The Queen (Kinkead) v The Governors and Governesses of The Galway County Infirmary

• Jurisdiction: Ireland
• Judgment Date: 14 January 1889
• Date: 14 January 1889
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before HARRISON, O'BRIEN, MURPHY, and HOLMES, JJ.

THE QUEEN (KINKEAD)

and

THE GOVERNORS AND GOVERNESSES OF THE GALWAY COUNTY INFIRMARY

Hill v. Regina 8 Moore P. C. C. 138.

R. v. CarrollUNK 22 L. R. Ir. 400.

R. v. Churchwardens of All Saints, WiganELR 1 App. Cas. 611.

The Queen v. AltonUNK Ir. R. 6 C. L. 256.

Darley v. The QueenENR 12 Cl. & Fin. 520.

The Queen (Lawler) v. AltonUNK Ir. R. 6 C. L. 256.

Darley v. The QueenENR 12 Cl. & Fin. 520.

The Queen v. FoxENR 8 E. & B. 939.

The Queen v. CarrollUNK 22 L. R. Ir. 400.

Gelston v. Griffin Unreported.

The Queen v. AltonUNK Ir. R. 6 C. L. 256.

Public infirmary Medical officer Election Governors Incumbent of parish Payment of subscriptions Quorum 5 Geo. 3, c. 20 (Ir.), ss. 1, 2, 4, 7 54 Geo. 3, c. 62, s. 7 3 & 4 Wm. 4, c. 92, s. 1 1869 (32 & 33 Vict. c. 42), s. 13 Mandamus.

210 LAW REPORTS (IRELAND). [L. R. I. Cr. Cas. Res. words " unlawfully rise." I do not say that there is, but we 1889. should give the ordinary meaning to words ; if not, how are we THE QUEEN to fix what is a rising? Are we to fix the necessary number of v. &rumor. persons for a rising at two, if not at three, or why not at a dozen or any other arbitrary figure ? We have the fact found by the jury that the prisoner did unlawfully rise. In my opinion it would have been sufficient if the jury had found that the prisoner had fired into a dwelling in a disturbed district ; but they have done more. HARRISON, ANDREWS, and O'BRIEN, 31., concurred in the, opinion of the majority of the Court, holding the conviction good on both counts. Solicitor for the defendant : Arthur Julian. solicitor for the Crown : A. Murphy. Q. B. Dir. 1888. Dec. 20. 1889. Jan. 14. THE QUEEN (KINKEAD) v. THE GOVERNORS AND GOVERNESSES OF THE GALWAY COUNTY INÂÂFIRMARY (1). Public infirmary-Medical officer-Election-Governors-Incumbent of parish -Payment of subscriptions-Quorum-5 Geo. 3, c. 20 (Ir.), as. 1, 2, 4, 7ÂÂ54 Geo. 3, c. 62, a. 7--3 4 Wm. 4, c. 92, s. 1-Irish Church Act, 1865 (32 (5- 33 Viet. c. 42), s. 13-Mandamus. By 5 Geo. 3, c. 20 (Ir.), a. 1, the Archbishop of Armagh, the Lord ChanÂÂcellor for the time being, the bishop of the diocese, and rector of the parish for the time being where the infirmary should be situate, were constituted, within their respective counties, bodies corporate for establishing public infirmaries in certain counties, including the county of Galway. Donors of not less than twenty guineas to any such infirmary were constituted members of its body corporate, and persons subscribing and paying not less than three guineas were constituted members thereof for one year, from the 24th June next following (1) Before HARRISON, O'BRIEN, MURPHY, and Homo, JJ. VOL. XXIV.] Q. B. & EX. DIVISIONS. such subscription and payment, such bodies corporate being styled the Governors and Governesses of the respective county infirmaries. The goverÂÂnors and governesses, five of whom are a quorum, are empowered, at a general meeting, to elect a medical officer (sect. 7). Annual governors are not entitled to vote at such election unless the subscription shall have been paid two years at least before the vacancy (54 Geo. 3, c. 62, s. 7), and donors of twenty guineas are not entitled to vote unless the donation be paid one year at least before the vacancy (3 & 4 Wm. 4, e. 92, s. 1). At an election of a medical officer for the County of Galway Infirmary only four governors attended who had paid their donations or subscriptions at such a period as would entitle them to vote. A number of governors, however, attended and claimed to vote in respect of donations of twenty guineas, paid the morning of the election. The Protestant incumbent of Tuam, who admittedly discharged similar or analogous duties to those discharged at the passing of the Irish Church Act by the then rector of Tuam, in which parish the infirmary was situated, also attended and claimed to vote as an ex-officio governor : Held, 1, that the Protestant incumbent was not entitled to vote; 2. That there was not a quorum of governors present at the election ; 3. That the office of medical officer of such an infirmary was one for which a mandamus would lie. MOTION to make absolute a conditional order for a mandamus. A vacancy had occurred in the office of surgeon to the county Galway Infirmary, for which there were two candidates, Dr. Kinkead the relator, and Dr. Colohan ; and a meeting of the governors, &c., was duly convened to appoint a person to fill the vacancy. The meeting was attended by four persons whose votes were unquestioned, by several other persons who had not paid subÂÂscriptions which would otherwise qualify them to vote until the day of the meeting-and who were admittedly not entitled to vote-and by the Rev. Canon O'Sullivan, the Protestant incumbent of the parish of Galway, whose right to vote was also questioned. Dr. Kinkead received three votes of the four qualified voters, together with the vote of Canon O'Sullivan, while Dr. Colohan received one legal vote. Notwithstanding this, Dr. Colohan entered into the office until judgment of ouster was pronounced against him, and then the present proceedings were taken by the relator to have himself put into possession of the office of surgeon to the Galway County Infirmary. Further details of the facts will be found in the judgment of Harrison J., infra, p. 212, 212 LAW REPORTS (IRELAND). [L. IL 1. Q. B. Div. The Right Hon. Samuel Walker, Q. C., (with him Gordon), for 1888' the relator :- THE CtIrEEN Even without Canon O'Sullivan's vote the relator had a GOVERNORS majority of legal votes. It cannot be contended that there was, GALWAY INFIRMARY. not a quorum of governors present at the meeting. The fact that the subscription was not paid, as required by the 3 & 4 Wm. 4, does not preclude members from constituting a quorum : 5 Geo. 3, c. 20, s. 7 ; 32 & 33 Viet. c. 42, ss. 13 and 30. The Mac Dermot, Q. C. (with him W. S. Bird), for the defendants, and Overend, Q. C., (with him Joyce), for H. S. Persse, one of the governors : We contend that the vacancy has not been legally filled : in the first place because there was not a quorum of five members qualified to vote : 5 Geo. 3, c. 20. Canon O'Sullivan's vote was void, as it did not come within the saving clause of section 30 of the Irish Church Act.-[The several statutes referred to by counsel on this branch of the argument will be found fully stated and. conÂÂsidered in the judgments.]-We also contend that mandamus will not lie in a case of this nature where the office is not of a perÂÂmanent character, but determinable at pleasure of the governors : Hill v. Regina (1) ; B. v. Carroll (2); R. v. Churchwardens of All Saints, Wigan (3). Drury, for Canon O'Sullivan. Gordon, in reply, referred to The Queen v. Alton (4) ; Darky v. The Queen (5). Cur. adv. volt. 1889. HARRISON, J. :- San. 14. This ease comes before the Court on motion to make absolute a conditional order for a mandamus obtained on the 16th Oetober,1888, (1) 8 Moore P. C. C. 138. (4) Ir. B. 6 C. L. 256. (2) 22 L. R. Ir. 400. (5) 12 CL & Fin. 520. (3) 1 App. Cas. 611. VOL. XXIV.] Q. B. & EX. DIVISIONS. 213 directed to the body politic and corporate called the Governors Q. B. Div. and Governesses of the Infirmary of the County of Galway, com- T QUEEN. 1889 HE manding them to admit to the place and office of surgeon of the v. said infirmary, and to the discharge of the duties, and enjoyment GOVERNORS of the salaries and emoluments thereof GALWAY , Richard John Kin- r- FIRM AMY. kead, M. D., on the ground that at the election for said office, held on the 10th December, 1887, he was duly elected to said office. It appeared in the affidavits used on the motion that the office of surgeon to the said infirmary became vacant on the 2nd NoÂÂvember, 1887, by the death of Dr. James V. Brown, the former surgeon. Advertisements for an election to fill the vacancy, purÂÂsuant to the provisions of the 7th sect. 5 Geo. 1, c. 20 (Ir.) were duly published, and the election was held on the 10th December, 1887. The persons qualified to vote at such election were the governors of the infirmary, who are incorporated by the provisions of the said statute, and consist of certain ex officio governors and of donors of the sum of twenty guineas, and of subscribers of sums of not less than three guineas. By the provisions of subsequent statutes, however, it is provided that no donor of twenty guineas shall be permitted to vote at any election upon any vacancy for the office of surgeon unless he shall have paid his donation, by virtue of which he should claim to vote at such election, one year at least before such vacancy shall occur : 3 & 4 Win. 4, c. 92, s. 1 ; and no annual governor, by virtue of an annual subscription, unless he has paid the subscription by -virtue of which he .should claim to vote at such election two years at least before the vacancy shall have occurred : 54 Geo. 3, c. 62, s. 7. At the election it appeared that a number of gentlemen attended and claimed to vote who had paid the requisite donation of twenty guineas the morning of the election. In addition to the Rev. James O'Sullivan, Archdeacon of Tuam and incumbent of the parish of St. Nicholas, Galway, only four persons voted who had either paid their donations of twenty guineas or their requisite annual subscription in sufficient time before the vacancy in the office had occurred. The Rev. James O'Sullivan voted and claimed to vote as an ex officio governor, by virtue of his being the incumbent for the time being of the parish wherein the infirmary is situated, and discharging duties similar or analogous to those 214 LAW REPORTS (IRELAND). [L. R. 1. Q. B. Div. discharged by the person who was rector or vicar of the said parish 1889. at the time of the passing of the Irish Church Act. The vote was THE QUEEN objected to on the ground that, although by the 5 & 6 Geo. 3, GOVERNORS c. 20, s. 1, the rector or vicar for...