O'Donoghue v Roche

• Jurisdiction: Ireland
• Court: Supreme Court (Irish Free State)
• Judgment Date: 31 March 1927
• Date: 31 March 1927
• Docket Number: (1924. No. 377.)

O'Donoghue v. Roche

THOMAS O'DONOGHUE

and

REDMOND ROCHE (1)

(1924. No. 377.)

Supreme Court.

Parliament - Election - Return of deposit - Elected candidate not taking required oath - Dissolution of Parliament - Impossibility of performing statutory requirement - Construction of statute - Casus omissus - Representation of the People Act, 1918 (7 & 18 Geo. 5, c. 64), sects. 26, 27 -Government of Ireland Act, 1920 (10 & 11 Geo. 5, c. 67), sects. 14, 15, 18 - Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61),sect. 1.

The Representation of the People Act, 1918 (7 & 8 Geo. 5, c. 64), was, among other statutes, applied by the Government of Ireland Act, 1920 (10 & 11 Geo. 5, c. 67), to the election of members to serve in the"Parliament of Southern Ireland" directed to be established by the latter statute.

The Representation of the People Act, 1918, provides, sect. 26 (1):"A candidate at a Parliamentary election, or some one on his behalf, shall deposit, or cause to be deposited, with the Returning Officer, during the time appointed for the election, the sum of one hundred and fifty pounds, and, if he fails to do so, he shall be deemed to be withdrawn within the provisions of the Ballot Act, 1872 . . . (3) If after the deposit is made the candidate is withdrawn in pursuance of the provisions of the Ballot Act, 1872, the deposit shall be returned to the person by whom the deposit was made; and if the candidate dies after the deposit is made, and before the poll is commenced, the deposit, if made by him, shall be returned to his legal personal representative, or, if not made by him, shall be returned to the person by whom the deposit was made." Sect. 27 provides that if a candidate who has made the required deposit is not elected, and the number of votes polled by him does not exceed a specified proportion of the total number of votes polled, the amount deposited shall be forfeited to His Majesty; "but in any other case that amount shall be returned to the candidate, where the candidate is elected, as soon as he has taken the oath as a member, and, where the candidate is not elected, as soon as practicable after the result of the election is declared . . ."

In May, 1921, an election was held pursuant to the first summons of the Parliament which the Government of Ireland Act, 1920, provided should be set up. This "Parliament of Southern Ireland" was not acknowledged by a majority of the people in "Southern Ireland," and never met in any leal sense. By the Articles of Agreement for a Treaty between Great Britain and Ireland, dated 6th December, 1921, Ireland was given Dominion status, and these Articles were given the force of law by the Irish Free State (Agreement) Act, 1922, passed by the British Parliament on 31st March, 1922, and were also ratified in the Irish Free State in the same year. The "Parliament of Southern Ireland" was dissolved by a Proclamation of the Lord Lieutenant, dated the 27th May, 1922. By the Irish Free State (Consequential Provisions) Act, 1922, sess. 2, passed by the British Parliament on 5th December, 1922, the Government of Ireland Act, 1920, ceased to apply to any part of Ireland other than Northern Ireland.

Plaintiff was a candidate at the election in May, 1921, for a constituency which returned eight members. He and seven other candidates were returned unopposed for this constituency. He refused to take the

prescribed oath. L. and Q. had deposited with the defendant, the Returning Officer for the constituency, the sum of £1,200, being eight deposits of £150 each for the eight candidates. In June, 1924, the plaintiff brought an action claiming a declaration that he was entitled to the deposit of £150 (portion of the £1,200), which he alleged that he had caused to be deposited with the defendant.

Held by the Supreme Court (Kennedy C.J. and Murnaghan J.; FitzGibbon J. dissenting), reversing Meredith J., that the plaintiff was entitled to the £150 deposit claimed by him:

Per Kennedy C.J.—Because, viewing the question from the point of view of the British legislation from 1920 to 1922, the plaintiff was in the position of a candidate who had obtained sufficient votes not to suffer a forfeiture, but had not obtained a seat, or, having obtained a seat, was deprived of it and excused from the formality precedent to taking it, and thereupon became entitled to a repayment of his deposit.

Per Murnaghan J.—Because, although the deposit could be withheld during the life of the Parliament to which the member was elected until the member had taken the oath, the member could recover his deposit from the Returning Officer once the Parliament to which he was elected had come to an end, by way of resulting trust for the candidate on whose behalf the money was deposited.

Held by FitzGibbon J. that the plaintiff had not established his title to the relief claimed by him, inasmuch as he had not qualified himself under the statute to have the deposit returned to him by taking the oath as a member.

Appeal from an order of Meredith J., dated 15th July, 1925.

The plaintiff, Thomas O'Donoghue, in his statement of claim, stated that he was a candidate at the Parliamentary election, held in May, 1921, for the Parliamentary constituency of Kerry and West Limerick, and as such candidate caused to be deposited with the defendant, as Returning Officer for the said Parliamentary constituency during the time appointed for the said election, the sum of £150, in compliance with sect. 26 of the Representation of the People Act, 1918. That, at the said Parliamentary election, he was duly elected, and the Parliament to which he was so elected came to an end on or before the 31st March, 1922. And that the defendant had failed, and refused, to return the amount of the said deposit to him (the plaintiff), although requested to do so. And he claimed (1) a declaration that he was entitled to the amount of the said deposit of £150, and accrued interest thereon; (2) a declaration that the defendant held the amount of the said deposit and interest as trustee for him; and (3) an account of what was due by the defendant to him on foot of said deposit and accrued interest, and an order that the defendant do pay him the amount which might be found due on the taking of the said account; and (4) an injunction restraining the defendant from paying the amount of the said deposit and accrued interest, or any part thereof, to any person other than him (the plaintiff). The defendant, Redmond Roche, the Under-sheriff for the County of Kerry, was the Returning Officer for the constituency. In his defence, he denied that the plaintiff deposited, or caused to be deposited, with him the sum of £150, or any sum, and further said that the sum of £150 (or any part thereof) never was the property of the plaintiff. He admitted that the plaintiff was duly elected, but stated that he had no knowledge as to when the said Parliament came to an end. He further said that the plaintiff did not deposit any money with him in connection with the said election, and that all moneys so deposited with him in connection therewith were deposited by Messrs. Terence J. Liston and William Quinlan, of Tralee, to be disposed of according to their directions, subject to any statutory conditions affecting the same, and that, subsequent to the said election, he paid the full amount of the money so deposited with him to, and to the order of, the said depositors, Terence J. Liston and William Quinlan. As a further defence, the defendant said that in so far as, if at all, the said money, or any part thereof, was the proper money of the plaintiff (which was denied), the plaintiff, though elected to Parliament at the said election, refused to, and did not, take the oath prescribed as a member of the said Parliament, and thereupon the money so deposited became and was forfeited, and became applicable as prescribed by the Representation of the People Acts, and was accordingly so applied by the defendant. And, as a further defence, the defendant pleaded the Public Authorities Protection Act, 1893. In his reply, the plaintiff said that if the said Parliament did not come to an end, so as to entitle him to a return of his deposit, on the 31st March, 1922, it did come to an end in (or before) November, 1922, and thereupon he (the plaintiff) became entitled to a return of the said deposit without having taken the Parliamentary oath, referred to in the defence. He further said that the said Terence J. Liston and William Quinlan were not his agents for any purpose except that of making the deposit; that they had not any authority from him to attach any conditions or give any directions in respect of the deposit; and that they had not, nor had either of them, any authority to demand or receive the deposit from the defendant, or to give any order to the defendant as to the payment of the deposit.

The evidence given and the documents relied on at the trial of the action before Meredith J. are set out in the judgment of the Chief Justice. Meredith J. dismissed the action, and from his decision the plaintiff appealed.

Cur. adv. vult.

Kennedy C.J. :—

This is an appeal by the plaintiff in the action from the judgment and order of Meredith J., dated the 16th July, 1925, dismissing the action out of Court, with costs.

The claim in the action arises out of the Parliamentary election held in the month of May, 1921, in certain Parliamentary constituencies in Ireland grouped by the British Government of Ireland Act, 1920 (which I will refer to as "the Act of 1920"), under the designation of "Southern Ireland."The then existing election laws relating to the British Parliament (which included the Representation of the People Act, 1918) were made applicable to the election by sect. 15 of the Act of 1920.

The plaintiff was a candidate at the election for the Parliamentary constituency of Kerry and West Limerick. The defendant, who is, and was at the time of the...