The King (Ryan) v The Recorder of Cork

JurisdictionIreland
JudgeK. B. Div.,Appeal.
Judgment Date15 December 1911
CourtCourt of Appeal (Ireland)
Date15 December 1911
The King (Ryan)
and
The Recorder of Cork (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.

1913.

Local Government — Labourers Acts — Improvement scheme — Cottage — Order of County Court — Judicial act — Undertaking not to let cottage to objectionable tenant — Illegality — Prohibition — Labourers (Ireland) Act, 1906 (6 Edw. 7, c. 37), section 6, sub-s. 4(c).

Held, that the undertaking was illegal, but that inasmuch as it did not order anything to be done, and also on the ground of lapse of time, a writ of prohibition ought not to be granted.

Prohibition.

In the month of January, 1907, a representation under the Labourers (Ireland) Acts, 1883 to 1906, was made to the Kanturk Rural District Council on behalf of the prosecutor, an agricultural labourer, representing that he was living in a house unfit for human habitation, and suggesting that in lieu thereof a cottage should be built for him, and a suitable plot and garden attached,

on a holding in the occupation of one David M'Auliffe. The representation was made on behalf of the prosecutor alone, no other agricultural labourers' names being included. This representation, with a number of others, was considered by the Council, who subsequently appointed a committee to select the plots of land to be acquired by the Council to give effect to the representation. The committee selected a site for the prosecutor on the lands of David M'Auliffe. An improvement scheme was then framed which included this site for the prosecutor. A local inquiry was held by the Local Government Board Inspector, and on the 20th December, 1907, an order was made by him confirming the improvement scheme to the extent set out in the schedule to the order, which included the acquisition of the proposed site for the prosecutor, described as site No. 511.

David M'Auliffe presented a petition to the County Court against this part of the order. The petition came on for hearing before the Recorder of Cork. The petitioner was examined, and stated that he objected to the prosecutor getting a cottage on his lands, but would have no objection to the cottage on the understanding that the prosecutor would not get it, and that he would consent to the giving of the site, provided that he was consulted in the selection of the tenant. The Recorder made an order confirming the order of the Local Government Board Inspector, so far as related to site 511, and the order proceeded:— “The petitioner consenting to the alternative site, No. 511a, and the respondents” [the Kanturk Rural District Council] “further undertaking not to put into occupation of the cottage any labourer reasonably objectionable to the petitioner, and to consult the petitioner as to the selection of the tenant or occupier. And the Court doth order that the respondents do pay to the petitioner the sum of £4 4s. costs of this order.”

The subsequent steps necessary to acquire the site were taken by the Council, and a cottage built on it. At a meeting of the Council held on the 19th October, 1910, one Patrick Sullivan was appointed tenant of the cottage, and went into possession of it.

The prosecutor now applied, on notice served by leave of the Court, for a writ of prohibition directed to the Recorder of Cork, the Kanturk Rural District Council, and David M'Auliffe, prohibiting them, or any of them, from further proceeding under the portion of the order containing the above-mentioned undertaking.

Bolton, for the prosecutor:—

The Recorder's order, which was made under section 6 (4) (c) of the Labourers (Ireland) Act, 1906, is a judicial act, in respect of which prohibition lies. R. (Eustace) v. Local Government Board (1) and R. (Green) v. Local Government Board (2)are distinguishable, being decisions upon clause (a) of the sub-section. In the former case the Court of Appeal held that the order of confirmation made by the Local Government Board under clause (a) was not a judicial act, because under that clause the Board did not exercise any discretion; they were bound to make an order: see judgment of Walker, C., at p. 178, and of Holmes, L.J., at pp. 180, 181. But here the Recorder has a discretion; he can confirm, with or without amendment, or disallow the Inspector's order, as he thinks fit, and, therefore, his order is a judicial act.

The portion of the Recorder's order in respect of which prohibition is sought was made without jurisdiction, as the Recorder's jurisdiction is limited to that conferred by clause (c) referred to. He had no power to give M'Auliffe a right to interfere in the selection of a tenant for the cottage, as the right to select tenants is vested solely in the District Council: section 13, Labourers (Ireland) Act, 1883, and section 29, Labourers Act, 1906. Under the latter section the prosecutor was entitled to a preference on the first letting of the cottage, but the portion of the Recorder's order objected to prevented the prosecutor getting that preference, and still operates against him. Subsection (1) of section 29 is not limited to first lettings, but applies to every letting. Therefore this portion of the order is made without jurisdiction, and this appears on the face of the order. The Court is, therefore, bound to issue a prohibition: Farquharson v. Morgan (3). In that case the Court granted the prohibition against

so much of the order as was made without jurisdiction. Prohibition lies against portion of an order: Mackonochie v. Lord Penzance (1...

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2 cases
  • Condon v Mitchelstown Rural District Council
    • Ireland
    • Chancery Division (Ireland)
    • 18 December 1913
    ...The appeal must be dismissed with costs. Holmes and Cherry, L.JJ., concurred. R. ST. J. C. (1) 6 Hare, 193. (1) 47 I. L. T. R. 31. (2) [1913] 2 I. R. 241. (1) Tevlin v. Lisnaskea Rural District Council, now reported [1914] 2 I. R. (2) 47 I. L. T. R. 31. (1) In the Court of Appeal, before O'......
  • Marron v Cootehill (No. 2) Rural District Council
    • Ireland
    • Chancery Division (Ireland)
    • 22 January 1914
    ...confer upon persons who signed representations upon which an improvement scheme under the Labourers Acts was founded. R. ST. J. C. (1) [1913] 2 I. R. 241. (2) 47 I. L. T. R. 31. (3) Unreported. Since reported [1914] 2 I. R. 15. (4) Unreported. Since reported [1914] 1 I. R. 113, 118. (1) Sin......

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