Clydesdale v Hughes [1934] HCA 38

Appl Not Foll ist eae, al fone) (eT an (ai Mare ee518 HIGH COURT [ 1934. {HIGH COURT OF AUSTRALIA] CLYDESDALE APPELLANT 3 DEFENDANT, AND HUGHES . RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA.

H.C. or A, Member of the Legislative Council—Appointed to Lotteries Commission—Office of profit under the Crown—Sitting and voting—Vacant seat—Penalties—Effect of

1934. se PERTH, Sept. 11, 13.

Rich, Dixon and McTiernan Js,

Act—Constitution Act of Western Australia 1889 (53 & 54 Vict. c.

26), Schedule

sec. 73—Constitution Acts Amendment Act 1899 (W.A.), (63 Vict. No. 19), secs.,

38*, 39*— sec, 2.*

Constitution Acts Amendment Act 1933 (W.A.) (No. 25 of 1933),

'The appellant, a member of the Legislative Council of Westem Australia, became a member of the Lotteries Commission, and thereby, as was alleged, accepted an office of profit from the Crown. Thereafter he sat and voted in

the Council.

* The Constitution Acts Amendment Act 1899 (W.A.) provides :—By sec. 38: "If any member of the Legislative

Council. . . after his election . « (6) Accepts any office of profit from the Crown, his

seat shall thereupon become vacant." By sec. 39: "If any person under any of the disqualifications mentioned in this Act, shall presume to sit or vote as. a member of the said Council, such person shall forfeit the sum of Two hundred pounds, to be recovered by any person who shall sue for the same in the Supreme Court."

Respondent sued him in the Supreme Court, claiming a for-

The Constitution Acts Amendment Act 1933 (W.A.) provides :—By sec. 2: "Notwithstanding the provisions of ._. « sections thirty-eight and thirty- nine of the Constitution Acts Amendment Act, 1899, no disability, disqualification, or penalty shall be incurred by any person who is at present both a member of Parliament and a member of the Commission constituted under the Lotteries (Control) Act, 1932, by reason of having accepted or continuing to hold before or after the commencement of this Act the office of a member of the said Commission, or any emolument pertaining to that office."