plaintiff, i.e., that in any event other provisions of s. 4 of the Act of 1824 are inconsistent with the Constitution, Mr. Justice McWilliam said that he was not concerned to decide such issues in this case. In the result, he made an order2 declaring that the entire of the questioned provision was inconsistent with the Constitution and that, accordingly, it did not have any force or effect after the date of the coming into operation of the Constitution. That declaration ought to have had the effect of invalidating only the two convictions for loitering with intent. However, it appears from the order which was made that certiorari was granted in respect of an order of the District Court of the 2nd July, 1976, in respect of one offence of loitering and an order of the Circuit Court made on the 9th December, 1975, confirming convictions for both loitering with intent and for being in possession of housebreaking implements.
An appeal has been brought by the defendants from the decision and judgment of Mr. Justice McWilliam. The appeal is based on two grounds. In the first place it is contended that the learned High Court judge was wrong in holding that the questioned provision was inconsistent with the Constitution. In the second place, and alternatively, it is argued that his declaration should have been confined to such portions and features of the questioned provision as were so inconsistent, thus leaving the remainder unaffected and in operation as a law. A notice to vary has been served by the plaintiff in which he contends that the learned trial judge should have declared that the entire of the impugned provisions is inconsistent with the Constitution and, on that account, that the impugned provisions are of no force and effect.
I agree with the conclusion reached by Mr. Justice McWilliam that the questioned provision is inconsistent with the Constitution in the respects which he stated. Apart from being repelled by the class-conscious and un-Christian philosophy which inspired such legislation, I regard the inconsistency which he indicated as being so clear that I will merely say that, in my view, he was right and for the reasons he gave. In my view, he was also right in confining his decision to the questioned provision and in not pronouncing on other parts of s. 4 of the Act of 1824. Having been convicted, the plaintiff had an interest and a locus standi to complain in relation to the statutory provisions under which he had been convicted. This, in my view, he has done successfully in relation to at least one of the loitering offences. However, I cannot see that any inconsistency with the Constitution was, or could be, suggested in relation to the provision creating the offence of being in possession of housebreaking implements with a felonious intent. As Mr. 2
1 1 See pp. 254, 262, post.
2 2 See p. 244, ante.
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