The King (Gorey) v The Chairman and Justices of County Kilkenny

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 08 November 1911
• Court: King's Bench Division (Ireland)
• Date: 08 November 1911

The King (Gorey)

and

The Chairman and Justices of Country Kilkenny (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.

1912.

Local Government — Member of council or board of guardians — Disqualification by absence — Penalties — Local Government (Application of Enactments) Order 1898, Art. 10 (3), Art. 12 (9), (11) — Justices — Summary jurisdiction — Negativing exceptions — County Officers and Courts (Ireland) Act, 1877 (40 & 41 Vict. c. 56), s. 78 — Question, whether preliminary to jurisdiction — Conviction incorporating complaint as in summons — Power to quash on certiorari — Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. c. 93), a. 39 — Certiorari — Conditional order — Insufficient allegation of fraud.

Held, that this could not be read as alleging that the suppression was that of the complainant in the summons, or that it was wilful or fraudulent, and that it was not open to the prosecutor to show that the conviction was obtained by fraud.

Certiorari.

The prosecutor, Denis J. Gorey, was the defendant in three summonses, in which Edward A. Hughes was complainant.

The complaint as set out in one of the summonses was “that you the said Denis J. Gorey, the above-named defendant, being one of the Guardians of the Union of Thomastown, did absent yourself from the meetings of the Board of Guardians of the said Union for more than six months consecutively, to wit, from the 16th day of June, 1910, to the 3rd day of January, 1911, which meetings were held in the Board-room, Thomastown, in the Petty Sessions District and County aforesaid, and did thereby become disqualified from holding your said office as guardian in the said Board, and that you the said Denis J. Gorey are liable to a fine of £25 for so becoming disqualified by absence as aforesaid.”

The complaint as set out in another of the summonses was “that you the said Denis J. Gorey, the above-named defendant, did act as a member of the Board of Guardians of the Union of Thomastown, at the Board-room, Thomastown, in the Petty Sessions District and County aforesaid, on the 3rd day of January, 1911, you being then disqualified by reason of your absence from the meetings of the said Board of Guardians, of which you were then a member, for more than six months consecutively, in the year prior to said date, to wit, from the 16th day of June, 1910, to the 3rd day of January, 1911, and that you the said Denis J. Gorey are liable to a fine not exceeding £20 for so acting when disqualified as aforesaid.”

The complaint as set out in the third summons was “that you the said Denis J. Gorey, the above-named defendant, did act as a member of the Rural District Council of Thomastown, at the Board-room, Thomastown, in the Petty Sessions District and County aforesaid, on the 3rd day of January, 1911, you being then disqualified by reason of your absence from the meetings of the said Council, of which you were then a member, for more than six months consecutively in the year prior to said date, to wit, from the 16th day of June, 1910, to the 3rd day of January, 1911, and that you the said Denis J. Gorey are liable to a fine not exceeding £20 for so acting when disqualified as aforesaid.”

The summonses were heard by the Justices at the Petty Sessions of the District of Thomastown, County Kilkenny, and the defendant was convicted in each case, and ordered to pay in respect of the first-mentioned complaint a fine of £25; and in respect of the secondly and thirdly mentioned complaints, a fine of £1 in each case. These convictions are hereinafter referred to respectively as convictions a, b, and c. The conviction in each case, as appeared from the certificates, recited the complaint as set out above, and went on to state that it was ordered that the defendant was convicted of the said offence, and ordered to pay for fine the sum above mentioned, with a sum mentioned for costs, and with provisions in default of payment, and awarded one-third of the fine in each case to the complainant as informer.

The prosecutor appealed from conviction “a” to Quarter Sessions, where the appeal was heard and the conviction affirmed. The fine of £25 was afterwards reduced by the Lord Lieutenant to the sum of £15.

The prosecutor obtained a conditional order for a writ of certiorari to quash the several convictions, and the order of Quarter Sessions affirming conviction “a,” on the grounds, as to conviction “a” and the order affirming it:—1. That the said conviction was made without and in excess of jurisdiction. 2. That the Justices had no jurisdiction to impose the said fine unless and until the prosecutor had first become disqualified by absence from holding his office, which event did not occur. 3. That the prosecutor's absence was accounted for by a reason approved of by the proper authority as provided by Article 12 (9) of the Application of Enactments Order, 1898. 4. That the prosecutor's office never was vacated. 5. That if no reason for the prosecutor's absence was approved of, no opportunity was given to him of excusing or explaining his absence. 6. That the conviction was bad on its face, as not containing on its face (a) the necessary averments to confer jurisdiction to impose the said fine, (b) a statement that the prosecutor's absence was not due to illness, and that no reason for such absence had been approved of by the proper authority. 7. That facts were suppressed at the hearing which, if disclosed, would have ousted the jurisdiction of the Court to impose the said fine.

And on the grounds as to convictions “b” and “c”:—1. That the said convictions were made without and in excess of jurisdiction. 2. That the prosecutor did not act when disqualified. 3. That a reason for his absence was approved of by the proper authority as provided by Article 12 (9) as aforesaid. 4. That his disqualification (if any) could only arise on his office being vacated, which event never happened. 5. That until a declaration had been made, and notice given as provided by Article 12 (10), his office never became vacated. 6. That the said convictions were bad on their face, as not containing on their face (a) the necessary averments to confer jurisdiction; (b) a statement that the prosecutor's absence was not due to illness, and that no reason for same had been approved of by the proper authority; (c) a statement that the necessary declaration had been made, and notice given, as provided by Article 12 (10). 7. That facts were suppressed which, if disclosed, would have ousted the jurisdiction of the Justices.

Cause having been shown against the conditional order on behalf of Edward A. Hughes, the complainant in the summonses, the present application was to make the order absolute notwithstanding cause.

Chaytor, K.C. (with him Corvan), for the prosecutor:—

Conviction “a” purports to be made under Article 10 (3) of the Application of Enactments Order, 1898, which provides that where a person becomes disqualified by absence for holding a corporate office in a council or board, he shall be liable to the same fine as for non-acceptance of office, taken in conjunction with Article 12 (9) by which if a member of a district council or a board of guardians is absent from meetings of the council or board for more than six months consecutively, “except in case of illness or for some reason approved by the council or board,” his office shall on the expiration of those months become vacant. Convictions “b” and “c” purport to be made under Article 12 (11) of the same order, which provides that if any person acts when disqualified, or votes when prohibited under the Order, he shall for each offence be liable on summary conviction to a fine not exceeding £20. We contend that the convictions are bad on their face, since they do not state that the absence alleged to cause disqualification did not arise from illness, or for some reason approved by the council or board: Turner'sCase (1); Geswood'sCase (2); Rex v. Corden (3); Roberts v. Humphreys (4); Taylor v. Humphries (5); Davies v. Scrace (6); Morgan v. Hedger (7). Section 78 of the County Officers and Courts (Ireland) Act, 1877 (40 & 41 Vict. c. 56), dispensing with the necessity of negativing exceptions, does not apply to a case like the present. In The King (Sheahan) v. The Justices of Cork (8), Gibson, J., whose judgment was concurred in by Palles, C.B., states (p. 11) that the section does not authorize the omission of anything which is made an essential constituent part of the offence created and described. The point does not depend on the mere use of the

words “except,” &c. He lays down as the test:— “Does the statute make the act described an offence subject to particular exceptions, qualifications, &c., which, where applicable, make the prima facie offence an innocent act? Or does the statute make an act, prima facie innocent, an offence when done under certain conditions? In the former case the exception need not be negatived; in the latter, words of exception may constitute the gist of the offence.” In the present case the words “except in case of illness,” &c., form part of the description of the offence, and an essential part of it, the offence being not absence per se, but an absence not due to illness, &c.

We further submit that there is no such thing as disqualification by absence. The consequence of absence is, not to disqualify, but to cause the office to become vacant: Article 12 (9) of the Application of Enactments Order, 1898. That Article specifies with particularity the different disqualifications, but nowhere mentions absence as a disqualification; and clause 10 draws a clear distinction between...