THOMASZ v. SAIBO

121-NLR-NLR-V-21-THOMASZ-v.-SAIBO.pdf


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[Full Bknch.]
Present : Ennis and. De Sampayo JJ. and Loos A.J.
THOMASZ v. SAXBO.113—P. C. Colombo, 27,041.
Pood control—Defence of the Colony Regulations, 1919—Order fixing the price offlour—Ultra vires.
The order of the Food Controller, fixing the price at which floor, &c.,should be sold, made under Begulation 1 of the Defence of the ColonyRegulations, 1919, is not ultra vires.
fJVHE facts appear from the judgment.
A. St. V. Jayawardene (with him Tisseveeresinghe), for the accused,appellant.—The regulation made by the Food Controller (Gazette ofJuly 1, 1919) is ultra vires. The Begulation 1 of "the Defence of theColony Begulations made by the Governor (Gazette of May, 1919),from which the Food Controller purports to derive his power tomake the regulation in question, is' in its turn ultra vires. For thepower to fix the maximum price for which articles of food may besold by retail we have to look to olause 3. (10) of the Order in Councilof October 26, 1896, and to that alone. Under that clause theGovernor alone was empowered to make such a regulation, andthat by a Proclamation. No such Proclamation has been made.It cannot be said that the Governor had delegated his power underclause 4 of the Order in Council of March 21, 1916, to the FoodController. For he is not of the class of naval or military authorities,to whom alone under the clause the Governor can delegate any ofhis powers. The Food Controller has no legal status. His officehas not been created by any Ordinance or Order in Council. InEngland it was thought necessary to pass an Act of Parliamentto create the office of Food Controller. See 6 and 7 Geo. V., c. 68,s. 3. Similar legal sanction is necessary in Ceylon, before the FoodController can exercise any of his powers.
It was argued before the Police Magistrate that, apart from clause3 (10), the Governor has no power under the Amending Order inCouncil of March 21, 1916, to make regulations, and by such regula-tions to make provisions with regard to matters coming within,inter alia, “ Trading.” It is said that the Defence of the ColonyRegulations of May, 1919, made by the Governor are regulationsunder the Amending Order in Council of 1916, and that by thoseregulations he has made provision for the appointment of a Food
turn.
Controller and in respect of his powers and duties, one of which wasto fix maximum price of food, and that, therefore, the Defence of theColony Regulations and the regulation of the Food Controller areintra vires. This will be a sound argument if the same AmendingOrder in Council did not specifically direct that the Principal Orderin Council, including 3 (10), Bhould be in force, and that the Amend-ing Order should be construed and read as one with the PrincipalOrder. Then, there are two apparently inconsistent Orders. The in-consistency is only apparent. They can be reconciled with' eachother if a reasonable construction can be placed on each of thoseOrders according to accepted canons of legal interpretation.The later powers given to the Governor are general, and will notnecessarily affect or do away, with the special ■ power conferred onhim by Order 8 (10). “ When in the same or subsequent Statute aparticular enactment is followed by a general enactment, and thelatter taken in its most comprehensive sense would over-rule theformer, the particular enactment is operative, and the general enact-ment is taken to affect only those other parts of the particularenactment to which it may properly apply. ” The general enactmentaffects all matters in respect of “ Trading ’’ other than fixing maxi-mum price of any article of food. The other principle that penalenactments should be strictly construed and in favour of the accusedapplies. The later Order in Council enhances the punishment, andin cases of doubt effect should be given to the earlier enactmentimposing a lesser punishment.
Garvin, S.-G. (with him Akbar, C.G., for the Crown.—By Orderin Council of October 26, 1896, the Governor was empoweredto do certain acts in connection with the Defence of the Colony.These acts were to be done by him alone by Proclamation. . In1914, at the outbreak of the war to provide for emergencies, theDefence of the Realm Act (5 Geo. V., c. 8) was passed, by whichHis Majesty in Council was empowered to legislate by regulations.At this time, to bring the Colonial law on the subject into line withthe English law, the Order in Council of March 21, 1916, was issued,by which the Governor was empowered to make regulations for theDefence of the Colony. This Order in Council was clearly designedto enlarge the Governor’s powers, and it gave him the largestconceivable powers to legislate by regulations. See The King v.Holliday.1 Power to legislate is given to the Governor, but it isnot necessary for him to legislate until circumstances arise.The Governor has a two-fold power, i.e., to do certain acts himselfby Proclamation as well as to legislate by regulations. Bothpowers could exist together. They are not inconsistent. By virtueof the special enactment in the Amending Order any provision oflaw of the Colony which may be inconsistent with any regulation
H1917) 86 L. J. K. B. D., Part 11., Pane 1119.
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made by the Governor shall be suspended and of no effect duringthe continuance of such regulation.
Even clause 10, if inconsistent, must yield to the regulations madeunder the Amending Order of 1916. But it is not inconsistent withthe regulations in question.
The office of Food Controller need not be created by Statute.The Governor may by regulation oonfer powers on any officer byname without even creating the office of Food Controller.
1M0.
Themasz
v.ScHbo
A. St. V. Jayawardene, in reply.—In the English Act there is noprovision similar to sub-clause (10) of Order in Council, October26, 1896. The later Order in Council is to be read with the earlier one,and clause 8 (c) of the later one provides that any law inconsistentwith the regulations made by the Governor shall be suspended and ofho effect. This provision will not have the effect of suspending sub-clause (10) as sub-clause (10) comes later and gives specific powers tothe Governor, which he cannot exceed. (liber's Methods and Formsof Legislation, p. 250, and Craies on Statute Law, p. 218.)
As special provisions controlled general provisions, any regulationinconsistent with sub-clause (10) is void. (/See liber’s Methods andForms of Legislation, p. 250, and Craies on Statute Law, p. 218.)
Cur. adv. vult.
April 29, 1920. Ennis J.—
This is one of seven appeals in which the same point of law hasbeen referred to the decision of the Full Court.
The accused was charged with having sold on December 25, 1919,twenty bags of Australian flour above the controlled price, in contra-vention of the Food Controller’s order published in the Gazette ofJuly 1, 1919, made under Regulation 1 of the Defence of the ColonyRegulations, 1919, published in the Gazette of May 9, 1919, an offenceunder Regulation 8 of those regulations.
The point for decision is whether the Food Controller's order,fixing the price at' which Australian flour should be sold isultra vires ?
By clause 3 (1) of the Order in Council dated October 26, 1896,which came into operation in Ceylon by Proclamation of August 5,1914, every person in the Colony was made subject to military law,and the Army Act was applied to them, subject to the other pro-visions of the Order. Clause 3 (10) contained a provision enablingthe Governor by Proclamation to fix the maximum price for whichan article of food might be sold by retail, and declaring that anyperson selling at a higher price than the price so fixed should bedeemed guilty of an offence against the Order, and liable to a finenot: exceeding £5, or to imprisonment not exceeding three months.
No Proclamation was made under clause 3 (10).
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.1880.
Knots J.
Thomaat*. Saibo
By an Order in Council of March 21, 1916, which was proclaimedin the Colony on June 1, 1916, a new clause was substituted forclause 3 (1) of the Order in Council of 1896, enabling the Governorto make regulations for securing the public safety and defence ofthe Colony, and providing that a breach of such regulations shouldbe punishable with fine not exceeding £100, or imprisonment, withor without hard labour, for a term not exceeding six months, or both;and further providing that “ any provision of any law of the Colonywhich may be inconsistent with any regulation made by theGovernor under this sub-clause shall be suspended and of no effect-during the continuance of such regulation. ” The Order in CouncilOf 1916 gave the Governor power to delegate to the naval or militaryauthorities in the Colony any of his powers under the Principal Order.
On May 9, 1919, “ The Defence of the Colony Begulations, 1919,”'were made, authorizing the Food Controller to make orders regu-lating, inter alia, the sale and purchase of any article (includingorders providing the fixing of maximum and minimum prices). Anotification (made on the same day) was published appointingMr. Horsburgh to be Food Controller.
No regulation or law constituting the office of Food Controllerhas been cited to U6, but it is conceded for the purpose of this appealthat Mr. Horsburgh is not either personally, or as Food Controller,a naval or military authority, to whom the Governor might, underthe Order in Council of 1916, delegate his powers under theprincipal Ordinance.
The argument for the appellant was that the Governor alone wasempowered under the Order in Council of 1896 to fix the prices atwhich an article of food could be sold by retail, and that any delega-tion of his pow.ers other than to a naval or military authority wasultia vires. It was further contended that any regulation made bythe Governor under his powers to make regulations for the safetyand defence of the Colony which were inconsistent with the specialprovisions of the Order in Council of 1896 would be ultra vires; andthat the Defence of the Colony Begulations, 1919, in so far as theyenhance the punishment for the offence of selling flour by retail overthe controlled price and authorize the price to be fixed otherwisethan by Proclamation, and by a person other than the Governor,were inconsistent with the provisions of clause 3, sub-clause (10), ofthe Order in Council of 1896, and therefore ultra vires,
A long argument was addressed to us on the question as towhether or not there is any inconsistency, which I do not think itnecessary to go into, as the Order in Council of 1916 expresslyprovides that the provision of any law, if inconsistent with a regula-tion made for the safety and defence of the Colony, shall be sus-pended and of no effect during the continuance of the regulation,and the provision in clause 3, sub-clause (10), if consistent would besuspended.
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The Order in Council of 1916, while leaving sub-clause (10) in thePrincipal Ordinance, added a new power to make regulations for thedefence of the Colony, and provided that this new power could beexercised, notwithstanding any law to the contrary, by the expressprovision that any such law should be-suspended andJof no effect.
The power to make regulations for the safety and defence of theColony is wide enough to cover the fixing of prices (on a sale bywholesale as well as retail). A similar power was so exercised inEngland, and no case has been cited to us where the scope ofthe power in this respect has been challenged, while the case ofThe King v. Holliday1 was cited to show how wide the scope of thepower is.
The fact that both powers are enacted in the same clause of thesame Order in Council, with the provision that regulations madeunder the power to make regulations are to push all law to thecontrary aside, does not, in my opinion, leave any room for theapplication, in favour of sub-clause (10), of the rule of law that aspecial provision is to control a general provision.
I would, therefore, hold that the order of the Food Controller ofJuly 1, 1919, fixing the price at which Australian flour may be soldin Colombo is not ultra vires. The other points raised in the appeal:are left for hearing and decision by a Judge sitting alone.
De Sambayo J.—
This is one of several cases in which a point of law of vitalimportance has been referred to the Full Bench for decision. It hasreference to the legal validity of the orders of the Food Controllerin Ceylon fixing the prices of certain articles of food. In the presentcase the accused was charged with having sold twenty bags ofAmerican flour at a price higher than the price fixed by theFood Controller under Regulation 1 of the Defence of the ColonyRegulations framed by the Governor and published in the Govern-ment Gazette of May 9, 1919. The contention on behalf of theaccused is that Regulation 1 is ultra vires. I am bound to expressthe indebtedness of the Court to counsel on both sides, whoargued this question with great ability and' fullness. In order tomake the matter clear, it is necessary to state in some detail thehistory of the regulation. On October1 26, 1896, the Queen inCouncil made an Order applicable to Ceylon and certain otherColonies. Clause 3 of that Order contained several sub-clauses.By sub-clause (1) every person within the Colony was made subjectto military law for the purposes of the Army Act, and .provision wasmade for the trial of offences punishable under the Army Act. TheGovernor was empowered by sub-clauses to do certain acts in con-nection with the defence of the Colony. Of these acts, the one most
1 (1917) 86 L. J. K. B. D., Part II., p. 1119.
1920-
Euirra J.
Thomoszv. Baiba
( 432 )
1920.
DiSinmo
J.
Thomaaz«. SaHo
relevant to the present question is that authorized by. sub-clause (10),which is in these terms:—
“ The Governor may by Proclamation prescribe the maximumprice for which articles of food may be sold by retail, andany person who after such Proclamation and until it shallhave been revoked shall sell any article of food at a higherprice than the price so prescribed shall be deemed guiltyof an offence against this Order, and shall on convictionthereof be liable to a fine not exceeding £5, or an equivalentsum in the case of a Colony having a silver currency, or toimprisonment for a term not exceeding three months. ”
This Order in Council had no immediate emergency in view, and itwas not proclaimed in Ceylon until August 5, 1914, when the warrecently concluded broke out. In England the Defence of theBealm Act (5 George V., c. 8) was passed on November 27, (1914,by which the King in Council was empowered “ to issue regulationsfor securing the public safety and the defence of the realm, and as tothe powers and duties for that purpose of the Admiralty and ArmyCouncil and of the members of His Majesty’s Forces and otherpersons acting on his behalf. ” In order to bring the Colonial law onthe same subject into line with the English “ Defence of the BealmAct, ” the old Order in Council of October, 1896, called “ ThePrincipal Order, ” was amended by Order in Council of March 21,1916, by which, in place of the old clause 3 (1), the following provisionwas substituted:—t
(1) (o) “ The Governor may make regulations for securing thepublic safety and the defence of the Colony, and as to thepowers and duties for that purpose of the Governor andthe officers of any of His Majesty’s Naval or MilitaryForces and • other persons acting on their behalf, and inparticular may by such regulations make provisions withregard to all matters coming within the classes of subjectshereinafter enumerated, that is to say: —
“ Censorship and the control and suppression ofpublications, writings, maps, plans, photographs,communications, and means of communication.
“ Arrest, detention, exclusion, and deportation.
“ Control of the harbours, ports, and territorialwaters of the Colony, and the movements of vessels.
“ Transportation by land, air, or water, and thecontrol of the transport of persons and things.
“ Trading, exportation, importation, production,and manufacture.
'* Appropriation, control, forfeiture, and dispositionof property, and the use thereof. ”
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“ and may by such regulations authorize the trial by CourtsMartial or Civil Courts, or in the case of minor offences byCourts of summary jurisdiction of persons committingoffences against fche regulations, and the infliction by suchCivil Courts of the following punishments, that is to say:—
(а)“In the case of Courts of summary jurisdiction,
imprisonment, with or without hard labour, for aterm not exceeding six months, or a fine not exceed-ing £100, or both such imprisonment and fine.
(б)“ In the case of other Courts, penal servitude for
life or any less punishment, or in the case of offenceswhere intention of assisting the enemy is proved,death, or any less punishment, ” &c.
Finally, clause 4 provided that the Governor may, if he thinks fit,delegate to the naval or military authorities in the Colony any ofhis powers under the Principal Order.
It is to be observed that the Defence of the Bealm Act gives to theKing, and the Order in Council to the Governor, unlimited powersto make regulations for securing the public safety and the defenceof the realm or Colony. Under “ The Defence of the Bealm Act,”the King issued a regulation providing that the Food Controller(whose office was created by the New Ministries and SecretariesAct, 1916) may—
/
" Make orders regulating or giving directions with respect tothe production, manufacture, treatment, use,, consumption,transport and storage, distribution, supply, sale or purchaseof, or other dealing in, or measures to be taken in relationto any article (including orders providing for the fixing ofmaximum and minimum prices) where it appears to himnecessary or expedient to make any such order for thepurpose of encouraging or maintaining the food supply ofthe country.”
That this regulation as regards the fixing of prices is justified by thepower conferred on the King to make regulations for securing thepublic safety and the defence of the realm has never been questionedin the many cases in which persons have been prosecuted for breachof this regulation, and which have come up for consideration beforethe superior Courts in England. The only case, so far as can be ascer-tained, in which the validity of any regulation has been challengedis King v. Halliday.1 That-case was concerned with a regulationrelating to internment of any person by order of a Secretary ofState wherever it appeared to him expedient to. make such order.It was there held, notwithstanding the fundamental principles ofpersonal liberty secured by Magna Charta and the Habeas CorpusActs, that the regulation was not ultra vires. It was pointed out,« m1 (1917) 68 L. J. K. B. D., Part II., p. 1119.
1980.
Db SampayoJ.
Thomas*v. Saibo
1920.
Db SampayoJ.
Thomaaz«. 8aibo
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that Parliament, whose authority was paramount, could authorizethe King to make such a regulation, and that the only question wasone of construction. Similarly, in the case of a Crown Colony, theKing in Council, by virtue of his power of prerogative legislation,could authorize the Governor to make such a regulation. Regu-lation 1 made by the Governor is in terms identical with theregulation issued by His Majesty under the Defence of the RealmAct, and must be held to be one within the scope of the Order inCouncil, that is to say, for securing the public safety and the defenceof the Colony. It is true that at the date of the regulation the warhad terminated and the Colony was free from external danger, butthe consequence^ of war on national life and safety are by no meansover even now. The Order in Council has not been withdrawn,and in view of the serious situation created by the scarcity of food,the suppression of profiteering must reasonably be taken to havebeen required for public security in Ceylon. Indeed, I think itis sufficient if the Governor thought it was so required. In my-opinion, therefore, so far as clause 3 (1) (a) of the Amending Orderis concerned, the regulation is good and valid. But, in view ofsub-clause (10) of the Principal Order empowering the Governorhimself by Proclamation to prescribe the maximum price forwhich any article of food might be Sold by retail, it was con-tended that this special provision, prescribing as it did a particularprocedure and penalty, prevented the Governor from making aregulation for fixing, prices by any other person than himself orotherwise than by Proclamation, and that if he wished to delegatehis powers in that respect, he must delegate it to the naval or militaryauthorities, and not to the Food Controller. The reply of theSolicitor-General was that the acts authorized to be done by theGovernor under sub-clause (10) and other sub-clauses of clause 3of the Principal Order were administrative acts, whereas clause'3 (1) (a) of the Amending Order conferred on the Governor thepower of legislation by way of regulations, and that the authorityto do administrative acts and the authority to legislate weretwo different things, and were npt inconsistent with each other.
I think this is a sound argument. The making of Regulations by theGovernor is an instance of the well-known form of legislation bydevolution, and regulations when made will take effect as if theywere contained in the Order in Council itself. It is noticeable thatmost of the classes of subjects in respect of which regulations were'.authorized to be made are also matters in respect of which .theGovernor was empowered to act directly. 'It was with some forceasked, why were sub-clause (10) and other sub-clauses left untouched:by the Amending Order, which was to be read as one with thePrincipal Order, if regulations were to cover the same ground?The answer was—and I think it was a good answer—that they werenecessarily left in, because the Governor might not make regulations
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at once, and in the meantime a sudden emergency might ariserequiring the Governor to take prompt administrative action. Asit happens, the regulation in question was not made by the Governortill three years after the Amending Order was proclaimed in Ceylon.Or the Governor might consider that regulations were not quitenecessary in the circumstances of the Island, and that his owninterventions in particular oases were adequate. The fact is thatthe exercise of his two-fold power in this respect is intended to bediscretionary and not imperative, and alternative and not simul-taneous. I may say, further, that, in my opinion, Begulation 1does not constitute a delegation to the Food -Controller of theGovernor’s authority under sub-clause (10) to prescribe the prices ofarticles. It is rather an exercise of his authority under clause3 (1) (a) of the Amending Order to make regulations in his absolutediscretion for securing the public safety and the defence of theColony. For that clause empowered the Governor to make regula-tions as to the powers and duties not only of himself, but of “ otherpersons acting on his behalf,” and the Food Controller whom theGovernor appointed is a person acting on the Governor's behalf.The difference in the penalties for acts of the same kind appearedalso to present some difficulty. The penalty for the breach of anyorder of the Governor prescribing maximum prices was to be a fineof £5 or imprisonment for three months, whereas the penalty for thebreach of the order made by the Food Controller on the same subjectin pursuance of the regulation would be a fine of £100, or imprison-ment for six months, or both such fine and imprisonment. This,however, was probably intended. The Principal Order was madein the peaceful days of 1896, but when the war began there arosecircumstances of grave necessity for dealing with the same actsmore severely.
If, however, any conflict is thought to exist between sub-clause (10)of the Principal Order and clause 3 (1) (a) of the Amending. Order,the effect of clause 3 (1) (c) of the latter Order has to be taken intoaccount. For it is thereby declared that—
“ Any provision of any law of the Colony which may be incon-sistent with any regulation made by the Governor underthis sub-clause shall be suspended and of no effect during thecontinuance of such regulation. ”
1920.
Da SahfavoJ.
Thomaezv. Saibo
When Begulation 1 in question was made, sub-clause (10) of thePrincipal Order was part of the law of the Colony, and by operationof the above provision became suspended and of no effect. It washowever, contended that as “ any law ” could, not include anyprovision of the order itself, and as the Amending Order was to beread as one with the Principal Order, sub-clause (10) of the PrincipalOrder could not be said to be suspended by the making of theregulation under the Amending Order. I am unable to accept this
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1920.
Da SamfayoJ.
Thomaezv. Saibo
contention. The Principal Order was in operation ever since itwas proclaimed in August, 1914, and the fact that the AmendingOrder was to be read as one with it did not make sub-clause (10) anythe less a law in operation at the time of the making of the regulation.
For these reasons 1 am of opinion that Regulation 1 of theDefence of the Colony Regulations, 1919, is not ultra vires, and thatthe order of the Food Controller for breach of which the accusedhas been prosecuted, is valid and operative.
Loos A.J.—
This case is one of several which are before this Court in whicha point of law of considerable importance and some interest israised, viz., the validity of a regulation which purports to havebeen made by the Governor under the powers conferred on him byclause 3 (1) (a) of the Order in Council dated March 21, 1916, whichamends the Order in Council dated October 26, 1896, and is to beconstrued and read as one with the latter order in connection withthe fixing of a maximum price at which articles of food may be sold.
The clause in question empowers the Governor so make regula-tions generally for securing the public safety and the defence of theColony, and in particular with regard to certain specific matters setout in the clause, and by sub-clause (c) thereof provides that anyprovision of any law of the Colony which may be inconsistent withany regulation so made by the Governor shall be suspended and ofno effect during the. continuance of such regulation.
It is not disputed that the widest powers of making regulationshave been conferred on the Governor by the Order in Council ofMarch 21, 1916, for securing the public safety and the defence ofthe Colony, nor is it seriously disputed, I .think, that those powerswould have covered the making of the regulation in question; butit is contended, and that appears to be the main contention for thedefence that so long as clause 3 (10) in the Order in Council ofOctober 26, 1896, remains in force, it is only the Governor himselfwho can prescribe the maximum price for which any article of foodmay be sold by retail; that the only method in which it can beprescribed is by Proclamation; and that the only penalty for abreach is a fine not exceeding £5, or imprisonment for a term notexceeding three months.
The regulation made by the Governor delegates the fixing of themaximum price to the Food Controller, and by notification, andprovides a penalty of a fine not exceeding Rs. 1,000 or imprisonmentfor a term not exceeding six months, or of both fine and imprison-ment, and it is also argued that it cannot have been intended, andthat it is unreasonable to suppose, that the Order in Council ofMarch 21, 1916, intended to confer on the Governor power to makea regulation whereby the penalty for a breach of an order made by
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the Food Controller appointed by the Governor is greatly in excessof that for a breach of a Proclamation made by the Governorhimself.
So far as that contention is concerned, it is only necessary to referto clause 3 (1) (c) in the Order of Council of March. 21, 1916, alreadyreferred to, which suspends any provision of any law of the Colonywhich may be inconsistent with any regulation made under thatOrder in Council during the continuance of such regulation.
It is argued, however, that the provisions of clause 3 (1) (o) wouldonly apply to a regulation which was not itself ultra vires, and thatit is not competent to the Governor to make a regulation which over-rides a direct provision in the Order of Council itself enacting thathe shall prescribe the maximum price at which, any article of foodshall be . sold by retail, the procedure to be adopted, and the penaltyfor a breach.
It appears to me that in interpreting the powers conferred by theOrder in Council of March 21, 1916, it is necessary to take intoconsideration the conditions prevailing at the time of the makingof the Order in Council, and the objects intended to be attained bymaking it.
In March, 1916, the great war had been in progress for consider-ably over a year, there was the greatest uncertainty as to what itsduration would be, and the British Empire was undoubtedly, con-sidered to be in the gravest danger, and it was thought necessaryto confer oh His Majesty the King an unfettered freedom to takesuch action as was regarded to be requisite for the public safety andthe defence of the realm immediately, without the delay consequenton legislation by Parliament; in fact, to confer on the King power tolegislate in such manner as he thought proper.
Those same powers have been conferred by His Majesty on theGovernor for the same purpose and reason, viz., for securing thepublic safety and the defence of the Colony; and the intention and-object of the Order in Council of March 21, 1916, was to confer onthe Governor similar power of legislating through the medium ofregulations to be made under that Order, and such regulationsmust therefore be given effect to in the same way as legislativeenactments.
That Order in Council empowers the Governor, for the purposeof securing the public safety and the defence of the Colony, to make-regulations for the exercise of much greater powers than any alreadypossessed by him, and those powers cannot be interpreted as havingbeen in any way restricted by any existing provision of law. Thegreater powers must include the less, and the fact that clause 8 (10)of the Order in Council of October 26, 1896, would appear to confercertain powers on the Governor cannot, in view of the Order inCouncil of March 21, 1916, preclude the exercise by the Governorof the greater powers conferred on him by the later Order, and.
1980.
Loos A. J.
Thomtmv, Saibo
( 428 )
1980.
Loos A. J.
Thomtm9. Baibo
therefore, .in my opinion, clause 8 (10) of the former Order in Councilcannot affect the validity of a regulation made under the later Orderin Council.
If clause 3 (10) is not inconsistent with the regulation now in(Question, the regulation is innocuous, and if it is inconsistent, thenit is to be regarded as suspended and of no effect during the con-tinuance of the regulation in terms of clause 3 (1) (c) of the Orderin Council of March 21, 1916.
For the above reasons I would hold that the regulation is notultra vires.