O'Neill v Drohan and The Waterford Country Council

• Jurisdiction: Ireland
• Judge: K. B. Div.,Appeal.
• Judgment Date: 18 May 1914
• Court: King's Bench Division (Ireland)
• Date: 18 May 1914

O'Neill

and

Drohan and the Waterford County Council (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1914.

Local government — Rates — County Council — Invalid rate — Illegal seizure — Liability of rate collector — Master and servant — Liability of county council for acts of rate collector.

A rate collector who, in accordance with the terms of his warrant, carries out in a legal manner a seizure in respect of a rate which is bad, is liable to an action for damages.

In such a case the county council is not liable to an action for damages in respect of the act of the rate collector.

Motion For Judgment.

Action for illegal seizure by the defendant John J. Drohan, who was a rate collector under the co-defendants, the Waterford County Council. It was admitted that the rate in respect of which the seizure was made, being made upon a previous occupier, who was dead at the time of the striking of the rate, was illegal. It was also admitted that no rates had been paid in respect of the premises during the period, and there was no evidence of any illegality in the manner in which the seizure was carried out by the defendant Drohan, who acted in accordance with the terms of his general warrant, which was in the ordinary form 50 in the Schedule to the Public Bodies Order, 1904, given in Vanston's Local Government, vol. ii, p. 1705. The defendant Drohan was not shown to have been in any way privy to the error in making the rate.

At the close of the trial before Boyd, J., evidence of the seizure having been given, counsel for the defendant Drohan handed in the following requisition:—

“Respectfully requests your Lordship to direct the jury that, as the defendant John J. Drohan, at the time of the trespass in the statement of claim alleged, was discharging a duty imposed on

him by statute, the duty of collecting the rate made by the defendants, the County Council of Waterford, he is under no liability for acts done by him within the scope of his employment when carrying out that duty.”

Counsel on behalf of the defendants the Waterford County Council, handed in the following requisition:—

“Counsel for defendants asks the Judge to direct the jury to find a verdict for the defendants the Waterford County Council, upon the grounds following:—1. That there is no evidence of any illegal act on the part of these defendants. 2. That the defendant Drohan is not the servant of these defendants. 3. That the acts of the defendant Drohan, in making the seizure complained of, were not within the scope of his employment as servant of these defendants. 4. That the defendant Drohan is an independent officer having statutory duties, and that these defendants are not liable for wrongful acts of his.”

Boyd, J., reserved the question of law for the Divisional Court, and got the jury to assess damages on the basis of the seizure having been illegal. They assessed damages at £30.

P. D. Fleming, K.C., Norwood, K.C., and Arthur Coughlan, for the plaintiff:—

It was only by sect. 12 of 25 & 26 Vict. c. 83 that the guardians obtained power to make a subsequent occupier liable. Here the county council did not comply with this section, and could make no person liable. The poor-rate collector is liable, and the county council is as much liable for his wrongful acts as if it were a private individual. The rate collector acts under his warrant, but if he commits a trespass he is liable. Here neither the occupier nor the premises were liable. It is the county council who make the rate; the rate collector's only duty is to collect it. The county council is liable for all acts committed by him in collecting it. A municipal body has the same liability as a private individual: Mersey Docks and Harbour Board Trustees v. Gibbs (1). If the rate had been valid, the collector could have collected it from the person in occupation. The rate collector has to take the rate-book as he finds it.

H. D. Conner, K.C., and Timothy Sullivan, for the Waterford County Council:—

Poor-rate collectors have been in existence since 1838, and neither poor law guardians nor county councils have ever been made liable for their acts. The liability of bodies created by statute must be determined by the statutes creating them: Southampton and Itchin Bridge Company v. Southampton Local Board (1), approved of by Lord Blackburn in Mersey DocksCase (2), and by FitzGibbon, L.J., in Dunbar v. Guardians of Ardee Union (3). Here all the statutes show that the office is an independent office. [They referred to sections 31, 32, 33, and 73 of 1 & 2 Vict. c. 56, and 25 & 26 Vict. c. 83, s. 13.] The poor-rate collectors were originally the same persons as collectors of county cess, whose powers were defined by sects. 151 and 152 of the Grand Jury Act, 1836, as amended by 19 & 20 Vict. c. 63, and no one ever suggested that any person but the collector could be liable. He distrained in his own name, and went before the justices for orders in his own name: County Council of Clare v. M'Inerney (4). Since the Local Government Acts, and under the orders now in force, the collectors are even more independent of the county council. [They referred to Local Government (Ireland) Act, 1898, sect. 83, sub-s. 5, and sect. 115, sub-ss. 10, 18; County Poor rate Collectors Order, 17th April, 1899, Articles 4 and 13; Public Bodies Order, 1904, Articles 82 to 93.] Collectors are practically under the control of the Local Government Board, and are not removable by the council.

Poor law guardians act ministerially, and are not liable for negligence of their subordinates: Brennan v. Limerick Guardians (5); Dunbar v. Ardee Union (6); Tozeland v. Guardians of West Ham (7). Doran v. Waterford Guardians (8) is practically overruled by Murphy v. Enniscorthy Union (9), a decision of the Court of Appeal.

The county council are not to blame in any way. They have

no option as to striking the rate; it must be according to the list sent them by the Commissioner of Valuation: Queen v. Commissioner of Valuation (1); Valuation (Ireland) Act, 1852 (15 & 16 Vict. c. 63), sects. 17, 18, 19, 25, and 27; Valuation (Ireland) Act, 1854 (17 & 18 Vict. c. 8), sect.4.

Further, the collector is in no sense a servant: Crisp v. Thomas (2). The cases are collected in In re National Insurance Act (3), where O'Connor, M.R., held that officers of a poor law union are not servants, and the same principle applies here.

M'Elligot, K.C., and Arthur Clery, for the defendant Drohan:—

Drohan was bound by statute to perform certain duties. He had no option but to accept the validity of the warrant. If he carried out what was in his warrant legally, he is protected. Judicial officers are protected in carrying out an invalid order, and, in principle, there is no difference between their position and that of a rate collector carrying out the duties imposed on him by statute. [Kenny, J.—He has to show us some sort of warrant for going into the premises.] He has no option but to collect the rate. He comes within the principle of The Mayor of London v. Cox (4), per Willes, J. He is protected in carrying out a statutory duty.

Norwood, K.C., for the plaintiff, in reply:—

In Dunbar v. Ardee Union (5), and the Mersey Docks and Harbour Board Trustees v. Gibbs (6), the negligent act was the act of the subordinate. Here the county council were themselves negligent.

Either the Local Government Board, or the county council with their sanction, can dismiss a rate collector. The rate collector is the paid official of the county council, and the council is liable for all acts done by them.

Cur. adv. vult.

Madden, J.:—

In this case the plaintiff claims damages for trespass to his house and premises, and for the illegal seizure and conversion of

his goods. The entry on the house and the seizure of the goods were the act of the defendant John Drohan, done by him as collector of poor rate under the authority of a warrant issued to him as such collector under the seal of the defendants the county council of the County of Waterford. The fact that Drohan was collector of poor rate, and the issuing to him of the warrant, the form of which will be found in the Schedule to the Public Bodies Orders Act, 1904 (No. 50), are not in issue in this action.

The action is brought against Drohan, by whom the acts complained of were in fact done, and also against the county council, on the ground that they are responsible for acts done by Drohan, who, it is alleged, is their servant, as rate collector, within the scope of his authority under the warrant.

Both defendants justify the entering of the plaintiff's premises, and the seizure of his goods, on the ground that he was the occupier of premises rated to the relief of the poor under the Irish Poor Relief Act, that he was in arrear for one moiety of the poor rate struck for the year 1912, and that the defendant Drohan, lawfully acting under the authority of his warrant, levied a distress for the poor rate so in arrear on the plaintiff's goods and chattels on the said premises.

At the trial the jury assessed damages at £30, the Judge leaving the question of law as to the liability of the defendants, respectively, to be determined by this Court. The case comes before us on a motion on the part of the plaintiff for judgment, to which he claims to be entitled against each of the defendants on the evidence given on the part of the plaintiff. No evidence was given on the other side.

The first question to be decided is the legality of the assessment of the rate in respect of which the seizure was made. It appears from the evidence given on behalf of the plaintiff, which was uncontradicted, that the house in question was unoccupied when the rate was struck. It had been for three years in the occupation of one Illingworth, who died on the 31st of May, 1910. He was succeeded in occupation by...