R (Duckett) v Calvert

• Jurisdiction: Ireland
• Judgment Date: 09 November 1897
• Date: 09 November 1897
• Court: Queen's Bench Division (Ireland)

Reg. (Duckett)

and

Calvert (1).

Q. B. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1898.

Township Commissioners — Accounts — Audit — Local Government Board auditor — Surcharge — Payments which the auditor deems to be “contrary to law or unfounded” — Certiorari — Local Government (Ireland) Act, 1871 (34 & 35 Vict. c. 109), s. 12.

The Commissioners of Killarney Township thought fit to have, at one and the same time, two systems of lighting in their township, the one by gas, the other by electricity, under two different contracts, with two different persons, the gas contract being the earlier in date. It may be here assumed that the gas contract was invalid, as being for over £ 50, and not duly sealed as required by the Public Health Act. Both contracts had, however, been recognised as valid by decrees of the County Court for work done and services rendered thereunder. It may also be assumed that one lighting contract would have been amply sufficient for the needs of the township, and that the existence of two concurrent contracts was owing to a want of unanimity among the Commissioners. Certain of the Commissioners (the present applicants) had signed (a) a cheque for £41 17s. 6d., the amount of an unappealed civil bill decree obtained, for work under this contract, by the Electric Light Company, and costs, and (b) two cheques for £17 10s. 6d., and £25 14s. 3d., to the same Company, the one prior, the other subsequent to said decree. The auditor, when auditing the township accounts, surcharged these payments against the present applicants on the ground that they were unfounded and illegal, inasmuch as the Commissioners had no right to enter into a second contract for the very same thing, for the doing of which they had already entered into a valid contract. On certiorari,

Held, that the surcharges must be quashed—(a) the first surcharge, on the ground that it was in respect of payment of a debt which a competent Court had conclusively established to be due—and (b) the other surcharges, either on the ground (per O'Brien and Johnson, JJ.) that they were in respect of payments under a contract the validity of which was recognised by such decree, or on the ground (per Palles, C.B.) that, as there was no evidence to sustain the expressed reason of the auditor's surcharge (viz. the existence of a prior valid contract), the surcharge could not be supported.

Certiorari. Argument upon an order to show cause, dated the 4th June, 1897. On the 15th April, 1896, the prosecutors

(Duckett, Hurley, O'Sullivan, and Kelly, Commissioners of Killarney Township) having served the required statutory notices of the intended application, and entered into the necessary recognizances, 34 & 35 Vict. c. 109, s. 12, obtained, ex parte, from the Court, an order, absolute in the first instance, for a writ of certiorari, directed to the defendant J. H. Calvert, Auditor under the Local Government Ireland Acts, 1871 and 1872, to remove into the Queen's Bench Division for the purpose of being quashed “all and singular orders and disallowances or disallowances and surcharges made by him in his audit of the accounts of the Town Commissioners of the town of Killarney, acting in the execution of the Towns Improvement (Ireland) Act, 1854, whereby he surcharged against” the prosecutors “the sum of £85 2s. 3d. paid to the Killarney Electric Light Company, together with the reasons for such disallowances and surcharges, and all” documents, &c., “touching the same.”

The writ issued on the 27th April, 1896, and Mr. Calvert, in obedience thereto, made his return, dated the 29th June, 1896.

The first schedule to the return showed the entries in the Commissioners' books of account relating to this sum of £85 2s. 3d. charged against the funds of the township. These entries were, (a), 31st August, 1894; draft for £17 10s. 6d.; payees, the Killarney Electric Light Co.; service, public lighting; (b), 5th March, 1895; draft for £36 19s. 6d.; payee, C. E. Leahy; service, public lighting; (c), 5th March, 1895, draft for £4 18s.; same payee; service, costs of decree; (d), 1st April, 1895; draft for £25 14s. 3d.; payees, the Killarney Electric Light Co.; service, public lighting. [(b) and (c) were paid in one cheque (£41 17s. 6d.) to Mr. Leahy, who was the Company's solicitor.]

In schedule 2 was set out the auditor's “statement,” made pursuant to section 12 of the Local Government (Ireland) Act, 1871, in the following terms:—

I find the Killarney Electric Light Company, Limited, have been paid £85 2s. 3d., included in this account, for lighting the town of Killarney. I consider the Town Commissioners were not justified in contracting with the Company to light the town, as they had previously entered into a contract with Mr. Santry to do the same thing, light the town of Killarney, using gas as the illuminant. Under these circumstances, I decline to pass these several payments, amounting to £85 2s. 3d. I declare this to be an illegal charge on the rates, and I surcharge Messrs. John Duckett, Daniel O'Sullivan, and John Kelly, with the sum of £17 10s. 6d., sterling, amount of Draft No. 91, dated 31st August, 1894, which they, by their signatures as such Commissioners, authorised to be paid to the Killarney Electric Light Company, Limited; Messrs. John Duckett, David Hurley, and Daniel O'Sullivan, with the sum of £41 17s. 6d., amount of Draft No. 20, dated 5th March, 1895, which they also by their signatures authorised to be paid to Charles E. Leahy; and Messrs. John Duckett, David Hurley, and Daniel O'Sullivan, with the sum of £25 14s. 3d., amount of a further draft, No. 29, dated April 1st, 1895, which they also by their signatures authorised to be paid to the Killarney Electric Light Company, Limited; and I hereby direct these several persons to forthwith lodge the aforesaid sums which I have surcharged them with, to credit of the account of the Killarney Town Commissioners with the treasurer, the Munster and Leinster Bank, Killarney,

John H. Calvert, Auditor.

27th November, 1895.

The third schedule set out the “Notices of the Intended Application,” dated 12th December, 1895, containing “a statement of the matter complained of” which had been served on the auditor. These stated the items of surcharge, to which objection was made “on the ground that such sums were paid by the Killarney Town Commissioners as sanitary authority in respect of a contract legally entered into by those Commissioners and in discharge of a decree of the County Court Judge of Kerry made against the said Town Commissioners at suit of the Killarney Electric Light Company, Limited.”

The 4th schedule made an exhibit of the minutes of the Township Commissioners dealing with the matters out of which the surcharges arose.

The minutes of the Town Commissioners, so annexed to the auditor's return to the writ, may for the purposes of this report be thus summarised. There were, in the year 1893, two parties each desirous of illuminating the town of Killarney—a Mr. M. Bantry, lessee of gas works, and the Killarney Electric Light Company, Limited. Their rivalry split up the body of the Commissioners into two equally divided opposing camps, and from time to time as the one or other faction found themselves in a majority, so the interests of gas or electricity declined or kicked the beam. Tenders for lighting having been invited for the ensuing three—years, these came on for consideration at a meeting of the Town Commissioners held on the 15th September, 1893. A tender had been put in by Santry for gas; and four, at various figures, by the Electric Light Company. The Commissioners having heard what was offered by the rivals' solicitors, Leonard (the chairman) moved, and O'Connor seconded, that Santry's tender be accepted; Duckett moved that the Electric Light Company's tender be accepted, but was not seconded; then Hurley moved and Brosnan seconded that the question be adjourned to the January meeting; this was put and lost on a division by four to three. The next entry on the minutes was—“Mr. Santry's tender was then accepted without a division; Ordered, That the law agent be instructed to forthwith draw up the necessary bond and contract between the Commissioners and Mr. Santry.”

It was in controversy, on the affidavits, whether this was intended to convey, or not, that the original resolution had been put at all, and whether it had been in fact put to the meeting. Duckett, in one of...