The King (M'Kay) v The Local Government Board for Ireland

• Jurisdiction: Ireland
• Judgment Date: 16 June 1902
• Date: 16 June 1902
• Court: Court of Appeal (Ireland)

The King (M'Kay)

and

The Local Government Board For Ireland (1).

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.

1902.

Local Government (Ireland) Act, 1898, sect 115—Scheme for poor-rate collection—Existing officer—Poor-rate collector—Alteration of area and duties—Remuneration—Compensation.

Sub-section 18 of section 115 of the Local Government (Ireland) Act, 1898, applies to the cases of county poor-rate collectors, and must be read together with sub-sections 11-15 and the other sub-sections of section 115.

Mandamus issued to the Local Government Board to take into consideration the claim of a poor-rate collector to increased remuneration in respect of an admitted increase in his duties, by reason of alterations under the Local Government (Ireland) Act, 1898.

On the 5th October, 1888, John J. M'Kay had been appointed poor-rate collector for the electoral division of Cootehill, in the poor law union of Cootehill, and county of Cavan; he had been also deputy cess collector for the parishes of Drung and Laragh, in the barony of Tullygarvey, in the same county, and had continued to act as such poor-rate collector and deputy county cess collector down to and including the 1st April, 1899, when he expressed his willingness to serve under the Cavan County Council. The new urban district of Cootehill had formed portion of the area in which he had collected poor rate, but, on the passing of the Local Government Act, the Cootehill urban district council appointed a collector of their own, and the prosecutor ceased to collect in that area. As such collector he had been paid 10d. in the £ on his collection of poor rate, and 7d. in the £ on county cess, and he had been also in receipt of remuneration for work done as such collector in connection with the revision of the parliamentary and jurors’ lists. In the scheme originally submitted to the Local Government Board the County Council of Cavan proposed to pay a poundage rate of 10d. to M'Kay, and

the Board notified their approval of the scheme except as regards the rate of remuneration, whereupon the County Council submitted a proposal to pay all their collectors a uniform rate of 6d. in the £, and this scheme had been provisionally approved by the Local Government Board. M'Kay refused to accept this, as he alleged that his duties were considerably increased, while, at the proposed rate his remuneration would be less than that which he had theretofore received. Accordingly, he sent in a claim to the County Council for increased remuneration, but, on the 20th May, 1899, the County Council resolved not to entertain it. On the 23rd July, 1901, M'Kay's solicitor wrote to the secretary of the Local Government Board, asking whether the Board had approved of any scheme submitted by the Cavan County Council, under sect. 115, sub-sect. 10, of the Local Government Act, and received, in reply, a letter dated the 26th July, 1901, forwarding a copy of the Board's letter (of the 21st July, 1899) to the County Council, informally approving of the scheme, save so far as regarded the remuneration of M'Kay and another collector.

On the 1st August, 1901, M'Kay sent to the Local Government Board a claim (under sect. 115, sub-sect. 18) for increased remuneration in proportion to increased duties. The Board refused to entertain the claim on the ground that sub-sect. 18 of sect. 115 of the Local Government Act did not apply to poor-rate collectors. Pending the settlement of his claim M'Kay had accepted certain sums on account, but without prejudice to his claim.

In December, 1901, M'Kay applied to the King's Bench Division for a writ of mandamus directed to the Local Government Board, commanding them to “forthwith take into consideration, hear, and entertain the claim of the said John James M'Kay, an existing officer transferred to the Cavan County Council, pursuant to the said Local Government (Ireland) Act, 1898, to increased remuneration by reason of increased duties, and that you proceed to determine the increase of remuneration which the said John James M'Kay shall receive in proportion to the increase of his duties under and in consequence of the Local Government (Ireland) Act, 1898.”

On the 11th February, 1902, the King's Bench gave judgment in favor of M'Kay, and directed the writ to issue. (See the case reported ante, p. 330.)

On the 27th February, 1902, the Local Government Board made their return to the writ, in which they pleaded—

1. That M'Kay was not an existing officer transferred under the 115th section of the Local Government Act, 1898, who, since the coming into operation of the said Act, and subject to the provisions thereof, held his said office by the same tenure, and upon the same terms and conditions, as theretofore.

2. That M'Kay was not entitled to receive such increase of remuneration, in proportion to the increase of his duties, as the Board might determine, as M'Kay was an officer who has been employed under a scheme submitted to the Board by the County Council of Cavan, in pursuance of sect. 115, sub-sect. 10, of the Local Government Act, which scheme had been provisionally approved of by the Board.

3. That M'Kay was not a transferred existing officer to whom the provisions of sub-section 18 of sect. 115 of the Act apply, and that the Board was not bound by the Act to hear and determine the claim of M'Kay for increased remuneration in respect of his increased duties.

The plaintiff joined issue on the return, and also objected that the same was bad in law.

The case was tried before Wright, J., without a jury, on admissions of fact, on the 29th April, 1902, when his Lordship gave judgment for the plaintiff, and directed a peremptory mandamus to issue. The Local Government Board moved the King's Bench Division, that judgment should be entered for the defendants. On the 6th May, 1902, the King's Bench Division (Lord O'Brien, L.C.J., and Gibson, J.), following their previous decision, refused the application. From that decision the Local Government Board appealed.

Ronan, K.C., Matheson, K.C., Chambers, K.C., and W. Gibson for the appellants:—

There are two sets of offices—(1) scheme offices and (2) non-scheme offices. M'Kay was only to be employed under a scheme, and the scheme must state what the officer's salary is to be. The duty of the County Council is to frame a scheme, which must be considered by the Local Government Board. The Board can modify the scheme as presented to them. The new duties the officer is to discharge are to be regulated by the scheme. The Board must see that the man gets substantially the same amount of pay for the same amount of work. Sub-sect. 16 must be read along with sub-sect. 10. Though the Board can modify the scheme in every way, they have no power to interfere with the pay. The approval of the scheme is a condition precedent to the right to the writ of mandamus asked for. The only duties the mandamus commanded us to perform were the duties under sub-section 18.

Fleming, K.C., and Henry Maxwell (with them Healy, K.C.), for the respondent:—

M'Kay holds office under the same tenure and at the same pay as before. The several sub-sections of sect. 115 must all be read together; sub-sections 15 and 18 cannot be read separately. Unless sub-sect. 18 applies to poor-rate collectors there is nothing to give them the same tenure under which they held. Save for the protection of that sub-section, they could be dismissed by the County Council without the approval of the Local Government Board. Approval of the scheme is not indispensable as a condition precedent: Firth v. Staines (1).

Ronan, K.C., Matheson, K.C., Chambers, K.C., and W. Gibson for the appellants:—

Fleming, K.C., and Henry Maxwell (with them Healy, for the respondent:—

Lord Ashbourne, C.:—

This case comes before us on appeal from an order of the King's Bench Division affirming the judgment of Mr. Justice Wright in the trial of the action, awarding a peremptory writ of mandamus, commanding the Local Government Board, pursuant to the provisions of the Local Government Act, 1898, to take into consideration, and hear and entertain, “the claim of John James M'Kay, an existing officer, transferred to the Cavan County Council, pursuant to the said Local Government Act, to increased remuneration by reason of increased duties, and to proceed to determine the increase of remuneration.”

On the motion to make absolute the conditional order for a writ of mandamus, the King's Bench Division gave a considered judgment, pronounced by Mr. Justice Gibson, in favour of M'Kay and against the Local Government Board. The writ issued, the Local Government Board filed a return, the plaintiff filed a reply, and the trial took place before Mr. Justice Wright without a jury. The writ of mandamus stated inter alia “that by reason and in consequence of the said Local Government Act, and of certain things done by and in pursuance thereof, the duties of the plaintiff have been increased.” In the return this allegation was not traversed, and no proof was therefore offered as to the fact of such increase. The Local Government Board in the return stated that the plaintiff was not entitled to receive the increase sought, as he had been employed under a scheme submitted to the Board by the County Council of Cavan, in pursuance of sect. 115, sub-sect. 10, of the said Act, and provisionally approved of by the Board. In his reply the plaintiff joined issue, and contended that the defences of the Board were bad in law, and the plaintiff relied “on the provisions of the Local Government Act, 1898, sect. 115.” Having regard to the foregoing, and the admissions of fact, the trial occupied but a short time, and was really formal. Mr. Ronan, for the Board, asked the learned Judge to direct that the plaintiff was not an existing officer transferred under sect. 115 of the said...