O'Byrne v Minister for Finance and Attorney General
Constitution - Revenue - Income tax - Super-tax - Sur-tax - Remuneration of judge - Whether deduction of income tax from judge's remuneration a diminution of such remuneration - Whether such deduction prohibited by Constitution of Saorstt ireann ireann or the Constitution of ire ire - Whether income tax a non-discriminatory tax - Constitution of Saorstt ireann ireann,Articles 68 and 73 - Constitution of ire ire, Article 35, 5, and Article 50.
The plaintiff, Marjorie O'Byrne, was the executrix of the Honourable John O'Byrne, who died on the 14th January, 1954, having previously made his will on the 20th February, 1926. Probate of the said will was granted on the 18th February, 1954, to the plaintiff.
The Honourable John O'Byrne (hereinafter referred to as "the Judge") was appointed a judge of the High Court of Saorstt ireann ireann on the 11th January, 1926, and continued as such judge until the 29th December, 1937, when, on the coming into operation of the Constitution of 1937, he became a judge of the High Court functioning thereunder. He continued in that office until the 18th January, 1940, when he was appointed a judge of the Supreme Court. In that office he remained until the date of his death.
The remuneration of the Judge during his continuance in office was determined by ss. 13 and 15 of the Courts of Justice Act, 1924. His remuneration as a judge of the High Court was thereby fixed at 2,500 per annum during the whole of the period from his first appointment until his appointment as a judge of the Supreme Court on the 19th January, 1940. As a judge of the Supreme Court, his remuneration was fixed by the same Statute at 3,000 per annum until the 19th July, 1947, which was the date of the passing of the Courts of Justice Act, 1947, and under s. 5 (b) of this Act, his remuneration was fixed at 3,450. The remuneration of the Judge continued at that rate until the 1st April, 1953, when the Courts of Justice Act, 1953, was passed. Under s. 4 (a) of that Act, the remuneration of the Judge was fixed at 3,700 and so continued until the date of his death. The remuneration of the Judge was, by s. 15 of the Courts of Justice Act, 1924, charged on and made payable out of the Central Fund.
By Article 68 of the Constitution of 1922 it was provided that the remuneration of judges of the Supreme Court and of the High Court should be prescribed by law and that such remuneration should not be diminished during their continuance in office. By Article 50 of the Constitution of 1937 it was provided that, subject to the said Constitution and to the extent to which they were not inconsistent therewith, the laws in force immediately prior to the date of the coming into operation of the said Constitution should continue to be of full force and effect until the same or any of them should have been repealed or amended by enactment of the Oireachtas; and by Article 35, 5, of the said Constitution of 1937, it was similarly provided that the remuneration of a judge should not be reduced during his continuance in office.
During the time the Judge held office, his remuneration was paid to him subject to deduction of income tax at the standard rate from time to time in force under Rules 11 and 15 of the rules applicable to Schedule E of the Income Tax Act, 1918. These rules were incorporated in the Finance Act, 1926, by s. 1, sub-s. 3 thereof, and the Finance Act of each successive year since 1926.
The plaintiff claimed that the deductions were made without lawful warrant or authority inasmuch as (a) the provisions of the Income Tax Act, 1918, incorporated in the annual Finance Acts, could not, having regard to the constitutional prohibitions already mentioned, be construed as having any application to the remuneration of the Judge as such judge, and (b) if and in so far as the provisions purported to be applicable to the remuneration of the Judge, they were inconsistent with the provisions of the Constitution of 1922, and with those of the Constitution of 1937, and, as provided by Article 73 of the Constitution of 1922 and Article 50 of the Constitution of 1937, they had no validity or legal effect; it was further claimed by the plaintiff that as the remuneration of the Judge did not attract liability to income tax, equally it did not attract liability to super-tax or sur-tax.
The plaintiff therefore claimed:
1, A declaration that the diminution or reduction of the remuneration payable by statute to the Judge as such judge was illegal and contrary to law and to the provisions of Article 68 and Article 73 of the Constitution of 1922.
2, A declaration that the provisions of the Income Tax Act, 1918 (and in particular the provisions of Schedule E) incorporated in the Finance Act of 1926 and in the Finance Acts of each subsequent year could not be construed as applicable to the remuneration payable as provided by statute to the Judge.
3, Alternatively, that the said provisions, in so far as they purported to be applicable, were contrary to the provisions of the Constitution of 1922 and of the Constitution of 1937 and were of no validity or legal effect.
4, A declaration that the Judge was not liable to income tax or to super-tax or (since the 5th April, 1929) sur-tax in respect of his remuneration and the assessments to supertax and sur-tax were made without jurisdiction or without any lawful warrant or authority.
Ancillary relief was claimed, including the repayment of the amounts by which the remuneration had been diminished or reduced and payment of the amount paid by the Judge on foot of the assessment to super-tax and sur-tax, as money received to the use of the Judge.
From the above judgment the plaintiff appealed to the Supreme Court (2). The grounds of the appeal were as follows:
The trial judge misdirected himself in law (a) in holding that the provisions of Article 68 of the Constitution of 1922 prohibiting the diminution of the remuneration of judges during their continuance in office, and the provisions ofArticle 35, clause 5, of the Constitution of 1937, providing that the remuneration of a judge shall not be reduced during his continuance in office, should not be construed in accordance with the ordinary and unambiguous meaning of the words of the said Constitutional provisions, but as having a narrow and more restricted meaning to be implied from a presumed intention to that effect, to be attributed to the framers thereof
(b) In holding that the deduction on foot of income tax, super-tax and sur-tax made from the remuneration of Mr. Justice O'Byrne deceased before the payment thereof were not so made in breach of the said relevant Constitutional provisions;
(c) In holding that the said Constitutional provisions should not be construed as giving immunity against such deductions; and
(d) In holding that the said Constitutional provisions should be construed as if there were included therein an exception or proviso not in fact expressed therein and not necessarily implied or by any possible implications to be implied therein.
Article 68 of the Constitution of Saorstt ireann ireann provided, inter alia,that the remuneration of the judges of the Supreme Court and of the High Court and of all other Courts established in pursuance of that Constitution should not be diminished during their continuance in office. Article 35, 5 of the Constitution of ire ire provides as follows:"The remuneration of a judge shall not be reduced during his continuance in office."
O'B. was appointed a Judge of the High Court of Saorstt ireann ireann in 1926, and on the 29th December, 1937, he became a Judge of the High Court functioning under the Constitution of ire ire. In 1940 he was appointed a Judge of the Supreme Court in which office he remained until he died in January, 1954.
During O'B's. period in office as a judge income tax was deducted from his salary under Schedule E of the Income Tax Act, 1918, and super-tax and sur-tax were assessed on him and paid by him in respect of his said remuneration.
M. was O'B's. executrix and on his death she commenced proceedings for a declaration that the remuneration he received as a judge was exempt from income tax (and consequently from super-tax and sur-tax) and that any deduction or payment of same under compulsion of law was illegal and contrary to the constitutional provisions set out above.
Held, by Dixon J., that the diminution of a judge's remuneration by the deduction therefrom of income tax and the payment by him of super-tax and sur-tax was a circumstance and vicissitude suffered by all the community at large and there was nothing in Article 68 of the Constitution of Saorstt ireann ireann or Article 35, 5, of the Constitution of ire ire to place judges in a class apart as regarded liability to such taxes. The deduction and payment of such taxes, therefore, was not a diminution prohibited by the above-mentioned constitutional provisions. On appeal it was
Held by the Supreme Court (Maguire C.J., Kingsmill Moore and Haugh JJ.; Lavery and Maguire JJ. dissenting) affirming Dixon J., that the purpose of Article 68 of the Saorstt ireann ireann Constitution and Article 35, 5, of the Constitution of ire ire was to safeguard the independence of the judiciary from control or inroads by the executive and not to exempt the remuneration of judges of the High Court and Supreme Court from taxation common to all citizens. To require a judge to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of government could not be said to be an attack upon his independence.
Cur. adv. vult.
This case involves a question of public importance. It is whether the constitutional provisions designed to secure and safeguard the independence of the judiciary in the exercise...
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