Cityview Press v an Chomhairle Oilina

JurisdictionIreland
CourtSupreme Court
Judgment Date01 Jan 1980
Docket Number[1974 No. 3902P]

High Court

Supreme Court

[1974 No. 3902P]
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

Cases mentioned in this report:—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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 1970 — Industrial Training (Printing and Paper Industry) Order, 1970 — and S.I. No. 305 of 1972 — Industrial 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

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

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

  3. (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 levy (in this Order referred to as the levy) which shall be assessed and shall be payable in accordance with the following provisions of this Order." The method of assessment of the levy was described1 in article 5 of the Order of 1972.

The plaintiff company refused to pay the sum of £400 which had been assessed by the first defendant as the levy payable by the plaintiff company pursuant to s. 21, sub-s. 1, of the Act of 1967. When the first defendant claimed that sum in an action against the plaintiff company in the Circuit Court, the first plaintiff instituted the present action in the High Court.

Article 6 of the Constitution of Ireland, 1937, provides:—

"1. All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution."

Article 15, s. 1, sub-s. 1, of the Constitution states that the national parliament shall be called and known as the Oireachtas. Section 2 of Article 15 states:—

"1 The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

2 Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures."

Article 40, s. 1, of the Constitution states:— "All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."

Section 8 of the Industrial Training Act, 1967, provides for the establishment of a body to be known as An Chomhairle Oiliúna (referred to as An Chomhairle) to perform the functions assigned to it by the Act.

Sections 21, 23 and 24, sub-ss. 1 and 2, of the Act of 1967 provide as follows:—

"21.—(1) For the purposes of meeting the expenses in relation to the performance, as respects a designated industrial activity, of its functions under this Act, An Chomhairle may, after consultation with the relevant industrial training committee (if any), make an order (in this Act referred to as a levy order) imposing a levy on the employers in the activity, other than such employers (if any) as may be exempted by the levy order, and whenever a levy order is made there shall be paid in accordance with the levy order to An Chomhairle by each such employer on whom it is imposed a levy of such amount as may be appropriate having regard to the provisions of the levy order, and the moneys received for and on account of the levy by An Chomhairle shall be kept by An Chomhairle in a separate account.

(2) A levy order shall give any employer assessed to the levy a right of appeal to an appeal tribunal constituted under section 22 of this Act and in addition may make provisions with respect to the following matters:

  1. (a) the exemption of employers of a particular class or description from the provisions of the order;

  2. (b) the imposition of a levy of a specified class or at a specified rate on employers;

  3. (c) the evidence by which an employer's liability to the levy or his discharge of that liability may be established; and

  4. (d) the time or times at which a levy shall become due and payable to An Chomhairle.

(3) Subject to subsection (4) of this section, An Chomhairle may, after consultation with the relevant industrial training committee (if any) and with the consent of the Minister, by order amend or revoke a levy order or an order under this subsection.

(4) Where a levy order is intended to be made or amended by An Chomhairle, a draft of the order or amendment, as the case may be, shall be...

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