Fisher v Irish Land Commission and Attorney General

• Jurisdiction: Ireland
• Judgment Date: 16 November 1948
• Date: 16 November 1948
• Court: Supreme Court

Fisher v. Irish Land Commission and Attorney-General.

FRANCIS FISHER

Plaintiff

and

THE IRISH LAND COMMISSION and the ATTORNEY-GENERAL

Defendants.

Supreme Court.

Constitution - Land Acts - Resumption of holding vested in Land Commission - Petition against resumption - Whether consideration of petition an administrative inquiry or exercise of judicial function - Validity of statutory provisions as to resumption of holdings - Land Act, 1939 (No. 26 of 1939),s. 39 - Constitution of Ireland, Arts. 34, 37.

The provisions of s. 39 of the Land Act, 1939, authorising the resumption, for specified purposes, of holdings vested in the Land Commission, are in no way repugnant to the Constitution or invalid.

The inquiry provided for by sub-s. 2 of s. 39 is of a purely administrative character and does not involve the determination of any question of legal right: in such inquiry the Lay Commissioners and the Appeal Tribunal, while bound to act judicially, are not exercising judicial power.

So held by the Supreme Court, affirming Gavan Duffy J.

Plenary Summons.

The plaintiff was the tenant, under a judicial tenancy dated the 9th day of December, 1912, of a substantial farm of about 392 acres in County Louth, consisting of two holdings subject formerly to the judicial rent of £460 or thereabouts, but at the date of these proceedings subject to a revised annuity of £250 payable to the Irish Land Commission. These lands vested in the Irish Land Commission on the 1st day of May, 1931, the appointed day in respect thereof under the Land Act, 1923 (No. 42 of 1923). The standard price of the holding was £5,263. In the year 1935 the Land Commission published notice of intention to resume the plaintiff's holding, under the provisions of the Land Act, 1933 (No. 38 of 1933): there were negotiations with the plaintiff and no resumption order was made. New proceedings to resume the holding were, however, instituted by the Land Commission in 1940. On the 6th day of August, 1940, a notice of intention to apply to the Appeal Tribunal for leave to resume was published in Iris Oifigiuil and this notice was served on the plaintiff on the 27th day of August, 1940, as required by s. 39 of the Land Act, 1939 (1), the

section dealing with the powers of the Land Commission to resume holdings. On the 27th day of September, 1940, the plaintiff presented a petition to the Land Commission against such resumption, and this petition was heard on the 12th day of June, 1941, and was refused on the 18th day of December, 1941. Shortly after this the plaintiff received a notification from the Land Commission that an application would now be made to the Appeal Tribunal for permission to resume the plaintiff's holding. Before any further step had been taken by the Land Commission the plaintiff issued these proceedings, claiming declarations to the effect that the provisions of the Land Acts, 1933 to 1939, as to the resumption of holdings by the Land Commission, were invalid and unconstitutional.

In a lengthy statement of claim the plaintiff set out the matters aforesaid and referred to the provisions of the Land Acts, 1923 to 1939, dealing with the Constitution of the Land Commission, the powers of the Judicial Commissioner, the Lay Commissioners and the Appeal Tribunal respectively, and to those provisions dealing with the resumption of holdings. He averred that on the hearing of his petition he was unjustly required to call evidence against the resumption, without any evidence having been called to justify resumption, and without any opportunity of knowing or controverting any evidence upon which the Land Commission or the Lay Commissioners might have acted in deciding to resume the holding.

The plaintiff claimed the following relief:—"1. A declaration that the provisions of the Land Acts, 1933 to 1939, and the rules made thereunder are contrary to the letter and the spirit of the Constitution of Saorstat Éireann éireannand the Constitution of Éire éire respectively, and are unconstitutional, invalid and void for repugnancy in the following (amongst other) respects:—(a). So far as they purport to deprive the plaintiff and other tenants, citizens of Éire éire, of the right to the protection of a judicial decision by the Judicial Commissioner, or other lawfully constituted Court, prior to resumption of a holding by the Irish Land Commission; (b). So far as they purport to deprive the Judicial Commissioner of the exclusive right to exercise the powers of the Court under s. 5 of the Land Law (Ir.) Act, 1881; (c). So far as they purport to confer judicial powers upon the Lay Commissioners, being persons not holding the qualifications required for judicial appointment; (d). So far as they purport to confer judicial powers on lay members of the Appeal Tribunal (being persons not holding the qualifications required for judicial appointment) including power to overrule the Judicial Commissioner; (e). So far as they purport to confer on the Appeal Tribunal the powers of "the Court" under s. 5 of the Land Law (Ir.) Act, 1881; (f). So far as they purport to confer power on the Appeal Tribunal to decide questions arising in connection with the resumption of a holding and make such decision final, yet compel the said Tribunal to act on the mere production of a certificate without hearing the parties, without hearing evidence, and without exercising any judgment or discretion in the matter. 2. A declaration that the said provisions and every of them were and are ultra vires the Oireachtas respectively. 3. A declaration that the questions arising under s. 5 of the Land Law (Ir.) Act, 1881 (and any lawful amendment thereof), are matters involving the exercise of judicial power and discretion which, under the Constitution, are exercisable only by a judge or Court lawfully appointed and duly qualified in accordance therewith. 4. A declaration that the procedure prescribed by the Land Acts, 1933 to 1939 (and rules made thereunder) was and is contrary to natural justice, unconstitutional and repugnant to the said Constitution in the following (amongst other) respects:— (a) in that the Irish Land Commission (acting by the Lay Commissioners) decide to resume a holding without the knowledge of the tenant; (b) in that the landlord (the Irish Land Commission) is no longer called upon to satisfy the Court by evidence that there is a lawful statutory ground for resumption; (c) in that the onus is unjustly thrown upon the tenant of showing cause why his property should not be taken from him; (d) in that the tenant is afforded no opportunity of knowing, examining, objecting to, answering or controverting the evidence (if any there be) on which the Lay Commissioners acted in deciding to resume the holding, nor of knowing, examining, objecting to, answering or controverting the evidence (if any there be) on which the Lay Commissioners assume to act in purporting to decide on the tenant's petition; (e) in that the Lay Commissioners who hear the petition are not required to have any legal qualifications, or to make or subscribe the declaration prescribed by the Constitution, and are under no obligation to act judicially or impartially and are not independent, but are civil servants under the control of the government without any security of tenure; (f) in that the decision of the Lay Commissioners upon the tenant's petition is made final; (g) in that the tenant may be unjustly expropriated as aforesaid without any opportunity for fair hearing, without recourse to any Court of law, and without any remedy whatever; (h) in that the prescribed application to the Appeal Tribunal for leave to resume is colourable, unreal and illusory, and affords no protection to the tenant; (i) in that the provisions and procedure aforesaid are in direct violation of rights guaranteed by the said Constitution to the plaintiff and other tenants, citizens of Éire éire. 5. An injunction to restrain the Irish Land Commission from applying for or obtaining any certificate from the Lay Commissioners under s. 39 of the Land Act, 1939, and from applying to the Appeal Tribunal to authorise the resumption of the plaintiff's holdings, and from taking any further steps under the notices of the 26th March, 1935, or the 6th August, 1940, with a view to resumption of the plaintiff's said holdings, or either of them."

In their defence the first-named defendants, the Irish Land Commission, in substance, admitted the matters of fact averred by the plaintiff, but pleaded that by virtue of the amount of the standard price of the holding exceeding £3,000 it was a "retained holding" under s. 28 of the Land Act, 1923, and was subject to powers of resumption conferred upon the Irish Land Commission by s. 39 of the Land Act, 1939. They denied that the plaintiff had been required to call any evidence at the hearing of his petition but averred that it had been optional for him to adduce evidence: they denied that there was any obligation on them to adduce evidence or to afford the plaintiff any information as to the evidence upon which the Land Commission acted in deciding to resume the holding. They averred that the Lay Commissioners were "duly authorised by law to exercise limited functions and powers of a judicial nature in matters other than criminal matters," and denied that any provisions of the Land Acts in question were unconstitutional. A defence was also filed on behalf of the Attorney-General denying that the statutory provisions in question were unconstitutional and denying that any of the matters complained of constituted an exercise of judicial power, or of the judicial power of the State, or the administration of justice, within the meaning of the Constitution. There was also a plea that the action was premature.

At the hearing one witness was called, on behalf of the plaintiff, who stated that the plaintiff had used the holding for some years for grazing and fattening cattle, but in recent years had...