Nee v Galway County Council and Galway Board of Health

CourtSupreme Court (Irish Free State)
Judgment Date18 December 1926
Docket Number(1924. No. 8,072.)
Date18 December 1926

High Court.

Supreme Court.

(1924. No. 8,072.)
Nee v. Galway Co. Council.

Local Government - "County Scheme" - Abolition of Boards of Guardians - Powers and duties transferred to Committee of County Council - Abolition of workhouse - Disemployed official - Removal from office - Superannuation - Amount fixed by resolution of Board of Guardians - Validity of resolution - Certificate of Guardians - Claim payable out of poor rate - Limited time for payment - Portion of claim barred - Application for incorrect amount of superannuation signed under protest - No estoppel - Not operative as an accord and satisfaction - Local Government (Ir.) Act, 1898 (61 & 62 Vict. c. 37), sect. 51, sub-sect. 7 - Local Government (Ir.) Act, 1919 (9 & 10 Geo. 5, c. 19), sect. 8 - Local Government (Temporary Provisions) Act, 1923 (No. 9 of 1923), sect. 11.

Trial of Action.

The plaintiff's claim was for £122 14s. 4d., due to him by the defendants for "arrears of allowance or pension at the rate of £80 7s. 6d., as set forth in the certificate, dated the 26th day of October, 1921, of the Board of Guardians of the Oughterard Union, and payable to the plaintiff pursuant to the provisions of the Local Government (Temporary Provisions) Act, 1923,"for two years and one quarter, between January 1st, 1922, and March 31st, 1924. The writ, which was specially endorsed, was issued on April 28th, 1924.

The facts are shortly stated in the head-note, and are fully set out in the judgments.

The case was tried before Johnston J., without a jury and without further pleadings.

From the verdict and judgment of Johnston J., the defendants appealed to the Supreme Court (2) on the ground that the learned Judge misdirected himself in point of law in holding that the plaintiff had been granted any pension exceeding £25 16s. 8d. within the meaning of sect. 11, sub-sect. 4, of the Local Government (Temporary Provisions) Act, 1923 (No. 9 of 1923); and they asked that a verdict and judgment be entered for them.

A Board of Guardians in Co. Galway resolved to adopt a "county scheme," which involved their own dissolution and the discontinuance of the services of the plaintiff, a porter in their employment, and, by resolution passed on October 26th, 1921, they fixed his superannuation "at the full two-thirds" of his salary and emoluments. This amounted to £80 7s. 6d. per annum, and this was, in fact, the maximum allowance that could have been made to him under sect. 8 of the Local Government (Ir.) Act, 1919. On October 28th, 1921, a "certificate" signed by the Chairman and Clerk of the Board "certified" that the Board, having considered Circulars 52 and 53 of the Local Government Department, had, by resolution, of which a copy was attached thereto, "provisionally granted" to the plaintiff the superannuation allowance shown, and this was £80 7s. 6d. as before, but arrived at by adding 26 years to the 14 years actually served by the plaintiff, and taking forty-sixtieths of his salary and emoluments—following Circular 53. At the next meeting the Board passed a resolution that the recommendations as to superannuation "provisionally adopted at last meeting" be confirmed, and the plaintiff's superannuation was again set out at £80 7s. 6d.

The Board of Guardians and the office held by the plaintiff were abolished as from December 31st, 1921, and on each subsequent quarter day until March 31st, 1924, the plaintiff received a payment of £6 9s. 2d. in respect of an annual pension of £25 16s. 8d., which had been, it was suggested, determined by the Local Government Department of Dáil Éireann éireann, but no legal proof of such determination or its validity was given. He never received the pension of £80 7s. 6d. He had on several occasions signed applications for the quarterly payments of £6 9s. 2d., but he signed them under protest.

The Local Government (Temporary Provisions) Act, 1923 (No. 9 of 1923), passed on March 28th, 1923, gave legal authority to the schemes for the reorganisation of poor relief which had been put into operation by several County Councils, and also contained provision by which other County Councils should adopt similar schemes. The Galway scheme was scheduled as an existing scheme, and deemed to have come into operation on November 22nd, 1921.

Sect. 11, sub-sect. 4, of the Act enacts that "whenever before the passing of this Act an allowance has been granted under sect. 8 of the Local Government (Ireland) Act, 1919, to an officer in respect of his removal from office under or in pursuance of any county scheme, the Council of the county to which the liability to pay such allowance to such officer has been under this Act transferred may, if they so think fit, within a period of three months from the passing of this Act, notify such officer and the Minister of their desire to dispute the right of such officer to such allowance or the amount of such allowance, and thereupon a case of dispute within the meaning of the said sect. 8 shall be deemed to have arisen, and the right to and amount of such allowance shall be determined by the Minister in accordance with the provisions of the Local Government (Ireland) Act, 1919." The sub-section provided further that, notwithstanding a determination by the Minister disallowing the right to such allowance or altering the amount, the officer should be entitled to receive and be paid the allowance up to the date of such determination at the rate at which the same was granted under sect. 8.

In accordance with the provisions of this sub-section, the plaintiff's pension was determined by the Minister for Local Government at the rate of £35 5s. 9d. per annum as from April 1st, 1924, and no question arose as to the pension to which he was entitled from that date.

On 28th April, 1924, the plaintiff issued a specially endorsed writ, claiming £122 14s. 4d., the difference between nine quarterly payments of £6 9s. 2d., which he had received, and nine quarterly payments of £20 1s. 10d., calculating his pension at £80 7s. 6d., to which he claimed to be entitled under the "certificate" of the Board of Guardians.

Held by the Supreme Court (FitzGibbon and Murnaghan JJ.; Kennedy C.J. dissenting), affirming Johnston J., that the plaintiff was entitled to superannuation at the rate of £80 7s. 6d. per annum up to 1st April, 1924, as superannuation at that rate had been awarded to him under sect. 8 of the Local Government (Ir.) Act, 1919; that there was no authority for superannuation at the rate of £25 9s. 2d.; that the fact that the plaintiff had signed applications under protest for superannuation at the lower rate did not estop him from claiming payment at the higher rate; but that his claim to recover the arrears due to him at the rate of £80 7s. 6d., being payable out of the poor rate, was limited by sect. 51, sub-sect 7, of the Local Government (Ir.) Act, 1898 (61 & 62 Vict. c. 37), to the last two quarterly payments before the issue of the writ.

Cur. adv. vult.

Johnston J.:—

This is an action by Mr. Denis Nee, who was formerly in the employment of the Oughterard Board of Guardians as work house porter, to recover from the Galway County Council certain arrears of pension in respect of the period from January 1, 1922, to March 31, 1924. The plaintiff claims that he was granted a pension of £80 7s. 6d. yearly by the Board of Guardians under and by virtue of sect. 8 of the Local Government (Ireland) Act, 1919; that that pension ran as from the abolition of his office on December 31, 1921; and that he is entitled to judgment for the sum of £122 14s. 4d., being the difference between £180 16s. 10d. (pension for two years and a quarter) and the sum of £58 2s. 6d., which was actually paid to him by the County Council. The defendants, on the other hand, seek to prove that the pension to which the plaintiff was entitled amounted only to a sum of £25 16s. 8d., granted to him under circumstances which I shall relate, and that that pension has been paid in full.

There is very little, if any, controversy of fact in the action, and the questions that are before me must be decided on the effect of certain transactions that took place in October, November, and December, 1921, before the Treaty of December 6th, 1921, had been entered into or ratified, and before the Provisional Government had been formed. My chief difficulty in the case is caused by certain subsequent legislation, namely, the Local Government (Temporary Provisions) Act, 1923, which would appear to have an operative effect in regard to the period prior to the formation of the Provisional Government and the entering into of the Treaty.

The plaintiff had been porter in the Oughterard Workhouse for fourteen years, at a salary first of £14, and later of £20. He had allowances, consisting of apartments, rations, fuel, and light, which were valued subsequently by the Guardians at £100 11s. 4d. yearly, the whole amounting to £120 11s. 4d. at the date of the fixing of the pension. Towards the end of the year 1921 there was a very considerable popular agitation in favour of a change in the administration of the Poor Law Acts by abolishing the Boards of Guardians and by handing over such administration to the County Councils, who were intended to act through a body called the Executive Committee. The changes that in fact were made at that time were to a certain extent intended to be ratified and legalised by the Act of 1923. The Guardians of the Oughterard Union appear to have acquiesced in these changes, and to have proceeded to make arrangements for the transfer of authority that was about to be made, including arrangements for the dismissal and superannuation of their staff. On October 26, 1921, the Guardians of the Union passed the following resolution as to the superannuation of their officials:—

"That the superannuation of the Union officials...

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