The King (Roycroft) v The Justices of The Petty Sessions Districts of Schull, Ballydehob, and Goleen, and Samuel Whitkley

• Jurisdiction: Ireland
• Judgment Date: 27 April 1910
• Date: 27 April 1910
• Court: Court of Appeal (Ireland)

The King (Roycroft)

and

The Justices of the Petty Sessions Districts of Schull, Ballydehob, and Goleen, and Samuel Whitley (1).

K. B. Div.

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.

1910.

Clerk of Petty Sessions — Election of — Justices of district — Office held during pleasure — Office de facto full — Mandamus — 21 & 22 Vict. c. 100, s. 7.

At an election held for the appointment of a clerk for certain Petty Sessions districts, an office held during pleasure, out of thirteen Justices present seven voted for W. and six for R. Thereupon W. was declared elected. His election was approved by the Lord Lieutenant, and he entered on the duties of the office. One of the Justices who voted for W. was not a Justice of any of the Petty Sessions districts in question within the meaning of 21 & 22 Vict. c. 100, s. 7. R. having applied for a writ of mandamus requiring the Justices of the districts to elect a clerk of Petty Sessions.

Held, by the Court of Appeal, affirming the decision of the King's Bench Division, that the writ should issue.

Reg. (M'Devitt) v. Strabane Urban District Council (35 I. L. T. R. 12) Applied And Followed.

Mandamus.

The prosecutor was a candidate for the vacant office of Clerk of Petty Sessions for the Petty Sessions districts of Schull, Ballydehob, and Goleen, in the County of Cork, which districts had been ordered, by an order made by the Lord Lieutenant under 21 & 22 Vict. c. 100, s. 6, to be served by the same person as clerk. Three successive elections for the office had been held, viz., upon the 4th February, 1909, the 27th May, 1909, and the 14th October, 1909, the candidates at each election being the prosecutor and Mr. Samuel Whitley. At the first election each of the candidates obtained an equal number of votes. At the second election the prosecutor was declared elected by a majority

of one vote, but the Lord Lieutenant refused to sanction the election, on the ground that one of the parties who voted for the prosecutor was not a Justice of any of the districts; and a third election was ordered. At this third election, in respect of which the present proceedings were brought, fifteen Justices attended. Twelve of these, including Mr. Purdon, R.M., who acted as Chairman at the election, were admittedly Justices of the districts, or one of the districts, in question. The other three Justices were Messsrs. Samuel Nugent Townshend, William M'Donald, and Florence Crowley, A poll was taken. The chairman refused to accept the votes of Messrs. M'Donald and Crowley, who wished to vote for the prosecutor, on the ground that they were not Justices of any of the districts. Of the remaining thirteen Justices, seven, including Mr. Townshend, voted for Mr. Whitley, and six for the prosecutor; and the chairman declared Mr. Whitley elected. His election was subsequently approved of by the Lord Lieutenant; and such approval was on the 5th November, 1909, duly notified to the Justices. The books were then given over to Mr. Whitley, and he was directed to take up the duties of Clerk of Petty Sessions for the districts of Schull, Ballydehob, and Goleen, and had since been in the office and discharging the duties of Clerk of Petty Sessions of these districts.

The present application was, on notice by the prosecutor, for an order that a writ of mandamus should issue against the Justices of the Petty Sessions districts of Schull, Ballydehob, and Goleen, requiring them to elect a Clerk of Petty Sessions for these districts; and also for a writ of quo warranto directed to Samuel Whitley, requiring him to show by what authority he claimed to be, and to act as, Clerk of Petty Sessions of the said districts; on the grounds (inter alia) that the said Samuel Whitley had not a majority of lawful votes of the Justices of such districts; that Mr. S. N. Townshend was not entitled to take part in the election; and that the prosecutor received at the election a majority of lawful votes.

In an affidavit made by Mr. Purdon, R.M., and filed on behalf of Mr. Whitley, who opposed the application, it was stated that Mr. M'Donald did not reside, nor had he any property, in any of the said districts, and that he had admitted that he had never attended any Petty Sessions for any of the districts; that his residence was seventy miles from Schull, in the Quarter Sessions district of Cork, and in the East Riding of the county; and that he claimed to vote on the ground that, being Chairman of the County Council and a magistrate of the county, he was a Justice of every Petty Sessions district in the county. It was further stated that Mr. Crowley resided near Dunmanway, some thirty miles from Schull, in the Petty Sessions district of Dunmanway and the Bandon Quarter Sessions district; and had never sat at Petty Sessions in any of the districts for which the election was held, nor had any property in any of them.

The position of Mr. S. N. Townshend was dealt with in affidavits of the prosecutor, of Mr. Purdon, and of Mr. Townshend himself. The prosecutor stated:— “Samuel Nugent Townshend.… was appointed to the Commission of the Peace for the County of Cork in the year 1867. From the year 1867 down to the present time he has not resided in either the Schull, Ballydehob, or Goleen Petty Sessions districts. It is true that from about 1867 down to 1870, or a little later, he resided in the Skibbereen Petty Sesssions district. During that time he may have attended on a few occasions at the Ballydehob Petty Sessions district. About the year 1870, or a year or two later, the said Samuel Nugent Townshend ceased to reside in this country, and emigrated to California, where he resided for close on twenty years. He then returned to England, and since his return he has not resided or acted in Ireland. The said Samuel Nugent Townshend resides at Southsea in England.”

Mr. Purdon in his affidavit stated:— “I am aware that Mr. Samuel Nugent Townshend adjudicated repeatedly at Ballydehob and Schull, and is still a landlord of property in the Ballydehob Petty Sessions district, and a few years ago he adjudicated at Skibbereen Petty Sessions, when I presided. He is the senior magistrate for the district; and, though he resides in England, visits this country occasionally.”

Mr. Townshend stated in his affidavit:— “I was appointed a magistrate for the county of Cork in the year 1867. At that time I resided at St. Kames' Island, in the Skibbereen Petty Sessions district. Ballydehob is about two miles distant by water. I attended Ballydehob Petty Sessions regularly, and Schull occasionally, the greater portion of my property being in the Ballydehob Petty Sessions district, and being nearer to me, Schull being four and a half miles away. I generally went to both places by steam-launch. The statement made in the said affidavit” (of the prosecutor), “that I went to California in 1870, or a year or two later, is not a fact… I never resided in California, nor ever spent more than a few months in that State. I travelled in Mexico, Canada, and the United States, from 1876 to 1884, but I returned almost every year, notably in the year 1879, some of which I spent at St. Kames' Island. I was resident in England in 1883 and 1884, and have continuously resided there since 1886, but have returned to Ireland occasionally, and last adjudicated on October 4th, 1905, at Skibbereen, when on a visit to Captain Morgan of Burnabeen, my brother-in-law.”

A. M. Sullivan, K.C., and Swayne, for the prosecutor.

Serjeant Moriarty, K.C., and M'Sweeny, for Samuel Whitley.

Wright, J.:—

At the request of my Lord I give judgment first.

The application here is on behalf of Mr. Edward J. Roycroft, as prosecutor, for an order that a writ of mandamus be issued against the Justices of the Peace of the Petty Sessions district of Schull, Ballydehob, and Goleen, requiring them to elect a clerk of Petty Sessions for these districts; and also for a writ of quo warranto directed to Samuel Whitley, requiring him to show by what authority he claims to be, and to act as, clerk of Petty Sessions for these districts.

The application is based on certain irregularities, or illegalities alleged to have been committed, at an election of a clerk of Petty Sessions for the above districts on the 14th October last. The course of proceedings in the matter is very remarkable. It appears that a vacancy having occurred in the office of Petty Sessions clerk, three successive elections, or attempted elections, were held to fill the vacancy. The first election was in February, 1909. There were two candidates, the prosecutor and the above-mentioned Mr. Samuel Whitley; and as each obtained an equal number of votes, this election proved abortive. A second election was held in May, at which the prosecutor was declared elected, but the Lord Lieutenant refused to sanction his election, and accordingly a third election was held on the 14th October last. At that election fifteen Justices were present. The votes of two were disallowed by the Chairman, Mr. Purdon, R.M.; of the remaining thirteen, seven voted for Mr. Whitley, and six for the prosecutor; and the Chairman therefore declared Mr. Whitley elected. The legality of the proceedings at that election has been challenged by the prosecutor, who says that although Mr. Whitley was declared elected, the election was void, and a new election should be held.

Before going further into the facts it will be convenient to deal with the argument of Serjeant Moriarty and Mr. M'Sweeny on behalf of Mr. Whitley. They argued the case on the high legal ground that whether the office has been filled rightfully and lawfully or not, it is at all events full in fact, there is a plenarty, and therefore mandamus does not lie.

A number of cases were cited. I shall refer to them very shortly. Three cases are from the same volume of reports. The...