The Gazette 1961 - 64

court had not been called to any instance in which this function had been vested in any other person or body than a judge or court. It had been argued that this was not an exclusively judicial function because it is competent for the legislature to prescribe a fixed penalty for an offence and, thereby, it is said, to select the punishment to be imposed in a particular case. While the selection of a punishment by the legislature is a legislative act and a judicial act when performed by a judge, it is also an administrative and executive act as in this case when the selection of the punishment is committed to a branch of a State department. In the opinion of the court this argument was unsound. There was a clear distinction to be drawn between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is a statement of a general rule which applied to every person who was convicted of the particular offence. The legislature did not, however, prescribe the penalty to be imposed on an individual in a particular case. It stated the general rule and the application of that rule was for the courts. Where, however, the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular case and choice or selection of penalty had to be made the matter, at this point, passed from the legislative domain and it was a function which was traditionally within the domain of the courts. Where a range of penalties had been prescribed the individual citizen found guilty of an offence was safe-guarded from the executive's displeasure by the choice of penalty being deter mined by an independent judge and this safe-guard was needed. The selection of a punishment to be imposed was therefore a part of the administration of justice and as such could not be committed to the hands of the executive as Parliament purported to do in section 186 of the Consolidation Act, 1876. The Constitution invalidated this section only to such extent as it was inconsistent with or repugnant to the Constitution and accordingly the section would remain intact but for the words " at the election of the Com missioners of Customs." which should be deleted therefrom. Cause of action arising before discovery of injury—Statute of Limitations The House of Lords dismissed an appeal from a decision of the Court of Appeal affirming Mr. Justice Glyn-Jones in holding that claims by seven steel dressers and the widows of two others who had died, for damages for negligence or breaches of statutory duty alleged to have been the cause of their contracting pneumoconiosis, were statute 84

provisions of the 1933 Act repealed by the 1961 Act, orders made under the repeal provisions of the 1933 Act and still in force and so on. The Society will be able to supply to members a copy of the booklet on request. The price has not yet been fixed but it will be reasonable. Enquiries should be directed to the Secretary. DECISIONS OF PROFESSIONAL INTEREST The right of the Revenue Commissioners to elect for a penalty on the hearing of a criminal charge is the exercise of a judicialfunction and is consequently repugnant to the Constitution The Supreme Court in the case of Deaton v. The Attorney General and Revenue Commissioners has allowed an appeal against an order of Mr. Justice Kenny dismissing an action for a declaration that such of the provisions of the Customs Acts and in particular of section 186 of the Customs Consolida tion Act, 1876, as purport to confer on the Revenue Commissioners the right to elect on the hearing of a criminal charge as to the punishment by way of penalty or otherwise to be imposed are repugnant to the Constitution. The plaintiff had claimed in addition to this declaration an injunction to restrain the defendant, the Attorney General, from proceed ing or attempting to proceed with two summonses charging the plaintiff with keeping certain goods and being knowingly concerned in dealing with certain goods contrary to section 186 of the Customs Consolidation Act, 1876. The penalty provision of section 186 of the Act of 1876 is that every person who is guilty of an offence under the section shall for each such offence forfeit either treble the value of the goods, including the duty payable thereon, or £100 at the election of the Commissioners of Customs (now the Revenue Commissioners) and the offender may either be detained or proceeded against by summons. The Revenue Commissioners had purported to elect for the penalty of £327 175. 3d. and the plaintiff claimed that the above-mentioned section was unconstitu tional either as amounting to an administration of justice by persons not being a court established under the Constitution or as being an interference with the courts in a purely judicial domain. The Chief Justice, delivering the judgment of the court, said that it had been decided by the court in the case of Melling v. 6 Mathghamhna that proceedings under section 186 of the Act of 1876 were criminal in character. The selection of the sentence to be imposed in a criminal matter where the accused had been found guilty was traditionally a function of the judges or the courts. Apart from the case under consideration the attention of the