of Sh. 4,860 is a penalty of Sh. 810 payable under the provisions of the Ordinance for non-payment.

The defendant in his defence admits the allegations contained in the plaint, and that notice of assessment was served on him; that no objection or appeal was made against the amount of the assessment, and that a demand note was served upon him on the 7th October, 1938.

The defendant, however, denies the right of the plaintiff to demand or enforce payment of the sum claimed on the ground that the provisions of the Income Tax Ordinance, 1937, are unconstitutional and not binding upon the defendant. Put in other words the defendant's contention is that the Income Tax Ordinance. 1937, is invalid or ultra vires the Legislative Council of the Colony and that he. the defendant, ought not to be subjected to what he described as "an unfettered right in the Colonial Government to subject him to an arbitrary direct tax without limit or control by the taxpayer". Put shortly, as I understood them, Mr. Shapley's arguments for the defendant are that Kenya is a settled Colony: that the English settlers therein carried with them into the Colony all the immunities and privileges and laws of England, particularly an immunity from direct taxation unless it is imposed with their consent or by or with the authority of the Imperial Parliament. Mr. Shapley further argues that the Income Tax Ordinance, 1937, is repugnant to the provisions of the constitutional Charters known as Magna Charta, the Bill of Rights, 1689, the Petition of Right, 1627. and the Act of Settlement, 1700, which, put shortly, enacted that the Crown has no right to levy taxes without the consent of the Commons. Amongst other arguments is one that the imposition of income tax by ordinance does not come within the powers intended to be exercised for the maintenance of peace, order and good government.

The reply of the Crown may be summarized briefly under six heads: (1) The power of legislation in Kenya is derived from the British Settlements Act, 1887, (2) That power includes a power in the Crown to impose direct taxation, (3) That power, including the power to impose direct taxation, has been duly delegated to the Legislative Council in this Colony by the Letters Patent of the 11th September, 1920, (4) The Income Tax Ordinance, 1937, was duly made under this power, (5) It is not repugnant to the laws of England, and consequently has the force of sovereign legislation and therefore overrides the principle established in the Bill of Rights, even assuming (but not admitting) that that principle would otherwise apply to this Colony, and (6) The words "peace, order and good government" include the power to impose taxation. Both plaintiff and defendant have agreed that no evidence need be called and that the constitutional issue is the only one for decision. In short the issue for decision therefore is whether the Legislative Council of this Colony has the right and authority to impose a direct tax upon the income of the defendant.

The defendant is resident in the Colony, and not in the protectorate, and therefore it is necessary to consider only the law and constitution of the Colony and not those of the Protectorate.

The first question which arises is whether the Colony of Kenya may be considered as a settled or as a conquered or as a ceded Colony. Hailsham's Edition of Halsbury, Vol. 11 at page 10, para. 10, has been cited and although in the nature of a text book may be quoted as an adequate exposition of the question:-

"Two methods may be distinguished by which territories may be added to the dominions of the Crown. The basis of distinction is essentially the stage of civilization attained in the territory affected. If there is no population, or one consisting of savage tribes in a backward state of political organization, possession is held to be obtained by settlement. Where there is an organized society, acquisition depends on cession or conquest."

The Colony was formerly a Protectorate and was proclaimed as such on 19th November, 1890, and was annexed on 23rd July, 1920.

It is argued by the defendant that Kenya is a settled Colony, and Mr. Phillips on behalf of the plaintiff concedes that point. It would appear, in my opinion, that Kenya is a settled Colony and not one acquired by cession or conquest. As I say, both plaintiff and defendant have agreed that this is so although the question, is, not capable of quite such an easy solution as both parties appear to think, My attention was not drawn to para. 12 of Vol. II of Halsbury's Läws of England in which it is stated that Kenya may be deemed a Colony by cession or conquest. The grounds for this statement, are not stated by the learned author and it would seem to me that it may be possibly incorrect. In this connexion I would refer to the Kenya Colony Order in Council, 1921, 27th June, in which it is stated that the Colony of Kenya is a British Settlement within the meaning of the British Settlements Act, 1887. The expression on "British Settlement" in that Act is by section 6 defined as meaning any British possession which has not been acquired by cession or conquest. As therefore it is agreed by both plaintiff and defendant that Kenya Colony is a settled Colony, and in view of the description of it in the Order in Council above referred to as a British Settlement, I shall hold that Kenya Colony is for the purposes of this case a British Settlement.

The constitutional organization of a Possession acquired by settlement, is described in para. 15 of the Hailsham edition of Halsbury's Laws of England in the same volume, as follows:-

"The King stands to possessions acquired by settlement in a position analogous to his status in the United Kingdom. He is possessed of the executive power and has authority to establish Courts of Law, but not ecclesiastical courts. But he cannot legislate, and, if laws are to be passed, this must be done (1) by a legislative body of representative character, on the analogy of the United Kingdom; (2) where this form of legislation would be difficult to carry out, parliamentary authority must be obtained authorizing the establishment of a different form of constitution. Thus legislation, was passed to provide for the government of the Australian colonies and New Zealand, and a general statute provides that for any British settlement which is not under the jurisdiction of a legislature the King in Council may establish laws and institutions and constitute courts and provide for the administration of justice, for the peace, order and good government of British subjects and others within the settlement. All or any of these powers may be delegated by any instrument under the Great Seal, or by Instructions under the Royal Sign Manual therein referred to, to any three or more persons within the settlement, but notwithstanding such delegation the King in Council may exercise any of the powers given. The powers given by these Acts are continuing powers, and in exercising them authority to legislate generally for the Colony by Order in Council is reserved."

Kenya, therefore, being a settled Colony, by what steps has it come about that the local legislature is empowered to enact laws or ordinances and to what extent and subject to what limitations may it do so? The first step to notice is the British Settlements Act, 1887, which was an Imperial Act of Parliament enacted to enable Her Majesty to provide for the government of her possessions acquired, by settlement. The preamble to that Act provides as follows:-

"Whereas divers of Her Majesty's subjects have resorted to and settled in, and may hereafter resort to and settle in, divers places where there is no civilized government, and such settlements have become or may hereafter become possessions of Her Majesty, and it is expedient to extend the power of Her Majesty to provide for the government of such settlements, and for that purpose to repeal and re-enact with amendments the existing Acts enabling Her Majesty to provide for such government:

Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: $\rightarrow$

Section 2 of that Act provides as follows: -

"It shall be lawful for Her Majesty the Queen in Council from time to time to establish all such laws and institutions $\cdot$ $\cdot$ $\cdot$ $\cdot$ as may appear to Her Majesty in Council to be necessary for the peace, order and good government of Her Majesty's subjects and others within any British Settlement."

In other words the Queen in Council has had conferred upon her by the Imperial Parliament the right from time to time to establish all such laws as may appear to the Queen in Council to be necessary for the peace, order and good government of all the Queen's subjects within any British Settlement. That is a wide power, and the only limitation to that power is that such laws as are established must appear to Her Majesty in Council to be necessary for the peace, order and good government of the inhabitants of the Settlement.

I shall deal later with the question whether an income tax ordinance or the imposition of an income tax is necessary for the peace, order and good government of the Colony, in other words, whether such a tax or ordinance comes within these words. This question, be it noted, is, Mr. Shapley concedes, the crux of the dispute in this case.

Now section 3 of the British Settlements Act, 1887, is material and reads as follows:

"It shall be lawful for Her Majesty the Queen from time to time, by any instrument passed under the Great Seal of the United Kingdom, or by any instructions under Her Majesty's Royal Sign Manual referred to in such instrument as made or to be made, as respects any British Settlement, to delegate to any three or more persons within the settlement all or any of the powers conferred by this Act on Her Majesty in Council, either absolutely or subject to such conditions, provisions and limitations as may be specified in such instrument or instructions

Provided that, notwithstanding any such delegation, the Queen in Council may exercise all or any of the powers under this Act: Provided always that every instrument or instruction as aforesaid shall be laid before both Houses of Parliament as soon as conveniently may be after the making and enactment thereof respectively."

The next material step to be considered is the Letters Patent dated 11th September, 1920, and passed under the Great Seal of the United Kingdom which constituted the office of Governor and Commander-in-Chief of the Colony of Kenya and which provide for the government thereof. The relevant articles of these Letters Patent are Articles VIII and X, which are as follows:-

"VIII. There shall be a Legislative Council in and for the Colony constituted in such manner as We shall direct by any instructions under Our Sign Manual and Signet and as may be provided by the Ordinance entitled 'An Ordinance to provide for the election and nomination of Members to the Legislative Council of the East Africa Protectorate' passed by the Legislative Council of the East Africa Protectorate on the 10th day of July, 1919, or by any law adding to, amending or substituted for the same by the Legislative Council of the Colony and for the time being in force therein:

Provided that the Members of the Legislative Council of the East Africa Protectorate as constituted at the date of the coming into operation of the Kenya (Annexation) Order in Council, 1920, shall be and be deemed to be Members of the Legislative Council of the Colony, but subject always to any conditions, provisos and limitations prescribed by any Instructions under Our Sign Manual and Signet or by Us through one of Our Principal Secretaries of State."

"X. The persons who shall, from time to time, compose the said Legislative Council shall have full power and authority subject always to any conditions, provisos and limitations prescribed by any Instruments under Our Sign Manual and Signet to establish such Ordinances, not being repugnant to the law of England $\ldots$ as may be necessary for the peace, order and good government of the Colony."

By Article VIII the King created a Legislative Council of this Colony and by Article X the King gave to the said Legislative Council full power and authority, subject to any limitations which may be prescribed by any Instrument made under the King's Sign Manual and Signet, to establish such ordinances as may be necessary for the peace, order and good government of the Colony, such ordinances not to be repugnant to the laws of England.

Certain limitations and reservations were made in the Royal Instructions dated 29th March, 1934. The imposition of an Income Tax was not one of the subjects reserved to the Crown to which the Governor cannot assent.

Now this creation of the Legislative Council was a result of the exercise of the power contained in section 3 of the British Settlements Act, 1887, conferred by the Imperial Parliament upon the Sovereign to delegate to any three or more persons within the settlement all or any of the powers conferred by the British Settlements Act, 1887, upon the Queen in Council. Therefore at this stage it is quite clear that the Imperial Parliament had conferred in the year 1887 upon the Queen in Council the power to make laws necessary for the peace, order and good government of a settled colony, and also the power to the Queen herself to delegate that right and authority to any three or more persons within the Colony. Further, that the King by the Letters Patent, 1920, by Article VIII exercised that power of delegation and created a Legislative Council. It also is quite clear that that Legislative Council has the same powers, subject to an authority in the Sovereign to make certain reservations and limitations under the Royal Sign Manual and Signet, to make such laws not repugnant to the laws of England as may be necessary for the peace, order and good government of the Colony as the Sovereign in Council might make, were there no Legislative Council, in pursuance of the powers conferred upon him by section 2 of the British Settlements Act, 1887.

I shall now deal with the limitation, which is a limitation both on the Queen in Council by virtue of the British Settlements Act, 1887, section 2, and also a limitation upon the Legislative Council of this Colony by virtue of Article 10 of the Letters Patent, 1920, namely that the power and authority to establish ordinances is subject to this, that such ordinances must come within the four corners of the words peace, order and good government of the Colony.

Be it noted that there is the further limitation in the Letters Patent that the laws passed by the Legislative Council must not be repugnant to the laws of England. It may fairly be assumed that this limitation is put in having regard to the provisions of the Colonial Laws Validity Act, 1865.

The words peace, order and good government were considered by the Supreme Court of this Colony in the case of the District Commissioner of Nairobi v. Wali Mohamed reported in the Law Reports for East Africa, 1913-14, Vol. V., at page 175, when the following question came before that Court: "Has the Crown the right to tax its subjects residing in a foreign country where the Crown exercises jurisdiction?" The question before that Court was one somewhat similar to the question which I am called upon to decide, but there was this difference, that the foundation of the constitution of East Africa, as it was then called, was at least in form different to the foundation of Kenya as it is called to-day, in other words, the Crown in the case then before the Supreme Court derived its

powers from the Foreign Jurisdiction Act, 1890, whereas in the case before me the Crown derives its powers, as I have endeavoured to explain, from the British Settlements Act, 1887. The difference would seem to me to be for the purposes of the action before me more one of form than of substance. Whatever the force of the distinction may be, the Court did construe these important words "peace, order and good government", and I quote from the judgment of Hamilton, $C. J.$ : —

"Article 12(1) of the Order in Council, 1902, authorized the Commissioner 'to make Ordinances for the administration of justice, the raising of revenue, and generally for the peace, order and good government of all persons in East Africa.' This was repealed by the Order in Council, 1906, which established a Legislative Council, and conferred on it full power subject to His Majesty's instructions 'to establish such Ordinance as may be necessary for the peace, order and good government of the Protectorate.'

It has here been argued that whereas the power to raise revenue has not been specifically repeated in the Order in Council, 1906, that therefore the Legislative Council has no power to pass Ordinances imposing taxation. I am, however, of opinion that the Crown having the right to tax, and having delegated to the Legislative Council full power to establish such Ordinances as may be necessary for peace, order and good government, that power covers the right to pass Ordinances for the raising of revenue, by taxation or otherwise, and seeing that the Ordinance in question has not been disallowed, it must be presumed to have been in accordance with His Majesty's instructions referred to in Article VII of the Order in Council, 1906.

I am therefore of opinion that the answer to be returned by this Court to the learned Magistrate should be to the effect that: — The Crown has the right to tax its subjects residing in a foreign country where the Crown exercises jurisdiction and that such right has been delegated to the Legislative Council of the East Africa Protectorate'."

and again from the judgment of Ehrhardt $J$ : —

"The Crown having acquired and exercised for some years general jurisdiction within this Protectorate, I see nothing to prevent it by Order in Council from conferring on the Legislative Council of the Protectorate all the usual powers of legislation as to the administration of justice, the raising of revenue, and generally the peace, order and good government of the Protectorate, which it purports to have conferred in the Order of 1906. Holding as I do that Order in Council entitled the Legislative Council to make Ordinances imposing taxation, direct or indirect, on natives or non-natives, I think that the Magistrate should be informed that in the opinion of the High Court the Non-Native Poll Tax Ordinance of 1912 is valid."

It is clear from these two judgments, which are not binding upon me as the plaintiff's advocate admits for the reason that that case was heard before the Colony came into existence as such and when the constitution of the Protectorate of East Africa was a creation by the Sovereign of powers conferred by the Foreign Jurisdiction, Act, 1890, that the Court then considered that the words "peace, order, and good government" included the raising of revenue and the imposition of a direct tax, to wit a Non-Native Poll Tax.

Again, in a case which came before the Resident Magistrate, Nairobi, Commissioner of Income Tax v. Gurandittamal Kanayalal, reported in the weekly edition of The E. A. Standard dated 21st January, 1922, in 1922 a somewhat similar question, if not exactly the same question, as is before me, came before that Court, and in short in the result the Magistrate found that the Legislative Council

had power to pass an Ordinance imposing a direct tax on income, and that such Ordinance (which was then the Income Tax Ordinance, 1920) was valid. I quote from the Magistrate's ruling as follows:-

"As to the right of the colonists to be taxed by the Imperial Parliament and not by the King, what has happened in this case is in reality that a tax has been imposed by the Imperial Parliament; for the British Settlements Act was an Act of the Imperial Parliament and gave power to the King in Gouncil to establish any laws for the good government of the British Settlements and also power to the King to delegate such powers; this delegation has taken place by the Letters Patent and Royal instructions and under such delegation of power this Income Tax Ordinance is enacted.

I am of opinion that Kenya is a British Settlement and being so that the British Settlements Act, 1887, must apply to it. The Order in Council of 11th June, 1920, the Letters Patent and Royal Instructions are the foundations on which this Colony is governed and under which Ordinances are established, and that power is delegated to the Legislative Council by the Letters Patent to establish all such Ordinances as are necessary for the peace, worder and good government of the Colony and which are not repugnant to 'the 'law of England.

Having held that a general power of legislation has been delegated to the Legislative Council it can make a law upon any subject, provided that the law it makes be not inconsistent with or repugnant to a law established by the Imperial Parliament in relation to the same subject and provided that the Legislative Council be not prohibited by a law of the Imperial Parliament from legislating on such subject.

I have always understood it to be a principle of constitutional law that was a subordinate government may be restrained by the Imperial Government from 'legislating' on a given "subject." But in such cases the festriction must be made by specifically excepting the subject from the unlimited number of which the power of legislation possessed by the subordinate $\sim$ government is otherwise applicable.

In the Instruments delegating powers of government to the Legislative Council of this Colony I have not been able to discover any restriction by which the Legislative Council is restrained from establishing Ordinances which would have the effect of imposing taxes. I consider such a restriction would require to be specifically set out in an Imperial Statute or in the Letters Patent and Royal Instructions.

For the reasons given above and on the authorities quoted $T$ am of opinion that the King has vested in him a right to levy taxes on his subjects resident in this Colony without the assistance of the Commons and that His Majesty has delegated such right to the Legislative Council of this Colony. Consequently I hold the enactment of the Income Tax Ordinance was within " the competence of such Council."

I am fold by the defendant's advocate that this decision was not appealed against for the reason that shortly after it was given the Income Tax Ordinance referred to therein was repealed.

It is to be noted that in neither of these two local cases does there seem to have been either by way of argument or in the judgments any close examination of what is meant by the words "peace, order and good government".

"As to what the Imperial Parliament meant at the time by the words "peace, order and good government" there is a case which throws some light upon this point, and that is the case of Powell v. Apollo Candle Company Limited which was an appeal to the Privy Council from the Supreme Court of New South Wales

reported in 10 A. C. 1884/5, page 282. In that case an Imperial Act of Parliament was discussed, 18 & 19 Vict. c. 54. The fourth section of that Imperial Act read as follows:-

"It shall be lawful for the Legislature of New South Wales to make laws altering or repealing all or any of the provisions of the said reserved bill in the same manner as any other laws for the good government of the said Colony, subject, however, to the conditions imposed by the said reserved bill on the alteration of the provisions thereof in certain particulars until and unless the said conditions shall be repealed or altered by the authority of the said Legislature."

These words are described by the learned Judge Sir Robert P. Collier as a somewhat wide power. They are not the same words as appear in the British Settlements Act, 1887, or the Letters Patent, 1920, of this Colony, the words in these two latter being wider still and including the words "peace and order". A Colonial Act was added to the Imperial Statute referred to as a Schedule and included in the Colonial Act is the following section:—

"There shall be, in place of the Legislative Council now subsisting, one Legislative Council and one Legislative Assembly, to be severally constituted and composed in the manner hereinafter prescribed; and within the said Colony of New South Wales Her Majesty shall have power, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, welfare and good government of the said Colony in all cases whatsoever."

It will be noted that the expression "peace, welfare and good government" is used, very similar, it will be conceded, to the expression of "peace, order and good government". Then follows a proviso that all bills for appropriating any part of the public revenue or for imposing any new tax shall originate in the Legislative Assembly of the said Colony. From this schedule it would therefore seem a fair inference to make that the Imperial Parliament considered that the raising of public revenue or the imposition of a tax properly came within the words "peace, welfare and good government of the Colony". There is little or no difference between the words "peace, welfare and good government" and the words "peace, order and good government".

Again, in connexion with this particular point, I would refer to a case which has not been cited before me, but which in my judgment is conclusive on the point, that is the case of Riel v. The Queen on appeal to the Privy Council from the Court of Queen's Bench from the Province of Manitoba reported in 10 A. C. 1884/5. In that case it was held that the Statute 34 & 35 Vict. c. 28 which authorizes the Parliament of Canada to provide for the administration, peace, order and good government of any territory not for the time being included in any Province vests in that Parliament the utmost discretion of enactment for the attainment of those objects. Accordingly a Canadian Act 43 Vict. c. 25 was held to be intra vires the legislature. The arguments in that case before the Privy Council were similar to the arguments which have been adduced by the defendant before me, namely—and I am reading from the arguments of Bigham, Q. C., for the petitioner:-

"Treason is in a peculiar manner an offence against the State, and the Imperial Parliament could not have intended that the Dominion Parliament should legislate upon it to the extent of altering the statutory rights of a man put upon his trial regarding it. The petitioner is entitled to all the rights which he possessed under English law unless they have been specifically taken away." $\{ \omega_{i}^{k} \}$ (This latter is one of Mr. Shapley's arguments)

"He possesses statutory rights under 7 & 8 Will. 3, c. 3, to a trial before a judge and by a jury of twelve, with a right of challenging 35. The Dominion Parliament under the British North America Act, 1871, s. 4, has no power to take away those rights, and render him liable to be tried before two magistrates and a jury of six, with a right of challenging six. The Act relied upon was not necessary for peace, order and good conduct."

## Note how similar is the defendant's submission.

The judgment of the Privy Council was delivered by Lord Halsbury, L. C., and I quote the following extracts from his judgment: -

"The first point is that the Act itself under which the petitioner was tried was ultra vires the Dominion Parliament to enact. That Parliament derived its authority for the passing of that statute from the Imperial Statute. 34 & 35 Vict. c. 28, which enacted that the Parliament of Canada may from time to time make provision for the administration, peace, order and good government of any territory not for the time being included in any province . It appears to be suggested that any provision differing from the provisions which in this country have been made for administration, peace, order and good government cannot, as matters of law, be provisions for peace, order and good government in the territories to which the statute relates, and further that, if a Court of law should come to the conclusion that a particular enactment was not calculated as matter of fact and policy to secure peace, order and good government, that they would be entitled to regard any statute directed to those objects, but which a Court should think likely to fail of that effect, as ultra vires and beyond the competency of the Dominion Parliament to enact.

Their Lordships are of opinion that there is not the least colour for such a contention. The words of the statute are apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to. They are words under which the widest departure from criminal procedure as it is known and practised in this country have been authorized in Her Majesty's Indian Empire. Forms of procedure unknown to the English common law have there been established and acted upon, and to throw the least doubt upon the validity of the powers conveyed by those words would be of widely mischievous consequence."

I need not point out that this decision goes a very long way and gives a very wide interpretation to the words "peace, order and good government".

Another case, Rex v. The Earl of Crewe, to which I shall refer later, also is relevant in connexion with the meaning to be allotted to these words, but as it also deals with the further question of repugnancy I shall consider the case when I come to the question of repugnancy and the Colonial Laws Validity Act, 1865.

Even if I had not these authorities to guide me I should feel constrained nevertheless to hold that the power to establish ordinances for the peace, order and good government of the Colony includes the power to establish an ordinance for the imposition of a direct tax upon income. The words "peace, order and good government" are almost as wide as it is possible for English words to be in this connexion, and I find it a little difficult to appreciate the argument that these words do not embrace or visualize the imposition of a direct tax upon income.

The next point is the limitation that ordinances passed by the Legislative Council must not be repugnant to the laws of England. Mr. Shapley argues (a) that the settlers have carried into the Colony English law and (2) that the Income Tax Ordinance, 1937, is repugnant to certain Charters, Statutes or laws

of England. It is necessary therefore to discuss this applicability of English law and to see to what extent it does apply. Settlers do take with them the common law of England. But there are two qualifications to this, e.g. (1) they do not take with them the law relating to the established Church (Re Lord Bishop of Natal (1864) 2 Moo. P. C. 115); (2) even if the settlers establish a local Assembly, the customs and privileges of the English Parliament do not automatically become part of the Law of Kenya (Kielley v. Carson (1842) 4 Moo. P. C. 63). With regard to statute law they take with them so much of existing statute law of England as is applicable to the needs of an infant community. Thus the Statutes of Mortmain were held not to apply in Victoria (Mayor of Canterbury v. Wyburn and the Melbourne Hospital (1895) A. C. 89).

I quote from the judgment of Lord Blackburn in the Lauderdale Peerage Case reported in 10 A. C. 1884/5, p. $692:$ —

"When the Province of New York was founded by the English settlers who went out there, those English settlers carried with them all the immunities and privileges and laws of England. The Englishmen in a Province which had been so settled, were as free Englishmen, with as much privilege as those who remained in England. It is true that it is only the law of England as it was at that time that such settlers carry with them; subsequent 'legislation in England altering the law does not affect their rights unless it is expressly made to extend to the province or the colony. It is equally true " that in all the books or dicta in which that rule is laid down there is always a qualification put upon it somewhat of this sort: the settlers who go out carry out the law so far as it is applicable to their new situation. That is a vague and general kind of phrase, but I think it has sound sense in it."

The case of *Cooper v. Stuart* reported in 14 A. C. 1889, p. 286, is of interest, and I quote from the judgment of Lord Watson: -

"The extent to which English law is introduced into a British colony, and the manner of its introduction, must necessarily vary according to circumstances. There is a great difference between the case of a colony acquired by conquest or cession, in which there'is'an established system of law, and that of a colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. In the case of such a Colony the Crown may by ordinance, and the Imperial Parliament, or its own legislature when it comes to possess one, may by statute declare what parts of the common and statute law of England shall have effect within its limits. But, when that is not done, the law of England must (subject to wellestablished exceptions) become from the outset the law of the Colony, and be administered by its tribunals. In so far as it is reasonably applicable to the circumstances of the Colony, the law of England must prevail, until it is abrogated or modified, either by ordinance or statute. The often-quoted observations of Sir William Blackstone (1 Comm. 107) appear to their Lordships to have a direct bearing upon the present case. He says: 'It hath been held that, if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every English subject, are immediately there in force (Salk. 411, 666). But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to the condition of an infant colony; such, for instance, as the general rules of inheritance and protection from personal injuries. The artificial requirements mand distinctions incident to the property of a great and commercial people, where the laws of police and revenue (such especially as are enforced by penalities), the mode 'of maintenance of the established church, the jurisdiction of

"'spiritual courts' and a multitude of other provisions are neither necessary 'nor convenient for them, and therefore are not in force. What shall be admitted and what rejected, at what times and under what restrictions, must. in "case of dispute, be decided in the first instance by their own provincial judicature, subject to the decision and control of the King in Council; the whole of their constitution being so liable to be new-modelled and reformed by the general superintending power of the legislature in the mother country.

Blackstone, in that passage, was setting right an opinion attributed to Lord Holt, that all laws in force in England must apply to an infant colony of that kind. If the learned author had written at a later date he would probably have added that, as the population, wealth and commerce of the Colony increase, many rules and principles of English law, which were unsuitable to its infancy, will gradually be attracted to it; and that the power of remodelling its laws belongs also to the colonial legislature."

It is sufficient to say that it would be untrue therefore to suggest that the whole body of English law, whether Statutory Law or Common Law, is carried by settlers into a settled colony.

I pass now to the question of repugnancy to the laws of England. In this connexion the case of *The Queen v. Marais*, A. C. 1902, p. 51, has been cited. and I quote from the judgment of the Lord Chancellor in that appeal to the Privy Council from a Special Court of the Colony of Natal: -

"With reference to the second point, on which their Lordships did not "ask' Counsel for an answer to Lord Coleridge's arguments, there is no doubt that up to the time of the passing of the Colonial Laws Validity Act $(28 \& 29$ Vict. c. 63) a great many of the considerations which he has urged had given rise to difficulties, and it was for the express purpose of getting rid 'of the difficulties that had been raised on that subject, and particularly in reference to the words 'repugnancy to the laws of England' that that Act was passed, because one of the common and familiar forms whereby the colonial egislatures were constituted and constitutions given provided that nothing should be enacted repugnant to the laws of England; and there is no doubt that that had given rise to some doubts and difficulties which this Act was $\cdots$ intended to cure.

$\mathcal{L} = \mathcal{L}$

The obvious purposes and meaning of that statute was to preserve the right of the Imperial Legislature to legislate ever for a colony, although a Wlocal Législature had béen given, and to make it impossible, when an Imperial statute had been passed expressly for the purpose of governing that colony, for the Colonial Legislature in that sense to enact anything repugnant to an express law applied to that colony by the Imperial Legislature itself. That is the meaning of those words.

As to the other argument with reference to legislation by a colony which in some respects shall run counter to, or be repugnant to, some law of the United Kingdom, that, if it were construed in the wide sense Lord Coloridge suggested, would render any Colonial Legislation illusory altogether, because The is hardly possible to deal with the rights of any British subject by the local Legislature which shall not in some way or another run counter to some ^$\alpha$ provision in this country which is enacted for a different purpose, having no ³ ³ ³ ³ ³ ³ ⁴ ³ ⁴ ⁴ ⁴ ⁴ ⁴ ⁴ ⁴ ⁴ ⁴ ⁴ reconciles the two principles of giving local legislation, but nevertheless, ¹⁰ léaving still open to the Imperial Legislature by express legislative provision the power to do something in the Colony. So much for the second point """"""""""""""""""""""""""""""""""""""

In an article appearing in the Law Quarterly Review, Vol. XLIII, on "The Legislative Competence of the Dominions", Professor Herbert A. Smith writes as follows: $-$

"It is no doubt true that at one time a somewhat vague theory prevailed which declared that the colonies were unable to legislate in a manner at variance with the laws of England. Blackstone says that in the plantations provincial assemblies are constituted with the power of making local ordinances not repugnant to the laws of England. Since almost every statute of general importance is presumably intended to effect some alteration in the law, it is not easy to understand exactly what this doctrine meant, and I am not aware of any reported case in which colonial legislation was actually pronounced to be invalid on this ground. Whatever the theory may or may not have meant, it was at any rate of sufficient importance to create some uncertainty, and this uncertainty led to the passing of the Colonial Laws Validity Act of 1865. Since then the doctrine of repugnance to the laws of England has had no more than a historical interest."

With these quotations I now come to the preamble to the Colonial Laws Validity Act. 1865, which is as follows: -

"Whereas doubts have been entertained respecting the validity of divers laws enacted or purporting to have been enacted by the legislatures of certain of Her Majesty's colonies, and respecting the powers of such legislatures, and it is expedient that such doubts should be removed. Be it enacted as follows: -- "

The relevant sections of the Act for the purposes of this case are as follows:—

"1. The term 'colony' shall in this Act include all of Her Majesty's possessions abroad in which there shall exist a legislature. $\cdot$ $\cdot$ $\cdot$

The terms 'legislature' and 'colonial legislature' shall severally signify the authority, other than the Imperial Parliament or Her Majesty in Council. competent to make laws for any colony.

An Act of Parliament, or any provision thereof, shall, in construing this Act be said to extend to any colony when it is made applicable to such colony by the express words or necessary intendment of any Act of Parliament. $\cdot$ $\cdot$ $\cdot$ $\sim$

2. Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the Colony the force and effect of such Act, shall be read, subject to such Act, order or regulation, and shall to the extent of such repugnancy, but not otherwise be and remain absolutely void and inoperative."

"And to remove all doubt" as was said in *Phillips v. Eyre*, Vol. VI L. R. 1807-1, p. 21, by Willes J., section 3 of the same Act affirmatively enacts that no colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order or regulation as aforesaid. The point has been made by the defendant that the Colonial Law Validity Act. 1865, defines the expression "representative legislature" as any colonial legislature which shall compose a legislative body of which one half are elected by the inhabitants of the Colony. By this definition the Legislative Council of this Colony is not a representative legislature. I do not however see the relevance or point of referring to this, as the relevant section of the Act, namely section 5 (first part) does not use the word "representative" but speaks merely of "legislature". In other words, the Act applies to Colonies where there is either a representative or a non-representative legislature. The words "representative legislature" are defined for another purpose altogether, namely to explain the latter half of section 5, a part of the section which is not material to the issues of this case.

The word "repugnant" in the Colonial Laws Validity Act, 1865, and in the Letters Patent, 1920, means not merely, as Mr. Shapley argues and quotes from the Oxford Dictionary, Vol. 8, p. 494, contrary or contradictory to, opposing, resisting, hostile, etc., to the law of England, but contrary or contradictory to a law passed by the Imperial Parliament and which is expressly applied to the Colony by the Imperial Parliament. It would not be difficult, I imagine, to discover quite a few ordinances of this Colony which are repugnant, in the defendant's interpretation of the word, to Statutes or Acts of the Imperial Parliament. One instance comes to the mind. Section 123 of the Penal Code of this Colony makes it competent for the Court to pass the sentence of death on a conviction for the felony of rape, whereas, although rape was at one time in England at Common Law punishable with death, now since 1861 by section 48 of the Imperial Offences against the Person Act, 1861, this particular felony is punishable with penal servitude for life. No doubt other instances could readily be found where the Codified Penal Code of the Colony differs materially from the Criminal Law of England.

Mr. Shapley argues that the Income Tax Ordinance, 1937, is repugnant to Magna Charta, the Bill of Rights and other great Enactments of the English Parliament which have enacted that the subject may not be taxed except with the consent of the Commons and so is repugnant to the laws of England. The word "repugnant" in my judgment cannot properly be given the wide interpretation that Mr. Shapley seeks to place upon it. A colonial ordinance to be repugnant to a law of England must be repugnant because it is contrary to or conflicts with the provisions of an Imperial Act of Parliament expressly extending to the Colony. To give to the word "repugnant" the interpretation sought to be made by the Defendant would be impracticable. The laws of England are many, the volume of statute law in England is immense, and if the argument put forward were correct it is not easy to see how any ordinance could be enacted herein this Colony without first referring to the whole volume of English statute law to decide the question whether a local law was to be repugnant to some statutory enactment in England. No statute expressly applying to this Colony passed by the Imperial Parliament has been cited to me which forbids the enactment of any local Income Tax Ordinance.

Another case which I have shortly referred to and which was not drawn to my attention but which has some bearing on the questions before me is the case of Rex against the Earl of Crewe reported in 1910 K. B. D., Vol. 2 at p. 576. That was a case where the chief of a native tribe in Bechuanaland Protectorate was detained in custody by virtue of a Proclamation authorizing his detention and made by the High Commissioner for South Africa under powers conferred upon him by an Order in Council on the ground that the detention of the Chief was necessary for the preservation of peace within the Protectorate. The case in fact decided that a right to a Writ of Habeas Corpus can be completely taken away by proclamation if there is sovereign legislation which empowers it. I need hardly point out that the right to a Writ of Habeas Corpus is a well established and valuable remedy open to the subject and yet here in this case by virtue of Imperial legislation, i.e. the Foreign Jurisdiction Act, 1890, and an Order in Council made thereunder that right was abrogated by proclamation. The case is important as showing what legislation can effect and as for throwing some light upon the two points which have been raised in the case before me, namely upon the words "peace, order and good government" and "repugnancy". The case in<br>my opinion is so material that I quote at length from the judgments of the three Jüdges who sat in the Court of Appeal, and in quoting from their judgments I am quite aware that the foundation of the powers'used by the High Commissioner in that case was the Foreign Jurisdiction Act, 1890, and an Order in Council made thereunder and not the British Settlements Act, 1887, which is the Act which I have to construe. It seems to me that the case illustrates very well the principle which is common to both Acts, the principle of the sovereignty of the Imperial Parliament and the power of the Imperial Parliament to delegate authority to make laws. Vaughan Williams, L. J., discussing section 12 of the Foreign Jurisdiction Act, 1890, which deals with the question of repugnancy says as follows:-

"and then by s. 12 enacts that '(1) if any Order in Council made in pursuance of this Act as respects any foreign country is in any respect repugnant to the provisions of any Act of Parliament extending to any of Her Majesty's subjects in that country, or repugnant to any order or regulation made under the authority of any such Act of Parliament, or having in the country the force and effect of any such Act, it shall be read subject to that Act, order or regulation, and shall to the extent of such repugnancy, but not otherwise, be void. (2) An Order in Council made in pursuance of this Act shall not be, or be deemed to have been void on the ground of repugnancy to the law of England unless it is repugnant to the provisions of some such Act of Parliament, order or regulation as aforesaid'. I gather from the words of the Lord Chancellor in Staples v. The Queen that the Act of ¹Parliament referred to in s. 12 is an Act of Parliament expressly dealing with ^tHer Majesty's subjects in that country, and not an Act of Parliament such as the Magna Charta, which, of course, does not deal with that country.

The Froclamation of 5th December cannot be regarded as a mere indemnity for past acts; it is really a proclamation of the outlawry of a particular person, but I am not prepared to say that such a proclamation is not a proclamation which may be made by the High Commissioner in his discretion for the maintenance of peace, order and good government of all persons within the limits of the Order of 9th May, 1891, s. 4.

The result is that the Foreign Jurisdiction Act, 1890, gave to Her Majesty absolute power to say what law should be applied in these territories outside Her Majesty's dominions as if the territory had been acquired by cession or absolute conquest, or, as Lord Halsbury said during the argument in Staple's Case, which was a case governed by the Foreign Jurisdiction Act, 1890. 'There is no doubt that under such circumstances as these' (namely where there has been no annexation) 'the Queen may make such laws as she pleased'.

On the whole I think that the effect of these proclamations made under the authority of the Foreign Jurisdiction Act, 1890, is to prevent Sekgome obtaining in this country or in the Courts of the Protectorate a writ of Habeas.

The idea that there may be an established system of law to which a man owes obédience, and that at any moment he may be deprived of the protection of that law, is an idea not easily accepted by English lawyers. It would be more congenial to our love as a nation of liberty and justice to act on the eloquent words of Lord Watson in *Spring v. Sigcau* (1897) A. C. 238, but the country in that case was an annexed country under the Pondo Annexation Act, and our single duty is to construe the Foreign Jurisdiction Act, 1890, the Orders in Council, and proclamations made thereunder. It is made less difficult if one remembers that the Protectorate is over a country in which a few dominant civilized men have to control a great multitude of the semibarbarous."

Farwell, L. J., in his judgment said: $-$

The first contention, is one of great importance, as it $\cdots \cdots$ raises the question of the right of the Crown by Order in Council to create a despotism, in the Protectorate, subject only to the provisions of any Act of Parliament extending to His Majesty's subjects in the Protectorate (see s. 12 of the Foreign Jurisdiction Act, 1890)—a proposition that at first sight appears startling. It is, however, necessary to bear in mind the circumstances under which, and the countries to which, such Orders apply, and the realnature of such Orders, which, although called Orders in Council, in fact derive all such despotic authority as they possess from the Legislature, and not from the Crown.

Lord Mansfield's first proposition assumes a propostion which is selfevident, namely that the Royal jurisdiction may be extended by Act of Parliament. It follows, therefore, that Crown and Parliament together can by enactment make provisions which the Crown alone could not direct, and this is, in my opinion, the solution of the present case. The matters complained of have been done not merely by authority of the Crown, but by authority of Crown and Legislature. . . . . It is under these powers of the Crown and Parliament that legislative assemblies in colonies with powers to legislate for peace, order and good government have been created, and as such assemblies derived their powers from the Imperial Act creating them, and had no powers beyond those given expressly or by implication by such Act, questions arose as to the extent to which such legislative assemblies might disregard the common law and the statutory law of England. It was long ago recognized that such laws were not always expedient or advisable in all cases and in all countries, and accordingly by 28 & 29 Vict. c. 63 it was enacted, by s. 2, 'Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative'. Then s. 3 says: 'No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order or regulation as aforesaid.' The Foreign Jurisdiction Act of 1890 follows on the same lines, and s. 12 is in almost identical terms.

The first question then is, What is the true construction of s. 12? It is clear that repugnancy to the law of England is permitted, as is also any repugnancy to statute law not being repugnancy to the provisions of any Act of Parliament extending to His Majesty's subjects 'in that country', that is, the country to which the Order in Council relates. Now these words in a colonial Act have received interpretation in the Exchequer Chamber and in the Privy Council. In *Phillips v. Eyre* the Legislature of Jamaica had passed an Act indemnifying Governor Eyre for certain things done by him in suppressing a negro rising; the Plaintiff Phillips had been flogged and imprisoned by his orders, and both the Queen's Bench and the Exchequer Chamber held, that the Act had deprived the plaintiff of all remedy. Willes J., in giving judgment, says: 'It was further argued that the Act in question was contrary to the principles of English law, and therefore void. This is a vague expression and must mean either contrary to some positive law of England, or to some principle of natural justice, the violation of which would induce the Court to decline giving effect even to the law of a foreign sovereign State. In the former point of view, it is clear that the repugnancy to English law which avoids a colonial Act means repugnancy to an Imperial statute or order made by authority of such statute applicable to the colony by express words or necessary intendment; and that, so far as such repugnancy extends, and no further, the colonial Act is void'. $\cdot \cdot \cdot$

The unreported case of *Staples v. The Queen* in the Privy Council disposes of the argument founded on the Habeas Corpus Acts. The Board, consisting of Lord Halsbury, Lord Hobhouse, Lord Macnaghten, Lord Davey and Sir Richard Couch, dismissed an application for leave to appeal against a conviction in Bulawayo for theft, by a judge and four assessors, on the ground that the appellant was entitled by Magna Charta to be tried by a jury. Their Lordships say this: 'The repugnancy contemplated by the Foreign Jurisdiction Act, 1890, s. 12, must mean repugnancy to a statute or order applied in some special way to British subjects in the foreign country in: question. It would be a most unreasonable limit on the Crown's powers of introducing laws fitting to the circumstances of its subjects in a foreign country if it were made impossible to modify any Act of Parliament which prior to the Order in Council might be invoked as applicable to a British subject'.

It is true that the words in 16 Car. 1, c. 10, s. 6, are quite general, but the words in s. 12 of the Foreign Jurisdiction Act, 1890, 'extending to Her Majesty's subjects in that country,' are not satisfied by general words. The words in Magna Charta, 'Nullus liber homo' are as general as those in the Habeas Corpus Act, but there are general words in most Acts of Paliament. The meaning of s. 12, is, in my opinion, that words must be used showing either that the particular territory is included or that all localities are included, e.g. the Slave Trade Act, 1843, s. l. extends and applies 'to British subjects wheresoever residing or being and whether within the dominions of the British Crown or of any foreign country'. No colonial Legislature or Order in Council could, in my opinion, abrogate or disregard this Act. It is said that the Habeas Corpus Acts are the bulwarks of liberty in our country, but even in the United Kingdom the Habeas Corpus Acts have been suspended by Act of Parliament when the public safety required. Fifteen instances between 1 William & Mary and 11 & 12 Victoria are given in Forsyth's Cases and Opinions, p. 452, and Magna Charta is as much a bulwark of our liberties as the latter Acts. The truth is that in countries inhabited by native tribes who largely outnumber the white population such acts, although bulwarks of liberty in the United Kingdom, might, if applied there, well prove the death warrant of the whites. When the State takes the responsibility of Protectorate over such territories, its first duty is to secure the safety of the white population by whom it occupies the land, and such duty can best be performed by a responsible officer on the spot. There are many objections to the government of such countries from Downing Street, but the Governor's position would be impossible if he were to be controlled by the Courts here, acting on principles admirable when applied to an ancient well ordered State, but ruinous when applied to semi-savage tribes. This view is supported by *Reil v. The Queen*.

I am, therefore, of opinion that the Crown by Order in Council (which by s. 11 of the Foreign Jurisdiction Act, 1890, has effect as if it was enacted in that Act) has power to make orders abrogating the Habeas Corpus Acts, either generally or in respect of a particular individual named therein. The ultimate authority for such abrogation is the Act of the Imperial Legislature, although the means adopted are an order of the King in Council." Kennedy, L. J., in his judgment says: $-$

But the most important part is the grant of particular $\mathcal{L} = \mathcal{L}^{\mathcal{L}} \mathcal{L}^{\mathcal{L}} \mathcal{L}^{\mathcal{L}} \mathcal{L}^{\mathcal{L}}$ powers as to legislation and administrative action which are set out in paragraph of the Order and are particularly referred to in the preamble of the proclamation. The paragraph runs thus: 'In the exercise of the powers and authorities hereby conferred upon him the High Commissioner may amongst other things from time to time by proclamation provide for the administration of justice, the raising of revenue, and generally for the peace, order and good government of all persons within the limits of this Order, including the prohibition and punishment of acts tending to disturb the public peace'. It would be difficult, I think, to find language more clearly expressing an intention to confer wide discretionary powers, and such a trust lays upon the trustee the duty not to shrink, if the need arises, from availing himself of those powers. They ought to receive, as Lord Halsbury, L. C., insisted in delivering the judgment of the Privy Council in Reil v. The Queen with respect to powers of the Canadian Parliament to legislate 'for peace, order and good government' a liberal interpretation in the sense that they may rightly be held to justify provisions widely differing from those which have been made in this country for the same ends."

As I have remarked, I quote these extracts merely for their bearing on the words "peace, order and good government" and repugnancy and for no other reason.

I am not going to say, and indeed it is not necessary for me to decide, whether and, if so, to what extent the rights and immunities conferred upon the people of England by such Statutes and Charters of England as Magna Charta, the Bill of Rights, and the Petition of Right have been brought into this Colony by settlers. The point which one has to keep in mind in considering that aspect of this case is that the same body which passed the Magna Charta and other constitutional statutes, namely the representatives of the people, has passed the British Settlements Act, 1887, which Act, as I have endeavoured to point out, has conferred upon the Queen in Council the power to make laws for a settled Colony and has also conferred upon the Sovereign by that same Act the power to delegate that right to a Legislative Council.

It is argued by the Defendant that the Income Tax Ordinance, 1937, was imposed upon the people of this Colony without the sanction of the Commons or Parliament. That is in my judgment a fallacious view. The Income Tax Ordinance, 1937, was imposed upon the people of this Colony with the consent of Parliament, including the Commons, that consent being impliedly contained in the powers conferred upon the Sovereign by the British Settlements Act, 1887, which I have referred to. There is nothing in the point referred to by citing the case of Coltness Iron Co. v. Black (Commissioner of Income Tax), 1880/1, 6 A. C. 315, and the dictum of Lord Blackburn-"No tax can be imposed on a subject without words in an Act of Parliament clearly showing an intention to lay a burden on him." The power to impose taxation is clearly included in the wide powers given by the British Settlements Act, 1887, and the above words, true of course as they are, can have relevance to this case only in emphasizing that the Ordinance which seeks to impose taxation must be clearly worded to that effect. There can be little doubt but that the Income Tax Ordinance, 1937, does very clearly impose the tax. It would be unreasonable to expect that the power to impose taxation should be expressly specified in the British Settlements Act, 1887. The powers are purposely left wide and all embracing—it being understood that any legislation not directed towards peace, order and good government will be disallowed. It ought therefore to be readily appreciated that so far from the Imperial Parliament being disregarded, and so far from the local Legislature

having acted invalidly, there has been no disregard of the Imperial Parliament and, there has been no invalid act by the Legislature of this Colony. The Imperial Parliament has consented when it enacted the British Settlements Act, 1887, to the imposition by the Sovereign or by the delegate of the Sovereign (i.e. the Legislative Council) of any law, the only limitation being that the law must be necessary for the peace, order and good government of the Colony. The limitation of repugnancy does not appear anywhere in the British Settlements Act, 1887, but is a limitation imposed by the Colonial Laws Varidity Act, 1865, which was enacted some 22 years before the British Settlements Act, 1887, and further imposed in its turn upon the Legislative Council of this Colony by the Letters Patent, 1920. It has not been maintained by Counsel for the Plaintiff that the Crown is empowered by virtue of the Royal Prerogative to legislate for or impose taxes upon a settled colony, nor is it argued by Mr. Shapley for the defendant that the Crown has attempted by virtue of its Royal Prerogative to impose a tax upon this Colony. The imposition of income tax proceeds solely from a power vested in the local Legislative Council, which is a power delegated to it by the Crown under powers conferred upon the Crown by the Imperial Parliament. Within its territorial limits, therefore, and subject to the principle enacted in the Colonial Laws Validity Act, 1865, s. 2, that any colonial law repugnant to an Act of the Imperial Parliament extending to the Colony shall to the extent of such repugnancy be void and inoperative, this colonial Legislature has full power to enact laws having for their object peace or order or good government, and is not the delegate of the Imperial Parliament. It has been suggested that the enactment of the Income Tax Ordinance, 1937, is in its effect an amendment or an alteration of the Colony's constitution. It is sufficient comment on this suggestion to remark that the Legislative Council of this Colony in enacting the Income Tax Ordinance, 1937, has not in any manner altered the law of the constitution of the Colony. The Income Tax Ordinance, 1937, is not part of the constitution of the Colony.

Much has been said in the argument of the defendant that the constitutional position being what it is the people of this Colony are at the arbitrary mercy of the Colonial Office, and the suggestion is that the colonial Legislature of this Colony must in the very nature of things be solely at the command or behest of the Colonial Office. That argument, however, is not in accordance with the law or the facts. In constitutional law we speak not of the Colonial Office but of the Secretary of State for the Colonies who by virtue of his position is responsible not only to the King but to Parliament. Within its own limits, as I have said, the colonial Legislature is sovereign, subject to the fact that laws which are repugnant to Acts of the Imperial Parliament applying to the Colony are void and that laws must be directed towards peace, order and good government, but it must not be. forgotten that in addition to these limitations there do exist certain legal and constitutional limitations to which the colonial Legislature is subject, and these may be shortly summarized as follows: $-(a)$ the power of disallowance by which the Crown may disallow a Bill assented to by the Governor, $(b)$ the power of reservation by virtue of which the Governor may reserve a Bill for the consideration of the Crown (i.e. the Imperial Government), (c) the Imperial Parliament may legislate for the Colony and may override the legislation of the colonial Legislature; and dealing with this latter sanction the Imperial Parliament if it objected to the enactment of the Income Tax Ordinance, 1937, in this Colony or considered it *ultra vires* the powers conferred upon it could override such Ordinance by an Imperial Act. It has not done so. Other sanctions which ultimately exist are such as ministerial responsibility and the legal constitutional necessity for an annual Parliament. In the present circumstances of the Colony's constitution the Imperial Parliament, ultimately controls local legislation and may do so in a very direct way. That control is present and in existence all the time. I think I may take judicial notice of the fact that there exists in other of His Majesty's, Crown Colonies similarly constituted as Kenya, Ordinances providing for the raising of revenue by means of a tax on income and yet no unreported or reported case has been cited to me in which such an Ordinance has by any Court been declared invalid or *ultra vires* the Colony's Constitution or Legislature.

It is not correct to say that if the plaintiff is to succeed in this case this Court must find that Magna Charta and the dictum of Lord Blackburn in the appeal case of Coltness Iron Co. v. Black (Commissioner for Income Tax) are without application or meaning for Englishmen who have travelled overseas and settled in a British Colony. A decision in the plaintiff's favour will involve no such sweeping result. It is necessary to emphasize and sufficient to say that the powers of legislating for the Colony, including the power to impose taxation, have been given by Parliament to the King in Council and that the King has in pursuance of Parliament's authority delegated his powers to the Legislature, subject always to certain sanctions or limitations which I have explained. To speak of despotic powers being given to the Colonial Office, as has been said, is to shut one's eves to the existence of the British Settlements Act, 1887, and the restraints or sanctions which I have enumerated and to the control which the Imperial Parliament possesses.

It follows from what I have said in this judgment that in my opinion the Income Tax Ordinance, 1937, is not repugnant to any law in England extending to this Colony, that the Ordinance is a measure enacted with the object of providing for peace, order and good government of the Colony, that it is an Ordinance within the powers of the local Legislature to enact by virtue of the Letters Patent, 1920, which in their turn, in so far as the Legislature is concerned, are a delegation of the powers conferred by the Imperial Parliament in 1887 upon the Queen in Council, and that it has the force of what is sometimes described perhaps not happily and for want of a more apt expression—as limited sovereign legislation, that is to say limited by the supreme sovereignty of the Imperial Parliament.

The Income Tax Ordinance, 1937, being held to be valid by this Court, and there being no other question for the Court to adjudicate upon, it follows that judgment is given for the plaintiff for the amount claimed with costs and I order accordingly.

Shapley for Appellant.

## Harragin, K. C., Attorney General (Kenya), for the respondent.

SIR JOSEPH SHERIDAN, C. J.—There are two points for consideration in this appeal (1) that the enactment of the Income Tax Ordinance by the Legislative Council of Kenya is invalid by reason of its not being necessary for the peace, order and good government of the country; and (2) that it is repugnant to the law of England. As to the first point in saying that the enactment of the Ordinance is a measure for the peace, order and good government of the Colony I associate myself with the judgments of the Supreme Court in the case of The District Commissioner, Nairobi v. Wali Mahomed (5 E. A. L. R. 175). Besides these judgments there is ample authority referred to by the learned trial Judge to the same effect. Mr. Shapley attempted to draw a distinction between the right of the Legislative Council to impose indirect taxation and direct taxation, admitting that they possessed the former right. I fail to appreciate any reason for such a distinction; it seems to me that they must stand or fall together. On the second point a lengthy argument was addressed to the Supreme Court and this Court that the Ordinance was repugnant to the law of England. Here again I would say that if it is, similarly would the imposition of indirect taxation be repugnant and many other Ordinances without which the government could not be carried on. The

learned trial Judge in a careful and closely reasoned judgment has held that the Income Tax Ordinance is not repugnant to the law of England and I find myself in complete agreement with his judgment. The Imperial Parliament delegated to His Majesty in Council power to establish laws for peace, order and good government (section 2 of the British Settlements Act) and His Majesty the King in Council was by section 3 of the same Act empowered "by any instrument passed under the Great Seal of the United Kingdom, or by any instructions passed under His Majesty's Royal Sign Manual . . . . . as respects any British Settlement to delegate to any three or more persons within the Settlement all or any of the powers conferred by this Act on His Majesty in Council, either absolutely or subject to such conditions, provisions and limitations as may be specified in such instrument or instructions". His Majesty the King in Council has delegated his power to establish laws for the peace, order and good government of Kenya subject to such laws not being repugnant to the law of England (Article X, Letters Patent, 11th September, 1920). Once it is held that the Income Tax Ordinance is a measure passed for peace, order and good government, and I have so held, and that there exists a similar measure in England, it follows that it cannot be repugnant to the law of England, for it must be deemed to have been passed with the full authority of the Imperial Parliament. I can on the other hand understand an Ordinance introducing slavery being repugnant to an Imperial Statute, the Slave Trade Act, 1843, whatever the Legislature might think as to its desirability in the interests of peace, order and good government. Section 1 of the Slave Trade Act extends and applies "to British Subjects wheresoever residing or being and whether within the Dominions of the British Crown or of any foreign country". I am not saying that it would ever enter the minds of the Legislature to pass such legislation. I am merely giving an example if an Imperial Statute in contravention of which the local Legislature would not be entitled to pass an Ordinance. It occurred to me as strange that Mr. Shapley was willing to concede that an Ordinance abolishing the Jury system was within the powers of the Legislative Council and yet contended that the imposition of an income tax was ultra vires; a strange proposition to me as surely the interference with the right of a trial by Jury is a more serious curtailment of the liberty of the subject than the imposition of an income tax. His argument proceeded that before the imposition of an income tax could be regarded as valid, it would require to have been passed by a Legislative Council containing an elected majority. But it appears to me that this argument is in contradiction of the provisions of section 3 of the British Settlements Act empowering His Majesty the King in Council to delegate his power to three or more persons; this His Majesty in Council has done by delegating the power to establish laws for peace, order and good government to the Legislative Council. I would dismiss this appeal with costs.

WHITLEY, C. J.—The learned trial Judge has set out so exhaustively the relevant statutes and authorities and I am so entirely in agreement with the conclusions which he has drawn from them that I feel there is little which I can usefully add. Mr. Shapley for the appellant admits that the Kenya Legislative Council has had delegated to it the power to make any Ordinance necessary for the peace, order and good government of His Majesty's subjects within the Colony provided that it is not repugnant to the law of England, that is to say, as explained in the case of R. v. Marais (A. C. 1902, 51), repugnant to such Imperial legislation as by express terms or necessary intendment is made applicable to the Colony. He submits that the Income Tax Ordinance is not necessary for peace, order and good government and that it is repugnant to the law of England and that on either or both of these grounds it is void and ultra vires.

As regards his first objection it seems to me that apart altogether from the dictates of common sense, which suggest the impossibility of enjoying good government without taxation, the case of *Powell v. Apollo Candle Co.* (10 A. C.

282) affords a complete answer. That Privy Council case turned upon the interpretation of the New South Wales Constitution Act (scheduled to 18 and 19-Vict. c. 54) which provided *inter alia* that there should be one Legislative Council and one Legislative Assembly and that within the Colony Her Majesty should have power, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, welfare and good government of the Colony. It is admitted that no substantial distinction can be drawn between the words peace. welfare and good government and the words peace, order and good government which we have to construe in the present case. There follows in that Act a proviso that all bills imposing taxation shall originate in the Legislative Assembly. From the judgment of the Board delivered by Sir Robert Collier it is clear that laws imposing taxation (or, as in that case, customs duties) are regarded as falling within the category of laws for peace, welfare and good government.

In the same judgment there occurs a passage which answers another point put forward by Mr. Shapley. He suggested that the Kenya Legislative Council is really only the agent of the Imperial Parliament. Sir Robert Collier observes at page 290: "These two cases have put an end to a doctrine which appears at one time to have had some currency, that a Colonial Legislature is a delegate of the Imperial Legislature. It is a Legislature restricted in the area of its powers, but within that area unrestricted, and not acting as an agent or a delegate."

As regards repugnancy, it is true of course that in England no tax can be levied except with the approval of the majority of the elected representatives of the people but the same observation applies to all legislation in England. The same Parliament which passed Magna Charta and the Bill of Rights, the enactments upon which the appellant relies as the basis for his proposition that no British subject either in England or in any dependency into which settlers have carried with them the right to enjoyment of the privileges which they enjoyed under the laws of England, may be taxed except with the consent of a majority of their elected representatives, has also passed the Imperial legislation from which the Kenya Legislative Council derives its powers. That legislation is just as much part of the law of England as Magna Charta and the Bill of Rights and in so far as that legislation in any way derogates from the rights and privileges secured to the subject by those two enactments, such rights and privileges must be taken to be to such extent modified. That would I think afford an answer to the argument based on repugnancy, even if one gives to the expression "law of England" used in the Letters Patent dated 11th September, 1920, the wide interpretation which Mr. Shapley seeks to put upon it, but it is clear from the authorities that since the passing of the Colonial Laws Validity Act, 1865, the words "repugnant to the law of England" must be read in the sense of repugnancy to an Imperial Statute, or order made by authority of such statute, made applicable to the Colony by express words or necessary intendment. It would, I think, be impossible to argue that the Income Tax Ordinance or, as Mr. Shapley would put it, the manner of its enactment, is repugnant to any Imperial Statute so applied.

The settlers no doubt brought with them the law of England but that does not mean that law must remain in force in the Colony for ever unchanged. Just as in England the law is continually being altered by the British Parliament in order to adapt it to changing conditions, similarly in a Colony it has to be altered to meet local conditions. What may be suitable for the home country may prove to be unsuitable or impracticable in a young Colony. The Crown and Parliament in their joint wisdom have seen fit to provide that the power to make such alterations and new laws shall be reposed in the Legislative Assembly created by the Letters Patent. As Farwell, L. J., observed in his judgment in R. v. Earl of Crewe (1910, 2 K. B. D. 576) Legislative Assemblies have been created

in the colonies by the Crown and Parliament with powers to legislate for peace, order and good government. As they "derived their powers from the Imperial Act creating them, and had no powers beyond those given expressly or by implication by such Act, questions arose as to the extent to which such legislative assemblies might disregard the common law and the statutory law of England. It was long ago recognized that such laws were not always expedient or advisable in all cases and in all countries, and accordingly by the Colonial Laws Validity Act, it was enacted, by s. 2, 'Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the Colony that force and effect of such Act, shall be read subject to such Act, order or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative. Then s. 3 says: 'No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order or regulation as aforesaid".

The learned Lord Justice was construing section 12 of the Foreign Jurisdiction Act, 1890, which is in almost identical terms with section 3 of the Colonial Laws Validity Act and he went on to express the view that repugnancy to the law of England is permitted as is also any repugnancy to statute law not being repugnancy to the provisions of any Act of Parliament extending to His Majesty's subjects in the particular country or colony in question. He then quoted with approval the following words of Willes J. in *Phillips v. Evre*: "It was further argued that the Act in question was contrary to the principles of English law, and therefore void. This is a vague expression and must mean either contrary to some positive law of England, or to some principle of natural justice, the violation of which would induce the Court to decline giving effect even to the law of a foreign sovereign state. In the former point of view, it is clear that the repugnancy to English law which avoids a colonial Act means repugnancy to an Imperial statute or order made by authority of such statute applicable to the Colony by express words or necessary intendment; and that, so far as such repugnancy extends, and no further, the colonial Act is void."

In the unreported Privy Council case of Staples v. The Queen their Lordships summed up the meaning of repugnancy in such a context and the practical reasons for so restricting the meaning in the following words: "The repugnancy contemplated by the Foreign Jurisdiction Act, 1890, s. 12, must mean repugnancy to a statute or order applied in some special way to British subjects in the foreign country in question. It would be a most unreasonable limit on the Crown's powers of introducing laws fitting to the circumstances of its subjects in a foreign country if it were made impossible to modify any Act of Parliament which prior to the Order in Council might be invoked as applicable to a British subject."

These authorities seem to me to afford a complete answer to the argument based upon repugnancy and I agree that the appeal should be dismissed with costs.

WEBB, C. J.—Agreeing, as I do, both with the judgment appealed from and with those that have just been delivered, I have but little to add. The appellant's case is based on two propositions, the first of which is that a power to legislate "for the peace, order and good government" of a country, does not include the power to raise revenue. My answer is that one's common sense tells one that it does, and, if further authority is needed, it is to be found in the case of *Powell v*. Apollo Candle Co. (10 A. C. 282).

The second proposition is that the Ordinance is repugnant to the law of England because it was passed by a legislature not containing an elected majority. This argument is based on the mistaken idea that there is something peculiar about the enactment of a taxing statute. In fact, of course, all Statutes are passed by the same authority and in the same way, and the passages quoted from Magna Charta, the Bill of Rights and the work of Mr. Taswell-Langmead only record the fact that, as a matter of history, the right of the Commons to be consulted in all legislation was first asserted and secured with reference to taxing Statutes. It is true that settlers carry with them their rights and privileges under the law of England, one result of which would be that, unless some provision modifying those rights and privileges had been made, when they reached their new home they would find that, if they needed any fresh legislation, it, like their other luxuries, would have to be sent for from London—a situation which, though no doubt Mr. Shapley would regard it as constitutionally ideal, would seem to me to be attended with some practical inconvenience. Accordingly such provision has been made by numerous Statutes of which the British Settlements Act, 1887, is one of general application. The result is that an Ordinance passed by the Legislative Council constituted by the Letters Patent under the authority of that Act, so far from having been enacted in a manner repugnant to the law of England, has been enacted in strict conformity with it.

In my opinion the appeal should be dismissed with costs.