Thistle and Others v Monaghan County Council

• Jurisdiction: Ireland
• Judgment Date: 20 December 1931
• Date: 20 December 1931
• Court: Supreme Court (Irish Free State)

Thistle and Others v. Monaghan Co. Council

JOHN THISTLE and Others

Plaintiffs

and

COUNTY COUNCIL OF MONAGHAN and COUNTY COUNCIL OF CAVAN, acting through the JOINT COMMITTEE OF MANAGEMENT OF THE MONAGHAN AND CAVAN DISTRICT MENTAL HOSPITAL, Defendants (1)

High Court.

Supreme Court.

Local Governments - Mental Hospital - Remuneration of officers - Reductions effected by resolution of Joint Committee - No prior termination of employment - Powers of Joint Committee - Local Government (Ir.) Act,1898 (61 & 62 Vict. c. 37), sects. 9, 84, 109 - Interpretation Act, 1889 (52 & 53 Vict. c. 63), sect. 32, sub-sect. 1 - Asylums Officers' Superannuation Act, 1909 (9 Ed. 7, c. 48), sects. 5, 11.

The Local Government (Ir.) Act, 1898, sect. 9, sub-sect. 1, provides that it shall be the duty of the council of every county to provide and maintain sufficient accommodation for the lunatic poor in that county in accordance with the Lunatic Asylum Acts; by sub-sect. 2 the duties of the council under this section shall be exercised through a committee appointed by them; and sub-sect. 5 provides that "the county council, through the said committee, shall properly manage and maintain every lunatic asylum for their county; and, subject to the provisions of this Act, may appoint and remove the officers of the asylum and regulate the expenditure." Sect. 84, sub-sect. 1, provides:—"Subject to the provisions hereinafter contained, the county council acting through their committee—

• (a) shall appoint for each lunatic asylum a resident medical superintendent and at least one assistant medical officer; and

• (b) may appoint such other officers as they consider necessary for the performance of their duties in relation to lunatic asylums,

and every officer so appointed shall perform such duties and be paid such remuneration as the council may assign to him."

Sect. 32, sub-sect. 1, of the Interpretation Act, 1889, provides:—"Where an Act passed after the commencement of this Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires."

Held by the Supreme Court (FitzGibbon and Murnaghan JJ.; Kennedy C.J. dissenting), affirming the High Court, that the powers of appointment and removal of officers and of assignment of their duties and remuneration, conferred by the Local Government (Ir.) Act, 1898, may be exercised from time to time as occasion requires, and consequently include power to alter the remuneration of an existing officer without terminating his employment; and that there is nothing in the Asylums Officers' Superannuation Act, 1909, to restrict this construction.

Chambers and Others v. Mayo Mental Hospital and Counts Council,[1930] I.R. 154, approved.

Three Appeals from the Circuit Court, which were heard together.

The plaintiffs, three attendants in the Monaghan and Cavan District Mental Hospital, instituted three actions in the Circuit Court (Northern Circuit, County of Monaghan) against the defendants, the County Council of Monaghan and the County

Council of Cavan, acting through the Joint Committee of Management of the said Monaghan and Cavan District Mental Hospital. The actions were consolidated by order of the Circuit Court Judge (Judge Devitt). In each action the plaintiff claimed a liquidated amount as arrears of salary due by the defendants to the plaintiff as a Mental Hospital employee of the defendants for the period commencing on 1st May, 1926, and ending on the 30th June, 1927. The actions arose out of resolutions, dated 18th March and 15th April, 1926, of the said Joint Committee of Management, reducing the salaries of the plaintiffs and other employees of the Mental Hospital. The resolutions were expressed to come into operation on 1st May, 1926, and the reductions were brought into operation as from that date by means of the appropriate reductions in the monthly paying orders issued to the employees. The contract of service or employment of the plaintiffs was not previously terminated.

The Circuit Court Judge gave a decree in favour of each plaintiff for the amount claimed, and from his decrees the defendants appealed to the High Court.

In pursuance of the leave thus given, the plaintiffs appealed to the Supreme Court (1). The grounds of the appeal were that the Judges of the High Court misdirected themselves, both in law and on the facts, in determining that the plaintiffs were not entitled to the relief sought, and in dismissing the plaintiffs' claims; and that the judgment of the High Court was bad in law, and against the evidence and the weight of evidence, and that the judgment of the Circuit Court Judge was correct, and ought to be affirmed.

Meredith J. :—

This Court is bound by its decision in the case of Chambersv. Mayo Mental Hospital and County Council(1), and so the appeal must be allowed; but my own personal opinion remains that which I expressed in a recent decision (2).

O'Byrne J. :—

It is admitted by counsel for the defendants that this case is governed by the case of Chambers v. Mayo Mental Hospital and County Council(1). For this reason, and because I am still of the opinion that I expressed in that case, I think that this appeal should be allowed.

It is obviously a case in which a certificate should be given to enable the case to be taken to the Supreme Court.

The appeal was, accordingly, allowed, and the decrees of the Circuit Court Judge reversed; but the Court certified that this decision involved a question of law of such importance as to be fit to be the subject of an appeal to the Supreme Court.

Kennedy C.J. :—

This appeal is concerned with the question upon which I expressed an opinion in my judgment in Gallagher v. Galway County Council and Others(1)—viz., the true construction and effect of sect. 84 of the Local Government Act, 1898, read along with sect. 32 of the Interpretation Act, 1889. I there stated it to be my opinion that no power was given by the section to reduce the remuneration assigned to an asylum officer on his appointment under the section, there being no power to revoke an assignment made and substitute a new assignment, unless by way of dismissal of the officer and a new appointment, which would be an "occasion" within the Interpretation Act, 1889, sect. 32, sub-sect. 1, "requiring" a new assignment of remuneration.

I have now had the advantage of hearing the question fully debated in two appeals, the present case and that of Woods and Others v. Dublin Corporation and Others(2), and I have approached and considered it with an open mind, as I was not bound by the individual opinion expressed by me in Gallagher's Case(1). I have also had the great advantage of reading the judgment of Mr. Justice Meredith in Woods and Others v. Dublin Corporation and Others(2), in which I have found an illuminating exposition of the view expressed by me in Gallagher's Case(1). After much reconsideration of the question with the assistance I have mentioned, I remain of the same opinion, and I wish to adopt with respectful approval the statement and exposition of that opinion by Meredith J. in his judgment inWoods and Others v. Dublin Corporation and Others(2), which appears to me to be wholly convincing.

I am of opinion that this appeal should be allowed; that the order of the High Court should be reversed; and that the decrees of the learned Circuit Judge (Judge St. L. Devitt) in the several cases should be restored.

FitzGibbon J. :—

In this case the question of the status and conditions of service of officers of Mental Hospitals appointed under the provisions of sect. 84 of the Local Government (Ir.) Act, 1898, or deemed, under sect. 115 of the same Act, to have been so appointed, has been brought before this Court for decision in consequence of a resolution, the validity of which depends upon the answer given to the question.

The same question was the subject of argument in this Court in the case of Gallagher v. Galway County Council and Others(1), when the Chief Justice and my brother Murnaghan differed in opinion; but as I founded my decision of the case upon the absence of any resolution effecting a reduction of the plaintiffs' remuneration, I considered it unnecessary and inadvisable to express any opinion upon the question whether

such a resolution, if passed, would have been within the powers of the Joint Committee of the Ballinasloe Mental Hospital, and the question therefore remained undecided, and open for further argument, which it has now received. Whatever view may be taken of the wisdom of my reticence in Gallagher's Case(1), it has been the means of furnishing us with the assistance, not only of further argument by different counsel, but of...