Cityview Press v an Chomhairle Oilina

JurisdictionIreland
CourtSupreme Court
Docket Number[1974 No. 3902P]
Date01 January 1980
Cityview Press v. An Chomhairle Oiliúna
Cityview Press Limited and Oliver Fogarty
Plaintiffs
and
An Chomhairle Oiliúna, The Minister for Labour and The Attorney General
Defendants
[1974 No. 3902P]

High Court

Supreme Court

Constitution - National parliament - Legislative powers - Delegation - Statutory body - Power to designate classes of employers for purposes of enactment - Training of apprentices - Expenses incurred in performing statutory duties - Power to impose levy on designated employers to meet expenses - Equality before the law - Property rights - Industrial Training (Printing and Paper Industry) Order, 1972 (S.I. No. 305), art. 5 - Industrial Training Act, 1967 (No. 5), s. 21 - Constitution of Ireland, 1937, Articles 15, 40.

The first defendant (the Industrial Training Authority) was established as a body corporate by the Industrial Training Act, 1967, to perform the functions assigned to it by that Act. For the purpose of making better provision for the training of persons employed in any activity of industry, the first defendant was empowered by s. 23 of the Act of 1967 to declare an activity to be a designated industrial activity for the purposes of the Act; the first defendant made an order under that section declaring certain activities of the print and paper industry to be such designated activity. Section 21 of the Act of 1967 empowered the first defendant, for the purpose of meeting its expenses incurred in performing its statutory functions relating to that designated activity, to impose a levy on the employers in that designated activity; the section states that, when the first defendant makes a levy order under that section, each employer on whom the levy is imposed shall pay to the first defendant, in accordance with the provisions of the levy order, a levy "of such amount as may be appropriate having regard to the provisions of the levy order."

The first defendant made a levy order imposing a levy on the plaintiff company, which was an employer in the printing industry. That levy order imposed on each employer a levy of 1% of the total emoluments (less £20,000) of all persons employed by the employer during a specified period. Where an employer failed to make returns showing the amount of such emoluments, the levy order fixed the levy payable by the employer at 1% of the sum estimated by the first defendant to have been the total emoluments of such persons during the relevant period, less £20,000. When the plaintiff company failed to make the required returns, the first defendant estimated the total emoluments of the persons employed by the plaintiff company during the relevant period and, having deducted the sum of £20,000, claimed payment by the plaintiff company of 1% of the balance, which amounted to £400. The plaintiff company, having refused to pay the sum claimed by the first defendant, instituted an action in the High Court in which it claimed declarations that s. 21 of the Act of 1967 was an unconstitutional delegation of legislative power to an executive body, and that the levy order made by the first defendant was ultra vires that section.

Held by McMahon J., in dismissing the plaintiffs' claims, 1, that the power conferred by s. 21 of the Act of 1967 on the defendant authority to make a levy order was limited to the implementation of the policy declared by the National Parliament in that Act, and was exercisable only within the constraints imposed by the objects and general context of that Act and in a manner which enabled the Court to ascertain whether those limitations had been breached.

2. That, accordingly, the provisions of s. 21 were not an unlawful delegation of legislative power in contravention of Article 15 of the Constitution.

3. That the provision by the defendant authority in its levy order of a method of assessment based on estimated figures (where no other figures were available) was justified as a corollary of its statutory power to impose the levy.

On appeal by the plaintiffs it was

Held by the Supreme Court, in disallowing the appeal, that s. 21 of the Act of 1967 contained a clear declaration of the Legislature's policy that a levy should be imposed on certain employers and provided an opportunity for each House of the Oireachtas to annul a levy order made by the defendant authority and that, consequently, the provisions of s. 21 were not an unlawful delegation of legislative power in contravention of Article 15 of the Constitution.

Held further by the Supreme Court (O'Higgins C.J., Henchy, Griffin, Kenny and Parke JJ.) that the provision made in the defendant authority's levy order for the use of an estimated figure as a basis for the calculation of the amount of levy to be paid by the plaintiff company was within the powers conferred on the defendant authority by s. 21 to provide for "the imposition of a levy of a specified class or at a specified rate on employers."

Cases mentioned in this report:—

1 Panama Refining Co. v. Ryan (1935) 293 U.S. 388.

2 Schechter (A.L.A.) Poultry Corporation v. United States (1935) 295 U.S. 495.

3 Buckley and Others (Sinn Féin) v. The Attorney General [1950] I.R. 67.

4 Kent v. Dulles (1958) 357 U.S. 116.

5 In re Haughey [1971] I.R. 217.

6 Frescati Estates v. Walker [1975] I.R. 177.

7 State of New Jersey v. Traffic Telephone Workers Federation(1949) 9 ALR2d 854.

8 South Carolina State Highway Dept. v. Harbin 226 SC 585.

9 Houck v. Little River District (1915) 239 U.S. 254.

10 Hampton (J.W.) Jr. & Co. v. United States (1928) 276 U.S. 394.

11 Ohio v. Akron Metropolitan Park District (1930) 281 U.S. 74.

12 Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413.

13 Opp Cotton Mills v. Administrator (1941) 312 U.S. 126.

14 Foley v. Irish Land Commission [1952] I.R. 118.

15 East Donegal Co-Operative v. The Attorney General [1970] I.R. 317.

16 Wayman v. Southard (1825) 23 U.S. 1.

17 United States v. Rock Royal Co-Operative (1939) 307 U.S. 533.

18 Yakus v. United States (1944) 321 U.S. 414.

Plenary Summons

The first plaintiff was a limited company of which all the shareholders were Irish citizens; the company carried on the business of printing in Dublin. By an originating summons issued on the 29th September, 1974, the first plaintiff claimed:—

"1. A declaration that the Industrial Training Act, 1967, and in particular s. 21 and all cognate and consequential sections and provisions thereof, is and are invalid and of no legal force and effect having regard to the provisions of the Constitution.

2. Further, a declaration that S.I. No. 21 of 1970Industrial Training (Printing and Paper Industry) Order, 1970 — and S.I. No. 305 of 1972Industrial Training Levy (Printing and Paper Industry) Order, 1972 — are, and each of them is, invalid and of no legal force and effect having regard to the provisions of the Constitution.

3. Further, and in the alternative, a declaration that the aforesaid levy order is

  • (a) ultra vires the provisions of the Industrial Training Act, 1967, and/or

  • (b) was not made in compliance with the provisions of the said Act and/or

  • (c) was made in disregard of the requirements of constitutional justice."

The object of the Act of 1967 was to make better provision for the training of apprentices in commerce and industry — its long title being "An Act to make better provision for industrial and commercial training and for that purpose to establish a body to be known as An Chomhairle Oiliúna and to define its powers and duties, to provide for the imposition by An Chomhairle Oiliúna of levies for the promotion of industrial and commercial training, to repeal the Apprenticeship Act, 1959, and to provide for other matters connected with the matters aforesaid."

The first defendant was the statutory body set up pursuant to s. 8 of the Act of 1967 to direct and supervise the training of apprentices; it was empowered by s. 21, sub-s. 1, of the Act to make orders imposing levies on employers in a "designated industrial activity" to meet the necessary expenses incurred by the first defendant in the discharge of the duties imposed on it by the Act. The second defendant was sued as being the Minister of State who was given a general supervisory jurisdiction over the first defendant by the Act of 1967. In particular, he was required by s. 21, sub-s. 4, of the Act to approve of any levy orders made by the first defendant pursuant to sub-s. 1 of section 21.

The second plaintiff, who was a shareholder of the first plaintiff, did not institute the proceedings. He was joined as a plaintiff by order of the Master of the High Court made by consent on the 26th March, 1976, because, as the proceedings involved the property rights of Irish citizens, the presence of an Irish citizen as a party to the proceedings was considered appropriate by the plaintiff company and by the defendants.

In their statement of claim, the plaintiffs pleaded (inter alia) that s. 21 of the Act of 1967, which purported to authorise the defendant authority to impose levy orders on employers, was invalid and unconstitutional both in purporting to empower an arbitrary interference by a statutory executive body, whose powers had been inadequately delimited by the statute creating such body, with the employers' constitutionally guaranteed property rights, in contravention of Article 40, s. 3, and of Article 43 of the Constitution of Ireland, 1937; and in delegating to such executive body a legislative power to impose and regulate taxation, thus contravening the provisions of Article 15, ss. 2 and 4, Article 21 and Article 22, s. 1, of the Constitution.

The Order of 1970 declared the activities of the printing and paper industry specified in the schedule to that order to be "designated industrial activities" within the meaning of s. 21, sub-s. 1, of the Act of 1967.

Article 4 of the Order of 1972 provided:—

"4. Subject to article 2(3) of this Order, there is hereby imposed on every employer, a...

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