The State (Crowley) v The Irish Land Commission and Others

JurisdictionIreland
Judgment Date08 December 1951
Date08 December 1951
CourtSupreme Court

Supreme Court.

The State (Crowley) v. The Irish Land Commission and Others. Same v. Same.
THE STATE (at the Prosecution of JOHN F. CROWLEY)
and
The IRISH LAND COMMISSIONand the LAY COMMISSIONERS
and In the Matter of the Compulsory Acquisition of the Lands of Lisballyhay, County of Cork
and In the Matter of the Courts of Justice Acts
1924-1947.
SAME
and
SAME
and in the Matter of the Resumption of the Lands of Ballynageragh, County of Cork
and in the Matter of the Courts of Justice Acts
1924-1947.

Land Acts - Constitution of Ireland - Compulsory acquisition of land - Provisional list - Objection - Certificate of Lay Commissioners - Resumption of holding - Petition against resumption - Consideration of objection and petition by Lay Commissioners a judicial function - Certiorari - Land Act,1933 (No. 38 of 1933), s. 32, sub-s. 3 - Land Act, 1939 (No. 26 of 1939).s. 39, sub-s. 6 - Constitution of Ireland, Article 37.

Certiorari.

The prosecutor was the full owner of the lands of Lisballyhay, containing 251 acres, 2 roods, 22 perches, comprised in Folio No. 27635 of the register, County of Cork, subject to a revised annuity of £53 17s. 8d. He was also the owner and occupier of part of the lands of Ballynageragh, containing 146 acres, 3 roods, 15 perches, situate in the County Cork, being tenanted lands held by him from the Irish Land Commission. On the 28th September, 1948, the Land Commission, in pursuance of sub-s. 1 of s. 25 of the Land Act, 1936, published in Iris Oifigiuil a certificate, dated the 19th June, 1948, by the Lay Commissioners that the said lands of Lisballyhay were required for the purpose of resale to the persons or bodies mentioned in s. 31, sub-s. 1 (clauses (a) to (f)), of the Land Act, 1923, as amended by s. 33, sub-s. 2, of the Land Act, 1933; they also published, pursuant to s. 40, sub-s. 2, of the Land Act, 1923, a provisional list of the said lands which were to become vested in the Land Commission on the appointed day, if not excluded in consequence of a valid objection. On the 17th September, 1948, the Land Commission published in Iris Oifigiuil a notice stating that unless a petition were presented, praying that the holding comprising the lands of Ballynageragh be not resumed without further enquiry, they proposed, in exercise of their powers under s. 39, sub-s. 1, of the Land Act, 1939, to apply to the Appeal Tribunal for leave to resume the said holding for the purpose of relieving congestion as defined in s. 73, sub-s. 4, of the Land Act, 1923, and for the purpose of resale to any of the persons or bodies mentioned in s. 31, sub-s. 1 (clauses (a) to (f)), of the Land Act, 1923, as amended by s. 33, sub-s. 2, of the Land Act, 1933. On the 5th November, 1948, an objection to the said provisional list and a petition praying that the said holding be not resumed without further enquiry were lodged in the Land Commission on behalf of the prosecutor, and both were heard together by the Lay Commissioners on the 24th February, 1949. At the hearing evidence was tendered by the prosecutor intended to show that the lands were worked in conjunction with other lands at Wallstown; that the said lands were producing an adequate amount of agricultural products and providing an adequate amount of employment; and that there was no congestion in the locality in which the lands were situate. No evidence was given on behalf of the Land Commission. The judgment of the Lay Commissioners was delivered on the 28th July, 1949, the material portion of which was as follows:—

"The evidence disclosed that the owner, aged 32 and single, lives at Wallstown with other members of his family and holds in that townland and in Dromdeer East, a short distance away, some 683 acres with a total poor law valuation of £463 10s. on lands and £22 10s. on buildings. It was urged by counsel that, notwithstanding the large area in his ownership, Mr. Crowley worked the entire lands and carried on a highly efficient system of agriculture and stock raising which provided considerable employment; that he was entitled to receive, by reason of this fact, every consideration and encouragement, and should not be deprived of the lands, particularly those of Lisballyhay: otherwise, his whole farming enterprise would be interfered with to an appreciable extent.

We have given further consideration to the evidence and submissions. Admittedly, this large area, including the lands the subject of these proceedings, which, it is to be noted, are some ten miles from the home farm at Wallstown, is well worked by the owner, and employment is being afforded. Nevertheless, in all the circumstances, we feel we would not be justified in accepting the plea made; and being satisfied that the lands are suitable and required for the statutory purposes of the Land Commission, we are of opinion that the objection and petition have not been sustained. Accordingly, we refuse the latter and disallow the former."

On the 9th December, 1949, the prosecutor obtained a conditional order of certiorari directed to the Irish Land Commission and the Lay Commissioners to send before the High Court, for the purpose of being quashed, unless cause to the contrary were shown, the order and written judgment of the Lay Commissioners, dated the 28th July, 1949, on the grounds:—

"1, that the said order (incorporating the said written judgment) was made without and in excess of jurisdiction in as much as there is no power under the Land Purchase Acts to resume tenanted land which the Lay Commissioners are satisfied is producing an adequate amount of agricultural products and is providing an adequate amount of employment for the statutory purposes of the Land Commission other than the purposes specified in s. 39, sub-s. 6 (a), of the Land Act, 1939;

2, that the Lay Commissioners, in refusing the petition, failed to act judicially, in as much as

  • (a) they failed to consider or, alternatively, to decide, whether there is any congestion in the locality in which the said lands are situated;

  • (b) they failed to consider or, alternatively, to decide, whether the said lands are required by the Land Commission for any of the purposes specified in s. 39, sub-s. 6 (a), of the Land Act, 1939;

  • (c) they took into consideration matters not relevant or proper to be considered on the hearing of the said petition, that is to say, that the petitioner was aged 32 years and single and resided elsewhere and was the owner of other lands and the extent and value and situation of such other lands;

3, the said order, dated the 28th July, 1949 (incorporating the said written judgment) was on its face bad in law in as much as

  • (a) it does not find that there is any congestion in the locality in which the said lands are situate;

  • (b) it does not find that the said lands are required for any of the purposes specified in s. 39, sub-s. 6 (a), of the Land Act, 1939;

  • (c) it finds that the said lands, which the Lay Commissioners are satisfied are producing an adequate amount of agricultural products and providing an adequate amount of employment, are required for the statutory purposes generally of the Land Commission."

On the 18th April, 1950, the appellant moved to make absolute the conditional order.

From the above judgment and order the prosecutor appealed to the Supreme Court (1) on the grounds stated in the said conditional order. An application by the appellant for leave to add a further ground of appeal, viz., that the Lay Commissioners failed to determine whether, having regard to the provisions of s. 32, sub-s. 3, of the Land Act, 1933, and s. 39, sub-s. 6 (a), of the Land Act, 1939, and the said objection and petition, the lands were producing an adequate amount of agricultural products and were providing an adequate amount of employment, was allowed.

In hearing objection and petition in which the objector and petitioner relies on s. 32, sub-s. 3, of the Land Act, 1933, and s. 39, sub-s. 6, of the Land Act, 1939, the Lay Commissioners, though not a court, are bound to act judicially. They are bound to consider and to determine whether the lands are providing (a) an adequate amount of agricultural products and (b) an adequate amount of employment, and if, without determining these matters, they refuse the petition and disallow the objection, they exceed their jurisdiction and an order of certiorari will lie.

So held by the Supreme Court.

Held, further, that s. 32, sub-s. 3, of the Land Act, 1933, and s. 39, sub-s. 6, of the Land Act 1939, as construed thus, are in accordance with Article 37 of the Constitution of Ireland.

Held, further, that the determination of the Lay Commissioners is to be found in their formal order.

Dicta of May C.J. in R. v. Corporation of Dublin, 2 L. R. I. 371, and of Palles C.B. in R. (Wexford Co. Council) v. Local Government Board, [1902] 2 I. R. 349, approved.

Fisher v. Irish Land Commission and Attorney-General [1948] I. R. 1distinguished.

Maguire J. :—

This is an application, pursuant to notice, dated the 11th March, 1950, to make absolute notwithstanding cause shown a conditional order of certiorari directed to the Irish Land Commission and the Lay Commissioners to send before the High Court for the purpose of being quashed their order and judgment made in this matter on the 28th July, 1949.

The grounds of the said order and of the application now before me are set out fully in the conditional order.

The lands, the subject-matter of these acquisition proceedings, consist of 251 acres, 2 roods, 22 perches, part of the lands of Lisballyhay comprised in Folio No. 27635, County of Cork, of which John F. Crowley, the applicant, is the registered owner. The proceedings herein are recited in the judgment and order of the 28th July, 1949.

The Land Commission, in pursuance of sub-s. 1 of s. 25 of the Land Act, 1936...

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