Ladd v O'Toole

• Jurisdiction: Ireland
• Judgment Date: 17 November 1903
• Date: 17 November 1903
• Court: Court of Appeal (Ireland)

Ladd

and

O'Toole (1).

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1904.

Parliament — Registration of voters — Religious educational Community — College bedroom constituting “dwelling-house” — Service franchise — Registration appeal — Jurisdiction of Court — Previous decision, how far binding.

Each teacher and lay brother in a College conducted by a religious Community had, as such, during the qualifying period, the exclusive use of a separate bedroom in the College, which was managed by a resident principal, under the supreme control of the Superior-General of the Community, who himself lived in Paris. In 1887, in revising the list of voters, the Revising Barrister held that the bedroom so occupied by each of the teachers in the College was a dwelling-house for the purpose of the franchise, and was inhabited by him by virtue of his office or employment as a teacher, and that the College was not (for such purpose) inhabited by any person under whom he served in such office or employment, and he accordingly admitted each of the teachers to the franchise. This decision was affirmed by the Court of Appeal in Alexander v. Burke (22 L. R. Ir. 443), the four members who constituted the Court feeling themselves bound by Hasson v. Chambers (18 L. R. Ir. 68) and Stribling v. Halse (16 Q. B. D. 246). In each subsequent year the names of these teachers appeared on the register, and were not objected to until the year 1903. In this year an objection was served on each teacher and lay brother, the ground of objection being that the room in respect of which the franchise was claimed was not a dwelling-house, and also that its occupant was not its owner or tenant. The Revising Barrister, having regard to the evidence, some of which was not given in the former case, and also having regard to M'Quade v. Charlton ([1904] 2 I. R. 383), stated that if he had considered himself at liberty so to hold, he would have found that in no case was the bedroom occupied by a member of the Community a dwelling-house occupied by him by virtue of his office or employment as a teacher or lay brother; but as Alexander v. Burke (22 L. R. Ir. 443) was a decision of the Court of Appeal in respect of the same institution, and, as to the teachers, in respect of the same voters, declaring them entitled to the franchise, he considered he was bound to retain the names on the register, but stated a case on the points raised for the Court of Appeal:—

Held, that the Court of Appeal had power to review, and, if necessary, refuse to follow, a decision of its own pronounced in a registration appeal, and

that, upon the evidence in the present case, there was nothing to show that the bedroom separately occupied by each of the voters was his dwelling-house, and that they were not entitled to the franchise.

Per Palles, C.B., Walker and Holmes, L.JJ.: The relation of employer and employed, or of master and servant, did not exist between the other members of the Community and the head of the Order.

Alexander v. Burke (22 L. R. Ir. 443), Hasson v. Chambers (18 L. R. Ir. 68), and Stribling v. Halse (16 Q. B. D. 246) not followed.

Appeal from the decision of Mr. Ignatius J. O'Brien, K.C., one of the Assistant Revising Barristers for the county of Dublin.

The case stated was as follows:—

At a Court held by me at Blackrock, on 26th September, 1903, and following days, the name of the Rev. Hugh O'Toole, 173, and the names of those in the schedule hereto appeared on the register, and were duly objected to by Thomas Theodore Ladd. The Rev. Hugh O'Toole and those whose names are set out in the first part of the schedule were among those whose right to be registered was argued in the case of Alexander v. Burke (1); since the date of that case their names had appeared in the registers, and had not been objected to.

The objector by his solicitor, Mr. William V. Seddall, contended that the decision given by the Court of Appeal in 1887 must be taken in substance as overruled by recent cases, especially by M'Quade v. Charlton (2), when Stribling v. Halse (3) and Hasson v. Chambers (4), on which the judgment in the French College case largely turned, were unfavourably commented on by the Court.

General evidence in support of the objection was given in each case, and by consent the evidence in all was taken on the same day, 2nd October, 1903.

Additional facts to those in the reported case were proved. Where there was a material variance from the facts in the old case, or new facts were proved, I have included same within brackets.

No consent similar to that referred to in the former case, page 444 of the report, was given.

The following were the facts proved:—

The Rev. Hugh O'Toole and the others named in the first part of the schedule are members of the body called La Communauté du Saint Esprit. The French College, Blackrock, is conducted by a branch of this body. The Superior-General of the Community [le Pere le Roy] lives in Paris; he has control over all the members of the Community at Blackrock, including the president of the College [the Rev. John T. Murphy], and the others mentioned in the schedule. The Superior-General has power to remove any member of the Community [from the College to any other house of the Order].

Whenever any matter of importance arises concerning the property of the College at Blackrock, it is submitted to the Superior-General in Paris for his decision.

The College at Blackrock is an educational establishment, where students are prepared for commercial pursuits, for Intermediate examinations, and for Civil Service examinations. They pay for their tuition and other expenses. The Rev. Hugh O'Toole and those named in the first part of the schedule are teachers in the College. Those named in the second part of the schedule are lay brothers. All are members of the Community. There are also hired servants who reside in the College. [The lay brothers do not as a general rule teach, their duty being to look after the general internal management of the College, attending to the catering, and so forth; but if required by the president, they are bound to give religious instruction and teach catechism to the servants, and sometimes to the pupils.]

All the inmates of the College are under the general supervision and control of the president [the Rev. John T. Murphy], who deals with any case of breach of discipline. An account is furnished by him at the beginning of each year to the Superior-General at Paris, of the profits and losses of the College at Blackrock during the preceding year. [The Rev. John Ebenrecht and the Rev. Jules Botrel are rated for the College premises. The Rev. Jules Botrel does not reside at the College, but the Rev. John Ebenrecht does. They are disqualified for registration, not being naturalized English subjects.] The College premises consist of one building, with internal communications throughout, called the French College, with the grounds about it. The College grounds are bounded by a wall, in which there are two gates in charge of lay brothers. The gates are closed and locked at nights, but members of the Community can always obtain admission. [A member can also always go out, but if he went out very frequently he might be reprimanded by the president.] All members of the Community are expected to attend prayers at half-past eight o'clock in the evening, and any member who is absent is obliged to give some reason for his absence to the president. Each member of the Community has the exclusive use of a separate bedroom. The teachers, with the exception of [the Rev. Philip Shea], take their meals with the president. The lay brothers take their meals separately from the teachers. The Rev. Hugh O'Toole and each of those mentioned in the schedule had during the qualifying period occupied exclusively a bedroom in the building described as the French College. In the case of those in the first part of the schedule they had during the said period been teachers in said College, and second part had been lay brothers. None are subject to any legal incapacity. [This room is in each case allotted by the bursar under the direction of the president. If the president ordered a member to whom a room was allotted to leave the room and occupy another, the member would have the right of appealing from that order to the Provincial of the Community, who lives in Ireland, but not at the French College, and from him there is a right of appeal to the General. If the direction to leave the room be confirmed, the member must leave the room. The Provincial may be a person resident in the French College, but not necessarily. Meals are ordinarily taken by the members in the dining hall or refectory, except in cases of illness. If a member of the Community declines to take his meals in the refectory, or failed to retire to rest or rise at the hours fixed for that purpose in the College, the matter would be reported to the Provincial or General, and if he were not satisfied that there was good reason he would reprimand the member for his conduct. In the case of meals, if he ordered them to be served in his room, they would be so served until the decision of the Provincial or General was obtained; but if he disapproved, the meals could not be so served in future.]

[The income arising from the fees paid by students and received from other sources is received, and all disbursements necessary for the upkeep of the College and support of the residents made by the bursar, the Rev. John Ebenrecht. He acts as bursar for the Community.]

[None of the teachers or lay brothers are paid any salary; they are supported and maintained out of the income above mentioned for the services rendered as aforesaid.]

[The Society, of which the teachers and lay brothers are members, have houses and branches in every part of the world. The...