R (Dillon) v Minister for Local Government and Public Health

• Jurisdiction: Ireland
• Judgment Date: 17 November 1927
• Date: 17 November 1927
• Court: Supreme Court (Irish Free State)

R. (Dillon) v. Minister for Local Government and Public Health

THE KING at the Prosecution of JOHN DILLON

and

THE MINISTER FOR LOCAL GOVERNMENT AND PUBLIC HEALTH (1)

High Court.

Supreme Court.

J. C.

Local Government - Pensionable officer - Labourer paid weekly - Dismissed from employment - Right to pension - Right disputed - Determination by Minister for Local Government and Public Health - Whether reviewable - Municipal Corporations (Ir.) Act, 1840 (3 & 4 Vict. c. 108),sects. 93, 94 - Local Officers Superannuation Act (Ir.), 1869 (32 & 33Vict. c. 79), sects. 1, 2 - Local Government (Ir.) Act, 1898 (61 & 62Vict. c. 37), sect. 109 - Dublin Corporation (Superannuation) Act, 1905 (5 Ed. 7, ch. xxxi), sect. 3 - Local Government (Ir.) Act, 1919 (9 & 10Geo. 5, c. 19), sect. 8.

D. was employed as a labourer by the Dublin Corporation in 1906 at 20s. a week. He remained in their employment until 1925, when he was dismissed, being then in receipt of 68s. a week. Occasionally when any of the messengers or porters of the Corporation were on leave he acted as substitute for them and was paid at the rate applicable to the grade of the employee for whom he was so acting. On his dismissal he applied to the Corporation to grant him an allowance under sect. 8 of the Local Government (Ir.) Act, 1919, but the Commissioners, in whom were then vested the powers of the Dublin Corporation, refused his application. He then applied to the Minister for Local Government and Public Health to determine his right to and the amount of such allowance. The Minister replied stating that he was advised that no appeal lay, as an appeal under the said section only applied to "officers" within the meaning of the Acts relating to superannuation; that weekly wage earners of the labouring class were provided for by the Dublin Corporation (Superannuation) Act, 1905, and were not protected by the Local Government (Ir.) Act, 1919; and as D. had not 20 years' service, the Dublin Commissioners appeared to have no power to grant him a pension. D. then applied for and obtained a conditional order for a writ of mandamus to compel the Minister for Local Government and Public Health to hear and determine his application.

Held by the High Court that the conditional order must be discharged, as the decision of the Minister for Local Government and Public Health was a decision on a matter within the limits of his jurisdiction as defined by sect. 8 of the Local Government (Ir.) Act, 1919, and therefore could not be reviewed by the Court.

Held by the Supreme Court, affirming the High Court (Kennedy C.J. and FitzGibbon J. expressing no opinion as to whether the decision of the Minister was reviewable by the Court or not), that D. was hot the holder of a "pensionable office" within the meaning of sect. 8 of the Local Government (Ir.) Act, 1919, and therefore the conditional order must be discharged.

Per Murnaghan J.: The decision of the Minister for Local Government and Public Health was not reviewable by the Court.

On an application by D. for liberty to appeal:

Held by the Judicial Committee that the matter was intended under the Local Government (Ir.) Act, 1919, to be determined by the Local Government Board, and liberty to appeal could not be granted.

Mandamus.

The prosecutor, John Dillon, on the 20th May, 1925, obtained a conditional order for a writ of mandamus directed to the Minister for Local Government and Public Health commanding him to hear and determine the prosecutor's application made in pursuance of sect. 8 of the Local Government (Ir.) Act, 1919, claiming that his office as messenger-labourer of the Corporation of Dublin was a pensionable office within the meaning of the said section, and that he was at the passing of the said Act the holder of the said office, and that he had been removed from the said office for a cause other than misconduct or incapacity, and requesting the said Minister to determine that he (the prosecutor) was the holder of the said office at the passing of the said Act, and that he had been so removed, and also requesting that the amount of his allowance should be determined in accordance with the statutes in such cases made and provided.

In his affidavit, upon which this conditional order had been granted, the prosecutor stated that he was appointed by the Dublin Corporation to the office of messenger-labourer on the 26th November, 1906, and that he fulfilled the duties of messenger-labourer and devoted his whole time to such duties from the date of his appointment until the 26th January, 1925. That his salary at the date of his appointment was at the rate at 20s. per week, and on the said 26th January, 1925, was 68s. per week. That he was removed from his said office as messenger-labourer on the 26th January, 1925, and such removal was not on account of any misconduct or incapacity; and at the date of his removal he had just eighteen and a quarter years' permanent service, and was seventy years of age. His affidavit then continued:—

"6. In the reports of the Finance Committee of the said Corporation I was returned on the list of persons with permanent employment entitled to a pension under the Dublin Corporation (Superannuation) Act, 1905, but no pension was granted to me under that Act.

7. Unlike any temporary employee of the said Corporation of Dublin who was and is bound to present National Health and Unemployment Insurance Cards and have same stamped so as to entitle him or her on leaving the service to Sickness and Unemployment Benefit, I, by reason of being a permanent officer of the said Corporation and by reason of that body having contracted out of the Acts relating to National Health and Unemployment Insurance upon the basis that it guaranteed benefits at least equivalent to those comprised in the said Acts, was not an insured person under the said Acts, and that by reason of the Corporation of Dublin having contracted out of said Acts I am now deprived of Unemployment Benefit there-under.

8. I say that at the date of my said removal I was a permanent, pensionable, and wholetime officer of the said Corporation of Dublin, and I, upon my said removal, became entitled to receive from the said Corporation of Dublin an allowance by way of pension under sect. 8 of the Local Government (Ireland) Act, 1919.

9. I applied to the said Corporation of Dublin for the grant of an allowance under sect. 8, sub-sect. 1, of the Local Government (Ireland) Act, 1919, but my right to and the amount of such allowance was disputed by the said Corporation of Dublin, and they refused to grant me an allowance under the said Act.

10. In pursuance of the provisions of sect. 8, sub-sect. 1, of the Local Government (Ireland) Act, 1919, I made application to the Minister for Local Government, claiming that my said office of messenger-labourer was a pensionable office within the meaning of the said section, and that I was at the passing of the said Act the holder of said office, and I had been removed from said office for a cause other than misconduct or incapacity, and requesting the Minister for Local Government to determine that I was the holder of the said office at the passing of the said Act, and that I had been so removed, and also requesting that the amount of my allowance should be determined in accordance with the said section of that Act.

11. The Minister for Local Government, by letter dated the 12th day of May, 1925, addressed to my solicitors, stated in reply to the appeal lodged on my behalf, that he, the Minister, was advised that an appeal under sect. 8 of the Local Government (Ireland) Act, 1919, only applied to "officers" within the meaning of the Acts relating to superannuation, and that weekly wage earners of the labouring class were provided for in Dublin by the Local Act of 1905, and were not protected by the Act of 1919, and that, in these circumstances, no appeal lies to the Minister, and that, as I had not twenty years' service at the date of the termination of my employment with the Corporation of Dublin, the Dublin Commissioners had no power to grant a pension."

An affidavit in reply was made by Edward P. M'Carron. Secretary to the Department of Local Government and Public Health, in which he stated that there was no such grade in the service of the Dublin Corporation as "messenger-labourer," but that the prosecutor, John Dillon, had been employed by the Dublin Corporation as a labourer since the 26th November, 1906. The affidavit then continued:—

"3. The said John Dillon did the ordinary work of a labourer in the City Architect's Department, which consisted in cleaning windows, carting books or documents in a hand-cart, shifting furniture, carrying coal to offices, breaking firewood, and other work of a similar nature. Occasionally, when any of the messengers or porters were on their annual leave or on sick leave, the said John Dillon acted as substitute for such porter or messenger, as did also others of the labouring staff. When so acting, the said John Dillon was paid at the rate applicable to the grade of the employee for whom he was acting, subject to the condition that the temporary maximum increase payable to him as such substitute should not exceed ten shillings per week.

4. Since the beginning of 1923 or thereabouts, the said John Dillon, owing to his advancing age, has been kept as far as possible to light work, such as filing plans in the City Architect's plan store or doing similar work in the muniment room.

5. I have read paragraph 6 of the affidavit of the said John Dillon and say that it is incorrect. The said John Dillon has been returned in reports dealing with the staffs employed in the Corporation Departments as a permanent employee, but none of the said reports states that the said John Dillon is entitled to a pension.

6. With reference to paragraph 7 of the said affidavit, I say that on the 26th day of August...