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guilty," so that, when, as in this case, the judgment properly followed the verdict, the granting of special leave to appeal would be futile. As to the direction of acquittal, leave was refused on the ground that it was not a judgment" from which under section 73 an appeal lies to the High Court. POWERS, J. held that, although under section 73 the High Court had jurisdiction to entertain an appeal from the judgment of acquittal, to set aside the verdict and to grant a new trial, the discretion to grant special leave to appeal should not in the circumstances be exercised. ISAACS and HIGGINS, JJ. held that leave might be granted: Musgrove v. McDonald, 3 C.L.R., 132, and Baume v. The Commonwealth, 4 C.L.R., 97, discussed. Special leave to appeal from the Supreme Court of South Australia (Gordon, J.), refused: The King v. Snow, F.C., (1915) 20 C.L.R., 315.

§ 128." OF ANY OTHER COURT OF A STATE.”

The High Court has held that the words "Judgments of any other Court of a State from which at the establishment of the Commonwealth an appeal lay to the Queen in Council" include judgments from which an appeal lay either with or without special leave of the Privy Council: Parkin v. James, (1905) 2 C.L.R., 315. But see, also, Kamarooka Gold Mining Co. No Liability v. Kerr, (1908) 6 C.L.R., 255.

§ 129." OF THE INTER-STATE COMMISSION."

Appeals from Inter-State Commission.

The words of this sub-section giving an appeal to the High Court for the judgments, decrees, orders and sentences of the Inter-state Commission do not necessarily imply that the Commission is a Court exercising judicial functions. The reference in a separate paragraph, section 73 (III.), to the Inter-state Commission, after the exhaustive words of paragraph (II.) which embrace all Courts other than the High Court, to which the High Court appellate jurisdiction extends, indicates that the Commission was not one of the "Courts within the meaning of "Chapter III., JUDICATURE" of the Constitution. Judicial power is undoubtedly conferred by sub-sections (III.) but that is in the High Court, and the jurisdiction to correct errors of law-similar to that of the English High Court in section 39 of the Act in Arlidge's Case, (1915) A.C., 120;-does not connote that the Commission is a Court,

any more than the local Government Board is a Court. First the word "order" applies as much to the order of a quasi judicial or administrative body as to a strict Court of law. Per ISAACS, J. in the State of New South Wales v. The Commonwealth, (1916) 20 C.L.R., at p. 87. See note to section 101.

§ 130. "FINAL AND CONCLUSIVE."

Appeals from State Courts.

Notwithstanding section 106 of the New South Wales Justices Act (No. 27 of 1902), which provides that on appeals by way of special case, stated for the opinion of the Supreme Court, the judgment of the Court shall be "final and conclusive," the High Court has jurisdiction, under section 73 of the Constitution, to hear and determine appeals from such judgments. Judgment of the Supreme Court, (1904) 4 S.R. (N.S.W.), 200, reversed; Peterswald v. Bartley, (High Court), (1904) 1 C.L.R., 497.

Appeal to Queen in Council.

74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits131 inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify132 if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court

to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure.

§ 131. "AS TO THE LIMITS INTER SE."

LEGISLATION.

JUDICIARY ACT (1903-1910), Sections 38A and 40A.

Removal of Constitutional Cases.

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In October 1907, whilst the conflicting decisions of the High Court and the Privy Council in the Federal Income Tax Cases were under consideration the Parliament of the Commonwealth passed an Act amending the Judiciary Act by inserting the following new sections" In matters (other than trials of indictable offences) involving any question, however arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the Supreme Courts of the States ; so that the Supreme Court of a State shall not have jurisdiction to entertain or determine any such matter, either as a Court of first instance or as a Court of Appeal from an inferior Court": Judiciary Act 1903-1910, section 38A. When, in any cause pending in the Supreme Court of a State, there arises any question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States or as to the limits inter se of the constitutional powers of any two or more States, it shall be the duty of the Court to proceed no further in the cause, and the cause shall be by virtue of this Act, and without any order of the High Court, removed to the High Court. Thereupon the proceedings in the cause, and such documents, if any, relating thereto as are filed of record in the Supreme Court of the State, shall be transmitted by the registrar, prothonotary, or other officer of the Court, to the Registry of the High Court in the State; or if there are more registries than one in the State, to such registry as is prescribed by Rules of Court " : Judiciary Act 1903-1910, section 40A (1), (2).

The Powers Inter se.

It is a matter for surprise and regret that in the early history of the interpretation of the Constitution that the Parliament of the Commonwealth should have deemed it advisable to reject the services of the Supreme Courts of the States as primary courts in dealing with constitutional cases. Nothing could be suggested against the honor, integrity and ability of the Justices of the Supreme Courts. The fact is that this drastic Federal legislation originated in the manner in which the case of Webb v. Outtrim, (1905) V.L.R., 463; 26 A.L.T., 198, was conducted in Victoria by the parties thereThat was a case involving important constitutional issues referred to elsewhere: supra, p. 171.

to.

Mr. T. P. Webb, the Victorian Commissioner of Taxation, sued Mr. Outtrim the Deputy Postmaster-General of Victoria to recover State income tax on his Federal salary. Mr. Outtrim pleaded immunity from State taxation. The case was referrred to the Full Court of Victoria which following the ruling in Deakin v. Webb, gave judgment for their respondent. By that decision Mr. Outtrim escaped State taxation. But the Commissioner applied to Mr. Justice HODGES for leave to appeal to the Privy Council against that decision. Then was witnessed the unusual spectacle of a successful litigant instead of holding fast to his judgment actually instructing his counsel in Court to consent to the leave being granted. Commonwealth rights were not argued. Under the circumstances Mr. Justice HODGES had scarcely any alternative but to grant the leave applied for. The effect of the leave was to divert the case from the High Court of Australia to the Privy Council. So strong was the impression that there had been some understanding between the parties and that there was a risk of the case not being adequately placed before the Privy Council that the Attorney-General of the Commonwealth intervened and demanded the right to be represented before the Privy Council, which was granted.

The law advisers of the Commonwealth considered that no litigants should be allowed to make arrangements by which constitutional cases might be conducted through channels selected by themselves. There was a certain amount of irritation also caused by Mr. Justice HODGES' description of the Judiciary Act 1903, section 39 (2) (a) as "a devious, circuitous, round-about" method of depriving the King's subjects of their rights under the Order

in Council to appeal direct to the Privy Council. It was never suggested before Mr. Justice HODGES that the sections referred to did not purport or intend to take away the right of an unsuccessful litigant in the Supreme Court to apply to the King in Council for leave to appeal. The criticism mentioned had no material effect in causing the legislation which is at the head of this note; the main factor was the conduct of the parties.

§ 132. "THE HIGH COURT MAY SO CERTIFY.”

Special Reasons for Certificate.

In two important cases applications made to the High Court for certificates authorizing appeals to the Privy Council under this section were refused. In one case only has a certificate so far been granted: Attorney-General for the Commonwealth v. Colonial Sugar Refining Co., (Privy Council), (1914) 17 C.L.R., 645 (1914) A.C. 237. No general rule can be laid down as to what are special reasons for granting a certificate.

It appears, however, that the principles applicable to the granting by the Privy Council of leave to appeal from the High Court, or from the Supreme Court of a State, are not applicable to the granting by the High Court of a certificate under section 74 of the Constitution.

It has been held that the desire of the Governments of all or some of the States that an appeal to the Privy Council should be allowed; that the decision affects a large number of persons in many of the States and the revenues of those States; that the decision reverses a decision of the Supreme Court of a State are not sufficient reasons for granting a certificate: Deakin v. Webb; Lyne v. Webb, F.C., 1 C.L.R., 585.

The fact that a decision of the Privy Council, on a question of law as to the limits inter se of the constitutional powers of the Commonwealth and the States is contrary to a previous decision of the High Court as to which a certificate under section 74 of the Constitution has been asked and refused, was held not to be of itself a sufficient special reason for granting a certificate as to another decision of the High Court following its previous decision.

The inconvenience caused by the existence of those contrary decisions was held not to be a sufficient reason. Per GRIFFITH, C.J.,