R (Limerick Corporation) v Comerton and the Local Government Board

JurisdictionIreland
Judgment Date30 June 1922
Date30 June 1922
CourtCourt of Appeal (Irish Free State)
R. (Limerick Corp.) v. L. G. B.
THE KING (CORPORATION OF LIMERICK)
and
COMERTONand Others, and the LOCAL GOVERNMENT BOARD FOR IRELAND (1)

Appeal. (S. I.)

Local Government - Pensionable officer - Resignation or dismissal - Right to allowance - Dispute - Sealed orders of Local Government Board - Certiorari - Jurisdiction of Local Government Board - Local Government (Ireland) Act, 1919 (9 & 10 Geo. 5, c. 19), sect. 8.

Decisions given by the Local Government Board for Ireland within their jurisdiction are final and without appeal, and no Court can set them aside on the ground that they are wrong either in matters of fact or matters of law.

A Court will not set aside a valid legal order merely because the person who has obtained it may be unable to make use of it.

Appeal by the Local Government Board for Ireland from an order of the King's Bench Division dated June 30th, 1921, whereby a writ of certiorari was directed to be issued against the Board at the suit of the prosecutors to remove into the King's Bench for the purpose of being quashed three sealed orders made by the Board on January 26th, 1920, under sect. 8 of the Local Government (Ireland) Act, 1919 (9 & 10 Geo. 5, c. 19).

The facts of the case (2) were as follows:—

The County Council of Limerick, as the local authority, appointed a Technical Education Committee, and the committee established a technical school in the City of Limerick, which, for several years, was conducted with very great success. In the year 1917 a Mr. de Lacey was appointed headmaster of the Limerick School of Commerce, which was part of the Technical Committee's undertaking; but the Department of Agriculture and Technical Instruction refused to sanction his appointment, or to recognize the regularity of any payments made to him.

The dispute having lasted some time, the committee, on the 30th September, 1918, decided to close the schools, and notice was served upon the members of the staff to terminate their engagements. The members of the staff all accepted a month's notice of dismissal, on the understanding, however, that steps should be taken to find a way out of the impasse; and that if the schools could be continued the notices of dismissal should be regarded as withdrawn.

Mr. Comerton did not, however, assent to any such agreement; and he was accordingly served with a notice to terminate his engagement on the 31st July, 1919, which gave him eight and a half months'

notice. Arrangements were subsequently made by the committee by which Mr. de Lacey's salary was not paid out of corporate funds; and the committee then sent to the Department a revised financial scheme for 1919, omitting the name of Mr. de Lacey, which scheme was approved of and accepted by the Department, the result being that the institute was reopened, and the notices to the staff, other than Mr. Comerton, were deemed to have been withdrawn.

I have carefully read through the minutes, and I am satisfied that there is no evidence that Mr. Comerton's notice of dismissal was ever withdrawn; and, in my opinion, his notice of dismissal became operative on the 31st July, 1919; and he is to be regarded as having been removed from his office upon that date. This view of the case was accepted by Mr. Comerton's solicitor, Mr. O'Donnell, as appears from his letter to the secretary of the committee of September 5th, 1919, and by Mr. Comerton himself, as appears from his letter to the Town Clerk of the 23rd September, 1919.

On the 3rd June, 1919, the Local Government (Ireland) Act, 1919, was passed, and Mr. Comerton claimed to come within the provisions of that Act as an officer of a local authority who had been removed from his office for some cause other than misconduct or incapacity, and therefore entitled to a superannuation allowance. The Local Government Board, however, thought it necessary for Mr. Comerton to resign his office before they proceeded to consider his claim, and accordingly Mr. Comerton' on the 17th November, 1919, obtained the sanction of the Department to this course, and on 22nd November, 1919, sent in his formal resignation to the Limerick Corporation. The Local Government Board then considered the matter, and made an order dated 26th January, 1920, by which, having recited that Mr. Comerton had resigned his office with the sanction of the Department, and that the salary, fees, and emoluments of which he was in receipt at the time of his resignation amounted to £467, they, in exercise of the powers given to them by sect. 8 of the Local Government (Ireland) Act, 1919, determined that he was entitled to receive an allowance from the local authority from the time of his resignation, and that the amount of his allowance should be £311 6s. 8d. per annum, payable in equal monthly payments on the 23rd day of each month.

The Local Government Board made similar orders in respect of some ten other persons, including Mary Halpin, who was a charwomau, and who got an annual allowance of £46 16s., and Patrick T. White, one of the teachers, who was granted a gratuity of £993 12s. 1d..

The Corporation of Limerick applied to the King's Bench Division for a writ of certiorari to quash the three orders in question on the grounds that they were made without and in excess of jurisdiction, and that James Comerton, Mary Halpin, and Patrick T. White had ceased to hold their respective offices before their alleged resignations had been sanctioned by the Department of Agriculture and Technical Instruction for Ireland; and as regards Mary Halpin, on the further ground that she was not a whole-time officer.

The King's Bench Division, Molony C.J. and Pim J. (Samuels J. dissenting), held that the orders of the Local Government Board were ultra vires, and ought to be quashed.

The following judgments were delivered in the King's Bench Division:—

The Local Government Board and the officers appealed to the Court of Appeal in Southern Ireland.

Samuels J. :—

The primary question for decision in this case is whether the Local Government Board had jurisdiction to make any determination in the matter.

Their jurisdiction depends upon the position of Mr. Comerton upon the 3rd of June, 1919. If he was a whole-time officer of a committee of a local authority within sect. 8 sub-s. 3 of the Local Government (Ireland) Act, 1919 (9 & 10 Geo. 5, c. 19) upon the 3rd June, 1919, the date of the passing of that Act, then the Local Government Board had jurisdiction to inquire into the case and make a determination when the dispute between him and the committee of the local body, the Limerick Corporation arose in relation to the claim made by him under sect. 8, sub-s. 1, to have the amount of the allowance he would be entitled to determined on the ground that he was removed from his office for some cause other than misconduct or incapacity or upon his resignation with the sanction of the Department of Agriculture and Technical Instruction.

In my opinion Mr. Comerton was a whole-time officer of a committee of a local body within sect. 8, sub-s. 3, on the 3rd June, 1919.

By the Technical Instruction Act, 1889 (52 & 53 Vict. c. 76), sect. 1, sub-s. 1, a local authority may from time to time out of the local rate supply or aid the supply of technical instruction. Sub-clause 9 provides that the amount of the local rate to be levied in any one year by the local authority for the purposes of the Act shall not exceed one penny in the pound. By sect. 1, sub-s. 2, a local authority may, for the purposes of the Act, appoint a committee consisting either wholly or partly of members of the local authority, and delegate to any such committee any powers exercisable by the authority under the Act, except the power of raising a rate or borrowing money.

By sect. 3 the conditions on which Parliamentary grants might be made in aid of technical instruction should be those contained in the minutes of the Department of Science and Art for the time being. The administration of these Parliamentary grants was by the Agriculture and Technical Instruction (Ireland) Act, 1899 (62 & 63 Vict. c. 50), sect. 2, sub-s. 1, transferred to the Department of Agriculture and Technical Instruction.

In the case of Ireland, "local authority" was defined to be the urban or rural sanitary authority, as the case might be within the meaning of the Public Health (Ireland) Act, 1878. The County Borough Council of Limerick is such a local authority. By sect. 7, sub-s. 2, the local rate for the purposes of the Act shall in the case of an urban sanitary authority be the fund applicable to the expenses incurred by such authority in the execution of the Public Health (Ireland) Act, 1878. The powers given to urban sanitary authorities by this Act were extended to councils of counties and other rural authorities by the Local Government (Ireland) Act, 1898.

By the Agriculture and Technical Instruction (Ireland) Act, 1899, sect. 14, sub-s. 1, the Council of any county or of any urban district may appoint a committee for the purposes of technical instruction consisting partly of members of their own body and partly of other persons.

By sect. 15 large sums representing public moneys were placed at the disposal of the Department for the purposes, amongst others, of technical instruction. By sect. 16, sub-s. 1 (c), the sum of £55,000 per annum out of the moneys placed at the disposal of the Department shall be divided into such portions as shall be determined by the Department, with the concurrence of the Board of Technical Instruction; and of these portions one shall be distributed in proportion to their respective populations between the county boroughs, and shall be applied by the respective councils of these boroughs in aid of schemes approved by the Department for the purpose of technical instruction. Limerick being a county borough shared in this grant.

By sub-s. 5 money to be applied by the Department shall be applied subject to any conditions which the...

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