Re Richard Hazleton, A Bankrupt

• Jurisdiction: Ireland
• Judgment Date: 21 April 1915
• Date: 21 April 1915
• Court: Court of Appeal (Ireland)

In re Richard Hazleton, a Bankrupt.

Appeal.

CASES

DETERMINED BY

THE KING'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.

1915.

Bankruptcy — Member of Parliament — Annual Payment to — Salary or Income — Attachment — Public Policy — Irish Bankrupt and Insolvent Act, 1857 (20 & 21 Vict. c. 60), s. 319 — Bankruptcy (Ireland) Amendment Act, 1872 (35 & 36 Vict. c. 58), s. 51.

The annual payment of £400 to a member of the House of Commons (including an allowance of £100 for expenses), provided for by the Appropriation Acts, is not a salary or income in respect of which, in the event of the bankruptcy of the member, an order can be made under sect. 51 of the Bankruptcy (Ireland) Amendment Act, 1872, for the payment thereof, or any part thereof, to the official assignee.

This was an appeal from an order of Mr. Justice Boyd, sitting as a judge of the King's Bench Division in Bankruptcy, dated the 19th day of February, 1915, whereby it was ordered that the bankrupt, Richard Hazleton, should, out of his salary or income as member of Parliament for the division of North Galway, pay until further order to Alfred George Hollinshead, official assignee of the Court, the sum of £200 yearly in four quarterly instalments of £50 each, to be applied by the said official assignee in discharge of the debts due in this matter.

Mr. Hazleton was, in the year 1910, elected as a member of Parliament for the division of North Louth, but was unseated on a petition, and ordered to pay the costs of the petitioners, which amounted to £2162 8s. 7d. He owed no other debts. On the 5th day of June, 1914, Mr. Hazleton was adjudicated a bankrupt on his own petition, and the order now appealed against was made on the hearing of an application by his assignees in bankruptcy, under section 319 of the Irish Bankrupt and Insolvent Act, 1857 (20 & 21 Vict. c. 60), and section 51 of the Bankruptcy Ireland Amendment Act, 1872 (35 & 36 Vict. c. 58), for the attachment of the bankrupt's salary or income as a member of Parliament for the division of North Galway, to which seat he had been elected subsequent to the petition.

The bankrupt was admittedly in receipt of payment at the rate of £400 per annum, including an allowance of £100 for expenses, as one of the members of the House of Commons not in receipt of salaries as Ministers, as officers of the House, or as officers of His Majesty's Household.

Henry K.C. (with him M'Cann), for the appellant:—

The allowance made to a member of Parliament cannot be attached under any section of the Bankruptcy Acts. It is not “salary or income” within section 51 of the Bankruptcy (Ireland) Amendment Act, 1872. It is merely a voluntary allowance made to a member of Parliament, as such, for the purposes of his membership, and to enable him to perform his duties to his constituency and the country at large. It would be against public policy to appropriate any portion of such an allowance for any other purpose. Nor can it be said that such an allowance comes within the provisions of sect. 319 of the Irish Bankrupt and Insolvent Act, 1857. At the date of that Act payment of members was unknown, and such payments should not be held to be affected by the section in the absence of legislative enactment. The principle of public policy was carefully guarded in section 319, and should not be encroached upon. In Ex parte Wicks, In re Wicks (1) the Court of Appeal held that a purely voluntary

allowance made to a bankrupt was not “income” within the meaning of section 90 of the Bankruptcy Act, 1869. James L.J. there said: “It seems to me that the words mean a salary or an income to which the bankrupt is legally or equitably entitled, and not a mere voluntary payment.” No member of Parliament is legally or equitably entitled, as such, to a salary of £400 per annum. The allowance is purely voluntary, resting on nothing more than a resolution of the House of Commons itself. In Ex parte Webber, In Re Webber (1) it was similarly held that a voluntary allowance granted by the Secretary of State for India to an officer of the Indian army on compulsory retirement, to which the recipient had no legal claim, was not “income” within the meaning of sect. 53, sub-s. 2, of the Bankruptcy Act, 1883; see also In Re Saunders, Ex parte Saunders (2), Lucas v. Harris (3). Ex parte Huggins; In re Huggins (4), will be relied upon by the respondents, but there is no analogy between the pension of a retired judge and a temporary allowance such as this. There is an officer of the House of Commons whose duty it is to make these payments to members when the amount thereof is duly appropriated, but what power would he have to make payment to the assignees? The order for payment is continuous, but even if this allowance be regarded as in the nature of wages earned by the member in respect of his attendance at the House of Commons, it could not be attached. He could not be compelled to continue his attendance: In re Jones, Ex parte Lloyd (5); Ex parte Benwell, In re Hutton (6); In re Hurrell (7); In re Mirams (8); In re Rogers, Ex parte Collins (9).

Healy K.C., and Hanna K.C. (with them, D. B. Sullivan), for the respondents:—

We contend that this payment of £400 per annum is strictly “salary or income.” No doubt there is no legislative authority for the payment, but when the payment is made, it is paid as salary, and accepted as such. The payments are included in the

estimates for civil services under the heading “Salaries and Allowances.” It is not immaterial that £100, portion of the £400, is called an “allowance.” If not “salary,” the payment when received is “income.” Income tax is payable in respect of it. In re Huggins (1) is clear authority in our favour. Jessel M.R. there says in reference to the pension of the retired colonial judge: “The word income is as large a word as can be used. It is not the less income because it has to be voted every year by the Colonial Legislature.” There the salary was attached, although absolutely protected in India. See also judgment of Eve J. in In re Elford (2). Payment of members, however irregular at present, is nothing new. Formerly every knight of the shire received four shillings by the day, and every citizen or burgess two shillings or more, to be levied by the sheriffs; see 35 H. 8 c. 11. By 8 Henry 6, c. 7, it was enacted that knights of the Parliament returned contrary to the ordinance, “shall lose their wages.” No privilege attached to such payments. The order of the Court does not require any officer of the House to pay over any sum to the assignees; it merely attaches portion of the money when received by the bankrupt. If the Treasury refused to pay the latter, a mandamus would lie to compel payment, once the money was appropriated: The King v. the Lords Commissioners of the Treasury (3). When protection is intended to be given to payments of a public nature, it is expressly provided by statute. Thus by sect. 6 of 8 Edw. 7 c. 40, an old age pension is made inalienable. In In re Doyle (4) it was held that where the son of an evicted tenant had allotted to him a farm by the Estates Commissioners, his assignees in bankruptcy were entitled to intervene and claim the farm on behalf of his creditors; but this being contrary to the intention of the Legislature, it was provided by sect. 11 of the Evicted Tenants (Ireland) Act, 1907, that lands purchased by an evicted tenant should not be made available in bankruptcy for the discharge of debts contracted prior to the vesting. If it be said that there was no payment of members in 1872, and that the words “salary or income” in sect. 51 of the Act of that year could not have been intended to include such payments, our answer is that the same words are to be found in sect. 51 of the Bankruptcy Act, 1914, under which the “salary or income” of a bankrupt may be attached as the Court directs, and no exception is provided for the case of the salary or income of a member of Parliament. The argument based on public policy fails. Can it be said that when an English bankrupt is precluded from sitting or voting in the House, public policy requires an Irish member to be entitled not only to sit and vote, but to receive his salary in full without paying his debts? There is no hardship on the constituency, which can elect a solvent member. Public policy is an unsafe ground for legal decision: Janson v. Driefoutein Consolidated Mines, Limited (1); Egerton v. Lord Brownlow and Others (2). What is the rule of policy is to be found in the statutes themselves, and when the provisions of these are clear, the duty of the Court is to administer them, not to inquire into matters of alleged public policy. See judgment of Lord Watson in Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company (3); Miller v. Salomons (4); Hardy v. Fothergill (5).

Kenny K. C. in reply referred to In re Shine (6); In re Roberts (7); Ex parte Smith; In re Angerstein (8); Flarty v. Odlum (9).

Cur. adv. vult.

Henry K.C. (with him M'Cann), for the appellant:—

Healy K.C., and HannaK.C. (with them, D. B. Sullivan), for the respondents:—

O'Brien L.C.:—

The question for decision in this case is important. Mr. Hazleton, having been indebted in a sum of £2162 8s. 7d., the costs of an election petition which were awarded against him, was adjudicated a bankrupt in Ireland, on his own petition, on the 5th June, 1914. Prior to that date, viz., on the 26th May, he resigned his seat in Parliament for County Galway. Subsequent to the adjudication, viz., in the month of July, he was again elected a member of the House for North Galway, and the appeal proceeds on the basis that he is at the present time a regularly

elected member of the House, and as such entitled to receive certain payments which are provided for members of the House of Commons under Appropriation Acts passed from year to year.

The position of the...