Halpin v Attorney General, Kerrigan and Irish Land Commission

• Jurisdiction: Ireland
• Judgment Date: 30 July 1936
• Date: 30 July 1936
• Docket Number: (1934. No. 217 P.)
• Court: High Court (Irish Free State)

Halpin v. Attorney-General and Others.

THOMAS HALPIN

Plaintiff

and

ATTORNEY-GENERAL, DENIS KERRIGAN and the IRISH LAND COMMISSION

Defendants.

(1934. No. 217 P.)

Constitution - Oireachtas - Statute - Absence of words of enactment - Validity and effect - Evidence - Copy of Act signed by Governor-General - Stationery Office copy - Stationery Office copy of Bill passed by both Houses of the Oireachtas - Admissibility - Land Commission - "Judicial power"- Administrative body performing ministerial duties - Collection of Land Annuities - Statute enabling Land Commission to issue warrant for arrears to Under-Sheriff empowering him to levy amount by execution - Whether judicial power thereby conferred on Land Commission - Validity of statute under Article 64 of the Constitution - Form of warrant - Form of notice of warrant to be served on defaulter - Prescribed form not followed - Validity of notice - Validity of claim for Sheriff's poundage - Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1 of1922), Sch. I, Arts. 42 and 64 - Interpretation Act, 1923 (No. 46 of1923) - Documentary Evidence Act, 1925 (No. 24 of 1925) - Land Act,1933 (No. 38 of 1933).

Sect. 28 of the Land Act, 1933, provides:—

(1) Where any person (in this section called the "defaulter") has failed to pay money due and payable by him to the Land Commission, in respect of a purchase annuity, an annual sum equivalent to a purchase annuity, an additional sum, payment in lieu of rent, interest in lieu of rent, interest on purchase money, rent of a holding, or rent payable under an agreement for the letting of a parcel of land for temporary convenience, it shall be lawful for the Land Commission, if and when the Land Commission thinks proper, to issue to the county registrar of the county in which the lands are situate or to the county registrar of any county in which the defaulter resides or has a place of business, a warrant in the prescribed form certifying the name of the defaulter, the amount of the money so due by him as aforesaid, and (as the case may require) the residence or place of business of the defaulter or the situation and description of the lands in respect of which such money is due, and authorising such county registrar to levy in accordance with this section the money aforesaid.

(2) A warrant issued under this section shall have the same force and effect as an execution order within the meaning of the Enforcement of Court Orders Act, 1926 (No. 18 of 1926), and shall be a sufficient authority to a county registrar to act in accordance therewith.

(3) Immediately upon receipt from the Land Commission of a warrant under this section the county registrar shall, after serving such notices and doing such acts as may be prescribed in that behalf by regulations to be made by the Minister for Justice, proceed to levy the money therein certified to be due by the defaulter in the same manner as execution orders at the suit of the Land Commission are by law leviable, and such county registrar shall, for that purpose, have all such rights, powers and duties as are for the time being vested in or imposed on him by law in relation to the execution of an execution order including such rights, powers and duties as are for the time being vested in or imposed on him by section 31 of the Land Act, 1927.

(4) . . .

(5) The remedies for the recovery of moneys given to the Lands Commission by this section shall be in addition to, and not in derogation of, any other remedies which the Land Commission may have by law for the recovery of such moneys.

(6) In the application of this section in relation to a county for which there is for the time being an under-sheriff, this section shall have effect as if the word "under-sheriff" were substituted for the expression "county registrar" throughout this section.

The County Registrars (Land Commission) Regulations, 1934, provide that notice of the issue of a warrant (in a form prescribed or to the same effect) shall be given to a defaulter giving him 15 days from the service of the notice within which to pay the arrears or make a declaration that he was not liable for the same.

The plaintiff was served by the under-sheriff for the County of Longford, one of the defendants, with a notice informing him that a warrant for £5 19s. 2d. had been lodged with him (the under-sheriff) by the Land Commission and that unless that sum and a further sum of seven shillings should be paid within 15 days from the date of the notice or unless plaintiff should file a declaration that he was not the person liable or that the amount was not due, execution would be levied. The notice was not in the prescribed form.

Plaintiff thereupon instituted proceedings claiming declarations that the Land Act, 1933, was void as it contained no words of enactment; that sect. 28 of the Act was void as it contravened Article 64 of the Constitution by purporting to confer judicial power on the Land Commission; that the warrant of the Land Commission wag void; and that the notice served on him by the under-sheriff was irregular and defective, and he claimed an injunction restraining the under-sheriff from executing on foot of the warrant.

During the course of the trial of the action a Stationery Office copy of the Land Act, 1933, which contained no words of enactment was produced by the plaintiff and also a Stationery Office publication purporting to contain the Bill for the Act as passed by both Houses of the Oireachtas, which likewise contained no words of enactment. The Attorney-General produced a Stationery Office copy of the Act in which the usual words of enactment appeared and he also produced the copy of the Act signed by the Governor-General and deposited in the office of the Supreme Court pursuant to Article 42 of the Constitution, which also contained the usual words of enactment.

Held, (1) that the Court could not look at the terms of the Bill produced to determine whether the Act was validly passed.

(2) That the Stationery Office copy produced by the Attorney-General was prima facie evidence, and the copy signed by the Governor-General conclusive evidence, that the Act was a valid enactment of the Oireachtas.

(3) That sect. 28 of the Act did not contravene Article 64 of the Constitution as it conferred merely ministerial powers on the Land Commission.

Lynam v. Butler (No. 2), [1933] I. R. 74, applied.

(4) That neither the statute, the warrant, nor the notice, entitled the under-sheriff to levy sheriff's poundage or officer's fees;

(5) that the notice was null and void and the under-sheriff was not entitled to levy execution on foot of the warrant.

Trial of Action.

The material facts appear from the pleadings, of which the statement of claim was as follows:—

(1) The plaintiff is a farmer residing at Meeltanagh, Ardagh, in the County of Longford, and is the registered owner of a holding which comprises the lands registered on Folio No. 6248 of the Register of Lands for the County of Longford.

(2) The defendant Denis Kerrigan is, and was at all material times the Under-Sheriff for the County of Longford.

(3) On or about the 18th day of April, 1934, a Notice bearing date the 14th day of April, 1934, was received by the plaintiff. The said Notice was addressed to the plaintiff and purported to have been issued by the defendant, Denis Kerrigan, whose name was printed at the foot thereof. The material portion of the said Notice is in the words and figures following:—

"I hereby give you Notice that a warrant under section 28 of the Land Act, 1933, has been logded with me by the Land Commission for the collection of £5 19s. 2d. due by you under the Land Purchase Acts to the 1st day of December, 1933, in respect of your holding at Meeltanagh and Barney, Receivable Order No. 92/3540.

"Unless, within 15 days from the date hereof payment is made to me at my office of this sum of £5 19s. 2d. together with 7s. 0d. unless, in case that you deny that you owe the amount claimed to be due by you, or that you are the person liable to pay same, you lodge at my office within the said period of fifteen days a declaration to that effect, I will forthwith proceed to recover the amount by distraint.

D. Kerrigan, Sheriff."

(4) The said alleged warrant was never served upon the plaintiff.

(5) The plaintiff contends and submits (inter alia):—

• (a) That the said alleged warrant (if any) is null and void and was issued without legal authority.

• (b) That the said alleged statute referred to in the said Notice was never enacted, nor was it enacted by the Oireachtas.

• (c) That the said alleged statutory provision is contrary to the Constitution, ultra vires the Oireachtas and void.

• (d) That the said provision which purports to authorise the issue of execution against citizens of Saorstát Éireann éireann without any adjudication by a Court as to their rights and liabilities and without any opportunity of being heard is unconstitutional, contrary to law and to natural justice, and is a usurpation of the powers committed by the Constitution solely to the Courts established thereunder.

(6) The plaintiff seeks for a declaration:—

• (a) That the warrant referred to in paragraph 3 hereof is null and void.

• (b) That the Notice referred to in paragraph 4 hereof is null and void.

• (c) That all proceedings founded on, or pursuant to, the said warrant or Notice are illegal and are null and void and without lawful authority.

(7) The plaintiff further seeks:—

• (a) That the defendant, Denis Kerrigan, be restrained by order or injunction of this Honourable Court from proceeding to levy by seizure of the plaintiff's property or otherwise under the said warrant the said sums of £5 19s. 2d. and seven shillings or any part thereof.

• (b) Such further declaration or relief as to this Honourable Court may seem meet in the circumstances.

The defence of the Attorney-General and of the Land Commission was as...