R (Riall) v Bayly

• Jurisdiction: Ireland
• Judgment Date: 28 October 1897
• Date: 28 October 1898
• Court: Court of Appeal (Ireland)

Reg. (Riall)

and

Bayly (1).

Q. B. Div.

Appeal.

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.

Quo warranto — Public office held at will and pleasure — Secretary of Grand Jury — Grand Jury (Ireland) Act (6 & 7 Wm. 4, c. 116), sect. 45.

Quo warranto does not lie in respect of the office of secretary of a Grand Jury in Ireland, such secretary holding office merely at the will and pleasure of the Grand Jury.

A resolution of a Grand Jury appointing an officer to their body is not a matter for fiat by the Judge of Assize.

Quo warranto. This was an application to make absolute a conditional order for an information in the nature of quo warranto at the relation of W. A. Riall exhibited against R. E. Bayly to show by what authority he claimed to be and act as Secretary of the United Grand Juries of the county of Tipperary; the ground alleged on the face of the order being that the respondent was not duly qualified at the time of his supposed appointment, being then High Constable and collector of Grand Jury cess for two baronies in the North Riding of the county.

On the 9th March, 1897, the respondent was elected as their secretary by the United Grand Juries of the north and south ridings of the county assembled at Clonmel. He had for some time previously been acting as high constable for two of the baronies of the north riding; and on the 3rd March, 1897, had been re-elected to that office by the Grand Jury of the north riding assembled at Nenagh. On that occasion he had given an undertaking that if elected subsequently as secretary he would resign the office of high constable; and on the 8th March he had lodged with the Grand Jury a resignation of the office of high constable conditional upon his election as secretary.

The two questions discussed during the arguments were, first, whether the office was one in respect of which an information should be granted, the secretary of a Grand Jury holding office merely during the will of the Grand Jury, and being removable by the Grand Jury of any ensuing Assizes at their pleasure (6 & 7 Wm. 4, c. 116, s. 45), though admittedly in practice never removed save by death or for cause;—secondly, whether the respondent was duly elected, this depending on the validity of his resignation. For the relator it was contended that it was not competent to the respondent to resign his office of high constable, and that a conditional resignation was in any event void.

Cur. adv. vult.

Ryan, Q.C., C. L. Matheson, Q.C., R. E. Meredith, Q.C., and J. F. Moriarty, for the relator.

S. Ronan, Q.C., and T. S.F. Battersby, for the defendant.

G. Wright, Q.C., and J. P. Brett, for the Grand Jury of the north riding of the county Tipperary.

Johnson, J. [after referring to the terms of the conditional order, continued]:—

The point to be decided at present is whether an information in the nature of a quo warranto lies in respect of the office of secretary of the Grand Juries of the two ridings of the county Tipperary. The leading case of Darley v. The Queen (1) lays down the principles by which this Court is to be governed. In delivering the opinion of the Judges in that case to the House of Lords, Tindal, C. J., says:—“This information will lie for usurping any office, whether created by Charter alone or by the Crown, with the consent of Parliament, provided the office be of a public nature and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others, for with respect to such an employment the Court certainly will not interfere, and the information will not properly lie.” To illustrate this last position, he refers to the case of The King v. The Duke of Bedford (2) as the case of an office to which quo warranto was not applicable. There a Corporation was by statute authorised to appoint a registrar, to allow him a salary, and to remove him and make new the office at their pleasure. Lord Lyndhurst, the Lord Chancellor, agreed in the opinion of the Judges; and Lord Brougham says:—“It must be considered, however, that this judgment is confined entirely to offices of a public nature, and so far of a public nature that they must be of a substantive nature and independent in their title”; which, as explained by Cockburn, C.J., in The Queen v. Hampton (3), means that the office is permanent in character as contradistinguished from an office from which a person is removable at pleasure, whatever the period of his office might be. In Darley v. The Queen (1) all these conditions were fulfilled, and, at page 542, the Chief Justice points out that the Treasurer of the city of Dublin, “though appointed by the magistrates, is not removable at their pleasure, and must, we think, be treated not as their servant but as an independent officer.” This is observed by Lord Campbell, C.J., in The Queen v. Fox (4). In that case the office was that of Clerk of Borough Justices who held his office at their pleasure; and Lord Campbell says:—“It is not an office to be held quam diu se bene gesserit; the Justices may remove their clerk without the slightest stain on his character, merely for the purpose of replacing him by a person whom they think fitter for the office.” In Darley v. The Queen (1) the officer was not “removable at pleasure.” The reason of this is assigned

in Ex parte Richards (1), viz. that, if the occupant of this office was turned out and the applicant replaced, he might immediately be dismissed again, so that such an application was both vexatious and idle. In The Queen v. The Guardians of St. Martin's (2), which was relied on in support of the motion, the office was that of clerk to the Board of Guardians; but there the Guardians were directed by the order of the Poor Law Commissioners to appoint a fit and proper person to be clerk to the Board, “to continue to hold this office until (3) he die, or resign, or be removed”—not by the Guardians by whom he was appointed, but—“by the Commissioners, or proved to their satisfaction to be insane”; and Lord Campbell, C.J. (4) points out that this is equivalent to an appointment quam diu se bene gesserit, i. e. during good behaviour, and that removal must be on some grounds. In The Queen v. Burrorcs (5), which was also relied upon in support of the motion, the office was that of vestry clerk. Under the 13 & 14 Vict. c. 57, s. 6, the vestry was empowered, after seven days' notice, to elect some fit and competent person to be vestry clerk, “who shall not be removable from office except by resolution passed at a vestry to be called for that purpose and with the consent of the Poor Law Commissioners or by order of the Commissioners under their seal.” The clerk in that case could only be dismissed by the vestry with the consent of the Poor Law Commissioners or by an order of the Commissioners under seal; therefore in neither of the two last-mentioned cases did the officer hold at the will and pleasure of the Board of Guardians in the former or the vestry in the latter case.

Originally, the Secretary of the Grand Jury was merely their clerk, who received for his remuneration £5 for each Assizes. In 1783, the 23 & 24 Geo. 3, cap. 42 (Ir.), section 9, after reciting the authority of the Grand Jury to grant £5 at each Assize to their secretary, but that no provision had been made for the appointment of such secretary, empowered every Grand Jury at any Assize after the 24th of June then next to appoint a person to act as secretary or clerk to the Grand Jury at the ensuing

Assize. This was followed in 1792 by the 32nd Geo. 3, cap. 30 (Ir.), which, by section 33, after reciting the former provision, and that there was no provision for the appointment of such secretary where the Grand Jury had neglected to make the appointment, enacts that the secretary for the time being shall continue in such case to act until another person shall be appointed in his room, and makes provision for receiving affidavits for presentments in case such secretary should die or from unavoidable circumstances be incapable of receiving such affidavits. In 1796, by the 36th Geo. 3, cap. 55 (Ir.), sect. 42, the Grand Jury was empowered to appoint a secretary for the Grand Jury at the ensuing Assizes. Thus the secretary gradually became a county officer, and in 1823 his status as a county officer was recognised by the 4th Geo. 4, cap. 43, which gave him an annual salary at the rate in the schedule to that Act, payable by equal half-yearly presentments at each Assizes,—the secretary of the Grand Jury of the county of Tipperary being in the first class at the highest salary. Now the appointment of secretary of the Grand Jury is provided for by the Grand Jury Act, 6 & 7 Wm. 4, cap. 116, sect. 45; and his numerous and varied important public functions, ministerial in character, are prescribed by that statute and by the 31 & 32 Vict. cap. 46, and are such as the public have an interest in; and by section 15 the secretary of a Grand Jury is empowered, with the approval of the Lord Lieutenant, to appoint a deputy, for whom he is responsible, during temporary illness or unavoidable absence.

But though in these respects, so far as regards its public nature, the office fulfils the conditions laid down in Darley v. The Queen (1), the tenure of the office remains to be considered. Up to the 6 & 7 Wm. 4, cap. 116, the Legislature had dealt with the salary and appointment of a Secretary of the Grand Jury. That Act was passed to “consolidate and amend” the law relating to the fiscal powers of Grand Juries, and, by section 45, it empowers Grand Juries...