Conroy v Minister for Defence and Minister for Finance

• Jurisdiction: Ireland
• Judgment Date: 01 January 1935
• Date: 01 January 1935
• Court: Supreme Court (Irish Free State)

Supreme Court

Conroy v. Minister for Defence.

JAMES CONROY

Plaintiff

and

THE MINISTER FOR DEFENCE and THE MINISTER FOR FINANCE, Defendants (1)

Pension - Military service - Certificate of military service - Military Service Pension - Statutory right to pension - Sanction of Minister for Finance - Appropriation by Oireachtas for payment of pension - Military Service Pensions Act, 1924 (No. 48 of 1924) - Military Service Pensions Act,1925 (No. 15 of 1925) - Military Service Pensions Act, 1930 (No. 8of 1930).

Appeal on behalf of the plaintiff to the Supreme Court from the order of Johnston J., dated 22nd March, 1934. The plaintiff applied for an order discharging the said order and declaring that he was entitled to the relief claimed in the action or that the action might proceed to trial.

The pleadings and facts are set out in the report of the hearing before Johnston J. (at p. 342 ante).

Sect. 2 of the Military Service Pensions Act, 1924, provides for the grant by the Minister for Defence of certificates of military service to persons fulfilling certain conditions proscribed by the Act. Sect. 4, sub-sect. 1, of the Act provides:—

"The Minister [for Defence] may with the sanction of the Minister for Finance and subject to the provisions of this Act grant to any person to whom the Minister shall have granted a certificate of military service under this Act a military service pension commencing as from the first day of October, 1924, or the day of his discharge from the National Forces or the Defence Forces of Saorstát Éireann éireann whichever of those days shall be the later, provided however that no person shall receive any such military service pension unless money for the payment of such military service pension shall have boon voted by the Oireachtas."

The first schedule to the Act is headed: "Calculation of Military Service,"and contains a table of the qualifying periods of military service introduced by the words: "The number of years of military service counting towards pension under this Act shall be computed as follows:—"

The second schedule is headed "Calculation of Amount of Pension"and provides that "there shall be payable to every applicant in respect of whom a certificator of military service has been issued" a military service pension at the rate there specified.

Sect. 6 provides for forfeiture of a pension which has been granted under the Act in case of conviction of a crime or offence and sentence to imprisonment exceeding three months or to penal servitude.

Sect. 2 of the Military Service Pensions Act, 1925 (No. 15 of 1925), enables the Executive Council at any time by order to revoke for reasons stated in such order any pension granted under the Military Service Pensions Act, 1924.

The plaintiff, having retired from the National Forces in March, 1924, with the rank of Commandant, applied for and obtained from the Minister for Defence a certificate of military service under the Military Service Pensions Act, 1924. The plaintiff subsequently applied for a pension under the Act but the pension was not granted. He thereupon brought an action against the Minister for Defence and the Minister for Finance claiming a declaration that he was intitled to a pension under the Act and an order for payment of the same.

Held that the Act conferred on the plaintiff a statutory right to a military service pension at the rate specified by the Act.

Per Kennedy C.J. and FitzGibbon J.:—The plaintiff was entitled to a declaration that the Minister for Defence was bound to grant him, with the sanction of the Minister for Finance, a military service pension calculated in accordance with the provisions of the Act and commencing as in the Act provided, and the Minister for Defence was bound to do everything necessary for obtaining from the Minister for Finance the sanction in sect. 4 of the Act mentioned, which sanction might not be arbitrarily or capriciously withhold or for any reason other than inaccuracy or wrongful calculation under the Act or calculation upon a basis in any respect outside the authority of the Act, and the Minister for Defence, having obtained such sanction and granted such military service pension, was bound to submit it to the Oireachtas for the purpose of having money for the payment of such military service pension voted by the Oireachtas.

Decision of Johnston J. (reported ante p. 342) reversed.

Cur. adv. vult.

Kennedy C.J. :— 31 July

This action was brought by Plenary Originating Summons, issued on the 10th of January, 1933, with the fiat of the Attorney-General, against the Minister for Defence and the Minister for Finance. The plaintiff claimed:—"(a) a declaration that the plaintiff is entitled to have granted to him a military service pension of £210 per annum under the Military Service Pensions Act, 1924 (No. 48 of 1924); (b) if necessary that the amount of the pension to which the plaintiff is entitled be determined by the Court; (c) an account of the amount due to the plaintiff and an order for payment of the same; (d) further and other relief."

In his statement of claim the plaintiff, who is a retired Army Officer, avers that he joined the Irish Volunteers (Ogláigh na hÉireann héireann) and served with that force from 1914 up to March, 1924, including those periods when the forces were under the control of the Provisional Government

and the Executive Council of Saorstát Éireann éireann, and that he retired from the Army in the month of March, 1924, with the rank of Commandant. He further avers that he made due application to the Minister for Defence for a certificate of military service within the time prescribed and in the manner prescribed by the Military Service Pensions Act, 1924 (No. 48 of 1924); that he was subsequently summoned before and examined by the board of assessors set up under sect. 3 of that Act; and that, on the 18th of December, 1924, he obtained from the Department of Defence a certificate of military service, certifying that he had rendered active service in the aforesaid forces as set out in the said certificate and that for the purposes of the said Act the rank of the plaintiff was to be taken as that of Commandant. He then avers that he has applied to the defendants, the Minister for Defence and the Minister for Finance, for a pension under the Military Service Pensions Act, 1924, in respect of his said service and pursuant to the said certificate, but that "the defendants have failed and refused to grant or pay same" and he claims to be entitled to a pension of £210 per annum under the said Act.

The two Ministers, defendants, delivered a joint defence in a single paragraph which is as follows:—

"These defendants will object, and each of them for himself will object, that this action is not maintainable by reason of the provisions contained in the Military Service Pensions Act (No. 48 of 1924), and in particular in sect. 4, sub-sect. 1, of that Act, and will submit (as the fact is) that the statement of claim discloses neither any cause of action against them or either of them, nor any right to the relief or any part of the relief claimed therein."

A reply was delivered to this defence simply joining issue.

After the close of the pleadings notice was served on the part of the defendants of an application to the High Court for an order that the point of law raised by the defendants in their defence be set down for hearing and disposed of before the trial of the issues of fact in the action and an order to that effect was made. The case was accordingly set down for hearing on the point of law raised by the defence and was heard by Mr. Justice Johnston, who made an order declaring that the action was not maintainable by reason of the provisions contained in the Military Service Pensions Act (No. 48 of 1924), and accordingly ordered and adjudged that the action stand dismissed out of Court, the parties abiding their own respective costs. The present appeal has been taken by the plaintiff from that order of Mr. Justice Johnston.

The learned Judge delivered a carefully considered opinion (now reported in [1934] I. R. 342) but, speaking with the greatest respect for the exhaustive analysis made by him, I do feel that the learned Judge went on the basis of a fundamental...