The Gazette 1908-9

MAR., 1909] The Gazette of the Incorporated Law Society of Ireland.

99

costs may by the said order be referred for taxation to the Crown and Treasury Solicitor, and the sum certified under his hand shall be the sum payable in respect of such costs." The costs of the owners of the lands acquired were not yet dealt with by legislation. They remained as they stood under the Lands Clauses Acts, the Railways Act of 1851, and the and schedule to the Housing of the Working Classes Act of 1890. Those costs were taxable by the officer of the Court, and measured by reference to. the scale provided by the Act of 1881 (44 & 45 Vict. c. 44). The question is whether this portion also of the expense of the acquisi tion of sites for labourers' cottages is not dealt with by the provisions of the Act of 1906. Speaking generally, the object of that Act as regards the acquisition of sites is to acquire them (i) more expeditiously and (2) more economically ; expedition in obtaining a complete improvement scheme is obtained by the drastic provisions of sects. 5 and 6 of the Act of 1906. Then we approach the question whether the owners' costs are dealt with. There is no doubt that under s. 11 material alterations are made in respect of money lodged in Court,and sub-s. 12 expressly cuts down County Court costs. Sub-s. 4 is important, as it deals with a case where conveyancing costs would have come in, and it also provides that "no approval fee or other charge shall be payable by the District Council in respect of any re ceipt given " in pursuance of the sub-section. This is a direct interference with solicitors' charges. Then after financial clauses which intervene there comes the clause—the vital one —sect. 3 i. [His Lordship read the section, and continued.] First, the subject dealt with in previous legislation was embraced, and then it brings in the head of the solicitors' profession as inter ested parties ; and after dealing with the subject of sect. 12 in the Act of 1885 it passes on to an obviously additional subject. The words are "any fees." Is this limited to "fees" of the kind suggested by Mr. Matheson ? " Fees " is the technical description of solicitors' remunera tion, " fees, charges, and disbursements." The words that follow are of the widest kind, "any costs," and the two stages are mentioned— those dealt with already in sect, i 2 of the Act of 1885, "and the carrying into execution of im provement schemes," i.e., up to their close. In my opinion the argument as to the con struction of this section of Serjeant O'Connor and Mr. Matheson cannot be reconciled with

the language of the section or its policy. It would practically leave sect. 31 inoperative if we were to confine it to mere procedure or to the giving of a requisition or the leaving .the old law as to owners' costs unaltered. I have no doubt that the section authorizes the fixing of a scale for solicitors' charges and the creation of an authority to tax by reference to the scale. The Solicitor-General did not contend that he could support the order of the Lpcal Government Board, even if the construction of seet. 3 i which he contended for and I adopt were correct, because when we come to test the order, it fixes the costs by a scale non existent, and leaves no authority in Mr. Mecredy. Mr. Justice Gibson doubts whether the con struction of the section is what I think it is, but he does not decide the point. Mr. Justice Madden deprives sect. 31 of all operation in the directions I have mentioned, and Mr. Justice Kenny thinks the language not clear enough to justify a taxation on any but the old recognized schedule of fees and charges and by the old authority. ' But I think it clear the section authorizes the fixing of a scale of costs for owners—costs reasonable and moderate, having regard to the subject-matter— and also authorizes the setting up of an inde pendent authority to tax. The selection of the authority lies, I think, with the Local Government Board. I wish to make the observation in respect of the scale prescribed in August, 1908, or any other scale, that I think no scale or rule can be supported which excludes in terms or im- pliedly the owner from attending on the taxation. I emphasize the word " excludes." It will be for the Local Government Board to frame a legal scale and appoint an authority to tax authorized by the 315! section. Lastly comes the question whether cerliorari lies. If what they did was a ministerial act merely, certiorari would not lie. The Local Government Board exercises both ministerial and judicial functions. It is settled that the certificate of a taxing officer connot be quashed on certiorari; and the Tyrone Case, 10 Law Rep. Ir., decides that this is so, though the taxation is made a condition precedent to liability. At first I was inclined to think that sect. 31 did not go beyond this, but for the purpose of seeing what the Local Government Board did in this case we must apply every word of the 3ist sect, and Rule 55, under which they