R (Jacob) v Blaney

• Jurisdiction: Ireland
• Judgment Date: 27 February 1900
• Date: 27 February 1900
• Court: Queen's Bench Division (Ireland)

Reg. (Jacob)

and

Blaney (1).

Q. B. Div.

CASES

DETERMINED BY

THE QUEEN'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.

1901.

Quo warranto — Office held during pleasure — Surgeon of county infirmary — 5 & 6 Geo. 3 (Ir.), c. 20 — 61 & 62 Vict. c. 37, s. 15.

The office of surgeon of a county infirmary, being held during pleasure, is not one in respect of which quo warranto lies.

Quo warranto.

Application to make absolute, notwithstanding cause shown, a conditional order that an information in the nature of a quo warranto be exhibited against Dr. N. J. Blaney to show by what authority he claimed to use and enjoy the office of surgeon to the Queen's County Infirmary, on the grounds:—(a). That the said William Gardner Jacob being the surgeon and physician of the said infirmary duly and legally elected, it was not within the power of the joint committee of the Queen's County Infirmary to arbitrarily dismiss him unless for neglect of his duties, incapacity, or misconduct; and no such allegation was ever made against him or exists; (b), that the office of surgeon and physician to a county infirmary was not one determinable at the pleasure of the committee of management, and that the holder of such office when legally elected was irremovable except for incapacity or misconduct on the grounds of public policy; (c), that the joint committee had no power to remove a physician or surgeon to an infirmary at a special meeting such as the meeting of the 22nd November, 1899, was, even assuming that they possessed any such power at one of their last general quarterly meetings under section 7 of 5 & 6 Geo. 3, c. 20; (d), that the meeting called for the 25th October, 1899, was a special meeting summoned for a special purpose, as announced in the advertisement calling said meeting, namely, “to elect a duly qualified physician and surgeon to the Queen's County Infirmary, and that it was not competent for the majority of the said committee to then pass a resolution expressing the desirability of determining Dr. William Gardner

Jacob's services or to direct a new special meeting to be called for the 22nd November, 1899, to dismiss Dr. Jacob from his office of physician and surgeon to the said infirmary, or to give notice of motion for such purpose at said special meeting of the 25th October, 1899; (e), that the said special meeting of the 22nd November, 1899, was not a legally authorised meeting, and that such notice of motion being irregularly received by the chairman at the meeting of 25th October, 1899, the dismissal of Dr. William Gardner Jacob thereat was also necessarily illegal, and the appointment of the said Dr. N. J. Blaney at the said meeting of the 10th January, 1900, was also necessarily illegal, as such appointment necessarily was the outcome of the previous illegal action at antecedent meetings of the said joint committee.

By the 5 & 6 Geo. 3, c. 20 (Ireland), power was conferred on the persons therein named to establish infirmaries or hospitals in the several counties of Ireland; and the Queen's County Infirmary was established under the provisions of the said Act, and of the statutes amending and supplementing the powers therein contained, and was managed by the governors and governesses thereof, who formed under the said Acts a body corporate with perpetual succession. By section 4 of the same Act it was provided that where a public infirmary or hospital should be erected or established in any of said counties and fitted for the reception of patients, the governors and governesses constituted as in said Act mentioned should give notice in two of the Dublin newspapers that the same was ready for the reception of patients, and that they would on a certain day to be named (which should be in twenty-one days at least from the date of said notice, and specifying the time and place), proceed to the election of a surgeon for such infirmary or hospital; and in case of a vacancy of a surgeon in any of the said infirmaries the governors and governesses should proceed to elect in the manner and form aforesaid. By section 7 of the same Act it was provided that said governors and governesses (five of whom were to form a quorum) should have four general quarterly meetings in every year at such infirmary or hospital, and that they should at any general meeting have power to elect or remove a physician, or surgeon, and servants; and to order and regulate the whole economy and expense of such infirmary or hospital; and that in case of a vacancy of a physician or surgeon by death, or otherwise, to summon by advertisement in two Dublin newspapers general Boards on these particular occasions for the purpose of supplying every such vacancy, at which general Boards five should form a quorum.

The relator, a qualified medical doctor, had been appointed surgeon and physician to the infirmary at a meeting of the governors and governesses held on the 20th May, 1898. Prior to this date he had been acting as assistant medical officer to the infirmary for eighteen years. After the passing of the Local Government (Ireland) Act, 1898, a joint committee was appointed (pursuant to section 15) consisting of 24 members—15 nominated by the county council—and 9 by the governors and governesses; and the powers and duties of the old corporation of governors and governesses were transferred to the joint committee. Shortly afterwards the joint committee by a majority declared Dr. Jacob's office vacant, in the first instance without assigning any cause, and issued advertisemets for candidates for the office; subsequently, a special meeting was summoned for the 25th October, 1899, for the purpose of appointing a physician and surgeon. At this special meeting no appointment was made, but notwithstanding protest a resolution was passed that the services of the relator be terminated, and a lengthy notice was given that at a special meeting of the committee to be held on the 22nd November, 1899, a resolution would be moved that Dr. Jacob's services be terminated on the grounds “that apart from an illegal attempt to hold the position despite popular representation, and the provisions of the Local Government Act, 1898, having regard to the number of medical appointments held by” him it was “not possible for him to give to the infirmary the time and attention,” &c. This was the first suggestion of any ground for the change or suggestion of “cause.”

The resolution was passed by a small majority at the meeting of the 22nd November; advertisements were published; and the respondent (Dr. Blaney) was shortly afterwards declared elected to the office, and had since acted therein. The relator denied that at any time had any complaint been made against him, and charged that the suggested “cause” was an afterthought.

The statutes and cases cited during the argument are fully referred to in the judgments of the Court.

Cur adv. vult.

Ronan, Q.C., Campbell, Q.C., and Brunskill, for the relator.

The Right Hon. The Macdermot, Q. C., and D. Kehoe, for the respondent Blaney.

Falconer, Q.C., Healy, Q.C., and Dudley White, for the Queen's County Infirmary.

Sir P. O'Brien, L. C. J.:—

The question which stands at the threshold of this case needs only to be stated to indicate its very general importance.

It is this:—Is the office of surgeon or physician to a County Infirmary one held at the pleasure of the appointing body and therefore determinable at will? If this question is to be answered in the affirmative, Doctor Jacob's application for an information in the nature of a quo warranto must be refused. The question then that presents itself at the very outset is one as to the tenure of the office. Is the office held at the will and pleasure of the joint Committee appointed under the Local Government Act in whom the right to appoint is now vested, or is the office held for life or what is tantamount to a freehold office, during good behaviour. To use the language of the books, Is the office held “durante bene placito,” or “quamdiu se bene gesserit”? If the office is held at will, the holder can be dismissed arbitrarily at any time, and quo warranto will not lie; if held during good behaviour he can be dismissed only for cause, and proceeding by quo warranto is applicable. This was conceded in the argument.

Dr. Jacob, the applicant in this case, contends that the tenure is one during good behaviour and that accordingly he can be dismissed only for cause, and that, as he was dismissed without cause, he is entitled to be reinstated in the office. The question is, as I have already said, of general importance, involving the character and nature of the tenure of the physician and surgeon of every County Infirmary in Ireland. The determination of the question depends upon the true construction of certain sections of two Acts of Parliament—on the construction of the 15th section, clause 8, of the Local Government Act, 1898, and of the 7th section of the 5 & 6 Geo. 3, c. 20. The language of the Irish Local Government Act, 1898, is as follows:—

“Nothing in this Act shall deprive any existing officer of any Infirmary or Hospital to which this section applies of any privileges enjoyed by him under any Act, and such officer shall not be removed from his office except with the consent of the Local Government Board; but, subject as aforesaid, every officer of the Hospital or Infirmary may be appointed or removed by the Committee appointed under this section.”

This is the provision of the Local Government Act which we have to construe; and, if the matter were res integra, depending solely on this clause, I would have no difficulty whatever as to its construction. Dr. Jacob does not fulfil the definition of “existing officer,” and it is quite clear to my mind that the only restriction upon the power of removal in the section is the consent of the Local Government Board as to “existing...