The Gazette 1908-9

[MAR., 1909

The Gazette of the Incorporated Law Society of Ireland.

104

limit of their judicial power ; and having done so in reference to a code which limits the sum paid to that certified, and thus alters rights, their act in doing so is examinable upon cer- tiorari, and being so examined ought to be quashed. For these reasons I think the Order ought to be affirmed. FITZ GIBBON, L.J.:— I am not certain that, after the judgments which have been delivered, I ought to say more than that I concur, as I do, with the Lord Chancellor and the Chief Baron. But the Counsel for the Local Government Board, in opening this appeal, founded it upon dis satisfaction with observations and dicta of individual judges, rather than upon questioning the decision of the Court below, and I there fore state my view of the case, though I do not know whether it will satisfy the Board or not. I hope to focus my observations upon the Labourers Act, 1906, section 31, and upon the document which the King's Bench has ordered to be quashed. Whenever the question arises, as here, whether certiorari lies, I hold that it is the duty of the Court to examine all the circum stances of the case. We should first ascertain the origin of the scope of the jurisdiction which is impeached, or is alleged to have been exceeded, and the character of the body or person claiming the jurisdiction is also material. The jurisdiction here must be found in section 31, which contains three clauses. The principal enactment is in the first sentence of clause (i)— " The Local Government Board may make General Orders for carrying into effect the Labourers Acts." The next sentence is limited to Rules which may be made for a specific purpose :— "Those Rules, among other things, may. subject to the provisions of this Act, for the purpose of securing expedition, fix the period within which inquiries shall be held, and im provement schemes dealt with." "This Act" is, by section 35, to be con strued as one with the Labourers Acts, 1883 to 1903. We were told that the function of the Board was to promote expedition and economy. This sentence enables it to promote expedition by fixing periods, but the conclusion of the clause imposes a. condition precedent upon the exercise of the power to promote economy in costs :—

amount of all the fees to be received, allowed, or paid in respect of the subject-matter of this section." Were anything further necessary to demon strate that an authority other than the Supreme Court taxing masters can be constituted under rules, it would be found insect. ia,sub-s. 6&y,of the Act of 1885, page 75. Under this provision, from which the words of sect. 31 seem to have been copied, a general rule was made by His Excellency in Council not only prescribing a scale, but constituting an authority to tax. These considerations have brought me to the conclusion that there was an affirmative inten tion in the Legislature that these costs should not be taxed by the Supreme Court taxing- officers, but should be taxed by some tribunal, officer, or person, for a remuneration which these rules themselves would prescribe. Upon the whole, then, I have arrived at a clear conclusion that, upon the two principal points which have been argued for the.respon dents, the appellants are entitled to succeed, viz., that the rules under the section may alter the scale of fees, and that the Local Govern ment Board have power to prescribe the authority or person by whom the taxation shall take place. Strangely enough, the con clusion at which I have arrived, adverse to the respondents on the points of real impor tance which were argued, leads me to the conclusion that they were entitled to succeed on the appeal, upon which, in my opinion, they would have been defeated, had we been in their favour upon those two principal points. I regard the fixing of a scale of fees, or the taxing of a bill of costs, without reference to any prescribed scale, as a power of a very different nature from one to tax according to scale. In my opinion, fixing a scale for solici tors' remuneration for work in relation to title to real property is a judicial act. Further, I am of opinion that, when these costs were ascer tained, Sir George Roche was entitled to be paid for the work done, according to the scale fixed under the Solicitors' Remuneration Act of 1881. The Local Government Board had no jurisdiction to alter that scale, save by a General Order, and it is not pretended that any such General Order was in existence at the time these costs were taxed. They appear to me to have misconstrued their' judicial power under sect. 31, and to have applied, by a par ticular order in the particular case, a scale which only could have been made operative by a General Order applicable to all cases. In so doing they, in my opinion, transgressed the