R (Byrne) v Belfast Corporation

• Jurisdiction: Ireland
• Judgment Date: 10 December 1919
• Date: 10 December 1919
• Court: King's Bench Division (Ireland)

The King (Byrne) v. Corporation of Belfast.

THE KING (BYRNE, Inspector-General

R.I.C.)

and

THE LORD MAYOR, ALDERMEN, AND CITIZENS OF BELFAST (1).

K. B. Div.

Local Government - Belfast Police Force - "Free quota" and "extra police" - Allocation of "extra police" - 28 & 29 Vict. c. 70, s. 6 -Jurisdiction to award costs to or against the Crown.

It is the duty of the Belfast City Council to make and levy a rate sufficient for the payment of the amount certified by the Inspector-General of the Royal Irish Constabulary to be chargeable against the Borough of Belfast under the Constabulary (Ireland) Amendment Act, 1865 (28 & 29 Vict. c. 70, sect. 60), for the cost of the extra police force allocated to the police district of Belfast, notwithstanding that the total "free quota" of 10,006 men for all Ireland provided for by that Act has not been allocated.

Peremptory mandamus to the defendants to make and levy such a rate granted with costs.

The Court has jurisdiction in cases where the circumstances justify such an order to award costs to or against the Crown. Circumstances which would justify such an order considered.

In re Madden's Estate ([1902] 1 I. R. 63) distinguished.

Mandamus.

This was an application to make absolute a conditional order obtained on the 15th May, 1918, for a writ of mandamus directed to the Lord Mayor, Aldermen, and Citizens of Belfast, commanding them to forthwith make and levy a rate under the provisions of 28 & 29 Vict. c. 70, s. 6, sufficient for the payment of £15,911 4s. 9d., being the amount of moneys chargeable for the half year ending 30th September, 1917, for the extra police force allocated to Belfast.

The facts and arguments appear sufficiently from the judgment of the Lord Chief Justice.

The Court having intimated that it would hear argument on the question of costs—

Molony C.J. delivered the judgment of the Court:—

By the 6 & 7 Wm. 4, c. 13, provision was made for the establishment of a constabulary force in Ireland. The Lord Lieutenant was empowered to appoint chief and other constables for each county, not exceeding a certain number specified in sect. 11 of the Act, and power was given in subsequent sections to appoint an additional number of constables upon a certificate of the magistrates of the county as to the necessity therefor, and the Lord Lieutenant, with the advice of the Privy Council, could also proclaim any county or portion thereof to be in a state of disturbance and appoint an additional police force. Sect. 35 provided that the expenses of the force should in the first instance be advanced and paid out of the consolidated fund. Sect. 36 provided that a moiety of all moneys advanced out of the consolidated fund should be raised by grand jury presentment off each county, county of a city, or county of a town, to which the same should be declared by the Lord Lieutenant to relate, and in or for which such expenses should have been incurred. Under sect. 37 the Inspector-General was to ascertain the amount of moneys chargeable on each county, county of a city, or county of a town; and on his certificate the grand jury were required to make a presentment for the amount stated in such certificate.

It was afterwards thought desirable to have a reserve forcer and, accordingly, by 2 & 3 Vict. c. 75, the Lord Lieutenant was authorized to appoint two sub-inspectors, four head constables, and 200 constables and sub-constables to be kept at the depot; and under sect. 7 the expenses of the reserve force were to be paid out of the consolidated fund; but sect. 8 provided that one moiety of the money advanced to meet the expenses of such officers and men of the reserve as were employed in any county, city, or town pursuant to an order of the Inspector-General should be raised by grand jury presentment.

Under 9 & 10 Vict. c. 97 the reserve force was increased to 400, and the entire cost of the constabulary force and of the reserve force was to be advanced and paid out of the consolidated fund; but it was provided by sect. 5 that nothing was to relieve the counties from a moiety of the expense of—(a) any further constabulary force which had been applied for by the magistrates of a county; or (b) of the reserve force when employed therein;"or (c) in case the number of the constabulary force in and for any barony, half barony, county of a city, county of a town, or district of less extent than any barony or half barony, shall be increased by the Lord Lieutenant stationing or appointing therein or therefor additional sub-inspectors, head constables, constables, and sub-constables as aforesaid or otherwise." The effect of this statute was that the Treasury became liable for the entire cost, subject to the three exceptions specified in sect. 5. It is not surprising that Parliament should have thought it desirable to put a limit upon the expenditure which might have to be borne by the consolidated fund; and, accordingly, by 11 & 12 Vict. c. 72, it is provided that the total number of officers and men wholly chargeable to the consolidated fund shall be such as the Lord Lieutenant may from time to time consider to be required in each county, city, or town, but shall not exceed in any year the numbers specified in the schedule to the Act. In the schedule the number allocated to each county is set out; and the total for all Ireland is stated to be 10,006.

By 20 & 21 Vict. c. 17, the number of police allotted to each district was set forth in an amended schedule; and power was given to the Lord Lieutenant, with the advice of the Privy Council, to vary the number of police allocated to a particular district, but with the same limitation as to the total number as before. This state of affairs continued until 1865, when, as a result of the report of a Viceregal Commission, it was considered desirable to give the constabulary force jurisdiction in the municipal borough of Belfast; and, accordingly, the Constabulary (Ireland) Amendment Act, 1865 (28 & 29 Vict. c. 70), was passed. This Act provides for the abolition of the old police force; and the constitution of the municipal borough of Belfast as a distinct district called "the town of Belfast," and further provides that the provisions of the Acts relating to the constabulary forces in Ireland shall apply to the town of Belfast. It then became necessary to ascertain the number of constables in Belfast that should be charged to the consolidated fund; and, accordingly, by sect. 3, a new schedule was substituted for the schedule annexed to 20 & 21 Vict. c. 17; and it is thereby provided that the number of constables allotted to the town of Belfast should not be less than 130. The Act, however, contemplated by its express terms that there should be an additional police force, not exceeding 320, as the Lord Lieutenant might think fit to provide "for the more effectual preservation of the peace of the said town"; and that such additional number of men with the 130 men should constitute the ordinary constabulary force of the town. A clear distinction being thus drawn between the number of men charged on the consolidated fund and the additional men, the Act proceeds to provide that the expense of the additional force is to be advanced out of the consolidated fund in the first instance, but that a moiety of the money so advanced is to be repaid by the Town Council of the borough of Belfast by means of rates. The question then arose as to how this sum was to be ascertained, and sect. 6 provided the machinery in very clear and explicit language as follows:—"The Inspector-General of Constabulary shall, with the assistance of the receiver, twice in each year, ascertain the amount of the moneys chargeable under the provisions of this Act to the said town of Belfast, and shall make out a certificate thereof under his hand, specifying the force or service in respect whereof such charge may have been incurred, and transmit the same when signed by the receiver, and approved or certified by the Chief or Under Secretary to the Lord Lieutenant, to the Town Clerk of the borough of Belfast, who shall lay the same forthwith before the Town Council, and thereupon the Town Council shall forthwith make and levy a rate sufficient for the payment thereof, and shall thereout, or out of any moneys in their hands, pay the amount mentioned in such certificate to the Paymaster-General's Department in Ireland."

The legislation since 1865 may be very shortly stated. Under the 48th Vict. c. 12, power was given within three months after the passing of the Act, and thereafter at the end of each succeeding term of three years, to alter or vary the number of constables specified in the schedule to the Act of 1865 to such number as the Lord Lieutenant might consider to be required, but so that the total number to be distributed as free quota should not exceed the total number specified in the schedule to that Act. The free quota was altered by the Lord Lieutenant from time to time, and in 1894 it was raised to 500, at which figure it has since remained.

Under the statute of 1865, the extra police force could not exceed 320 men. It had, however, been seen that with the growth of Belfast and the extension of its boundaries, a much larger force was required, and that while the fixed quota could be and had been increased, it was not possible without legislation to increase the number of the extra police force. By 60 & 61 Vict. c. 64 (Constabulary (Ireland) Act, 1897), so much of sect. 4 of the Act of 1865 as limited to 320 men, the power to add to the constabulary force allotted to Belfast was repealed. Since 1897 the Lord Lieutenant has accordingly on two occasions increased the number of extra police allotted to Belfast, and in 1912 it was fixed at 733, at which figure it has since remained. Half the cost of these 733 men must be raised in accordance with the provisions of sect. 6 of the Act of 1865. Under that section, the Inspector-General, with the...