Queensland Electricity Commission v Commonwealth

159 CLR 192
61 ALR 1

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(Judgment by: Gibbs CJ)

Between: Queensland Electricity Commission
And: Commonwealth

Court:

Judges:
Gibbs CJMason J
Wilson J
Brennan J
Deane J
Dawson J

Subject References:
Constitutional Law (Cth)

Hearing date: 19-20 June 1985
Judgment date: 5 September 1985

Adelaide (heard in Canberra)

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Judgment by:
Gibbs CJ

The question for decision on the demurrers in the two actions now before the Court is whether the Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth) ("the Act") is a valid law of the Commonwealth.

The Act came into effect on 31 May 1985. It is incorporated, and to be read as one, with the Conciliation and Arbitration Act 1904 (Cth), as amended, ("the principal Act") and has effect notwithstanding anything in that Act: ss 3, 5 of the Act. Unlike the principal Act, the Act does not apply generally to industrial disputes to which Commonwealth legislative power extends. Section 6(1) of the Act provides that the Act applies to a particular dispute, namely "the industrial dispute between the Electrical Trades Union of Australia and certain authorities that was found to exist by a Commissioner on 18 April 1985".

That dispute is the subject of other proceedings in this Court; it arose when the Electrical Trades Union of Australia served a log of claims on the Queensland Electricity Commission and the seven Electricity Boards who are the plaintiffs in one of the matters now before the Court (No. B28 of 1985) ("the Electricity Boards") and on electricity authorities in other States and Territories, and there was a failure to accede to the demands contained in the log. The finding that that dispute existed was made in the Australian Conciliation and Arbitration Commission ("the Commission") by Mr Commissioner Brown; the employers found to be parties to the dispute included the Queensland Electricity Commission and the Electricity Boards but did not include any other authority or person in Queensland.

By s 6(2), the Act is also applied, subject to certain qualifications introduced by sub-ss.(3), (4) and (5) of s 6, to "any industrial dispute that has, whether before or after the commencement of this Act, been found by the Commission to exist between -

(a)

any organization of employees that is declared by the regulations to be an organization of employees to which this sub-section applies; and

(b)

one or more electricity authorities,

if the industrial dispute could result in the making of an award that would be binding on an electricity authority of Queensland and would establish terms or conditions of employment of employees of that authority."

However, the Act does not apply to an industrial dispute referred to in s 6(2) between an organization of employees and one or more electricity authorities if an award made in settlement of the dispute would establish terms or conditions of employment of employees of an electricity authority of Queensland, being employees who are members of, or are eligible for membership of, that organization, and there is already an award in operation establishing any terms or conditions of employment of any of those employees (s 6(3)), unless there is in force a proclamation declaring that the Act applies to that industrial dispute: s 6(4). The expressions "electricity industry", "authority" and "electricity authority" are defined by s 4(1) which provides, inter alia, that in the Act:

"(b)

a reference to the electricity industry is a reference to the industry in Australia constituted by the generation and distribution of electrical power, or any part of that industry;

(c)

a reference to an authority includes a reference to the Government of a State or Territory and also includes a reference to any person or body of persons, whether incorporated or not, on whom or on which powers are conferred by a law of the Commonwealth, of a State or of a Territory; and

(d)

a reference to an electricity authority -

(i)

is a reference to an authority that is engaged in the electricity industry; and

(ii)

in the case of a reference to an electricity authority of Queensland - includes a reference to a person who is engaged to carry out work (otherwise than as an employee) in or in connection with the electricity industry for or on behalf of an authority engaged in that industry in Queensland, whether the person is engaged to carry out that work by that last-mentioned authority or by another person."

The application of the Act to persons described in par.(d)(ii) of the definition of "electricity authority" is modified by s 6(5), which provides:

"This Act applies by virtue of sub-section (2) to an industrial dispute between an organization of employees and a person referred to in sub-paragraph 4(1)(d)(ii) only in so far as the industrial dispute relates to work referred to in that sub-paragraph."

However, the Act has no present application to any dispute of the kind mentioned in s 6(2), since, so we were informed, no regulations have been made under s 10 of the Act, and accordingly there is no organization of employees to which s 6(2) applies. The Act at present applies only to the dispute mentioned in s 6(1). The Act ceases to be in force three years after its commencement, or earlier if an appropriate proclamation is made: s 11.

The Queensland Electricity Commission and the Electricity Boards are all "electricity authorities of Queensland" within the meaning of the Act. The Queensland Electricity Commission is a corporation sole constituted pursuant to s 9 of the Electricity Act 1976 (Q.), as amended ("the Electricity Act") and represents the Crown in right of the State of Queensland: s 9(3) of the Electricity Act. The Electricity Boards are bodies corporate constituted pursuant to ss 101-103 of the Electricity Act. It is expressly provided by s 102(2) of that Act that an Electricity Board does not represent the Crown. However, important powers, functions and duties - including the duty of supplying electricity to consumers within its area - are conferred on each Electricity Board (see s 129 of the Electricity Act) and other sections of the Act reveal that each Board acts substantially under governmental control - see particularly ss 36D, 64, 105, 118-119, 434-435 and 441 of the Electricity Act.

With certain exceptions, all electricity generated for distribution to consumers in Queensland is generated by the Queensland Electricity Commission, is distributed by the Queensland Electricity Commission to one or other of the Electricity Boards and is distributed by an Electricity Board to consumers in its area. The exceptions are stated in detail in the amended statements of claim. In some areas some electricity is supplied to the appropriate Electricity Board, under agreements made pursuant to s 67 or s 171 of the Electricity Act, by certain owners of generating plants - namely, in various areas, A.G. Raptis (Karumba) Pty. Ltd., various sugar mills, Mount Isa Mines Ltd., Consolidated Fertilizers Ltd. and the Brisbane City Council. The South-West Queensland Electricity Board is supplied with some electricity from the Electricity Commission of New South Wales pursuant to an agreement under s 36C of the Electricity Act. Under s 150 of the Electricity Act the Council of the Shire of Tenterfield in New South Wales and the Council of the North-West County District of New South Wales are constituted electricity authorities for the purposes of the Electricity Act and supply electricity to the areas of Queensland referred to in s 150. During the period of three years ended 30 June 1984 the Queensland Electricity Commission has always generated more than 97 per cent of the total electricity supplied to consumers in Queensland; each of the other bodies which generated electricity produced a very small proportion of the whole.

The provisions of the Electricity Act do not confer powers on the various owners of generating plants which supply electricity to the Electricity Boards pursuant to agreements made under s 67 or s 171 of that Act, and those owners are not "authorities" within the meaning of the Act. The New South Wales bodies which supply the Boards with electricity are "authorities" within the meaning of the Act, but they are of course not "electricity authorities of Queensland".

The actual industrial dispute to which the Act applies by virtue of s 6(1), and the industrial disputes to which it may possibly apply by virtue of s 6(2), have a common element - namely, that the dispute could result in the making of an award that would be binding on an electricity authority of Queensland and would establish terms or conditions of employment of employees of that authority. In other words, they are industrial disputes to which an electricity authority of Queensland is a party.

The Act has a three-fold operation in relation to the disputes to which it applies. First, the Commission is required to "endeavour in accordance with this Act to settle the industrial dispute as expeditiously as is appropriate having regard to all the circumstances": s 7. That section appears to have little or no practical importance since in any case the Commission is obliged to act expeditiously: see s 39(1) of the principal Act. Secondly, the Act limits the power of the Commission to dismiss or refrain from determining an industrial dispute. Section 8 of the Act provides as follows:

"(1)

The Commission does not, in relation to an industrial dispute to which this Act applies, have power, in so far as the industrial dispute exists between an organization of employees and one or more electricity authorities of Queensland, to dismiss a matter or part of a matter, or refrain from further hearing or from determining the industrial dispute, by reason that it appears to the Commission -

(a)

that the industrial dispute has been dealt with, is being dealt with or is proper to be dealt with by a State Industrial Authority of Queensland; or

(b)

that further proceedings are not necessary or desirable in the public interest.

(2)

Nothing in sub-section (1) prevents the Commission from limiting the application of an award that relates to employees of an electricity authority of Queensland to such employees, or such class or classes or group or groups of employees, as the Commission thinks appropriate having regard to the work that is, or could be, performed for that authority by members of the organization of employees involved in the industrial dispute and by members of other organizations of employees or of unions or other associations of employees registered under a law of Queensland."

The effect of s 8(1) of the Act is to remove from the Commission, in cases to which the Act applies, that is, in industrial disputes to which an electricity authority of Queensland is a party, much of the power which is given to it in relation to industrial disputes generally by s 41(1)(d) of the principal Act. Section 41(1) provides that the Commission may, in relation to an industrial dispute, inter alia -

"(d)

dismiss a matter or part of a matter or refrain from further hearing or from determining the dispute or part of the dispute if it appears -

(i)

that the dispute or part is trivial;

(ii)

that the dispute or part has been dealt with, is being dealt with or is proper to be dealt with by a State Industrial Authority; or

(iii)

that further proceedings are not necessary or desirable in the public interest."

For example, the Commission would be bound to proceed to hear and to determine a dispute to which an electricity authority of Queensland was a party, even though the dispute was proper to be dealt with by a State Industrial Authority and further proceedings were not desirable in the public interest.

Thirdly, s 9 of the Act has the effect that subject to certain qualifications the powers of the Commission in relation to a dispute to which the Act applies must be exercised by a Full Bench. The section provides as follows:

"(1)

Subject to this section, any powers of the Commission in relation to -

(a)

an industrial dispute, being an industrial dispute to which this Act applies; or

(b)

an alleged industrial dispute where, if the industrial dispute is found to exist, this Act will apply to the industrial dispute,

shall, after the commencement of this Act, be exercised by a Full Bench.

(2)

Where proceedings before the Commission constituted otherwise than by a Full Bench are, by reason of sub-section (1), required to be dealt with by a Full Bench, the Full Bench may, subject to sub-section 30(4) of the Conciliation and Arbitration Act, have regard to any evidence given , and any arguments adduced, in any other proceedings (including proceedings that took place before the commencement of this Act).

(3)

Where proceedings in relation to an industrial dispute or an alleged industrial dispute are before a Full Bench by reason of sub-section (1), the Full Bench may direct any member of the Commission -

(a)

to inquire into any matter involved in the industrial dispute or alleged industrial dispute and to report to the Full Bench on that matter; or

(b)

to endeavour to settle the industrial dispute or a part of the industrial dispute by conciliation and to report to the Full Bench on the result of the endeavours.

(4)

A member of the Commission to whom a direction is given by a Full Bench under sub-section (3) in relation to an industrial dispute or a part of an industrial dispute has, for the purpose of complying with the direction, all the powers of the Commission or of a member of the Commission under the Conciliation and Arbitration Act other than the power to certify a memorandum, or make an award or order, under sub-section 28(1) of that Act and, for the purpose of the settlement of all or any of the matters in dispute, that last-mentioned sub-section has effect as if any reference in that sub-section to a member of the Commission were a reference to the Full Bench.

(5)

Where the member of the Commission to whom a direction is given under sub-section (3) in relation to an industrial dispute is a member of the Full Bench by which the direction was given, sub-section 22(2) of the Conciliation and Arbitration Act does not apply but, if -

(a)

the Full Bench proposes to exercise powers with respect to arbitration in relation to the industrial dispute;

(b)

a party to the arbitration proceedings objects to the member taking part in the exercise of those powers; and

(c)

the Full Bench as constituted without that member is satisfied that there are reasonable grounds for the objection,

the Full Bench shall direct that that member shall not take part in the exercise of those powers and, where such a direction is given, the President may appoint another member to the Full Bench in place of the first-mentioned member.

(6)

Where proceedings in relation to an industrial dispute are before a Full Bench by reason of sub-section (1) and the Full Bench is satisfied that it would be appropriate, in relation to the industrial dispute, to hear and determine so much of the industrial dispute as involves an electricity authority of Queensland or electricity authorities of Queensland separately from any other part of the industrial dispute, the Full Bench may make a declaration to that effect and, where such a declaration is made -

(a)

this section ceases to apply in relation to the part of the industrial dispute that involves employers other than electricity authorities of Queensland; and

(b)

the Commission as constituted under the Conciliation and Arbitration Act for the purposes of the part of the industrial dispute to which this section has so ceased to apply may, subject to sub-section 30(4) of the Conciliation and Arbitration Act, for the purpose of any proceedings in relation to that part of the industrial dispute, have regard to any evidence given, and any arguments adduced, before the declaration was made, in any proceedings in relation to the industrial dispute before the Commission as constituted under this section."

Normally a power of the Commission is exercised by a single member of the Commission (s 22(1) of the principal Act), although certain powers are exercisable only by a Full Bench (see particularly s 31(1) of the principal Act). By s 35(2) of the principal Act, an appeal lies to the Commission against awards (including orders) of a member of the Commission other than under s 28 of the principal Act (which deals with the certification of agreements and the making of orders by consent), but such an appeal does not lie "unless, in the opinion of the Commission, the matter is of such importance that, in the public interest, an appeal should lie": s 35(3) of the principal Act. The effect of s 9(1) of the Act is that an industrial dispute to which the Act applies which might otherwise be heard by a single member of the Commission must now (subject to s 9(3)) be heard by a Full Bench and that such advantages as may be thought to flow from the limited right of appeal given by s 35 of the principal Act are lost. Section 9(6) enables the Commission in effect to render the provisions of s 9 applicable only to that part of the dispute that involves electricity authorities of Queensland.

It may be thought that the effect of s 9 on the parties to an industrial dispute to which the Act applies is not particularly serious. On the other hand, the effect of s 8 deprives the parties to a dispute to which the Act applies of the right to invoke the exercise of a power which may well be regarded as salutary and valuable. But whatever may be thought of the practical effect of these provisions, there can be no doubt that they are aimed directly at the electricity authorities of Queensland, although they may incidentally affect other parties as well.

The ordinary meaning conveyed by the text of the Act is that the Act is intended to deal with industrial disputes which involve electricity authorities of Queensland, and that this is the meaning of the Act is confirmed by extrinsic material to which regard may be had under s 15AB of the Acts Interpretation Act 1901 (Cth), as amended. The speech made to the Senate by the Minister who moved that the Bill containing the provisions of the Act be read for a second time commenced by stating that "the dispute involving members of the Electrical Trades Union (E.T.U.) in Queensland and the Queensland Government, through the South East Queensland Electricity Board (SEQEB), has reached serious proportions". After discussing the nature and possible effects of the dispute the Minister said that "in these circumstances, the Federal Government has no option but to act, and to act decisively to bring this matter to resolution". Later, in his speech the Minister said:

"The Bill is not an amendment to the Conciliation and Arbitration Act. It is a discrete piece of legislation designed to facilitate the restoration of an ordered relationship between employing bodies in the Queensland electricity industry and the unions concerned. Honourable senators will note that the Bill contains a 'sunset clause'. So, it is a piece of legislation designed for this purpose only and should not be seen as having any wider implications for the system of prevention and settlement of industrial disputes in this country."

The Explanatory Memorandum furnished to the Members of the House of Representatives by the Minister before the provisions were enacted 0 contains further indications of an intention that the Act should apply only to industrial disputes involving electricity authorities of Queensland. As has been shown, that expression refers to the Queensland Electricity Commission and the Electricity Boards, but does not include the various owners of generating plants who supply some electricity to those Boards. It also includes the persons referred to in s 4(1)(d)(ii) of the Act, but only in so far as the industrial dispute relates to work performed in the State of Queensland. The extension of the meaning of "electricity authority" does no more than render the Act applicable to certain agents of the Queensland Electricity Commission or Electricity Boards, no doubt to prevent any evasion, intended or inadvertent, of the provisions of the Act.

It was submitted on behalf of the Commonwealth that the Act is not directed against the electricity authorities of Queensland, but simply makes provision for the prevention and settlement of disputes in a particular industry, and treats equally all the parties to those disputes, including any employers in the industry even though they may have no connexion with the Government of Queensland. What has already been said shows that this argument does not correctly describe the effect of the Act. In fact, the only Queensland employers who were parties to the dispute described in s 6(1) were the Queensland Electricity Commission and the Electricity Boards and there will be a dispute within s 6(2) only if an electricity authority of Queensland is a party to the dispute. The Act does not apply to a dispute in the electricity industry to which no electricity authority of Queensland is a party. Plainly the provisions of the Act are directed against the electricity authorities of Queensland.

I am prepared to assume that the provisions of the Act may be described as a law with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State" within the meaning of s 51(xxxv) of the Constitution. The words "industrial dispute" in s 6 of the Act have the meaning given to that expression by the definition in s 4(1) of the principal Act, which limits it to disputes (including, inter alia, threatened disputes) which extend beyond the limits of any one State. This Court has today held in the other proceedings to which reference has been made that the dispute in s 6(1) of the Act is genuine and extends beyond the limits of any one State. It is now settled that

"the Commission when seized of a dispute extending beyond the limits of one State may 'dispose of the dispute wholly or piecemeal as it thinks convenient', and that if the Commission effects a partial settlement of the dispute by making awards in respect of employers in all States but one, the dispute does not thereby lose its interstate character, nor the Commission its jurisdiction... ": Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) (1978) 140 CLR 615 , at p 619; Reg. v. Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 , at p 630.

Subject to what will be said hereunder, it would seem to follow that the Parliament may legislate to govern the manner in which the Commission may exercise its function of conciliation and arbitration when it is endeavouring to effect a partial settlement of an interstate dispute by dealing separately with that part of the dispute which concerns employers and employees in one State. However, it is unnecessary to pursue that question .

It is now clear in principle, and established by authority, that the powers granted by s 51 of the Constitution are subject to certain limitations derived from the federal nature of the Constitution. The purpose of the Constitution was to establish a Federation.

"The foundation of the Constitution is the conception of a central government and a number of State governments separately organized. The Constitution predicates their continued existence as independent entities": Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31 , at p 82.

The fundamental purpose of the Constitution, and its "very frame" (Melbourne Corporation v. The Commonwealth, at p 83), reveal an intention that the power of the Commonwealth to affect the States by its legislation must be subject to some limitation. The judgments in Melbourne Corporation v. The Commonwealth were fully examined in Victoria v. The Commonwealth (1971) 122 CLR 353 and the majority of the Court in the latter case (Menzies, Windeyer and Walsh JJ. and myself) held that what was decided in the earlier case was that although s 48 of the Banking Act 1945 (Cth) was, or might be, a law with respect to banking within s 51(xiii) of the Constitution, it was invalid because it exceeded the limits on the law-making power of the Commonwealth which must be implied in the Constitution.

It was recognized that it is not easy to formulate exhaustively and authoritatively the limitations that must be implied, and, indeed, it is undesirable to attempt to do so in the abstract. It is clear, however, that there are two distinct rules, each based on the same principle, but dealing separately with general and discriminatory laws. A general law, made within an enumerated power of the Commonwealth, will be invalid if it would prevent a State from continuing to exist and function as such. Clearly the Act is not a law of that description and it is unnecessary to consider further that aspect of the principle. A Commonwealth law will also be invalid if it discriminates against the States in the sense that it imposes some special burden or disability on them. In Melbourne Corporation v. The Commonwealth, Dixon J. said, at p 83:

"But, to my mind, the efficacy of the system logically demands that, unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorizing the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority."

He went on to say, at p 84, that s 48 of the Banking Act was "a law directly operating to deny to the States banking facilities open to others, and so to discriminate against the States or to impose a disability upon them". The nature of a law which infringes this limitation may be described in various ways; it may be said that it imposes "a special burden" on the States (Victoria v. The Commonwealth, at p 388), that it is "directed against" the States (Victoria v. The Commonwealth, at p 402), that it "singles out" the States or places "special burdens or disabilities" upon them (Victoria v. The Commonwealth, at pp 411-412) or that is is "a law aimed at (the) restriction or control" of the States (Victoria v. The Commonwealth, at p 424). Similar statements of the law appear in The Commonwealth v. Tasmania ("the Dams Case") (1983) 57 ALJR 450 , at pp 487, 492, 524-525, 543, 554; 46 ALR 625 , at pp 694, 703, 765-767, 801, 823.

Although laws which infringe the implied limitation are often described in the authorities as "discriminatory", it would be wrong to think that the word, when used in this context, is intended to suggest that it is not competent for the Parliament to make a distinction, even an adverse distinction, between various States. Obviously enough, laws may distinguish between the different needs of the various States. The laws forbidden by this principle are those which discriminate against all the States or any one of them by subjecting them or it to a burden or disability which is not imposed on persons generally, a law whose very object is to restrict, burden or control an activity of the States or of one of them. Further, notwithstanding the reference by Dixon J. in the passage cited from Melbourne Corporation v. The Commonwealth, at p 83, and elsewhere, to "the restriction or control of a State in the exercise of its executive authority", there is no reason to limit the doctrine to laws which interfere only with the executive power of a State. A Commonwealth law which is directed at the exercise by a State of any of its governmental powers - legislative, executive or judicial - will fall within the ban. Stephen J. recognized this when he said in Koowarta v. Bjelke-Petersen (1982) 153 CLR 168 , at p 216:

"There no doubt also exist limitations to be implied from the federal nature of the Constitution and which will serve to protect the structural integrity of the State components of the federal framework, State legislatures and State executives..."

The limitation prevents the Commonwealth from making laws directed at agencies of the States as well as at the States themselves; otherwise the principle would be a futility. There is simply no reason to hold that the agencies of the States, for this purpose, are restricted to agencies which represent the Crown or the State; the reason for the limitation is not to protect an exercise of the prerogative, but to protect the integrity of the States.

I have already said that the provisions of the Act are directed at the electricity authorities of Queensland; the Act singles them out for attention and subjects them to disabilities to which other employers are not subjected. The electricity authorities are agencies of the State of Queensland - they perform public functions, under the authority of legislation of the State, and are substantially controlled by the Government of the State in the performance of their functions. The fact that some other employers may incidentally be affected by the provisions of the Act does not mean that it does not fall within the implied limitation of Commonwealth power. In Melbourne Corporation v. The Commonwealth, at p 84, Dixon J., after describing the effect of s 48 of the Banking Act in words that I have already quoted, said:

"There is thus a law directly operating to deny to the States banking facilities open to others, and so to discriminate against the States or to impose a disability upon them. The circumstance that the primary prohibition is laid upon the banks and not upon the States does not appear to me to be a material distinction. It is just as effectual to deny to the States the use of the banks and that is its object."

In the present case the primary operation of the Act is in relation to the electricity authorities and the plain object of the Act is to subject the electricity authorities to its provisions.

As Dixon J. pointed out in Melbourne Corporation v. The Commonwealth, at p 83, the "content, context or subject matter" of a legislative power may reveal an intention to authorize the Commonwealth to make a law aimed at the restriction or control of the State. It is unnecessary to consider which of the powers conferred by s 51 might be exercised for that purpose.

There is, however, nothing in the content, context or subject matter of s 51(xxxv) that provides any indication of such an intention. A line of decisions, of which the Engineers' Case (1920) 28 CLR 129 and the Professional Engineers' Case (1959) 107 CLR 208 are notable examples, shows that the power given to the Parliament by s 51(xxxv) extends to the making of laws which bind the States as employers, but there is nothing in the words of par.(xxxv), or in the nature of the power which it confers, that suggests that it is intended that the Parliament should be entitled to make laws of the kind described in the paragraph but directed at a State and intended to place the State, as employer, in a position of disadvantage as compared with other employers. It is true that there were circumstances in the present case which apparently led the Parliament to consider that special action was necessary to resolve the dispute referred to in s 6(1) of the Act.

However, to leave it to the Parliament to decide that discrimination against a State is necessary to achieve the settlement of a particular industrial dispute would be to erode the whole principle established by the cases to which I have referred. The exception indicated by Dixon J. relates to the nature of the power or the provision conferring it and not to the circumstances of a particular case which might be thought to justify particular discriminatory treatment of a State. The limitation, although implied, is a part of the Constitution and it would be wrong to allow it to be nullified in any case in which the Parliament thought its operation to be inconvenient. Moreover, once it is seen that a law "singles out" a State for discriminatory treatment, the Court would not be justified in upholding the legislation on the ground that the interference with the State was of no great importance, except, possibly, in cases clearly de minimis . The integrity of a State could be destroyed as effectively by a succession of minor infringements as by one gross violation of the principle.

The purpose of the Act in the present case is to place the electricity authorities of Queensland, which are agencies of that State, under special disabilities. For that reason it is unconstitutional. I would overrule the demurrer.