The State (Kerry County Council and Others) v Minister for Local Government and Public Health

• Jurisdiction: Ireland
• Judgment Date: 31 May 1933
• Date: 31 May 1933
• Court: Supreme Court (Irish Free State)

The State (Kerry Co. Council) v. Minister for Local Government

THE STATE at the prosecution of the KERRY COUNTY COUNCIL, THOMAS O'CONNOR AND OTHERS

and

THE MINISTER FOR LOCAL GOVERNMENT AND PUBLIC HEALTH (1)

High Court.

Supreme Court.

Local Government - County Council - Appointment of solicitor - Order made by Local Government Department - Order appointing Secretary to the County Council to be solicitor to the Council also - Jurisdiction of Local Government Department to make the order - Objection by the Council to the making of the order - Application for certiorari - Application made by ratepayers - Ratepayers not persons aggrieved Poor Relief (Ir.) Act,1838 (1 & 2 Vict. c. 56), sect. 31 - Borough Funds (Ir.) Act, 1888 (51 & 52Vict. c. 53), sect. 3 - Local Government (Ir.) Act, 1898 (61 & 62 Vict. c. 37), sects. 17, 83, 115 - Local Government (Temporary Provisions) Act, 1923 (No. 9 of 1923), sect. 15 - Local Authorities (Officers and Employees) Act, 1926 (No. 39 of 1926), sect. 6 - Local Offices and Employments Order, 1924.

The Minister for Local Government and Public Health, purporting to act in the exercise of the powers vested in him by the Poor Relief (Ir.) Acts, 1838 to 1914, and sect. 15 of the Local Government (Temporary Provisions) Act, 1923, as applied by the Local Offices and Employments Order, 1924, issued a sealed order directing that on and after the date of the order the duties of the Secretary to a County Council should, unless and until the Minister should otherwise direct, include the duty of acting as solicitor to the Council. The Secretary was a duly qualified solicitor. The Minister pointed out to the Council that by their Secretary acting as their solicitor also a saving in the rates would be effected. But the County Council objected to the order and they and five ratepayers applied for and obtained a conditional order for certiorari to quash the order. Subsequently the County Council was dissolved and a Commissioner was appointed to exercise their duties. He recorded a resolution that no further proceedings on behalf of the Council be taken in the matter. On the application to make absolute the conditional order:

Held by the High Court (Sullivan P. and O'Byrne J., Hanna J. dissenting) that the Minister had jurisdiction to make the order and that certiorarimust be refused.

Held by the Supreme Court that the Minister had not jurisdiction to make the order as he had no power to specify the duties of the Secretary to the County Council, since sect. 83 of the Local Government (Ir.) Act, 1898, provided that the duties of a Secretary were to be assigned by the County Council, and that specific provision was not abrogated by the general power given to the Minister by sect. 15 of the Local Government (Temporary Provisions) Act, 1923. But the writ of certiorari must be refused, and the decision of the High Court affirmed, as the only applicants for the writ, the County Council having been dissolved, were the five ratepayers and they were not entitled to claim the writ, not being persons aggrieved within the rule laid down in R. v. Surrey JJ., L. R. 5 Q. B. 466.

Certiorari.

The Kerry County Council and five ratepayers obtained on the 25th July, 1930, a conditional order for a writ ofcertiorari to quash a sealed order made by the Minister for Local Government and Public Health, dated the 1st April, 1930. The application for the conditional order was based on the affidavit of Kate M. Breen, who was the Vice-Chairman

of the said Council. Her affidavit set out the facts as follows:—

"2. Francis H. Downing, solicitor, Tralee, was for many years solicitor for the Council. He resigned this position early in the year 1929. For many years prior to his resignation he was employed and paid on a taxed-costs basis.

3. [Deponent referred to the Council's Minute Book containing the several resolutions hereinafter referred to and the letters from the Department of Local Government and Public Health also hereinafter referred to.]

4. A Special Meeting of the Council took place on the 15th August, 1929, when the question of the selection of a solicitor to the County Council was under consideration. At the said meeting a letter, dated 13th August, 1929, from the Department of Local Government and Public Health was read recommending the Council 'to consider whether they might with advantage assign their legal work' to William F. Quinlan, the County Secretary. As will be seen from the minutes of the said meeting a resolution was duly proposed that a certain report of the Sub-Finance Committee be adopted, but an amendment to this resolution was duly passed that no standing solicitor be appointed to the Council, but that a solicitor be employed on a taxed-costs basis to do the legal work of the Council as the same may arise, and that such appointment do exist for eleven months. And a further amendment was carried adjourning further discussion.

5. On the 22nd of August, 1929, a further meeting of the Council was held and a further resolution was duly passed to the effect that no standing solicitor be appointed, but that a solicitor be employed on a taxed-costs basis during the pleasure of the Council, and thereupon Mr. D. J. Browne, solicitor, of Tralee was selected as solicitor to the Council. A resolution was likewise duly passed—'That the Council do not assign the legal work of the Council to Mr. W. F. Quinlan, Secretary of the County Council, on the terms suggested by the County Secretary or on any terms.' The said D. J. Browne is a practising solicitor of thirteen years standing, who stands high in the confidence and esteem of the people of County Kerry.

6. A further Special Meeting of the Council was held on the 5th September, 1929, when a further letter from the Department of Local Government and Public Health was read, dated 28th August, 1929, alleging in effect that the Council's said resolutions at the previous meeting were ineffective and proposing 'that the Council should again confer with Mr. Quinlan with a view to the making of a suitable arrangement on the lines already indicated.' After discussing the matter at length the Council then resolved that 'having considered the letter of the Minister fully, we regret we cannot see our way to depart from the resolution carried on the 22nd August.' This resolution was passed unanimously.

7. A further meeting of the Council was held on the 13th of February, 1930, when the following resolution was passed:—'That we hereby affirm the temporary appointment of Mr. D. J. Browne as our solicitor as already twice decided by this Council and that we hereby instruct our Secretary to hand over the legal business of the County Council to him until the permanent appointment is made.'

8. At a meeting of the Council held on the 13th March, 1930, the following resolution was duly passed:—'That we direct and order our Secretary to hand over within twenty-four hours from this date (March 13th) all legal papers to our solicitor, Mr. D. J. Browne, who has already three times been appointed temporary solicitor by this Council; and, further, that this order be complied with notwithstanding any notice of motion that may be handed in to rescind this resolution.'

9. On the 1st April, 1930, the Minister purported to make the sealed order of that date the subject of the present proceedings. [Deponent made an exhibit of the order.]

10. A meeting of the Council was held on the 17th of April, 1930. At this meeting a further letter was read informing the Council of the making of the sealed order, whereby the Minister purported to add to the duties of the said W. F. Quinlan as County Secretary the duties of solicitor to the Council. The Council discussed and adjourned consideration of the matter.

11. The matter was fully debated at a further Special Meeting of the Council held on the 24th of April, 1930, when it was resolved to take the opinion of counsel on the Minister's action in issuing the sealed order.

12. A further meeting of the Council was held on the 26th of June, 1930, when a further letter was read from the Department of Local Government and Public Health dated 24th June, 1930, purporting to fix the total salary of the said W. F. Quinlan. At the said meeting the following resolution was duly passed:—'That we instruct Mr. D. J. Browne to take the necessary steps to set aside the sealed order of the Minister for Local Government and Public Health appointing Mr. W. F. Quinlan as County solicitor to the Kerry County Council.'

13. [Deponent referred to the Council's Minute Book containing the said several resolutions and the records of the proceedings at the said several meetings.]

14. The said W. F. Quinlan was appointed Secretary to the Council in or about January, 1919, and has ever since that date acted continuously as such Secretary. From inquiries which I have caused to be made at the offices of the Council I am informed and believe that the minutes of the Council dealing with the appointment of the said W. F. Quinlan as Secretary have been destroyed and are not now available. In addition to the office of Secretary to the Council Mr. Quinlan holds the post of Secretary of the Scholarships Committee, Secretary of the Pensions Committee, and Secretary of the Local Authority under the Diseases of Animals Acts. He also acts as Secretary to all Committees and Sub-Committees of the Council including the Finance Committee, the Sub-Finance Committee and the Roads Committee. He is also a Local Taxation Officer under the Finance Acts for the collection of motor car duties. He is also in charge of the preparation of the franchise and jurors lists. He also acts as Returning Officer for the local elect,ions. He is a wholetime officer of the Council.

15. The office of Secretary to the Council is the chief executive position under the Council. It is an office of great responsibility and requires for its proper performance the whole time and undivided attention...