Murphy v Attorney General

Judgment Date01 January 1982
Neutral Citation1980 WJSC-SC 1389,1980 WJSC-SC 351
Date01 January 1982
Docket NumberNo. 1435P./1978,[1978 No. 1435P]
CourtSupreme Court

1980 WJSC-SC 1389

O'Higgins C.J.

Henchy J.

Griffin J.

Kenny J.

Parke J.




JUDGMENT delivered the 25th day of April 1980by O'HIGGINS C.J.


In its Judgment of the 25th January 1980 in these proceedings this Court declared Sections 192 to 198 of the Income Tax Act 1967, in so far as the same provided for the aggregation of the earned Income of married couples, to be invalid having regard to the provisions of the Constitution. Subsequent to this Judgment the Court received submissions and entertained arguments as to the date from which this declaration should operate and as to whether and in respect of what period the Plaintiffs could claim a refund of tax paid in accordance with aggregation.

The Questions

These questions arising as a consequence of the Court's Judgment involve considerations of importance in the interpretation of the Constitution. While they arise as a consequence of a decision on validity they do not form part of that validity question but have a muchwider and more general impact. It follows that this Court in pronouncing upon them is not bound by the one opinion requirement of Art. 34.4.5 of the Constitution and is free to arrive at its decision through the separate judgments of each member of the Court.


It seems to me that the matters which the Court has been asked to consider can conveniently be grouped as follows - whether the Court's declaration as to invalidity operates retrospectively, and if so to what extent, or prospectively, whether the principles of estoppel apply in respect of claims for the recovery of tax paid and, whether tax paid under a law presumed to be valid and which was subsequently declared to be invalid can ever be recovered. I propose to deal with the matters raised in the above order to the extent to which I find it necessary to refer to them.

American Practice

The American Supreme Court has adopted a practice of deciding, in relation to the facts and surrounding circumstances, whether a ruling which upsets what wasregarded as the law should operate retrospectively or merely prospectively. This extends both to the rules of the common law and to statutes held to be unconstitutional The practice grew up gradually. It constituted a rejecti of Blackstone's view that the duty of a court was not to "pronounce a new law, but to maintain and expound the old one". (1. Blackstone's Comm. 65). Blackstone's view was accepted originally without question both in relation to the common and statutory law. In Norton v. Shelby County 118 U.S. 425, decided in 1886 the Court declared that unconstitutional action "confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed". It was, however, appreciated that such a view, applied without exception, could work considerable hardship and Injustice. In 1940 Chief Justice Hughes in Chicot County Drainage District v. Baxter State Bank 308 U.S. 37 stated that the Norton view "must be taken with qualifications". He said that the actual existence of the law prior to the determination of itsconstitutionality "is an operative fact and may have consequences which cannot be ignored. The past cannot always be erased by a new judicial declaration". Earlier in 1932 Mr. Justice Cardozo in Great Northern Railway Company v. Sunburst Oil and RefiningCompany 287 U.S. 358 had upheld a decision of the Montana Supreme Court to apply a ruling prospectively, asserting that prospectivity could be necessary to "avoid injustice or hardship" and on the principle that laws set aside "are law none the less for intermediate transactions". Finally in Linkletter v.Walker 381 U.S. 617 the American Supreme Court, declaring that the Constitution, neither prohibits nor requires retroactive effect to be given to such rulings, decided that in each case it was proper to determine whether retroactive or prospective application wasappropriate.


It has been urged by Counsel for the Attorney General that this Court should follow these American precedents and should, in particular, in this case, as a matter of judicial choice, provide for prospectivity inrelation to the declaration made. I must, and do, treat with respect a practice which in its long and widespread experience, the American Supreme Court has found to be both competent and practical. I must exercise caution, however, lest too precipitate a following leads to confusion and error. Important differences exist between the American Constitution and ours and because of these differences constitutional practices and procedures possible in one country may not be permissible in the other. Unlike ours, the American Constitution confers no express power of judicial review over legislation on the Supreme Court. This power, of course, exists but its existence came through judicial recognition. In the landmark decision of Maybury v. Madison 5 U.S. 137 the Supreme Court declared such a power to be implicit in the Constitution and to be of the very essence of the judicial power and duty under the Constitution. Being a power first recognised and declared by the courts it is not surprising that its subsequent development in America should have been the result of changing judicialviews as to the consequences which should flow when a law was declared unconstitutional or a previously accepted principle upset. The change from the view expressed in the Norton case to that which was later declared in Linkletter was not made more difficult by the written words of a Constitution. While, therefore, noting the American precedent I feel bound to consider this matter on the basis of our own Constitution and in the light of its particular provisions. It is on these and on nothing else that the consequences of a declaration as to invalidity on a question raised under Article 34 of the Constitution must bedetermined.

Constitutional Provisions as to Legislation

Article 15 of the Constitution deals with the National Parliament or the Oireachtas. This consists of the President and the two Houses,Dáil Éireann and Seanad Éireann. Under Article 15.2 the sole and exclusive power of making laws for the State is vested in the Oireachtas. By Article 15.4.1 it is provided that the Oireachtas "shall not enact any law which is in any respectrepugnant to the Constitution or any provision thereof". The Article does not provide for any machinery to enforce this prohibition or to advise or indicate to the Oireachtas what may be repugnant. One can assume that the Oireachtas would recognise and observe the express prohibitions contained in the Constitution. Examples of these are the prohibitions on legislation to provide for retrospective infringement of the law, (Article 15.4) to disqualify citizens on the ground of sex from membership of Dáil Éireann or from voting (Article 16.3), to reduce constituency numbers below three (Article 16.6), to remove the Supreme Court's appellate jurisdiction on constitutional matters (Article 34.4.4), to provide for the dissolution of marriage (Article 41.2). If a situation ever arose in which express prohibitions of this nature were ignored by the two Houses and the President then the Constitution itself would have ceased to matter. The problem that was foreseen was not this. It was the fact that the Oireachtas might from time to time make laws which, unwittingly, contravened the Constitution. To dealwith such a situation, Article 15.4.2 provided:

"Every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any provision thereof, shall, but to the extent only of such repugnancy be invalid."

Retroactlvity or Prospectivity

The question which now arises is what meaning and effect ought to be given to the words "shall....... be invalid" in Article 15.4.2. Do these words mean and, has the sub-section the effect that, the law found to be repugnant must be regarded and treated as never having had the force of law and as being void ab initio? In other words has the establishment of repugnancy a retroactive effect on the validity of the impugned law? That this is the true meaning and effect of the sub-section is a view which must command considerable support because of the use of the word "invalid" and which is mandatory if this word, in the context, means "void". The alternative view is based on reading the word "invalid" in the sense of meaning "voidable" and is to the effect that the sub-section should be construed as meaning that invaliditystems from the detection or establishment of the repugnancy. Under this alternative view a declaration of the invalidity of an impugned law would operate from the date on which it is made and therefore prospectively. Coexistence of these two views is not possible. One or other must represent the correct interpretation of the sub-section. Accordingly, in my view, our courts have not a choice between declaring invalidity retroactively or declaring it prospectively. A declaration once made has the effect and operates in accordance with what the Constitution, correctly interpreted, ordains and not in accordance with what may be thought desirable, feasible or convenient by the court making the declaration. For this reason we can put aside, in my view, the practice and procedure of the American Supreme Court in exercising a choice between retroactivity and prospectivity and, in so doing, be thankful that we avoid the complications and difficulties which the making of such a choice necessarily, entails.In referring to the meaning to be attached to the word "invalid" in Article 15.4.2 I have not overlooked the fact that in the event of a conflict between the two text of the Constitution the Irish text is to prevail (Article...

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