Minister for Finance and Minister for Justice, Moynihan and Waterford Corporation

JurisdictionIreland
CourtSupreme Court
Judgment Date14 July 1942
Date14 July 1942

Supreme Court

Moynihan v. Waterford Corporation and Others
SIMON J. MOYNIHAN, and THE MAYOR, ALDERMEN AND BURGESSES OF THE CITY OF WATERFORD
Plaintiffs
and
THE MINISTER FOR FINANCE AND THE MINISTER FOR JUSTICE OF SAORSTAT ÉIREANN éireann
Defendants.

Lunacy - Criminal lunatic - Expenses of maintenance - Defrayable out of monies provided by Parliament - Expenses to be calculated in accordance with regulations - Register of criminal lunatics to be kept - Name of criminal lunatic omitted from register by mistake - Expenses of maintenance paid out of poor rate - No application made during lunatic's lifetime for payment of expenses out of monies provided by Parliament - Subsequent claim against the Minister for Finance and Minister for Justice for arrears of maintenance - Duty of Minister to submit estimates to Oireachtas - Calculation of expenses - Whether annual charge or not - Whether regulations mandatory or directory - Declaratory action - Public Authorities Protection Act, 1893, s. 1 - Lunatic Asylums Act, 1875, s. 13 - Local Government Act, 1898, sects. 9, 58 - Lunacy (Ireland) Act, 1901,sects, 3, 6 - Ministers and Secretaries Act, 1924 (No. 16 of 1924), sects.1, 2, Sch., Part II - Local Government Act, 1925 (No. 5 of 1925), s. 79 -Expenses of Criminal Lunatics Calculations Order, 1902 (Stat. R. & Or.,1902, No. 323) - General Prisons Board (Transfer of Functions) Order (Stat. R. & Or., 1928, No. 79).

Witness Action.

The plaintiff, Simon J. Moynihan, was the Commissioner to whom the property, powers and duties of the County Council of Waterford were transferred by the Waterford County Council (Dissolution) Order, 1934, made in pursuance of s. 72 of the Local Government Act, 1925 (No. 5 of 1925). The plaintiffs, the Waterford County Council and the Mayor, Aldermen and Burgesses of the City of Waterford acting through a Joint Committee were the authorities entrusted by the Local Government (Ireland) Act, 1898, with the duty of managing and maintaining the Waterford District Mental Hospital. The plaintiffs brought an action against the defendants, the Minister for Finance and the Minister for Justice, claiming:—1. A declaration that John Walsh (otherwise known as Joseph Hunt), a person confined in the Waterford District Mental Hospital from the 25th March, 1894, to the 15th October, 1933, pursuant to an order, dated the 24th March, 1894, made by the Lords Justices General and General Governor of Ireland under s. 13 of the Lunatic Asylums Act, 1875, was, as from 1st April, 1902, to the 15th October, 1933, a criminal lunatic within the definition in the Lunacy (Ireland) Act, 1901. 2. A declaration that all expenses incurred from the 1st April, 1902, to the 15th October, 1933, in relation to the said John Walsh were, by virtue of the Lunacy (Ireland) Act, 1901, defrayable out of moneys provided by the Oireachtas of Saorstat Éireann éireann, and were properly payable to the plaintiffs, such expenses to be calculated in accordance with the regulations made under the said Act. 3. A declaration that the said expenses, calculated according to the said regulations, namely, the Expenses of Criminal Lunatics Calculations Order, 1902, amounted to £1,307 9s. 7d. 4. Payment of the said amount.

By s. 3 of the Lunacy (Ireland) Act, 1901, it was provided that, subject as in the section mentioned, all expenses incurred in relation to a criminal lunatic confined in a District Lunatic Asylum should be defrayed out of moneys provided by Parliament, and such expenses should be calculated in accordance with regulations to be made by the Lord Lieutenant with the approval of the Treasury.

Regulations entitled "The Expenses of Criminal Lunatics Calculations Order, 1902" (Stat. R. & Or., 1902, No. 323), were made by the Lord Lieutenant on the 3rd April, 1902. The regulations relevant to this action provided:—

1. There shall be kept in every District Lunatic Asylum in Ireland . . . a book to be called the "register of criminal lunatics" in which shall be entered under the specified heads the particulars regarding every criminal lunatic, as defined by the Lunacy (Ireland) Act, 1901, who shall be resident in or admitted to the Asylum on and after the 1st April, 1902.

2. A register of the sums received or recovered in pursuance of s. 16 of the Lunatic Asylums (Ireland) Act, 1875, on behalf of criminal lunatics other than moneys provided by Parliament (to be called the "register of sums received for criminal lunatics") shall also be kept, in which shall be entered under the specified heads particulars of all such receipts from time to time.

3. As soon after the 1st April, 1903, and every year thereafter, as the accounts for the year ending 31st March immediately preceding are closed, the Clerk of the Asylum shall make out from the "register of criminal lunatics"and the "register of sums received for criminal lunatics"a return for submission to the auditor of the Asylum accounts.

4. The Resident Medical Superintendent in each case shall forward the return, when completed and signed by the auditor, to the office of the General Prisons Board, Dublin Castle, whereupon that Board shall issue a paying order in favour of the Treasurer of the Asylum for the time being for the amount certified as due to the committee of management.

By the Ministers and Secretaries Act, 1924 (No. 16 of 1924), the administration of the General Prisons Board for Ireland was assigned to the Department of Justice, and the Board continued to function under the control of the Minister for Justice. By the General Prisons Board (Transfer of Functions) Order, 1928 (Stat. R. & Or., 1928, No. 79), all the jurisdictions, powers, duties and functions of the General Prisons Board were transferred to the Minister for Justice, and all the property and assets of the Board were vested in him.

John Walsh, a prisoner on remand, was subsequently committed. to the Waterford District Lunatic Asylum, (now known as the Mental Hospital), in March, 1894, as a criminal lunatic, in pursuance of an order made under s. 13 of the Lunatic Asylums Act, 1875, but his name was never entered in the register of criminal lunatics. He remained in the Mental Hospital until he died on the 15th October, 1933, as one of the lunatic poor, the expenses of whose maintenance was payable out of the poor rate, less a maximum contribution of 4s. per week payable out of the Local Taxation (Ireland) Account. For the year ending 31st March, 1934, the Mental Hospital claimed and was paid in respect of him the amount due for that year as a criminal lunatic.

Previously, on 24th October, 1933, the Resident Medical Superintendent of the Waterford Mental Hospital had written to the Minister for Justice informing him that no charge had been made for John Walsh, and that he should have been charged for as a criminal lunatic. On 24th January, 1934, the solicitors for the plaintiffs wrote to the defendants informing them that they had been instructed to institute proceedings for the recovery of the charges due in respect of John Walsh. On 23rd February, 1934, the Minister for Justice wrote to the plaintiffs' solicitors refusing to entertain the claim made by the plaintiffs. The plenary summons was issued on the 22nd July, 1935.

The statement of claim, having set out the matters already mentioned, alleged that by virtue of the Articles of Agreement for a Treaty between Great Britain and Ireland and by virtue of the Irish Free State (Agreement) Act, 1922, the Provisional Government (Transfer of Functions) Order, 1922, and the Acts, No. 1 of 1922, No. 2 of 1922 and No. 16 of 1924, the liability for payment of so much of the said expenses as had not been defrayed out of moneys provided by the Parliament of the late United Kingdom of Great Britain and Ireland was transferred to the Government of the Irish Free State and became payable by the defendants out of moneys provided by the Oireachtas.

The defendants by their defence, after certain formal traverses, relied on the Public Authorities Protection Act, 1893, and on the Statutes of Limitations; they also pleaded that compliance with the regulations contained in the Order of 1902 was a condition precedent to the payment of any expenses under the Lunacy (Ireland) Act, 1901, and that the plaintiffs had failed to comply with those regulations.

Form of declaratory portion of order:—

The Court will declare:—

"that, notwithstanding the failure of the plaintiffs, their servants or agents, to present to the General Prisons Board or the Minister for Justice of Saorstat Éireann éireann, year by year, at the times and in the mode prescribed by the Expenses of Criminal Lunatics Calculations Order, 1902, the returns and certificates required to ascertain the expenses incurred in relation to John Walsh, otherwise Joseph Hunt, a criminal lunatic, during his confinement in the Waterford District Lunatic Asylum or Mental Hospital from the 1st day of April, 1902, to the 31st day of March, 1933, and notwithstanding the erroneous returns and certificates under the said Order presented on their behalf for many years, the plaintiffs, on the true construction of s. 3 of the Lunacy (Ireland) Act, 1901, and the said Order, are entitled, through the resident medical superintendent of the said Mental Hospital, to present their claim for the said expenses, duly calculated year by year from the particulars and on the basis prescribed by the said Order and satisfactorily verified, to the Minister for Justice for his consideration, in order that the said claim, or so much thereof as shall be properly payable, may be submitted in due course to the Oireachtas, with a recommendation for the appropriation of the requisite moneys."

From this judgment and order the plaintiffs appealed to the Supreme Court, and the defendants served a cross notice of appeal asking that the action be dismissed (1).

Sect. 3 of the Lunacy (Ireland) Act, 1901, provides:—

Subject as in this section...

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