The King (at the prosecution of Patrick John M'Morrow) v Captain Thomas Edwin Fitzpatrick, R.M., and Others

• Jurisdiction: Ireland
• Judgment Date: 20 November 1917
• Date: 20 November 1917
• Court: King's Bench Division (Ireland)

The King (at the Prosecution of Patrick John M'Morrow)

and

Captain Thomas Edwin Fitzpatrick, R.M., and Others (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.

1918.

Petty Sessions Clerk — Petty Sessions Clerk [Ireland] Act, 1858 (21 & 22 Vict. c. 100), sects. 7, 8, 29 — Power of the Lord Lieutenant — Limits of age of candidates — Mandamus — Office held at pleasure — Absolute discretion to determine such office.

Section 29 of the Petty Sessions Clerk (Ireland) Act, 1858 (21 & 22 Vict. c. 100), gives the Lord Lieutenant full power to prescribe limits of age for candidates for the post of Petty Sessions clerks.

Where an individual or department, during whose pleasure an office is held, declares the tenure of that office shall cease, no Court has jurisdiction to examine or investigate into the reasons, good or bad, which led to that declaration, once, in fact and without condition, the tenure of the office has been determined. Brady v. The Queen (3 N. 1. J. R. 279) applied.

The following are the material provisions of the statutes referred to in the argument and judgment:—

Petty Sessions Clerk (ireland) Act, 1858 (21 & 22 Vict, C. 100)

Sect. 7.—as Often As Any Vacancy Shall Arise In The Office Of Petty Sessions Clerk Serving One District Only, The J Ustices Of Such Petty Sessions Shall Nominate And Appoint Some Proper Person To Fill The Said Office.

Sect. 8.—Every Petty Sessions clerk shall hold such office during the pleasure of the justices of the district of which he shall be clerk, and of the Lord Lieutenant.

Sect. 10.—It shall be lawful for the Lord Lieutenant to make such allowance as he shall consider fit and reasonable to the clerks of the justices in the borough of Cork and town of Belfast to enable them to provide such competent assistants as the nature and extent of their duties or the exigencies of the case may require.

Sect 29.—It shall be lawful for the Lord Lieutenant to make such general rules as shall seem to him expedient for the purpose of carrying into effect the provisions of this Act, and from time to time to amend and vary such rules as occasion shall require.

Petty Sessions Clerks and Fines (Ireland) Act, 1878 (41 & 42 Vict. c. 69):—

Sect. 6.—The power of making general rules conferred upon the Lord Lieutenant by the 29th section of the principal Act shall be construed and extended so as to authorize the making from time to time of regulations defining the duties of clerks of Petty Sessions, and the mode of performing the same; and the Lord Lieutenant may, if he shall think fit, provide for the making of allowances and granting remuneration to Petty Sessions clerks for any duties imposed on them by any such rules.

Petty Sessions Clerk (Ireland) Amendment Act, 1907 (7 Ed. 7, c. 22):—

Sect. 1 (1).—All the provisions of sect. 13 of the Petty Sessions Clerk (Ireland) Act, 1858, and any enactment amending the same with reference to gratuities or pensions which may be given to Petty Sessions clerks retiring from office… shall apply to assistants of clerks of Petty Sessions at Cork and Belfast, or hereafter to be appointed pursuant to the provisions of sect. 10 of the said Act, and approved of by the Lord Lientenant.

(2). The power of making rules conferred on the Lord Lieutenant by sect. 29 of the said Act shall extend to the making of rules respecting the qualifications, salaries, and mode of appointment of any such assistants hereafter to be appointed, and respecting the remuneration of any such assistants whether existing or hereafter to be appointed.

Mandamus.

Motion to make absolute a conditional order for a writ of mandamus directed to the justices of the peace for the Petty Sessions district of Drumkeerin iu the county of Leitrim, commanding them to elect a clerk of Petty Sessions for that district iu the manner required by law.

Ou the 29th January, 1917, the following order of the Lord Lieutenant was issued and published:—

“Wimboeke.

“By virtue and in pursuance of the powers and authorities vested in Us by the provisions of the Petty Sessions Clerk (Ireland) Act, 1858, section 29, We do hereby make the following general rules for carrying into effect the provisions of the Act:—

“From this date during the continuance of the war, and for six months after its termination, the rules made by the Lord Lieutenant on the 14th day of May, 1915, in reference to the age of candidates for the position of Petty Sessions clerk, shall be suspended, and the following rules substituted therefor:—

“The limits of age of candidates seeking the appointment of Petty Sessions clerk shall be 41 to 50 years of age except—

“(a) In the case of a candidate who is already a Petty Sessions clerk, the limits of age shall be 41 to 55 years.

“(b) In the case of any person who, at the time of his appointment, is serving in His Majesty's Naval or Military Forces, or who, since the beginning of the war, has been discharged from service in His Majesty's Naval, Military, or Police Forces on account of wounds, injuries, or disease received or contracted in such service, the limits of age shall be 31 to 50 years.

“The rules made on the 6th day of April, 1916, are hereby revoked.”

On the 27th July, 1917, at an election held for the vacant post of Petty Sessions clerk of the Petty Sessions district of Drumkeerin, Co. Leitrim, M'Morrow, the prosecutor, who was under the age of forty-one, received the majority of votes of the justices, and was declared appointed. His name was then sent forward to the Lord Lieutenant for approval. On the 14th August, 1917, the Registrar of Petty Sessions Clerks, on the instructions of His Excellency, wrote to the prosecutor as follows:—

“I have to in form you that the Lord Lieutenant has ordered a fresh election to be held for the Petty Sessions clerkship of Drumkeerin, and that you are ineligible, as you are of military age.” On the same date the registrar wrote to the justices of the Drumkeerin Petty Sessions district, advising them that the Lord Lieutenant had ordered a new election for the post of Petty Sessions clerk of their district, as Mr. M'Morrow was of military age, and also to the Clerk of the Crown and Peace for the County of Leitrim, directing him to transmit a copy of the notice of the time and place of the new election, with direction that such notice, inter alia, should contain the particulars as to the age limit prescribed by the Order of the 29th January, 1917...