The Commissioners of Public Works in Ireland and Henry Williams, Secretary v John Monaghan and James Monaghan

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 04 June 1909
• Court: King's Bench Division (Ireland)
• Date: 04 June 1909

The Commissioners of Public Works in Ireland and Henry Williams, Secretary,

and

John Monaghan and James Monaghan (1).

K. B. Div.

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.

1909.

By-law — Approval of two Judges of the High Court — Ultra vires — Unreasonableness — River Shannon — Navigation — Fisheries — Frame or engine — Ejusdem generis.

Held, by a majority of the Court (Dodd, Wright, Johnson, and Andrews, JJ., and Palles, C.B.), that the by-law was ultra vires.

Held, by Madden, J., and Lord O'Brien, L.C.J., that the by-law was intra vires.

Held, by Madden and Johnson, JJ., that the contrivance in question was not a frame or engine within the meaning of the by-law.

Held, by Andrews, J., Palles, C.B., and Lord O'Brien, L.C.J., that the contrivance was a frame or engine within the meaning of the by-law.

Case Stated for the opinion of the Court by the Justices of the County of Tipperary sitting at Lorrha Petty Sessions, on the 5th November, 1908, as to whether they were right in point of law in their determination on a certain summons in which the Commissioners of Public Works in Ireland were complainants, and John Monaghan and James Monaghan, both of Portumna, County Galway, were defendants. The summons was for infringement of the provisions of the statute 2 & 3 Vict. c. 61, and the by-laws made thereunder. By section 37 of the said Act the care and conservancy of the River Shannon were vested exclusively in the Commissioners for the execution of the Act, and by section 56 it was enacted that “it shall and may be lawful for the Commissioners… to make such rules, orders, regulations, and by-laws, as to them shall seem meet and proper for regulating the conduct of all officers, &c., and for the well and orderly using and preserving the said River Shannon,… and for regulating the passing and repassing of all ships,… and such by-laws, rules, and orders shall be binding upon and shall be observed by all persons whatsoever, and shall be sufficient in all Courts of Law or Equity to justify all persons who shall act under the same; provided that such by-laws, rules, and orders be approved of by any two Judges of any of Her Majesty's Supreme Courts of Record in Dublin.”

The powers of the Commissioners appointed for the execution of the Act subsequently, by 8 & 9 Vict. c. 86, s. 2, became vested in the Commissioners of Public Works in Ireland. On the 9th. August, 1865, the Commissioners of Public Works made the following by-law:—

“It shall not be lawful for any person or persons, without the sanction of the Commissioners of Public Works in Ireland (such sanction to be signified in writing under the hand of the said Commissioners for that purpose), to place in any part of the River Shannon any frame or engine for catching eels or any other fish, or for any other purpose, whether such frame or engine be fixed in the soil of the said river, or attached to any anchor, or be otherwise supported in its position.

“And any person offending against this by-law shall forfeit the sum of five pounds for each such offence.

“Dated at the Office of Public Works, Dublin, this 9th day of August, 1885.

J. G. M'Kerlie,

W. R. Le Fanu,

“Commissioners of Public Works in Ireland.

“We approve of the foregoing by-law.

“Dated the 10th day of August, 1865.

“Thomas Lefroy, Ch. J. I.,

“E. Hayes, Third Justice, Q. B.”

The summons alleged that the defendants on the 2nd July, 1908, at a place in the bed and soil of the River Shannon adjoining the townland of Lahinch, in the county and district aforesaid, without the sanction of the Commissioners of Public Works in Ireland, signified in writing under the hands of said Commissioners for that purpose, did unlawfully place in a part of the River Shannon an engine for catching eels, supported in its position with stones attached thereto contrary to the provisions, &c.

At the hearing of the said complaint the following evidence was given on behalf of the complainants:—

Augustine Myles Keogh produced the original by-law, and deposed that it was signed by J. G. M'Kerlie and W. R. Lefanu, who were two of the Commissioners of Public Works at the time.

F. Dudley Fletcher gave the following evidence:— “I am Engineer for the Shannon, under the Board of Works. At Portumna Bridge there is a copy of the by-law on a board, raised about 5 feet 6, or 9, inches from the ground. It is in legible characters. I am aware that line-fishing attached to stones has been going on extensively in the Shannon. This by-law has been also placed on boards at other places on the Shannon.”

James Gilmore gave the following evidence:— “I am inspector in charge of Division F, under the Limerick Fishery Board. I remember the 2nd July, 1908, about 8 p.m. I identify map marked, where eel-lines were placed by defendants. I saw defendants first about Portumna Bridge, on the eastern side; one was rowing a boat and the other was paying out line. It was an eel-line; stones were attached to lines at intervals of 40 yards, about twelve to twenty hooks between each stone; the smaller intermediate stones were about 1 lb. in weight. Line was attached to stone. About one mile and a half or three-quarters was put down at both sides. Red line on map accurately represents where line was laid. Next morning, at 5 a.m., I went out in my boat. Portion of line was lifted by defendants when I arrived. They took off eels at intervals on hooks; the majority of eels were immature. Monaghan said to me the previous evening in course of conversation— ‘I suppose you are going to test this case?’ I replied— ‘The matter is in the hands of my authorities.’ The end stone was about 4 lb. He added (subject to objection)— ‘About seven stone of eels were taken.’ I counted twenty-two stones on line.”

Michael Reilly gave the following evidence:— “I am water bailiff, and was with Gilmore when the lines were lifted, and corroborate his evidence in every respect; and the men who lifted the lines were the two defendants.”

The original by-law, the making of which was proved by Mr. Keogh, and the map (l), which was proved by Gilmore, are to be taken as incorporated in this case.

No evidence was given on behalf of the defendants; but it was contended on their behalf (a) that the by-law in question was ultra vires, (b) that it was unreasonable, and (c) that the facts proved did not amount to a breach of the by-law, inasmuch as no obstruction had been proved. It was contended by counsel on

behalf of the complainants that the by-law was intra vires and reasonable, and he relied on the Act 2 & 3 Vict. c. 61, and the various amendments, and cited Kruse v. Johnson(1). He contended also that it was not necessary to prove obstruction, and that the device that was used by the defendants was an engine within the meaning of the by-law.

Upon the said hearing we (the Justices) were of opinion that the acts proved by the complainants did not amount to an obstruction of the River Shannon on the part of the defendants, and that the contrivance used by the defendants was not an engine within the meaning of the by-law, and accordingly we dismissed the complaint, as aforesaid.

And hereupon the judgment of the Court is required as to whether we, the said Justices, were correct in point of law in our determination as aforesaid, and whether there was evidence to support the above finding, and as to what should be done in the premises.

Given under our hands this 11th day of December, 1908.

Samuel J. Dease, R.M.

J. Willington.

W. T. Trench.

W. J. Johnston (with him The Solicitor-General and Ignatius O'Brien, K.C.) for the Commissioners of Public Works:—

The by-law provides in effect that every frame or engine proposed to be used by any person in the River Shannon shall first be submitted to the Commissioners for their sanction. There is nothing unreasonable in the provision which would render it ultra vires. Under it the Commissioners have a power of preventing the use of any appliance which is calculated to injure the navigation of the Shannon. The use of any appliance by any person without first going to the Commissioners for their sanction, is the offence under the by-law. Having regard to the powers and rights in reference to the Shannon conferred upon the Commissioners by the 2 & 3 Vict. c. 61, there is nothing extravagant or unreasonable in the provision of the by-law. The Court ought

to be slow to hold that a by-law is void for unreasonableness. The by-law ought to be supported unless it is manifestly partial and unequal in its operation between different classes, or unjust, or made in bad faith, or clearly involving an unjustifiable interference with the liberty of those subject to it: Kruse v. Johnson(1).

The appliance used was within the description of “engine” referred to in the by-law. It was a line laid at the bottom of the river for a distance of between a mile and a quarter and a mile and a half. Stones were placed at intervals of 40 yards “supporting” the line in its position, and there were about twenty hooks between each stone. A glance at the map will show what a formidable engine it was and how easily it might interfere with the navigation of the river. The statute provides for the approval of the by-law by two Judges of the High Court, and it contains words that are contained in no other statute as to the validity of the by-law when made. [He referred to Institute of Chartered Accountants v. Lockwood(2); Hornsby v. Considine(3); Allen v. Thompson(4); Hill v. George(5); Gentel v. Rapps(6).]

Frank Fitz Gibbon, for respondents:—

The contrivance used here is not an “engine” within the meaning of the by-law. It is not an “engine” ejusdem generis with “frame.” A by-law made under the statutory power will be construed as a section of an Act. “Other engines for catching eels,” though general words, will be limited to such as are of the...