time of peace had long since been swept away; that the Powers exercised by the Crown in relation to the dis- position and use of the Army in time of peace at the present day are purely statutory powers; and that the Crown has a statutory duty to exercise those powers whenever it considers they ought properly to be exer- cised, and cannot therefore in the absence of express statutory authority legally demand any payment as a con- àition of such exercise.
In support of the proposition that it is illegal for the Crown or any other body or person invested by statute with discretionary powers to exact money colore officii, Sir Leslie Scott relied mainly on the following cases: Morgan v. Falmer (2. Barnewall & Crosswell, page 729) where it was held that the Mayor of Yarmouth,
who in his character of Mayor was one of the Justices of the Peace in and for the borough, had no right to demand a sum of money for granting the renewal of the annual licence of a publican: Attorney-General v. Wilts United Dairies Limited (27. Times Law Reports, page 884, affirmed by the House of Lords, 91. Law Journal, n.s. K.B., page 897, where it was held that the Food Con- troller had no power to impose as a condition of the grant of a licence to purchase milz in a certain area a charge of 2d. per gallon payable to him by the purchaser: and Brocklebank v. The King (1925, 1. K.B., page 52) where it was held that the Shipping Controller had no power to impose as a condition of the grant of a licence to sell a ship to a foreign firm the payment to the Ministry of Shipping of a percentage of the purchase money.
The basis of the decisions in the two last- mentioned cases was that the demand of payment made by the Crown as a condition of granting a licence amounted to the levying of money for the use of the Crown with- out grant of Parliament contrary to the Bills of Rights and was therefore illegal. Lord Buckmaster in the Wilts United Dairies case (91. Law Journal n.s. K.B. at page 900 says: "However the character of this payment may be clothed by asking your Lordships to consider the necessity for its imposition in the end it must remain a payment which certain classes of people were called upon to make for the purpose of exercising certain privileges and the result is that the money so raised can only be described as a tax the levying of which can never be im- posed upon subjects of this country by anything except plain and direct statutory means.
TI
The question whether the principle upon which these cases were decided applies to the facts of the present case depends entirely upon the nature and extent of the discretionary powers admittedly exercisable and exer- cised by the Crown in relation to the disposal and use of the Army in time of peace. As to the nature of these powers Sir Leslie Scott has been at great pains to dem- onstrate that they are purely statutory, for which pur- pose he has placed before the Court a short historical survey of the position occupied by the Crown in relation to the royal land Forces from the Conquest to the present time, culled from various well-known writers.
21
An admirable historical account of the Army in a compendious form is to be found in the Manual of Military Law published by the War Office (particularly in Chapter II dealing with the history of military law written by Lord Thring, and in Chapter IX. dealing with the history of the military Forces of the Crown written by Sir H. Jenkyns from which source I have taken most of the historical facts to which I am about to refer.
10.