CHAP. III] JUDICTAL APPEALS 1369
objection was raised in the Supreme Court of Victoria that
there was no provision in the Commonwealth Act taking
away the right of the Supreme Court to grant leave to appeal
to the Privy Council, and they endorsed his view that, if the
Federal Legislature had passed an Act providing that there
should be no right of appeal from a State Court in the matter
in question, the Act would have been ultra vires, and that
it was equally ultra vires to accomplish the same result
indirectly.
Put more directly, the issue between the High Court and
the Privy Council was, whether in the exercise of a new
federal jurisdiction (for although the jurisdiction in a great
part might have been exercised, and was before the Act of
1903 exercised, as state jurisdiction, it was made entirely
federal by the Act of 1903) appeals were regulated by an
Order in Council? which applied generally to all matters in
the State Court, but which was prepared when there was no
question of federal jurisdiction at all.
The High Court of the Commonwealth, in the case of
Baxter v. The Commissioners of Taxation, New South Wales?
declined to follow the decision in Webb v. Outtrim. The
majority of the Court decided that the High Court was by
the Constitution the ultimate arbiter upon all questions as
to the limits inter se of the constitutional powers of the
Commonwealth and a state, unless it was of opinion that the
question in any particular instance was one upon which it
should follow the guidance of the Privy Council. But though
they reconsidered the matter in view of the Privy Council’s
decision, they were unable to accept the view of that
Court. . They rested their decision on the ground that as the
Constitution made the High Court supreme in questions
of the constitutional rights of the states of the Com-
monwealth, unless it chose to allow an appeal, the Privy
Council should have considered itself bound, when a case
' For Victoria, June 9, 1860; Queensland, June 30, 1860; South
Australia, June 9, 1860 ; Western Australia, October 11, 1861 ; New South
Wales, November 13, 1850 ; Tasmania. March 4. 1831.
40 LR. 10R7.
