The Gazette 1984

JULY/AUGIJST

198

GAZETTE

Court in December 1983 and that Court delivered a single judgment on 20th January 1984. The single judgment rule which was added to the Constitution in 1941 under Article 34, (4) (5) prescribes that in relation to the constitutionality of all statutes passed after the date in which the Constitution came into force (i.e. 29th December 1937) — only one single judgment may be given, and no assenting or dissenting judgments should be disclosed. The judgment of O'Higgins C.J., was based on the constitutionality of Section 11 of the Local Government Act 1946 and it was decided that the collection of the county rate independently of buildings propounded in the said Section was invalid having regard to Article 40 (3) of the Constitution. In examining the submissions made, that Court at first acknowledged the full and careful judgment of Barrington J. in the High Court and admitted the necessity to refer to the historical background of local taxation; but then the Supreme Court defined narrowly the Valuation Acts as "so much as is now repealed of the Valuation Act 1852 and of the five amending Acts of 1854, 1860, 1864, 1874, and 1901; and that under the Local Government Act (Ireland) 1898, the administrative and financial functions of the former grand juries were transferred to newly constituted County Councils, and the former cess was merged in the existing poor rate; and that, from then, all sums required to be raised by way of local taxation were raised by means of the poor rate. The Court then came to the conclusion that it was unnecessary to consider the many changes that had since been made in the machinery of local government; and that it was sufficient to say that the term "Poor Rate" continued to be applied to the method of raising taxation until the Local Government Act 1946. Under this 1946 Act a County Rate was established for County Councils and a Municipal Rate for urban authorities. Section 11 of the 1946 Act obliged County Councils to raise money by means of the "poor rate". This latter phrase, though not defined, is a well-known phrase in Local Government law. Section 11 defined the manner in which the County Rate was to be levied, and Section 12 defined a County Rate. The Court concluded that, in so far as land was concerned, the linking of the County Rate with valuations determined under the Valuation Act 1852 was now to be replaced by Section 11 of the 1946 Act; and that the constitutional challenge raised in this action had necessarily to confront Section 11. Formerly the only possibility for a revision of a land valuation had been prescribed by Section 34 of the Valuation Act 1852; but that while the general intention of Section 34 was to provide a scheme for the periodic updating of land valuations throughout, those powers were in fact never availed of. The real question, as perceived by the Supreme Court, was whether the use of these valuations accorded with the Constitution, that so far as the Constitution was concerned, there did not appear to be anything of significance in the making of the valuation of land; and that the fact that land was undervalued by an incompetent valuer in no way harmed the land or changed its character. In the same way the overvaluing of poor land did not in any way alter the true value of the land. What was of concern was the use to which the valuation was put by the State or by the local authority. For these reasons, the Court reached what seems to be an (continued on p. 143) 139

in relation to taxation and fiscal policy. The State had a special obligation in this regard, and the Courts should only interfere with extreme caution. The Courts should not rule a Revenue statute unconstitutional unless it could be reasonably justified — See Murphy -v- Attorney-General 12 2. As regards Article 40 (1), there was no failure to treat citizens equally as human persons in the use of existing valuations. The valuation is concerned with land and does not discriminate between persons. 3. As regards Article 40 (3), the High Court had held with the plaintiffs mainly because of a failure to respect personal rights. The plaintiffs' case should not have been based on discrimination and unequal treatment but rather on an unjust attack on property rights. The fact that one ratepayer was obliged to pay more rates than another under a different valuation system was not an unjust attack on property rights (see Central Dublin Development Co. -v- Attorney-General 13 and McGee -v- Attorney- General 14 . 4. It was not established that the existing anomalies were so widespread as to make the valuation system lack any reasonable basis. The failure to provide means for the revision of valuation could not lead to the conclusion that the system was unconsti- tutional. 5. In the High Court it was contended that if a pre- constitutional statute, enacted before the Constitution came into force on 29 December 1937 was amended by a post-constitutional statute after 1937, it obtained the benefit of the presumption of constitutionality. In that case, such a statute should not be ruled unconstitutional unless no other construction were reasonably open. (See McDonald -v- Bord na gCon)™. The valuation system was in existence in 1937 and formed then the basis of local taxation. In response to these arguments the High Court held that: (1) The Court should not enter on a consideration of the relative merits of the different forms of taxation, which are primarily matters for the legislature. (2) Kenny J's views in Gladys Ryan -v- Attorney- General™ about acting with caution and being slow to interfere should be accepted. (3) One was not dealing with fiscal or revenue matters but only with problems of measurement; and that the Valuation Acts were essentially concerned with measuring the value of lands. (4) The question whether the Valuation Acts did or did not enjoy the presumption of constitutionality was not important; that it is permissible to look at the state of affairs as it existed in 1937; but that a statute of the British Parliament must be read as having its meaning on the date of its enactment; and that whether the pre-constitutional statute was or was not consistent with the Constitution, it was immaterial whether that statute was carried forward by Article 50 of the Constitution. Supreme Court Decision The arguments on appeal were heard by a full Supreme