The Gazette 1908-9

MAR., 1909]

The Gazette of the Incorporated Law Society of Ireland.

105

"The Local Government Board, after con sultation ivith or notice of consultation sent to the President of the Incorporated Law Society of Ireland^ may make rules which, subject as aforesaid, may fix the amount of any fees, and may provide for the taxation and payment of any costs, to be received, allowed, or paid, in relation to the confirmation by the Local Government Board, and the carrying into execution of improvement schemes." What more certain symptom can be found that this power is judicial than that it is to be exercised only after consultation with the responsible Head of the Law Society, who is e.v officio a member of the Rule-making Authority of the Supreme Court ? Clause (2) gives quasi-legislative powers of adapting Statutes, and Clause (3) indicates the wide scope of the power by directing all Rules and Orders made under it to be laid before Parliament. I hold this section to confer not only minis terial or executive powers, but also powers that may be exercised judicially, and even legislative powers. This Court had to consider similar powers of the Local Government Board under the Public Health Acts twenty-four years ago, in the Kingstown Case (18 L.R.Ir. 509) upon an application for a prohibition. In the Exchequer, the Lord Chief Baron held that prohibition did not lie, because the power questioned was " quasi-legislative," and this Court affirmed the decision. The head- note is as follows :— " The Local Government Board, in exer cising its functions as to provisional orders, is not a Court, nor are purely legislative powers, or powers of promoting legislation, on principle, subject to prohibition ; but an usurpation of jurisdiction of a judicial character by the Board might be prohibited." In that case (p. 515), I find that I indulged in a prophecy which is now fulfilled. I said : — "I am far from satisfied that under colour, or in the course of exercising these powers, the Local Government Board might not—for example, as to costs, or the attendance of ivitnesses — attempt, or be proved likely to attempt, an usurpation of a jurisdiction of a judicial character, which it ivould be right to prohibit." What was done by the Board in this case ? The answer must be found in the Certificate of April 13, 1908. I read that document not merely as a judicial act, but as a formal judgment declaring the rights of parties upon perhaps the most touchy of all subjects—the

amount of money to which they are lawfully entitled. There is no right of suit, nor any means of recovering any costs for the local bodies which are the vassals of the Local Government Board, except upon a document issued by the Board fixing the amount and authorizing the payment. The Certificate says :— "In pursuance of section 31 (i) of the Labourers Act, 1906, and Article 55 of the Labourers Order, 1906, the Local Government Board have arranged for the taxation of the costs claimed in the above matter, and after taxation do certify that the sum payable by the District Council of the Dunshaughlin Rural District in respect of such costs is Four Pounds, Eleven Shillings, and Four Pence." This recites an exercise of the power to " provide for the taxation " of the costs, and a " taxation " of them. But the President of the Law Society was not consulted ; the statutory condition precedent was ignored, and when we examine the evidence, we shall find that there was no taxation. Is not this certificate, both in form and substance, an adjudication— a judicial pronouncement—that the claim to the difference between £4 i is. 4-J. and ^8 13.?. 6(L made by a party having a lawful right to a sum legally ascertainable shall be disallowed ? To find what the alleged " taxation " really was, we must look at the document sent to Mr. Mecredy, and it shows that he made no taxation. He merely gave a recommendation, which he based, by direction of the Board, on a "new scale" of which he was not the author. He was asked on April i, 1908, to " indicate the deductions which might rea- " sonably be made from the bill, and the "amount which he would recommend the " Board to certify as payable in respect of the " costs claimed." He "indicated" deductions amounting to £4 14^. 6(f., but the Local Government Board allowed more, and therefore did not act on his recommendation. On April 13, 1908, the order of the Board was made in these words :— " (i) Let the costs be certified at ^4 i is. ^d. (2) Return the Bill to the C. with the certificate as to amount payable." There is no reference to Mr. Mecredy in the certificate, nor does it mention the " new scale"; and it is now admitted that the " scale" was, at the date of the certificate, only in draft: its existence had not been made known outside the Office of the Board.