McGahan v Commissioner of Valuation and Killarney U.D.C.

• Jurisdiction: Ireland
• Judgment Date: 24 July 1934
• Date: 24 July 1934
• Court: Supreme Court (Irish Free State)

McGahan and Ryan v. Commr. of Valuation.

THE REV. FATHER BARNABAS McGAHAN and the REV. DECLAN RYAN

and

THE COMMISSIONER OF VALUATION and THE URBAN DISTRICT COUNCIL OF KILLARNEY (1)

High Court

Supreme Court

Local Government - Rates - Novitiate of a religious Order whose members take a voluntary vow of poverty - Rateability - Meaning of "charitable purposes"- "Education of the poor" - Poor Relief (Ir.) Act, 1838 (1 & 2Vict., 56), sects. 61, 63 - Valuation (Ir.) Amendment Act, 1854 (17 Vict., c. 8), sect. 2.

Premises were used us a novitiate for the education, training and maintenance of novices desirous of becoming priests of a religious Order. Members of this Order take a vow of poverty, and they receive no remuneration for educating and training the novices. The community depends for its support and maintenance upon voluntary contributions. The novices attending this novitiate are of different ranks of society.

Held by the Supreme Court, affirming the High Court, that the Commissioner of Valuation, in making out his List of Valuations under the Valuation Acts, ought not to distinguish the premises us being hereditaments"used for charitable purposes."

The Supreme Court were of opinion that the decision in Guardians of Landonderry Union v. Londonderry Bridge Commissioners, Ir. R. 2 C. L. 577, involves that the exemption from poor rate is to be ascertained, not from the language of the Valuation (Ir.) Act, 1854, sect. 2, but from the rating provisions of the Poor Relief (Ir.) Act, 1838, sect. 63, and that that decision could not now be departed from.

The words "for the education of the poor" in sect. 63 of the Poor Relief (Ir.) Act, 1838, do not mean to refer to persons who have become poor by the adoption of a religious vow of poverty.

Appeal from the Circuit Court.

The Commissioner of Valuation placed a valuation of £72 15s. on certain lands, buildings and premises, forming part of the Franciscan Monastery, Killarney, and numbered 9 and 10a Townland of Moyeightragh, in the County of Kerry. The appellants appealed from this valuation on the grounds that the premises should be exempted from the payment of rates inasmuch as they were exclusively used for charitable purposes, that was to say, for a house for novices for the education, training and maintenance free of charge of novices desirous of becoming priests of the Franciscan Order; and that such exemption as aforesaid should be noted on the Valuation List issued by the Commissioner of Valuation.

It appeared from the evidence given before Circuit Court Judge (Judge McElligott) that the members of the Franciscan Order took a vow of poverty and that they received no remuneration for educating and training the novices in the novitiate, which were the premises in question. The community depended for its support and maintenance

on voluntary contributions given by the people of the locality, and legacies and other gifts received from time to time. The novices attending this novitiate were of different ranks of society. No payment was accepted in respect of them whilst they were novices or subsequently. The Circuit Court Judge held that the premises were used exclusively for charitable purposes, and ordered the Commissioner of Valuation to amend his Valuation List by therein distinguishing the said premises as being lands and buildings used exclusively for charitable purposes.

From this decision the Commissioner of Valuation appealed.

The appeal was stated to be taken both on law and fact.

(a) The grounds of appeal, so far as it was an appeal on law, were:—

1. That the Circuit Court Judge misdirected himself and was wrong in law in holding that the said lands, buildings and premises were exclusively used for educational purposes which were charitable within the meaning of the Valuation (Ireland) Acts, 1852 and 1854, and in holding that the said lands, buildings and premises were exclusively used for the education of the poor, and in holding that the said lands, buildings and premises were entitled to exemption from assessment and should be distinguished in the said lists as being so exempt;

2. That there was no evidence before the Circuit Court Judge on which he could hold that the said lands, buildings and premises were exclusively used for the education of the poor, and that upon the evidence he was not entitled so to hold.

(b) The ground of the appeal so far as it was an appeal on fact, and in so far as there was any finding of fact, was that the Circuit Court Judge was wrong in holding upon the evidence that the said lands, buildings and premises were exclusively used for the education of the poor.

The Rev. Father Barnabas McGahan and the Rev. Declan Ryan appealed from this decision to the Supreme Court (1).

Sullivan P. :—

I am of opinion that the decision of the Circuit Judge in this case was wrong, and that this appeal should be allowed.

The Circuit Judge decided that the premises in question are used exclusively for the education of the poor and are accordingly exempt from liability to rates. It is conceded that premises so used are exempt from that liability, and the decision in the Alexandra College Case(1) is not questioned. But counsel for the appellant contend that the Circuit Judge has misinterpreted the phrase "education of the poor" as used to define the educational user which is a charitable purpose within the Valuation (Ireland) Acts.

The evidence in this case established that boys drawn from all ranks and classes enter the novitiate of the Franciscan Order, and it was not, and could not, be suggested that the parents of the boys who are received into the seminary at Killarney are unable to pay for the education of their children. But it was argued that as boys entering the novitiate must divest themselves of all their property they thus became poor persons before their education commences, and that accordingly the seminary was used for the education of the poor. The argument is ingenious but, in my opinion, unsound. The property of the boys themselves is not the only matter to be considered, the financial position of the parents must also be taken into account. Children under age have not usually independent means, and where the education of children is in question the education that is obtainable within the meaning of the Acts in question must, in my opinion, be the education of children whose parents are poor. But, quite apart from that consideration, I cannot think that poverty voluntarily self-imposed can bring one within the class of poor persons, the education of whom is charitable. I am, therefore, of opinion that the view taken by the Circuit Judge was erroneous.

Counsel for the respondent further argued that the premises in question were used for "charitable purposes," as premises used for the promotion of religion, and, were it not for the fact that the words "charitable purposes" in the valuation code bear a limited meaning, this argument might be supported. But on this branch of the case the decision inDoré v. Commissioner of Valuation(2) seems applicable, and I see no reason to differ from it.

I am, therefore, of opinion that this appeal should be allowed.

Hanna J. :—

I agree with the conclusions of the President in this case and with the reasons for them which he has expressed.

I have nothing to add, except to say that, in reference to the suggestion that we should not follow the decisions of the Courts in existence prior to the establishment of the Irish Free State, we are not technically bound, but still it is law which has been laid down by distinguished Judges and has been accepted as the law in this country for more than a generation. If these decisions are to be set aside or reversed, it should be done by the Supreme Court. I have expressed that view more than once. I do not understand the suggestion that we should interpret a statute that has been in existence for a length of time in a manner which has been described as "being more in conformity with modern feeling." I do not understand what that means. If a statute becomes what is called "out of touch" with modern feeling, the proper body to deal with it is the Legislature and not the Court.

For the reasons stated by the President this appeal must be allowed.

The Court certified that their decision involved a question of law of such importance as to be fit to be the subject of an appeal to the Supreme Court.

Cur. adv. vult.

The judgment of the Court was delivered by Mr. Justice Murnaghan.

Murnaghan J. :—

This appeal has been taken from a decision of the High Court, avowedly for the purpose of having the decision of the King's Bench Division, O'Neill v. Commissioner of Valuation(6), considered by this Court. It thus opens for...