The Gazette 1974

The plaintiffs had claimed that at a special general meeting of the society on 23 May 1972 a resolution that the original committee of management, composed of 36 members, including the 15 plaintiffs, be removed from office was proposed by the chairman, Michael McEnery, Ballintubber, Newcastle West, Co. Limerick (a defen- dant in the action), and was carried by a simple majority by a show of hands. The number voting in favour of the resolution was less than two-thirds of the members present. The defendant, Michael McEnery, then purported to conduct the election of a "new com- mittee" of management and elected a "new com- mittee" consisting of Mr. McEnery, the three other de- fendants and 32 other members of the society. The Chief Justice in his judgment said that the plaintiffs challenged the validity of the resolution on the ground that it was invalid as it was not competent for the society to pass such a resolution without a majority of two-thirds. The defendants, other than the society, contended that the resolution was valid in-as- much as it had the approval of a simple majority of those present at the meeting. In his opinion the resolu- tion required a two-thirds majority, and might not even with such a majority be effective to remove the whole committee, as this resolution purported to do. Mr. Justice Griffin, in his judgment, said that these proceedings were commenced on 21 July 1972 and the pleadings were closed on 29 November 1972 but not- withstanding the fact that the action was pending in the High Court, the new committee purported to have called a special géneral meeting for 16 December 1972 for the purpose of authorising the formation of two new societies which would have the effect of transferring the creamery business from the existing society to one of the new societies and the remaining business and assets of the existing society to another new society, and then to dissolve the society. This, said the judge, was a rather high-handed action of the defendants pending the determination of this action and it was not surprising that an interlocutory injunction was granted by Mr. Justice Kenny restrai- ning the passing of any such resolution pending the determination of the action. The action came for hear- ing before Mr. Justice Kenny on 3 April last and was dismissed. In his judgment, the intention of the draftsman of the rules of the Kantoher society and of the members in adopting them was that Article 40 (election of com- mittee and officers) was to be construed as requiring a two-thirds majority of the members present at any special general meeting duly called for that purpose, for the removal of the members of the committee of man- agement or the public auditor. The plaintiffs were not properly removed from the committee of management by the general meeting of 23 May 1972, and he would allow the appeal. Mr. Justice Budd who, in his judgment, agreed with the decision of Mr. Justice Kenny in the High Court, said the resolution passed at the meeting in May 1972 by a simple majority removing the plaintiffs was a good and valid resolution. He stressed that the words used in Rule 40 were to the effect that the members of the committee first elected were to continue in office until the next annual general meeting of the society unless "previously" re- moved by a resolution passed by a majority of two- thirds of the members present at any general meeting called for that purpose. The word "previously" in his mind referred to a period previous to the next annual 57

which declares that "The sole and exclusive power of making laws in the State is vested in the Oireachtas". R follows that the usurpation by the Judiciary of an exclusively legislative function is no less unconstitu- tional than the usurpation by the Legislature of an exclusive judicial function. In the Road Traffic Act 1968, the main recommendations of the Report of the Commission on Driving while under the influence of dr ink and drugs (1963) were followed. But the Com- mission recommended that proof, that an accused Person's blood-alcohol level exceeded the permitted level should merely be prima-facie evidence, and this ^as not accepted. If the word "conclusive" is omitted, toe certificate would merely be deemed evidence; this ^ould set up as law something which the Legislature had deliberately and unambiguously rejected. The Legislature, on trying to make the certificate "con- elusive" evidence had not directed its attention to what ^ould happen if it were not conclusive. It follows that y-44 (2) (a) is declared unconstitutional as totally mvalid. The plaintiff's appeal will accordingly be allowed, and his conviction will be declared invalid. [Maher v. Attorney-General and Murphy; Full Supreme Court per Fitzgerald C.J.; unreported; 16th Jtoy 1973.] Supreme Court calls for rules of co-operative Societies to be revised. . The Supreme Court commented on the rules govern- ing co-operative agricultural societies throughout the country and called for an up-to-date revision of them m the interest of the members of the societies and of 'he public in general." The Court was giving its decision in an appeal from Kenny J. i n an action arising out of a dispute between members of the Kantoher Co-operative Agri- cultural and Dairy Society Ltd., with registered office a t Killeady, Ballagh, Limerick. By a two-to-one majority the Supreme Court reversed 'he ruling of Mr. Justice Kenny in the High Court a n d held that the 15 members of the society who r °ught the action were not properly removed from the committee of management of the society by the general Meeting held on May 23, 1972. Costs were awarded a gainst the chairman and three other members of "the n e vy committee" of management, who were named a s defendants in the action. I ne Chief Justice (Mr. Justice Fitzgerald) said that a number of the rules of the Kantoher society as Panted were quite meaningless and also inappropriate 0 a society which had been in existence for 11 years before the rules were adopted in 1915. ^les first issued by I.A.O.S. . M r . Justice Griffin, who agreed with the judgment of be Chief Justice, said that the rules of the Kantoher tociety were in the standard form published and issued y toe Irish Agricultural Organisation Society Ltd. and bey were informed that almost all co-operatives in the country operated under similar rules. In view of the fact that a large number of co- operative societies operate under similar rules, and of be fact that some of these societies nowadays own tory substantial assets, it appears to me to be impera- llv e that in the interest of the members of the societies a n d of the public in general, up-to-date revision of the 'toes should take place."