Phelan v Minister for Local Government and Public Health

• Jurisdiction: Ireland
• Judgment Date: 31 May 1930
• Date: 31 May 1930
• Court: High Court (Irish Free State)

Phelan v. Minister for Local Government and Public Health.

EDWARD PHELAN

and

MINISTER FOR LOCAL GOVERNMENT AND PUBLIC HEALTH, and in the MATTERof the COURTS OF JUSTICE ACT, 1924 (1)

High Court

Local Government - Abolition of rural district council - Standing solicitor to the council - Paid by taxed costs - Right to an allowance - Whether an "officer of a local authority" - Local Government (Ir.) Act, 1898 (61 & 62 Vict. c. 37), sects. 109, 115, sub-sect. 12 - Local Government (Ir.) Act, 1919 (9 & 10 Geo. 5, c. 19), sect. 8, sub-sect. 1 - Local Government Act, 1925 (No. 5 of 1925), sects. 42, 43, sub-sect. 1.

A solicitor was appointed in 1906 standing solicitor to a rural district council by a resolution of that body, and he continued to act as such until the council was abolished in 1925 under sect. 3 of the Local Government Act, 1925. He was remunerated during that period by payment of his taxed costs in the usual manner.

Held that he was an "officer of a local authority" within the meaning of sect. 43, sub-sect. 1, of that Act, and therefore entitled to signify his intention to the local body, to which the powers and duties of the abolished rural district council had been transferred, his intention not to avail himself of all the provisions of Part IV of that Act (Part IV dealing with superannuation, etc.); and accordingly he came within the provisions of sect. 8, sub-sect. 1, of the Local Government (Ir.) Act, 1919, and was entitled to claim an allowance in accordance with the terms of that section.

Mandamus.

The prosecutor, Edward Phelan, applied to make absolute a conditional order for mandamus directed to the Minister for Local Government and Public Health, commanding him to determine the dispute that had arisen between the County Council of the County of Monaghan and the said prosecutor, and to fix the amount of the pension of the said prosecutor, as standing solicitor to the late Carrickmacross Rural District Council, pursuant to the provisions of sect. 8 of the Local Government (Ir.) Act, 1919.

The affidavit of the prosecutor set out the facts as follows:—

"1. On the 6th day of September, 1906, I was duly appointed by resolution of the council to be standing solicitor to the Carrickmacross Rural District Council in the County of Monaghan. From the said 6th day of September, 1906, until the dissolution of the said rural district council in the year 1925 I continuously acted as standing solicitor to the said rural district council.

2. The powers and duties of the said rural district council were transferred to the Monaghan County Council by virtue of

the provisions of the Local Government Act, 1925 (1), and on the 13th July, 1925, I wrote to the Secretary of the Monaghan County Council and also to the Clerk of the Carrickmacross Rural District Council informing them that it was not my intention to avail myself of Part IV of the Local Government Act, 1925, save the exception provided by sect. 43, sub-sect. 1, of said Act (2).

3. From time to time during the period of my employment as solicitor for the said Carrickmacross Rural District Council I furnished my costs in respect of the work done by me. The fees earned by me according to the costs furnished by me to the said council for the three years ending on the 30th day of September, 1925, amounted to £368 18s. 11d., representing an average yearly amount in respect of fees of £122 17s. 10d.

4. Subsequent to my said letter of the 13th July, 1925, I wrote to the Monaghan County Council on several occasions requesting the said county council to fix and determine the pension to which I am entitled in respect of my former position as solicitor to the said Carrickmacross Rural District Council. The Monaghan County Council did not consider the question of my pension until their meeting, held on the 30th day of April, 1928, and at said meeting they fixed my pension at the sum of £20 per annum. I was notified of the said decision by a letter from the secretary of the said county council, which was dated 4th May, 1928. In the said letter it is stated by the secretary of the county council that my pension was fixed at the sum of £20, because the council considered that at least 50 per cent.

of my fees for the period over which the pension is calculable were abnormal. I say that there was nothing abnormal in the fees earned by me for the said period of three years, and that my earnings during the said period were in respect of the same class of work and approximately the same amount of work as that which I had been doing for the said rural district council from the time of my appointment in 1906. I say that the said pension of £20 per annum is much less than the minimum pension to which I am entitled under the provisions of the Local Government (Ir.) Act, 1919.

5. On the 12th day of May, 1928, I wrote to the Secretary of the Department of Local Government and Public Health appealing against the decision of the Monaghan County Council as to the amount of my pension, and in reply I received a letter, dated the 25th day of May, 1928, in which it was stated that the Minister could not entertain my appeal against the decision of the county council as the appeal was late. On the 11th June, 1928, I replied to the Ministry of Local Government pointing out that my rights as to pension are governed by sect. 8 of the Local Government (Ir.) Act, 1919, and that I had on the 13th July, 1925, elected to exclude myself from the provisions of Part IV of the Act of 1925. I stated that under sect. 8 of the Act of 1919 I claim to be entitled to a pension not greater than two-thirds of my salary and not less than the scale in force under the Superannuation Acts. I requested the Minister to determine the dispute that had arisen between the county council and myself as to the amount of my pension, and referred to sect. 8, sub-sect. 1, of the Local Government (Ir.) Act, 1919, by which it is provided that the Minister shall determine such disputes.

6. I received a letter, dated 29th June, 1928, from the Secretary of the Department of Local Government and Public Health, in which it was stated that the Minister was advised that a solicitor paid by taxed costs only is not an 'officer' of a local body within the meaning of sect. 43 of the Local Government, Act, 1925, and that such a solicitor has no rights under that section.

7. On the 1st day of August, 1928, I replied to the Department of Local Government and Public Health citing the various sections under which I claimed to be entitled to have my pension fixed according to the provisions of the Local Government (Ir.) Act, 1919, and again asking the Minister to determine the amount of said pension. In reply to said letter I received a letter, dated the 2nd day of October, 1928, from the Secretary of the Department of Local Government and Public Health, in which it was stated that...