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

• Jurisdiction: Ireland
• Judgment Date: 14 July 1942
• Date: 14 July 1942
• Court: 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.

Supreme Court

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).

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

Subject as in this section mentioned, all expenses incurred in relation to a criminal lunatic confined in a district lunatic asylum . . . shall be defrayed out of moneys provided by Parliament, and such expenses shall be calculated in accordance with regulations to be made.

By the Expenses of Criminal Lunatics Calculations Order, 1902 it wac provided that there should be kept in every District Lunatic Asylum a register of criminal lunatics in which particulars of every criminal lunatic admitted to the asylum should be entered, and that at the close of every financial year the clerk of the asylum should make out a return of the expenses due in respect of each criminal lunatic and forward it to the auditor of the asylum accounts; the return wac then to be forwarded to the General Prisons Board and the Board was then to pay the amount certified as due to the committee of the asylum.

By the General Prisons Board (Transfer of Functions) Order, 1928, the Board was dissolved and all its powers, duties and functions were transferred to the Minister for Justice.

J. W., a criminal lunatic, was admitted to the Waterford District Lunatic Asylum in the year 1894. By mistake his name wac not entered in the register of criminal lunatics, nor was any return of the expenses due in respect of him made by the clerk of the Asylum as provided by the Expenses of Criminal Lunatics Calculations Order, 1902. He remained in the Asylum until the time of his death in 1933 as one of the lunatic poor, and the expense of his maintenance was paid out of the poor rate, less a maximum contribution of 4s. a week payable out of the Local Taxation (Ir.) Account. As a criminal lunatic, the cost of his maintenance should have been defrayed out of moneys provided by Parliament in accordance with s. 3 of the Lunacy (Ir.) Act, 1901. When he died in 1933, the mistake was discovered, and a claim for his expenses for the year ending 31st March, 1934, was claimed and paid by the Minister for Justice. On 23rd February, 1934, the Minister for Justice refused to pay the arrears of the charges in respect of J. W. from 1st April, 1902, to the 31st March, 1933. On the 22nd July, 1935, the plaintiffs issued a plenary summons claiming a declaration that all expenses incurred in relation to J. W. were defrayable out of moneys provided by the Oireachtas and were properly payable to the plaintiffs.

Gavan Duffy J. made a declaration that the plaintiffs were entitled to present their claim for J. W.'s expenses on the basis prescribed by the Expenses of Criminal Lunatics Calculations Order, 1902, properly verified, to the Minister for Justice for his consideration, in order that the said claim or so much thereof as should be properly payable, might be submitted to the Oireachtas, with a recommendation for the appropriation of the requisite monies. On appeal:

Held by the Supreme Court that the action should be dismissed, perSullivan C.J. and O'Byrne J. on the ground that the action was barred by s. 1 of the Public Authorities Protection Act, 1893, as more than six months had elapsed between the refusal of the Minister to pay and the issue of the summons; per Murnaghan and Geoghegan JJ. on the ground that c. 3 of the Lunacy (Ir.) Act, 1901, conferred a power and imposed a duty upon the plaintiffs of raising expenses in a specified manner, and the section did not give the plaintiffs any right to recover the expenses except in the manner prescribed by the regulations.

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...