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paid for the possession or use of the premises." Section 34 authorises the officers of the Ordnance to take proceedings in their statutory name in regard to lands vested in them, with a saving of the legal rights, privileges, and prerogatives of the Crown in reference to such proceedings, but the Act contains no further express reference to or saving of the royal prerogative. So matters stood until the outbreak of the war and the passing of the Defence of the Realm Acts of 1914. There was, as it seems to me, an obvious inconvenience and danger, having regard to modern conditions of warfare, and in particular to the suddenness with which an attack upon our shores can now be made, in the restrictions and conditions by the Defence Act, 1842, imposed upon the compulsory taking possession of land, and there was every reason why these restrictions and conditions should be removed, so that possession might at once be taken without the necessity of observing any preliminary formalities or fulfilling the conditions previously imposed on the exercise of compulsion. These, considerations, however, have no application to the provisions as to the ascertainment and payment of compensation; provided possession can be had at once the question of compensation can be settled at leisure without danger to the public safety. Under these circumstances the Defence of the Realm Consoli- dation Act, 1914, was passed on the 27th November 1914. It repealed two previous Acts passed for the same purpose in August 1914, with a provision (section 2 (2)) that nothing in that repeal should affect any Orders in Council made under those Acts, and all such Orders in Council should, until altered or revoked by an Order in Council under the Consolidation Act, continue in force and have effect as if made under that Act. The Act declared (section 1 (i)) that His Majesty in Council has power, during the continuance of the present war, to issue regulations for securing the public safety and the defence of the Realm, and as to the powers and duties for that purpose of the Admiralty and the Army Council and of the members of His Majesty's forces and other persons acting on his behalf. It was enacted by subsection 2 that any such regulations might provide for the suspension of any restrictions on the acquisition or user of land under (amongst other statutes) the Defence Act, 1812. There is no reference in the Act I am now dealing with to the taking possession of land, and, as a matter of construction, I should come to the conclusion that the object was not to confer power to do this, but to recognise and rely on the power existing under the Defence Act, 1842, at the same time enabling the Crown to make the process of putting it in force easier and more speedy.
C
..
On the 28th November 1914 certain Regulations under the Act were made by Order in Council. Regulation No. 2, so far as it is material, is as follows: "It shall be lawful for the competent naval or military authority and any person duly authorised by him, where, for the purpose of securing the public safety or the defence of the realm, it is necessary so to do, (b) to take possession of any buildings, (d) to do any other act involving "interference with private rights of property which is necessary for the
purpose aforesaid.'
The Regulations contain no express provision for the suspension of any restrictions in the acquisition or user of land under the Defence Act, 1842, nor any provision for compensation for acts done under the powers conferred by Regulation 2. There are references to compensation in regard to other matters, particularly in Regulation 28., relating to the taking possession of war material, food, and certain other articles, and the same Regulation mentions "the tribunal by which claims "for compensation under these Regulations are, in the absence of any express provision to the contrary, determined." I have, however, failed to discover in the Regulations any provision constituting or identifying this tribunal. Unless, however, the provisions as to the ascertainment of
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compensation contained in the Defence Act, 1842, are suspended, there would, in relation to land be express provisions to the contrary, and this compensation would fall to be determined as provided for by the last- mentioned Act, and it would be unnecessary to inquire further as to what is meant by the tribunal referred to in Regulation 2 B. The competent naval or military authority is defined by Regulation 62, and may be any commissioned officer not below the rank of Lieutenant Commander in the Navy or Field Officer in the Army.
The true result of this legislation appears to me to be that the Defence Act, 1812, the Acts of 1904, and the Regulations must be read together, and that the power to require possession is still derived from the Defence Act, 1812, but its exercise is regulated by the Act of 1914 and the Regula- tions. It this be so, then unless the Act of 1914 and the Regulations suspend the provision for compensation contained in the Defence Act, 1812, that provision would remain in force and be applicable in the present case.
I must now return to the consideration of In re a Petition of Right. The matters actually decided in that case were first that the Crown has power under the prerogative to take possession of and to hold and use without paying compensation such premises as were in that case in question, viz., an aerodrome on the want of actual military inpoftance in providing for the defence of the Realm and, secondly, that the Defence Act of 1842, and the Defence of the Realm Consolidation Act, 1914, and the Regulations, are separate and independent legislative enactments, the first of which is not applicable in a national emergency such as in fact existed, and for which the second alone provided.
As to the first point the present case is, in my opinion, distinguishable first by reason of the essentially different nature of the premises of which possession is taken, and, secondly, by reason of the admission of the Crown that where, as is, in my opinion, the case here, complete and sufficient statutory powers are conferred by the prerogative is merged therein. .
As to the second, a new point not raised In re a Petition of Right was taken before us, viz., that the two enactments are not separate legislative enactments but that they must be read together, the power of obtaining possession being derived from the earlier of the two, the officers authorised to act being appointed by, and the inconvenient and dangerous restrictions being suspended by the later. This view, which I am satisfied is the correct one, disposes of the difficulties which led the Court to hold that the Defence Act, 1812 was not applicable to the existing circumstances, and not having been then presented to or considered by the Court may, in my opinion, be acted upon in this case notwithstanding the previous decision.
Then remains the question as to whether the provision for compensa- tion, as well as the provisions affecting the power to take possession contained in the Defence Act, 1812, are suspended by the recent statute. On this point all three members of the Court (Lord Justice Pickford with considerable hesitation, expressed the view that they were so suspended. Having regard, however, to the view expressed as to the non-applicability of the Defence Act, 1842, this point was not necessary to the decision and the view so expressed was therefore obiter. I do not hesitate to say that though I expressed that view I am now satisfied, after the further argument we have heard, and on the further materials we now possess, showing the course of legislation and practice in time of national danger, that such view was not correct. The question is one of construction, and the circumstances under which the Act was passed must be taken into account. These circumstances amply justify the view that Parliament intended to make the taking possession of land as easy and rapid as possible, but I fail to see how they lead to the conclusion that it intended also to deprive the subject of the right to compensation which had always been recognised even in times
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