maining in and attending, and being present at the said meeting of the Legislative Assembly, and at a subsequent meeting of the Legislative Assembly, to wit on the 23rd day of April 1884, both held in the Legislative Assembly Chamber aforesaid, to the damage, detriment, and loss of the said Adolphus George Taylor. 2. In the second count the plaintiff sued the defendant for that he, on the days and dates aforesaid, and at the place aforesaid, assaulted the said Adolphus George Taylor, and kept him for a long time from entering the said Legislative Assembly, whereby he has suffered pain of mind and in his good name and reputation, and has been otherwise greatly injured. PLEAS 2. And for a second plea the defendant, as to so much of the declaration as complains of a trespass alleged to have been committed upon the 23rd day of April 1884, says that before the alleged trespass the said Legislative Assembly had been sitting in a committee of the whole House for and in the despatch of the business of Parliament, that is to say, for the purpose of considering the supply to be granted to Her Majesty; and the plaintiff, as such member of the said Legislative Assembly, was then and there present. And the said committee of the whole House, having considered certain conduct of the plaintiff then committed before the said committee, passed a certain resolution relating to the plaintiff, and to his said conduct, which said resolution was in the words following, that is to say: "That Mr. Adolphus George Taylor, having been named by the chairman as having persistently and wilfully obstructed the business of the committee, be suspended from the service of the House." And the defendant says that the said conduct of the plaintiff and the said resolution were immediately reported to and brought under the notice of the said Assembly by the chairman of the said committee. And thereupon the said Assembly in Parliament assembled passed a resolution relating to the plaintiff and to the premises in the words following, that is to say :-"That Mr. A. G. Taylor be suspended from the service of the House." And afterwards, during the same session of Parliament, and while the said suspension still remained in force, the plaintiff entered the said Legislative Assembly Chamber while the said Assembly was 1884 TAYLOR V. BARTON. 1884 TAYLOR บ. BARTON. sitting for the despatch of the business of Parliament at the said meeting in the first count mentioned, and claimed the right to sit and serve as such member. And thereupon the defendant, as such Speaker as aforesaid, requested the plaintiff to withdraw from the said Chamber, which the plaintiff then refused to do, whereupon the defendant, acting under the authority of the said resolutions, and in order to enforce the same, directed the Sergeant-at-Arms of the said Assembly to remove the plaintiff from the said Chamber; and the said Sergeant-at-Arms then gently laid his hand upon the plaintiff and removed him from the said Chamber, using no more force than was necessary in that behalf, which is the alleged trespass. 3. And for a third plea the defendant as to so much of the declaration as complains of a trespass alleged to have been committed upon the 23rd day of April 1884, says that before and at the time of the alleged trespass, one of the standing orders of the said Legislative Assembly, being the first of the said orders regulating the practice and conduct of business of the said Assembly, was in the words following, that is to say:-"In all cases not specially provided for hereinafter, or by sessional or other orders, resort shall be had to the rules, forms, and usages of the Imperial Parliament, which shall be followed so far as the same can be applied to the proceedings of this House." And after the passing of the said order, and while the same was in force, and before the alleged trespass, a certain rule of the Imperial Parliament within the meaning of the said order was passed and came into force as a rule of the said Imperial Parliament, and continued to be in force at the time of the alleged trespass, which rule is in the words following, that is to say:— "That whenever any member shall have been named by the Speaker or by the chairman of a committee of the whole House, immediately after the commission of the offence of disregarding the authority of the Chair, or of abusing the rules of the House by persistently and wilfully obstructing the business of the House or otherwise, then, if the offence has been committed by such member in the House, the Speaker shall forthwith put the question on a motion being made, no amendment, adjournment, or debate being allowed-'That such member be suspended from the service of the House;' and if the offence has been committed in a committee of the whole House, the chairman shall, upon a motion being made, put the same question in a similar way, and, if the motion is carried, shall forthwith suspend the proceedings of the committee and report the circumstances to the House, and the Speaker shall thereupon put the same question, without amendment, adjournment, or debate, as if the offence had been committed in the House itself. If any member be suspended under this order, his suspension on the first occasion shall continue for one week, on the second occasion for a fortnight, and on the third or any subsequent occasion for a month; provided always that suspension from the service of the House shall not exempt the member so suspended from service on any committee for the consideration of a private bill to which he may have been appointed before his suspension; provided also that not more than one member shall be named at the same time, unless several members present together have jointly disregarded the authority of the Chair; provided always that nothing in this resolution shall be taken to deprive the House of the power of proceeding against any member according to ancient usages." And the defendant says that after the passing and coming into force of the said rule of the said Imperial Parliament, the plaintiff, being present at a sitting of a committee of the whole of the said Assembly, then engaged in the business of Parliament, that is to say, for the purpose of considering the supply to be granted to Her Majesty, and being such member of the said Assembly as aforesaid, committed the offence of abusing the rules of the said Assembly by persistently and wilfully obstructing the business of the said Assembly, and of the said committee. And immediately after the commission of the said offence the plaintiff was named by the chairman of the said committee, within the meaning of the said rule, and forthwith a motion was duly made, and was put by the said chairman, and carried by the said committee, which motion so carried related to the plaintiff and to the said offence, and was in the words following, that is to say: "That Mr. Adolphus George Taylor, having been named by the chairman as having persistently and wilfully obstructed the business of the committee, be suspended from the service of the House." And upon the 1884 TAYLOR v. BARTON. 1884 TAYLOR V. BARTON. carrying of the said motion, the said chairman forthwith suspended the proceedings of the said committee, and reported the said offence and the carrying of the said motion to the said Assembly in Parliament assembled. And thereupon the defendant, as such Speaker as aforesaid, in accordance with the said rule, put the following question to the said Assembly:-"That Mr. A. G. Taylor be suspended from the service of this House;" and the said question was carried in the affirmative, and passed. And the defendant says that the case so arising upon the said offence of the plaintiff hereinbefore mentioned, was a case not specially provided for in or by any of the other standing orders, or sessional or other orders of the said Assembly within the meaning of the said first standing order. And the defendant further says, that within a period of one week after the passing of the said last-mentioned resolution, and during the same session of Parliament, and while the said suspension still remained in force, the plaintiff entered the said Legislative Assembly Chamber, while the said Assembly was sitting for the despatch of the business of Parliament, at the said meeting in the first count mentioned, and claimed the right to sit and serve as such member. And thereupon the defendant, as such Speaker as aforesaid, requested the plaintiff to withdraw from the said Chamber, which the plaintiff then refused to do; whereupon the defendant, acting under the authority of the said resolutions, and in order to enforce the same, directed the Sergeant-at-Arms of the said Assembly to remove the plaintiff from the said Chamber. And the said Sergeant-at-Arms then gently laid his hand upon the plaintiff and removed him from the said Chamber, using no more force than was necessary in that behalf, which is the alleged trespass. DEMURRER to the second and third pleas: the points for argument being-1. As to the second plea, that the Legislative Assembly acted unlawfully in passing the said resolution in the defendant's second plea mentioned, and that the defendant was not justified in carrying out the said resoluion. 2. That the adoption of the said resolution in the said second plea mentioned by the said Legislative Assembly is no justification of the defendant for the assault set out in the plaintiff's declaration. 3. As to the third plea―That standing order No. 1 of the Legislative Assembly in the defen dant's third plea mentioned has not such a prospective operation as to adopt the Imperial standing orders in the defendant's third plea mentioned, and that if the said standing order has such prospective operation it is ultra vires within the Constitution Act. 4. That the said Imperial standing orders in the defendant's said third plea mentioned and referred to are not adopted by the said standing order No. 1, and are not in force in this colony. The Plaintiff, in person (20th November 1884), in support of the demurrer―The pleas are bad. As to the third plea :-Standing order No. 1 of the Assembly limits the application of the rules of the Imperial Parliament to cases "not specially provided for hereinafter;" and, "so far as the same can be applied, to the proceedings of this House."" As to the first limitation, standing orders 95 and 96 provide for the expulsion of members causing obstruction to the business of the House. As to the second limitation, the clause of the rules of Imperial Parliament set out in the third plea contains a provision that "nothing in this resolution shall be taken to deprive the House of the power of proceeding against any member, according to ancient usage": that clearly is not applicable to the circumstances of a Colonial Assembly, where no ancient usage can exist. Standing order No. 1 was passed in 1872, and it received the assent of the Governor prior to the passing of the Imperial order. It, therefore, cannot be construed so as to adopt by anticipation the rule subsequently made by the Imperial Parliament; and so far as it purports to do so, it is ultra vires. By sec. 35 of the "Constitution Act" (1), power is given to the Legislative Assembly "in the first session and from time to time afterwards" to prepare and adopt standing orders. The Assembly must, therefore, take the initiative in making the orders, and can (1) 18 & 19 Vict. c. 54 (schedule) s. 35 enacts:- "The said Legislative Council and Assembly, in the first session of each respectively, and from time to time afterwards as there may be occasion, shall prepare and adopt such standing rules and orders as shall appear to the said Council and As sembly respectively best adapted for 1884 TAYLOR บ. BARTON. |