§ 155. “Qualification .. Vacancy .. a Disputed Election.”

This section provides that, until legislation on the subject by the Federal Parliament establishing a different procedure, each chamber shall have exclusive jurisdiction to determine all questions which may arise respecting (1) the qualification of its members, (2) a vacancy which has arisen or which may be alleged to have arisen in its membership, and (3) a disputed election in which it is concerned. Such legislation may assume the form of transferring the jurisdiction to the Federal Courts or to the State Courts, to hear and determine all controversies of the kind.

“In England before the year 1770, controverted elections were tried and determined by the whole House of Commons, as mere party questions, upon which the strength of contending factions might be tested. In order to prevent so notorious a perversion of justice, the House consented to submit the exercise of its privilege to a tribunal constituted by law, which, though composed of its own members, should be appointed so as to secure impartiality, and the administration of justice according to the laws of the land, and under the sanction of oaths. The principle of the Grenville Act, and of others which were passed at different times since 1770, was the selection by lot of committees for the trial of election petitions. Partiality and incompetence were, however, generally complained of in the constitution of committees appointed in this manner; and, in 1839, an Act was passed establishing a new system, upon different principles, increasing the responsibility of individual members, and leaving but little to the operation of chance. This principle was maintained, with partial alterations of the means by which it was carried out, until 1868, when the jurisdiction of the house, in the trial of controverted elections, was transferred by statute to the courts of law.” (May's Parl. Prac. 10th ed. p. 613.)

“By the Election Petitions and Corrupt Practices at Elections Act, 1868, the Parliamentary Elections and Corrupt Practices Act, 1879, and the statute 44 and 45 Vic. c. 68, the trial of controverted elections is confided to two judges, selected, as regards England, from the Queen's Bench Division of the High Court of Justice; as regards Ireland, from the Court of Common Pleas at Dublin; and as regards Scotland, from the Court of Session. Petitions complaining of undue elections and returns are presented to these courts instead of to the House of Commons, as formerly, within twenty-one days after the returns to which they relate, and are tried by two judges of those courts, within the county or borough concerned. The house has no cognizance of these proceedings until their termination: when the judges certify their determination, in writing, to the Speaker, which is final to all intents and purposes. The judges are also to report whether any corrupt practices have been committed with the knowledge and consent of any candidate; the names of any persons proved guilty of corrupt practices; and whether corrupt practices have extensively prevailed at the election. They may also make a special report as to other matters which, in their judgment, ought to

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be submitted to the house. Provision is also made for the trial of a special case, when required, by the Court itself, which is to certify its determination to the Speaker. By sec. 5 of the Corrupt and Illegal Practices Prevention Act, 1883 (46 and 47 Vic., c. 51), the election court is directed also to report to the Speaker whether candidates at elections have been guilty by their agents of corrupt practices. The judges are also to report the withdrawal of an election petition to the Speaker, with their opinion whether the withdrawal was the result of any corrupt arrangement. All such certificates and reports are communicated to the House by the Speaker, and are treated like the reports of election committees under the former system. They are entered in the journals; and orders are made for carrying the determinations of the judges into execution.” (Id. p. 616.)

In 1872 the Legislature of the Province of Quebec passed an Act transferring to the Supreme Court of the Province the decision of controverted election cases which was previously vested in its own hands. Further and later provision was made by an amending act passed in 1875, by the 90th section of which it was declared that the judgment of the Supreme Court sitting in review “should not be susceptible of appeal.”

In 1874 the Canadian Parliament transferred the jurisdiction in the trial and decision of federal election petitions to the ordinary courts of the Provinces, subject to appeal to the Supreme Court of Canada. Amending and consolidating acts, dealing with same subject, were passed in 1886 and 1887. The procedure in the prosecution of such petitions is as follows: a petition is to be presented to the Provincial Court, which is to have the same powers as if such petition were an ordinary cause within its jurisdiction. Short periods of time are prescribed for giving notice of the petition, for taking preliminary objections to it, and for answering it, if those objections are overruled. Every petition is to be tried by one of the judges of the court, without a jury. The trial of every petition is to be commenced within six months of its presentation, and to be proceeded with from day to day until it is over. The court may enlarge the time for commencement of trial, or the period limited for taking any steps or proceedings. The judge may order a special case to be stated for the decision of any question, but it is “as far as possible” to be heard before that judge. An appeal from the judge's decision may be made to the Supreme Court of Canada within eight days. If there is no such appeal, the judge is, within four additional days, to certify his decision to the Speaker of the House of Commons, who is to take action thereupon “at the earliest practicable moment,” or “without delay.” If there is an appeal, the Supreme Court is to decide, its registrar is to certify the decision, and the Speaker to take action upon it. (Wheeler, C.C. p. 315.)

The validity of the Provincial and Federal Acts was affirmed by the Privy Council in Theberge v. Laudry (1876), 2 App. Ca. 102; Valin v. Langlois (1879), 5 App. Ca. 115, and Kennedy v. Purcell (1888), 14 Sup. Ct. (Canada) Rep. 453; 59 L.T. 279 P.C. On the question whether an appeal should be allowed to the Queen in Council, in controverted election cases, the following extracts from judgments of the Privy Council may be cited:—

“Now the subject-matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and the privileges of the electors, and of the legislative assembly to which they elect members. Those rights and privileges have always, in every colony, following the example of the mother country, been jealously maintained and guarded by the legislative assembly. Above all, they have been looked upon as rights and privileges which pertain to the legislative assembly, in complete independence of the Crown. so far as they properly exist. And it would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the legislative assembly, no longer belonged to the superior court which the legislative assembly had put in its place, but belonged to the Crown in Council, with the advice of the advisers of the Crown at home, to be determined without reference either to the judgment of the legislative assembly, or of that court which the legislative assembly had substituted in its place. These are considerations which lead their lordships not in any way to infringe, which they would be far from doing, upon the general principle that the prerogative of the Crown, once established, cannot

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be taken away, except by express words; but to consider with anxiety whether in the scheme of this legislation it ever was intended to create a tribunal which should have, as one of its incidents, the liability to be reviewed by the Crown under its prerogative. In other words, their lordships have to consider, not whether there are express words here taking away prerogative, but whether there ever was the intention of creating this tribunal with the ordinary incident of an appeal to the Crown. In the opinion of their lordships, adverting to these considerations, the 90th section, which says that the judgment shall not be susceptible of appeal, is an enactment which indicates clearly the intention of the legislature under this Act,—an Act which is assented to on the part of the Crown, and to which the Crown, therefore, is a party,—to create this tribunal for the purpose of trying election petitions in a manner which should make its decision final to all purposes, and should not annex it to the incident of its judgment being reviewed by the Crown under its prerogative. In the opinion, therefore, of their lordships, there is not in this case, adverting to the peculiar character of the enactment, the prerogative right to admit an appeal, and therefore the petition must be refused.” (Per Lord Cairns in Theberge v Laudry, 2 App. Ca. 107-8.)

“Suppose we recommend Her Majesty to reverse the judgment, how would that decree be carried into execution? It would go to the House of Commons and be reported to the Speaker. The Speaker could not act on his own authority, and could only act by order of the House: suppose the House to say, ‘Her Majesty has no prerogative to do this, and we refuse to carry it out.’ Then there would be an immediate conflict between the House of Commons of the Dominion and Her Majesty. It would not be a very prudent thing for us to advise Her Majesty to reverse a judgment unless we can see our way to having it carried into execution when Her Majesty ordered it. Suppose the House of Commons, on the report of the Supreme Court that both parties had been guilty of bribery, ordered a new writ, but Her Majesty orders that writ to be recalled, or upset the election which had taken place under it. It appears to me there is no mode of carrying out the decree; and we would not advise Her Majesty to reverse a decree unless we saw a mode of carrying the decree into execution.” (Per Sir Barnes Peacock, in Kennedy v. Purcell, 59 L.T. 279 P.C., on a motion for leave to appeal; Wheeler, C.C. 314.)

Allowance to members.

48. Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance148 of four hundred pounds a year, to be reckoned from the day on which he takes his seat.

UNITED STATES.—The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States.— Const., Art. I., sec. 6, sub-s. 1.

HISTORICAL NOTE.—Clause 45, Chap. I. of the Commonwealth Bill of 1891 was as follows:—

“Each member of the Senate and House of Representatives shall receive an annual allowance for his services, the amount of which shall be fixed by the Parliament from time to time. Until other provision is made in that behalf by the Parliament, the amount of such annual allowance shall be Five Hundred Pounds.”

In Committee, Mr. Wrixon suggested that “allowance for his services” was a misdescription; it was merely an allowance for reimbursement of expenses. Mr. Marmion moved the omission of the words “for his services,” but this was negatived. (Conv. Deb., Syd. [1891], pp. 653-4.)

At the Adelaide session, 1897, the clause as introduced was to the same effect, except that the sum was £400. In Committee, Mr. Gordon moved to substitute £500, but this was negatived by 26 votes to 9. (Conv. Deb., Adel., pp. 1031-4.) At the Sydney session, a suggestion by the Legislative Council of South Australia and the Legislature of Tasmania, to reduce the allowance to £300, was negatived. A suggestion by the Legislative Assembly of Victoria, to omit “on which he takes his seat,” and insert “of his election,” was negatived. A new clause suggested by the Legislative Council of South Australia, to prevent a Minister from drawing both a salary and his

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allowance as a member, was negatived, as being a matter for federal legislation. (Conv. Deb., Syd. [1897], pp. 993-6.) At the Melbourne session, drafting amendments were made before the first report and after the fourth report.