The State (Murphy) v Cork County Council

Judgment Date17 October 1946
Date17 October 1946
CourtKing's Bench Division (Ireland)
The State (Murphy) v. Cork County Council.
THE STATE (at the prosecution of KITTY MURPHY)

Local Government - Housing - Cottage erected by local authority under the Labourers Acts - Application to purchase cottage - Only a "qualified person" entitled to purchase - Whether applicant a "qualified person"within the meaning of the Acts - Refusal of application by local authority on the ground that applicant was not a "qualified person" - Applicant afforded no opportunity to rebut evidence on which refusal was based - Mandamus to compel local authority to consider application and to determine whether applicant was a "qualified person" - Labourers Act,1936 (No. 24 of 1936), ss. 16 and 17.


The prosecutrix, Kitty Murphy, sought to have made absolute, notwithstanding cause shown, a conditional order of mandamus made on December 4th, 1944, directed to the County Council of County Cork, respondents, commanding them in accordance with their duty and authority in that behalf to consider the application made by the said Kitty Murphy for the purchase of a cottage and a plot of land situate at Greenfield, in the District Electoral Division of Ballincollig, Rural District of Cork, and County of Cork, and to determine according to law whether the said Kitty Murphy was a person qualified and entitled in relation to the said cottage within the meaning of sects. 16 and 17 of the Labourers Act, 1936, as amended by the Housing and Labourers Act, 1937 (1).

The cottage in question was erected by the Cork Rural District Council in 1904 under the provisions of the Labourers (Ireland) Acts. The respondents became the owners of the cottage as the successors in law to the former South Cork Board of Public Health. By virtue of the provisions of the County Management Act, 1940 (No. 12 of 1940), all the powers, functions and duties vested in or imposed on the respondents under the provisions of the Labourers Act, 1936, and of all Acts amending or extending the same, in so far as the said powers, functions and duties related to the South Cork County Health District, were delegated to the Assistant County Manager, James Hurley.

The following facts appeared from the affidavit of the prosecutrix:—

Hannah Mahony, a second cousin of the prosecutrix, was the tenant of the cottage from 1904 until her death on February 21st, 1944. The prosecutrix was residing with her on the date of her death and, except for a short time, had been residing with her in the cottage for the purpose of looking after her for the four years immediately preceding her death. During the short break referred to the prosecutrix had been in employment as a domestic servant, residing in the house of her employer, but several times each

week she visited the cottage for the purpose of looking after Hannah Mahony.

On or about April 22nd, 1944, the respondents served an ejectment civil bill on the title on the prosecutrix claiming possession of the cottage. In her defence the prosecutrix claimed that she was in possession of the cottage and that she would rely on all defences open to her as a tenant in possession in law and in equity, and that, in addition, she was an agricultural labourer within the meaning of the Labourers (Ireland) Acts, and that as such she was entitled to purchase the cottage.

On April 24th, 1944, the solicitor for the prosecutrix wrote to the respondents' solicitor to inquire whether Hannah Mahony had applied during her lifetime for the purchase of her cottage pursuant to the provisions of the Labourers Act, 1936. To this letter a reply was received stating that Hannah Mahony had not made any such application. On May 2nd, 1944, the solicitor for the prosecutrix wrote asking for particulars as to the name of the Purchase Scheme operating in the area in which the cottage was situate for the purpose of completing a form of application to purchase the cottage by the prosecutrix. In reply he was informed that the respondents regarded the prosecutrix as a trespasser. The required particulars were not furnished until another letter had been written by the solicitor for the prosecutrix. On May 25th, 1944, the prosecutrix sent her application to purchase to the respondents.

On June 14th, 1944, the respondents' solicitor wrote to say that the matter had been considered by the Assistant County Manager on June 8th, 1944, who had made an order that the prosecutrix was not a "qualified person," and that, accordingly, her application was refused.

The order made by the Assistant County Manager was as follows:—

"Cork No. 3 District:

Cottage No. 57 Greenfield:

Further to order, No. H. 59/44, dated 24th March, 1944, considered letter dated 25th May, 1944, from Mr. G. Y. Goldberg, solicitor, lodging an application form, dated 24th May, 1944, for the purchase of cottage No. 57 Greenfield, Ballincollig, by Miss Kitty Murphy, who states she is a second cousin of the late tenant, Hannah Mahony. Miss Murphy states that she was resident in this cottage at the date of Hannah Mahony's death, on which date she further states that Hannah Mahony was an agricultural labourer. It is noted that Miss Murphy is the daughter of Denis Murphy, already tenant of Council's cottage No. 180 Rigsdale, Ballinhassig. Order:—Miss Kitty Murphy is not deemed to be a qualified purchaser and her application is hereby refused.

James Hurley, Asst. Co. Manager. 8/6/44.

Order, No. H. 137/44."

In her affidavit the prosecutrix alleged that the respondents did not consider any other fact than that set out in the order of the...

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3 cases
  • State (Cussen) v Brennan
    • Ireland
    • Supreme Court
    • 1 January 1981
    ...258. 2 The State (O'Mahony) v. South Cork Board of Public Health [1941] Ir. Jur Rep. 79. 3 The State (Murphy) v. Cork County Council [1946] I.R. 171. 4 The State (Modern Homes Ltd.) v. Dublin Corporation [1953] I.R. 202. 5 R. v. Herrod [1976] Q.B. 540. 6 R. v. Sheward (1880) 9 Q.B.D. 741; 5......
  • State (Keller), The v Galway County Council and Another
    • Ireland
    • High Court
    • 22 June 1958
    ...2 W. L. R. 311. (3) [1928] 1 K. B. 291. (4) [1951] I. R. 250 at p. 265. (5) [1956] 2 W. L. R. 822. (6) [1940] I. R. 470 at p. 479. (7) [1946] I. R. 171 at p. 178. (1) [1875], 1 Q. B. D. 201, at p. (1) [1898] I. Q. B. 802, at p. 806. (1) (1875), 1 Q. B. D. 201. (2) 39 I. L. T. R. 117. (3) [1......
  • The State (Burns) v Cork County Council
    • Ireland
    • Supreme Court
    • 23 April 1948
    ...A. C. 173. (2) [1911] A. C. 179, at p. 182. (3) [1943] A. C. 627, at p. 636. (4) 12 Q. B. 461, at p. 473. (5) [1911] A. C. 179. (6) [1946] I. R. 171. (7) [1946] I. R. 178. (8) [1935] I. R. 908. (9) [1910] 2 I. R. 695. (10) 29 T. L. R. 419. (1) [1935] I. R. 908. at p. ...

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