The complaint was for work and labour alleged to have been done by the respondent for the appellant at an election for the House of Representatives. The appellant relied on the provisions of sec. 282 of the Victorian Constitution Act Amendment Act 1890 that: - "No action suit or other proceeding whatsoever shall be brought or maintained whereby to charge any person upon any contract or agreement for the loan of money or the doing of any work or service or the supply of any goods for or towards or concerning or in carrying on or prosecuting any election of a member under this Act or any Act hereby repealed." The appellant maintained before the Court of Petty Sessions that under the Constitution that section was applicable to federal elections, relying on sec. 31 of the Constitution, which provides that: - "Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives." He contended that this was a law "relating to elections" within the meaning of sec. 31, and therefore became the law of Victoria with regard to federal elections. The respondent in answer to that argument said that, supposing it to be so, the Parliament of the Commonwealth had "otherwise provided" by the Commonwealth Electoral Act 1902. There were, therefore, two questions to be determined

This Court has defined the meaning of federal jurisdiction more than once. For the purpose of sec. 39 of the Judiciary Act 1903, it means all matters over which the High Court has, under the Judiciary Act, original jurisdiction. The matter in the present case is said to be one over which this Court has jurisdiction under sec. 30 of the Judiciary Act 1903, which confers jurisdiction "in all matters arising under the Constitution or involving its interpretation."

A question of federal jurisdiction may be raised upon the face of a plaintiff's claim, as in Baxter v. Commissioners of Taxation (N.S.W.)[1], or may be raised for the first time in the defence, but as soon as the question is raised, if the jurisdiction of the State Court has been taken away, it must stay its hand. As was pointed out in Starin v. New York[2] by Chief Justice Waite: - "The character of a case is determined by the questions involved: Osborne v. Bank of the United States39 Wheat., 737, at p. 824.. If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by the opposite construction, the case will be one arising under the Constitution or laws of the United States, within the meaning of that term as used in the Act of 1875; otherwise not."

But, in order that the jurisdiction of a Court which starts with jurisdiction may be ousted, the case must be such that it is necessary to determine a question of federal jurisdiction in order to decide the case. A very similar rule is well settled in the United States with regard to a class of cases in which under the Judiciary Acts of that republic an appeal lies to the Supreme Court from the highest Court of State. The point is not quite the same as that now before us, but it is very analogous. I will refer to one of the later cases in which the rule has been stated. I read from the judgment in Hale v. Akers[4]: - "In Murdock v. City of Memphis520 Wall., 590, 636., this Court announced, as one of the propositions which flowed from the provisions of the second section of the Act of February 5th 1867, 14 Stat., 386," (the Judiciary Act) "embodied in sec. 709 of the Revised Statutes of 1874, and still in force, that even assuming that a federal question was erroneously decided against the plaintiff in error, the Court must further inquire whether there was any other matter or issue adjudged by the State Court, which is sufficiently broad to maintain the judgment of that Court, notwithstanding the error in deciding the issue raised by the federal question; and that, if that is found to be the case, the judgment must be affirmed, without inquiring into the soundness of the decision on such other matter or issue. This principle has since been repeatedly applied. In Jenkins v. Lowenthal1110 U.S., 222., where two defences were made in the State Court, either of which, if sustained, barred the action, and one involved a federal question and the other did not, and the State Court in its decree sustained them both, this Court said that, as the finding by the State Court of the fact which sustained the defence which did not involve a federal question was broad enough to maintain the decree, even though the federal question was wrongly decided, it would affirm the decree, without considering the federal question or expressing any opinion upon it, and that such practice was sustained by the case of Murdock v. City of Memphis220 Wall., 590.." After citing a number of cases in which the principle had been applied, the judgment continues: - "It appears clearly from the opinion of the Supreme Court" (i.e., of the State) "that it was not necessary to the judgment it gave that the words taking the direction of the Arroyo Seco should be construed at all. It is, therefore, of no consequence whether or not that Court was wrong in its conclusions as to the meaning of the Huichica grant." That doctrine is, as I said, not the same as this, but it is very similar.

We must, therefore, inquire in this case whether it was necessary for the Court of Petty Sessions, in order to give effect to the respondent's claim against the appellant, to decide any question arising under the Constitution or involving its interpretation. It was necessary to interpret sec. 31 of the Constitution to discover whether sec. 282 of the Constitution Act Amendment Act 1890 of Victoria was a law relating to elections, because only such laws were adopted by sec. 31. The Court of Petty Sessions appears to have thought that that law was adopted, following a decision of Hood J. But, whether they decided that question rightly or wrongly, another question remained to be determined before judgment could be given against the appellant, viz., whether that provision, assuming it to have been adopted by sec. 31 of the Constitution, had been repealed by the Commonwealth Electoral Act 1902, that is to say, whether the Commonwealth Parliament had otherwise provided. But that was not a question of the interpretation of sec. 31 of the Constitution; it was a question of the interpretation of the Act relied upon as repealing the Victorian Act. The Court of Petty Sessions thought that the Commonwealth Electoral Act 1902 repealed sec. 282 so far as it related to Commonwealth elections. The Court had jurisdiction to construe that Act, and they construed it in that way. Their conclusion may have been right or wrong, but it was not upon a matter of federal jurisdiction. The Court of Petty Sessions as a Court exercising State jurisdiction had authority to determine that question, and, having that authority, might determine the question rightly or wrongly, and we have no jurisdiction to review its decision. It follows also that the Court was not improperly constituted. The appeal must be dismissed.

Solicitors, for appellant, Maddock & Jamieson, Melbourne.

Solicitor, for respondent, Claude I. Lowe, Melbourne.

[1] [1907] HCA 76; 4 C.L.R., 1087, at p. 1136.

[2] [1885] USSC 199; 115 U.S, 248., at p. 257.

[4] [1889] USSC 244; 132 U.S., 554, at p. 564.

[5] [1874] USSC 117; 20 Wall., 590, 636.

[7] [1874] USSC 117; 20 Wall., 590.