O'Donoghue v Roche

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

S. C.,

O'Donoghue

and

Roche

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 8 Geo. V., c. 64), ss. 26, 27 - Government of Ireland Act, 1920 (10 11 Geo. V. c. 67), ss. 14, 15, 18 - Public Authorities Protection Act, 1893 (56 57 Vict., c. 61), s. 1.

The Representation of the People Act, 1918 (7 & 8 Geo. V., c. 64), was, among other statutes, applied by the Government of Ireland Act, 1920 (10 & 11 Geo. V., 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, s. 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for the election, the sum of one hundred and fifty pounds, and, if he fails to do so, he shall be deemed to be withdrawn within the provisions of the Ballot Act, 1872 .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 (3) If after the deposit is made the candidate is withdrawn in pursuance of the provisions of the Ballot Act, 1872, the deposit shall be returned to the person by whom the deposit was made; and if the candidate dies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." Section 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 real sense. By the Articles of Agreement for a Treaty between Great Britain and Ireland, dated 6th December 1921...