O'Crowley v The Ministry for Justice and the Minister for Finance

CourtHigh Court (Irish Free State)
Judgment Date01 January 1935
Docket Number(1934. No. 701.)
Date01 January 1935
O'Crowley v. Minister for Justice and Minister for Finance
(1934. No. 701.)

Contract - Contract with Revolutionary Government - Contract to become Judgeof Dáil Éireann éireann Supreme Court - Appointment to office - State succession- Abolition of office by statute - Acceptance of office inconsistent withcontinued existence of previous office - Acceptance of pension in respectof abolition of former office - Claim for continuance of salary of formeroffice - Estoppel - Impossibility of performance - Dáil Éireann éireann Courts(Winding Up) Act, 1923 (No. 36 of 1923)- Dáil Éireann éireann Courts (WindingUp) Act, 1923 Amendment Act, 1924 (No. 32 of 1924) - Dáil SupremeCourts (Pension) Act, 1925 (No. 13 of 1925) - Dáil Éireann éireann Loans andFunds Act, 1925 (No. 3 of 1925) - "Money Bill" - Power of Courts toenquire whether particular sections of statute originating as a "MoneyBill" are properly included in such statute - Constitution of the IrishFree State (Saorstát Éireann éireann) Act, 1922 (No. 1 of 1922), Sch. I, Art. 35.

Plaintiff, a barrister, agreed with the first Dáil Éireann éireann to become a Judgeof the Dáil Éireann éireann Supreme Court and subsequently was appointed amember of that Court at a salary of £750 yearly free of income tax, theappointment taking effect as from the 15th August, 1920. No patent,warrant, commission or appointment in writing was given to the plaintiff,but he acted in, and performed the duties of, his office. After the Articles ofAgreement for a Treaty between Great Britain and Ireland were signed(December 6th, 1921) and the transfer of the machinery of government inSouthern Ireland to the Provisional Government had been made, the DáilCourts continued to function for some time, until on July 25th, 1922, theMinister for Home Affairs by a decree published in the Dublin Gazette onAugust 1st, 1922, rescinded the decree of the First Dáil which had establishedCourts except in so far as the decree had been effective to establish Parish andDistrict Courts outside Dublin. The Dáil Éireann éireann Courts (Winding Up)Act, 1923, gave statutory recognition to the Dáil Éireann éireann Courts and providedfor the registration and execution of their decrees. Sect. 1, sub-sect. 2,of that Act provided that the authority of all Parish and District Courtsshould be deemed to have been withdrawn on the 30th October, 1922, andthe authority of all other Dáil Courts on the 25th July, 1922. Plaintiffwas paid his salary as a Judge of the Dáil Supreme Court to the 31st July,1922, and was subsequently appointed an Assistant Commissioner for thepurposes of the Dáil Éireann éireann Courts (Winding Up) Act, 1923, at a salaryof £1,500 per annum, his appointment dating from August 17th, 1923. InJanuary, 1924, he wrote to the Ministry for Home Affairs demanding hissalary as a Judge of the Dáil Éireann éireann Supreme Court from August 1st, 1922,to August 16th, 1923, and indicating his willingness to waive his claim forsuch salary for such period as he should act as Commissioner, and he wassubsequently paid £741 0s. 11d. in respect of arrears of salary for 1922-23.

On July 30th, 1924, plaintiff resigned his position as Assistant Commissionerand subsequently he again raised with the Ministry of HomeAffairs the question of payment of his salary as a Judge of the Dáil Éireann éireannSupreme Court. Subsequently, after the enactment of the Dáil Éireann éireannSupreme Court (Pensions) Act, 1925, he was granted a pension for life of£500 per annum, which he accepted and was paid.

In 1932 he reopened the question of the payment of his salary as a Judgeand endeavoured to have a Bill passed amending the Dáil Éireann éireann SupremeCourt (Pensions) Act, 1925, so as to enable a pension of £750 per annumto be granted to him. When those endeavours failed he instituted proceedingsagainst the Minister for Justice (the successor to the Minister forHome Affairs) and the Minister for Finance claiming (1) a declaration thatthey were liable to pay him during his life the said salary of £750 perannum and arrears of same from July 31st 1922, and (2), alternatively,a declaration that he was entitled to be paid out of the Dáil Éireann éireann LoansLprovision for the repayment of which was made by the Dáil Éireann éireannLoans and Funds Act, 1925, (and portion of which he alleged was held bythe Minister for Finance impressed with a trust in his favour)la sumequivalent to his arrears of salary as a Judge and the present value of alife annuity of £750 free of income tax.

Held, that, as plaintiff's office as a judge had been abolished by statuteand he could no longer act in it, he was no longer entitled to be paid anysalary in respect of it, any existing contract having been discharged byimpossibility of performance.

Reilly v. The King, [1934] A. C. 176 applied.

Held, further, that the relation of cestui que trust and trustees did notexist between the plaintiff and defendants and that the plaintiff was notentitled to the declaration sought in respect of the payment out of the DáilÉireann éireann Loans of the sum claimed by him.

Grenville-Murray v. Earl of Clarendon, 9 Eq. 11, and Fogarty v. O'Donoghue,[1926] I. R. 531, applied.

The Court will not enquire into the parliamentary process by which astatute, originating as a "Money Bill," as defined by Article 35 of theConstitution, has reached the statute book, nor as to whether it deals withmatters not properly the subject of a "Money Bill," as these are questionsexclusively for the Legislature.

Trial of Action.

The facts have been summarised in the headnote and arefully stated in the judgment of Johnston J. Plaintiffbrought his action against the Minister for Justice and theMinister for Finance as defendants, claiming the followingdeclarations:l

(1) That the defendants being the successors in title to theMinisters for Home Affairs and for Finance of the FirstDáil Éireann éireann, and having acquired the assets and incurredthe liabilities of the said Ministers were liable to pay theplaintiff the salary of £750 per annum for the plaintiff'slife and arrears of same from July 31st, 1922.

(2) Alternatively, that, portion of the moneys raised bythe First and Second Dáil Éireann éireann being held by theMinister for Finance, out of the said portion the plaintiffwas entitled to be paid a lump sum to include his arrearsof salary and the present value of a life annuity of £750 freeof income tax.

(3) That the said salary was payable to plaintiff free ofincome tax and was not to be reckoned as income for thepurposes of the Income Tax Acts.

The defence pleaded the provisions of the Dáil Éireann éireannCourts (Winding Up) Act, 1923, and the Dáil Éireann éireannCourts (Winding Up) Act, 1923 Amendment Act, 1924, thatthe plaintiff's acceptance of office under the Winding UpCommission and his acceptance of a pension estoppedhim from claiming salary as a Judge; that there was nostatutory authority for the payment of the lump sumclaimed; that no cause of action was disclosed, and that,in any event, plaintiff's salary was subject to the paymentof income tax.

At the trial plaintiff produced a document entitled"Saorstát na h-Éireann éireann Judiciary. The Courts of Justiceof the Irish Republic. Provisional Constitution," which,it was alleged, contained the terms of his appointment tooffice as a Judge of the Dáil Supreme Court. No evidencewas given that this provisional Constitution had ever infact been adopted, and, other than this document andplaintiff's own statement, there was no evidence that hehad been appointed as a Judge for life.

Cur. adv. vult.

Johnston J. :l

This is an action brought by Mr. Diarmuid O'Crowley,barrister-at-law, against the Ministers for Justice and Financeof Saorstát Éireann éireann, claiming as follows:L

"By contract made between the plaintiff and the firstDáil Éireann éireann it was agreed that, commencing on the 15thof August, 1920, the plaintiff should give up his practiceas a barrister and accept the office and perform the dutiesof a Judge of the Supreme Court of the Irish Republic(otherwise known as the Dáil Supreme Court) for theplaintiff's life at the salary of £750 per annum, free ofincome tax, and that the plaintiff could not be removedfrom the said office except by special decree of Dáil Éireann éireannfor cause assigned by a two-thirds majority."

It is alleged in the statement of claim that the plaintiffnever was removed from his office by Dáil Éireann éireann, thatthe Oireachtas as the successor in title of the First andSecond Dáil Éireann éireann adopted the said contract, that theMinisters...

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