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Decisions of the Superior Courts of New South Wales, 1788-1899

Campbell and Others v. Rossi [1828] NSWSupC 1

customs duties - tobacco - taxation, power to impose - Governors' law making powers

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 31 December 1828

Source: Australian, 2 January 1829[1 ]


Important commercial case.

Commerce v. customs, or

Campbell and Others agt. Rossi.

The Honorable the Chief Justice and his two learned colleagues Mr. Judge Stephen and Mr. Judge Dowling sat in banco on Wednesday, to hear arguments on the  above highly interesting and important case, which was the sequel of an action of trover to recover a sum of 1300l. for tobacco detained by Mr. Rossi, the defendant, as acting Collector and Comptroller of Customs, tried before Mr. Justice Dowling and Messrs Jones and Spark assessors, on the 8th of December last, when by consent of counsel engaged in the case - Doctor Wardell and Mr. Wentworth being for the plaintiff, and the Solicitor General for the defendant, it was agreed that the assessors should find a special verdict for the former, of 65l subject to the opinion of the Court on a point of law.

Doctor Wardell with Mr. Wentworth, now appeared in support of the rule.  The tobacco, the subject of this action, the learned Counsel said was imported into the Colony on the 22d of August, 1828, per the Nimrod.  On the importation taking place, an official correspondence of the 25th and 26th of August last ensued betwixt the plaintiffs and the Colonial Secretary, and conformable to a notice from the Secretary the tobacco was removed to the plaintiffs' private store; and according to mutual understanding, the key of the store was given into the defendant's possession and a bond duly executed.  It was admitted on the part of the defendant that he had possession of the key and tobacco before this action was brought on.  A sum of 65l. was subsequently tendered defendant, which he refused to accept, alleging that such sum would be paying only a duty in the proportion of 1s. in the 1b. weight of tobacco drawn out of bond; whereas by a recent Proclamation or Order in Council, a duty of 2s. on each said pound of tobacco was demandable.  There was a clause in the Proclamation that ``on all tobacco, not the growth of Van Diemen's Land or New South Wales, or its dependencies, a duty of one shilling per pound weight shall attach on importation forthwith."  By a subsequent Proclamation of the year 1828, there was a clause enforcing on all unmanufactured tobacco imported into the Colony a duty of one shilling and sixpence per 1b., and on all manufactured tobacco a duty of two shillings per 1b.; and then the Proclamation went on to order and direct these several rates on tobacco to be levied from and after the date of that his Excellency's Proclamation - whether the tobacco were deposited in a warehouse or the Customs

House, upon which no duty had theretofore been paid.

The provisions of the bond were, that the parties named therein covenanted and agreed to become responsible for the duty on 72,328lbs. of tobacco net weight, which the plaintiffs had been permitted to lodge in their own private store, instead of the King's Bonded Store, on an understanding that the Collector of Excise should at all times be permitted to inspect the store.  Upon the finding of the Assessors two questions were framed; first, whether a duty of one shilling per 1b. should attach to this tobacco, by an Act in Council of the 25th of Oct., 1825, of Sir Thomas Brisbane; or a duty of two shillings, in pursuance of a subsequent Act of Council, passed during the present administration.

The terms of the bond were of course material in this question, and the case seemed to resolve itself into two parts - a general, and next a particular question.  The general question was, whether there existed any authority in the Governor of this Colony to impose a duty on tobacco already imported into the Colony.  The particular question related to the bond itself.  Then if the Governor was empowered to impose any duty at all, it must be by some power conferred by the legislature at home, i.e. by an Act of Parliament.  That authority was given by the Act 3 Geo. 4, ch. 96, sec. 2, giving a power to the Governor of the Colony for the time being, to impose a duty, not exceeding a sum of four shillings on every pound weight of tobacco.  Had the Act of Parliament stopped there, it would have been clear that the Governor would not have been able to make any alteration in the rate of duty, but the third clause in the same Act observes, ``it shall be lawful for the Governor for the time being, by his Proclamation or Order, to discontinue or reduce any such rates or duties as occasion may require, and to levy for the said duties, provided always that it shall not be lawful for the Governor to raise or levy a duty exceeding four shillings, on each pound weight of tobacco, on importation into the Colony" - that therefore shewed the intention of the legislature to control his Acts, and at the same time shewed that they were perfectly cognizant that the Governor could exercise no authority but what was given by the legislature, without the existence of the 3d clause.  Throughout this Act of Parliament there was nothing to be found in the nature of authority delegated to the Governor to impose a duty on tobacco at any time, except for the purpose of attaching such a duty as may be imposed, until after the date of the Proclamation.  - The word importation had been already legally defined by that Court in a case of Piper v. Raine and Ramsay, and a more recent case of ---- v. T. H. James.

Importation, the learned Counsel contended, considered to take place on a vessel dropping anchor in port, and coming into port with an intention to break bulk; and the Act of Parliament iu [sic] such case says, the duty shall be leviable on importation, and not after the tobacco has been imported into the Colony - therefore the authority of the Governor is confined to that Act which exists; and, as a matter of course, when the Legislature interferes, to a charge of duty.  The learned Counsel had also to contend, that an actual payment of the duty, under the first Proclamation, had been made; for it had been held that a promissory note was payment of a demand; and that it extinguished the debt for which it was given.  It could never be said that a bill of exchange should be given and accepted by a party, and that party should at the same time be allowed to recur to the right of property for which the bill was given.  Could it then be held, the learned Counsel would ask, that the Government was the only party in whom no dependence can be placed when a bond was in existence, was Government the only party not to be bound by that bond?

In this bond which the plaintiff had entered into, the plainest terms were  specified.  It must have been evident to the Government, that these new duties would shortly be levied.  How easy would it have been to make the part of the bond; and say, if these duties shall be lessened or encreased, you shall have the advantage either way.

In conclusion, the learned Counsel contended that the verdict must be confirmed, because the Governor had not the power of making a retro-active Proclamation; and that if even the Governor had, the Government were precluded, from the terms of the special bond, from demanding more than one shilling.

Mr. Wentworth followed up these arguments briefly.

The Attorney and Solicitor-General argued on the other side, contending that, as far as regarded expediency and policy, with regard to the interpretation of the word ``importation," it was to be construed in that strict sense used by the opposing Counsel, but should be understood in its liberal and popular sense.  That this tobacco was virtually in the bonded stores, and should be considered as subject to contingent laws, it was in abeyance.  The learned gentlemen also denied that the subsequent Proclamation had a retro-active effect - the tobacco was to be considered intransitu, and chargable with the current duty, whenever taken out of bond.

The Court deferred giving judgement on the arguments, until ten o'clock next day.[2 ]



[1 ] This is part of the tobacco litigation, on which see Raine and Ramsay v Piper, 1825; Raine and Ramsay v. Balcombe, 1827; Raine v. James, 1829.

Tobacco formed a significant proportion of the colony's receipts.  In 1830, over £9000 was received for tobacco duties, almost ten per cent of the total government income: Australian, 9 April 1831.

On 22 February 1830, the judges wrote to Governor Darling as follows, in reply to his letter of 16 February 1830 (Chief Justices' Letter Book, Archives Office of New South Wales, pp 248-250):

"We have had the honor of receiving Your Excellency's Letter of the 15th instant requesting our opinion whether it us necessary to the legal levying of Duties on Spirits, Tobacco, x ca [sic], at present levied by virtue of the Governor's Proclamation under the Authority of Statutes 59th Geo 3 C 114 and 3rd Geo 4 C 96, that an Act should be passed by the Local Legislature, authorising the same, or whether the authority to levy the said Duties by Proclamation issued previous to the existence of the present Legislative Council, is not virtually acknowledged by the extract quoted from the 27th Section of the Statute 9 Geo 4. C. 83.

"Having fully considered this matter we are of Opinion, first, that it is necessary to the legal levying of the said Duties that an Act should be passed by the Local Legislature, authorising the same; and secondly, that the authority to levy the said duties by Proclamation issued previous to the Existence of the present legislative Council is not recognised with sufficient legal certainty to dispense with the necessity of Local Ordinance upon the subject.

"We have come to this conclusion for the following reasons: -

"The Statute 59th Geo 3d C 114 enacts that from the passing of that until the first January 1821 it shall b be lawful for the Governor to order and direct the levy of any rate or duty, which may have been imposed, or collected or levied, in the colony,  previous to the passing of that Act; and provides further, that the Governor may order the discontinuance of any such rate or duty.

"The Statute 3 Geo 4 C 96 continues the 59th Geo 3d c. 114 until the first January 1824 and makes additional provision - the 2nd Section authorises the Governor to impose, by proclamation, certain duties on imported Spirits, Tobacco x ca[sic]. The 3d Section authorised the Governor the like means, to discontinue to reduce the said Duties, and, if necessary, again to revive the same; and restrains him from levying or raising any higher rate of duty than is authorised by that Act; and the fourth Section Authorises him to make rules and regulations for the levying and enforcing the due payment of such duties.

"The Statute 9. Geo. 4. C. 83. S. 26 makes the 59. Geo. 3 and 3. Geo. 4 perpetual without any alteration whatever in the provisions themselves; but by Sec 27 especially provides that all the powers and authorities vested by the last mentioned Acts, or either of them in the Governor, shall henceforward be vested in and exercised by the Governor Acting with the Advice and Consent of the Legislative Council of the Colony.  Stopping here, it is clear that the effect of this Enactment is to supersede all the powers before vested in the Governor alone, by the 29. Geo. 3 and 3. Geo. 4 and to restrain [p. 249] the future exercise of such powers to the Governor acting with the advice and consent of the Legislative Council, there were, first, the power of directing the Levy of any rate or duty,  which had been imposed or usually collected or levied in the Colony previously; and secondly, the power of imposing duties on certain goods imported into the Colony, not exceeding a limited amount.

"The same section then proceeds to enact, 'and that the produce of the several duties imposed and made payable under and by virtue of the said acts or either of them, or under and by virtue of this Act, shall be applied in such manner and to such purposed as the Governor and Council may from time to time by any such Law or ordinance appoint.'

"Taking the whole of this 27th Section together and cousteming [?] one past part with another, the question is whether the Governor alone, may now continue to direct the levy of duties which had been imposed or usually collected before the 59. Geo. 3 and also the duties imposed by virtue of the 3. Geo. 4 without the advice and consent of the Legislative Council?

"Whatever may be the true Solution of this question we think it is one upon which a difference of opinion may be fairly maintained; and being informed by your Excellency, that doubts have, in fact, arisen with respect to the legal interpretation of the 27th  Section (without offering any opinion of the doubt suggested) that so important a subject all grounds for mooting such a matter ought to be removed by resorting to the local legislature.

"We are clearly of opinion that no light is thrown upon the matter by the Clause to which your Excellency's letter referred - since any ordinance of the Local Legislature for imposing of levying duties upon any of the Articles specified in the 59th Geo 3 or 3. Geo. 4 must be passed in conformity with those Acts, and must be subordinate to their provisions, & consequently, any duties so informed and levied by the  local Legislature, would be imposed and levied under or by virtue of one or other of the said acts of Parliament.

"It appears to us from the  27th Section of the 9th Geo. 4. C. 83 that Parliament intends to delegate the powers of levying under the 59. Geo. 3 and of imposing under the 3. Geo. 4 on the Governor and Council , and do deprive the Governor of all authority to act alone under these acts. The power thus given to the Governor and Council , must be exercised sub modo that is in the manner pointed out by the said two acts respectively and in no other or different manner (1 Comp R 29)  Now it may be fairly argued, that as this power has been delegated to the Governor and Council, ``henceforward" that is from, and after the Act coming into operation, the continuing to levy the duties imposed before the 59. Geo. 3 the levying of duties imposed before the 3. Geo. 4 by the Authority of the Governor acting alone, cannot be consistent with [p. 250] the intention of the Legislature; for had the legislature intended that all orders or proclamations issued by the  Governor acting alone by virtue of the 59. Geo. 3 and 3. Geo. 4 should continue to be valid and binding, notwithstanding the 9. Geo. C. 83 it is cut reasonable to presume that some express provision to that effect  would have been introduced into the 27th section.

"Without however, offering any decisive opinion upon a point of so debatable a nature, we are of opinion, that for more abundant caution, it is necessary to the legal levying of the duties in question, that an Act should be passed by the Local Legislature, authorising the same, and that the authority to levy the said duties by Proclamation issued previous to the existence of the present Legislative Council, is not acknowledged with sufficient legal certainty by the 27th  Section 9 Geo 4 c 83 to prevent serious doubts."

Governor Darling sent this to Murray in London on 22 April 1830: Historical Records of Australia, Series 1, Vol. 15, p. 436.  See also Forbes Papers, Mitchell Library, A 1206 (Reel CY 539), pp 739-49.

[2 ] This is included because it is part of the important tobacco litigation, and because of the nature of the arguments of counsel.  There is no record of the result of the case.

Published by the Division of Law, Macquarie University