Minister for Agriculture v O'Connell

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 16 November 1942
• Date: 16 November 1942

Minister for Agriculture v. O'Connell.

THE MINISTER FOR AGRICULTURE

Complainant

and

DAVID O'CONNELL, Defendant (1)

Supreme Court

Emergency Powers Act, 1939 - Orders made thereunder - Tillage Orders - Act to be in force for one year - Act continued in force by subsequent Acts - Order legislating for period longer than Act in force at date of making of Order - Validity of Order - Act authorising the Government by Order to suspend the operation of any enactment for the time being in force - Government Order suspending the operation of s. 10, sub-s. 4, of the Petty Sessions (Ir.) Act, 1851 - Time limited under that sub-section for bringing a summons to six months from time when cause of complaint had arisen - Whether Order effective as regards summons issued before Order made and when the sic months period had elapsed - Retrospective effect of Order - Validity of Order - Emergency Powers Act, 1939 (No. 28 of 1939) -Emergency Powers (Continuance) Act, 1940 (No. 18 of 1940) - Emergency Powers (Continuance and Amendment) Act, 1942 (No. 19 of 1942) -Petty Sessions (Ir.) Act, 1851 (14 & 15 Vict. c. 93), s. 10, sub-s. 4 - Emergency Powers (No. 53) Order, 1940 (Stat. R. & Or., 1940, No. 307) - Emergency Powers (No. 53) Order, 1940 (Amendment) Order, 1941 (Stat. R. & Or.,1941, No. 5) - Emergency Powers (No. 178) Order, 1942 (Stat. R. & Or.,1942, No. 174).

By the Emergency Powers (No. 53) Order, 1940, made on the 22nd October, 1940, as amended by the Emergency powers (No. 53) Order, 1940 (Amendment) Order, 1941, made on the 7th January, 1941, the occupier of a holding to which the Order applied was required to cultivate in the year 1941 a certain portion of the area of such holding. The said Orders were made under the provisions of the Emergency Powers Act, 1939, as continued in force by the Emergency Powers (Continuance) Act, 1940. The Act of 1939 provided that it should continue in force until the expiration of twelve months from the date of the passing thereof (3rd September, 1939) and should then expire unless the Oireachtas otherwise determined. The Emergency Powers (Continuance) Act, 1940, which was passed on the 10th July, 1940, provided that the Act of 1939 should, unless previously determined by Order of the Government, continue in force until the 2nd September, 1941, and should then expire unless the Oireachtas otherwise determined. Therefore when the Emergency Powers (No. 53) Order, 1940, was made the Act of 1939, as extended by the Act of 1940, was only continued in force until the 2nd September, 1941. Subsequently the Emergency Powers (Continuance) Act, 1941, passed on the 5th August, 1941, contained similar provisions to those of the Acts of 1939 and 1940 and continued the Act of 1939 in force until the 2nd September, 1942.

It was contended that the Emergency powers (No. 53) Order, 1940, was invalid, us it purported to operate during the whole of the year 1941, i.e.,for a period longer than that in respect of which the Act of 1939 as continue by the Act of 1940 under which it was made, was in force.

Held by the Supreme Court that the Government was entitled to make an Order which would be operative so long as the Act under which it was made should continue to be in force whether by virtue of the then existing statutory provisions or of any subsequent legislation.

The Petty Sessions (Ir.) Act, 1851, provides that a summons (except in certain specified cases) must be brought within six months from the time when the cause of complaint shall have arisen, but not otherwise.

Under s. 2, sub-s. 2 (p), of the Emergency Powers Act, 1939, the Government may by Order "suspend the operation of . . . any enactment (other than this Act) for the time being in force."

By the Emergency Powers (No. 178) Order, 1942, the operation of s. 10, sub-s. 4, of the Petty Sessions (Ir.) Act, 1851, in so far as that sub-section

applies to summary proceedings for an offence under s. 5 of the Emergency Powers Act, 1939, is suspended, whether the complaint was made before, on, or after the date of the Order.

Held that the Order was not invalid by reason of its purporting to operate retrospectively, and that it applied to a summons for an offence under s. 5 of the Emergency Powers Act, 1939, although the Order was made after the summons had been issued, and the six months period had elapsed before the issue of the summons.

In re McGrath and Harte, [1941] I. R. 68, applied.

Case Stated by the Circuit Court Judge for Tipperary (Judge Sealy) on the hearing before him of an appeal from a decision of the District Court.

The Case Stated was as follows:—

1. The defendant, David O'Connell of Glenbane, Emly, Tipperary, in the County of Tipperary...