The Gazette 1971

of Art. 50. The feudal theory that the King can do no wrong "is also inconsistent with Art. 40, section 3 where- by the State guarantees in its laws to defend and vindi- cate the personal rights of the citizen, and, by reason of such inconsistency, cannot be carried over. (3) Whether the action could be maintained against the Attorney General as representing Ireland, and whether the representative order can be made? Per Walsh J. Art. 30 of the Constitution sets up the office of Attorney General. By virtue of the Constitution, he is an independent constitutional officer of State, with powers and duties, some of which are of a quasi-judicial nature, and some of an executive nature. He is not however in any sense the servant of the Executive, and any exercise of his powers is an exercise of his powers as Attorney General. He is not answerable for the acts of the Government or for the acts of those in the ser- vice of the State. In all such cases, the correct procedure would be to sue the State and join the Attorney General to effect service upon both parties. In effect the Atorney General would be joined in a representative capacity as the law officer of the State designated by the Constitution. If the claim should succeed, judgment would be given against the State and not against the Attorney General. Per Budd J. Under Art. 30 of the Constitution the Attorney General is to be the adviser of the Government in matters of law. In A.G. v Northern Petroleum Tank Co. Ltd. 1936) I.R., the proceedings were instituted by the Attorney General against the owners of a steam- ship in respect of damage to a water drain in Cork Harbour. It was contended that the action did not lie at the suit of the Attorney General, but Johnston J. re- jected this and held that the powers given to the Attorney General by S.6 of the Ministers and Secretaries Act 1924 placed the matter beyong controversy. In O'Doherty v the Attorney General (1941) I.R. Gavan Duffy J. in a military service pension matter, ultimately made an order of mandamus to compel the referee under the Act to carry out his functions accord- ing to law; it was also stated that the plaintiff was right in joining the Attorney General as representing the public interest. Accordingly it was right to join the Attorney General, since the administration of public services in connection with the representation of the Government and of the public is vested in him, as is the protection of public rights, and of all matters ancillary thereto. (4) Whether the persons alleged to have committed any of the tortious Acts alleged were employees or agents of Ireland. Per Walsh J. These rights are clearly justiciable where there has been a failure by the State to discharge its obligations. The doctrine of "Respondeat Superior" rests on the duty of the principal to make good the damage done by his servants or agents in carrying on its affairs. In a dissenting judgment, Mr. Justice Fitzgerald said in his opinion the appeál should be dismissed. A State to be sovereign did not have to have a King. The immunity which existed in England and in this country

prior to 1922, based as it was on the Royal Prerogative, no longer existed in this country. In his opinion it did not follow that the State was not entitled to immunity, it being declared to be "sovereign". If the liability of the State for the tort of a public servant was to be established it should, in his view, be imposed by the legislature as had already been done in this country under the Road Traffic Act and the Workmen's Compensation Act. It was significant that in 1947 such liability on the State was imposed by the Statute. Mr. Justice Fitzgerald added that in his view, the extension of the liability of the State as juris- tic person to the law of tort, involved such a radical change in the accepted view both of the courts and of the legislature that this Court should decline to under- take such a step. Such an extension of the meaning of a "juristic person" would appear to leave the State liable to the same control and sanctions applicable to a private individual, including the criminal and bank- ruptcy jurisdictions. The Supreme Court in Dublin, in a reserved judgment delivered yesterday, held that a district justice could not order a person to be extradited unless the offence specified in the warrant corresponded with an offence under the law of the State. It also held that the prisoner must be delivered to the police force of the area in which the warrant was originally directed for execution. The Supreme Court had heard an appeal from the High Court by Michael Furlong, no fixed address, against an order for his extradition to England. His extradition was sought for the purpose of bringing a charge against him that at St. Ives, he entered the office of A.R.C. (Concrete) Ltd., as a trespasser and stole a ticket machine, value £39, the property of A.R.G. (Concrete) Ltd. The order of the District Court was made under Sec- tion 47 (1) of the Extradition Act, 1965, for the deliv- ery of the accused at some convenient point of depar- ture (in this case Dublin Airport) from the State into the custody of the police force of the place in which the warrant had been issued for his delivery to that place and for his remand until he was so delivered. In his judgment, the Chief Justice (Mr. Justice O Dalaigh) said that sub-section (2) of Section 47 of the Extradition Act, 1965, provided that an order under sub-section (1) should not be made if it appeared to the Court that the offence specified in the warrant did not correspond with any offence under the law of the State which was an indictable offence or was punish- able on summary conviction by imprisonment for a maximum period of at least six months. The offence spedified in the warrant against Mr. Furlong was under Section 9 of the English Theft Act, 1968. Under the Theft Act, certain acts which in Eng- land would constitute "stealing" would not be regarded as constituting larceny in Ireland, that is to say, would not be an offence in Ireland. A District Justice, he said, cannot order extradition unless the offence specified in the warrant is demon- strated to correspond with an offence under the law of the State. "The position in this case is that we do not know, and the district justice did not know, whether the CONFLICT ABOUT EXTRADITION LAW OFFENCES MUST CORRESPOND

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