The Gazette 1984

GAZETTE

JULY/AUGIJST

19

The Unconstitutionality of the County Rate on Land (continued from p. 139) unusual finding — namely that the declarations sought in respect of the Valuation Acts ought not to have been sought, and, having been sought, ought not to have been granted by the High Court. The relief sought by the plaintiffs consisted of a declaration that the Valuation Acts from 1852 to 1864 were repugnant to the Constitu- tion and void, as well as a declaration that various other statutory provisions were unconstitutional, and also relating to consequential decisions affecting the imposition of taxes. The relief sought by the plaintiffs was based on a plea that the rateable valuations constituted an arbitrary, discriminatory and inequitable basis for the imposition upon the plaintiffs of taxes and contributions. The plaintiffs had succeeded in the High Court in obtaining a declaration of inconsistency with the Constitution in respect of Section 34 of the 1852 Act and a declaration of invalidity in respect of the other impugned statutory provisions in so far as they related to the Valuation Acts. Such use had ceased either by repeal or by administrative action. It followed that the Plaintiffs should apparently have sought a declaration of invalidity under Section 11 of the Local Government Act 1946; that the Griffith valuation was many years out of date, had never been revised, was inconsistent even within the same County, and consequently lacked fairness and uniformity. On this basis the Supreme Court held that Section 11 of the Local Government Act 1946, to the extent that it authorised the collection of the county rate on land independently of buildings, was invalid having regard to Article 40 (3) of the Constitution. Review of Decision With great respect, it seems curious that, for the reason that the valuation was not pertinent to the Constitution, the Supreme Court was of opinion that the declaration in respect of the named sections of the Valuation Acts ought not to have been sought in the High Court, and, having been sought, ought not to have been granted. It would seem that the dictum of Gavan Duffy P. in Devanney -v- Dublin Bord of Assistance 11 that — "I proffer my solution with all the diffidence of an ill-equipped explorer who penetrates an unknown land as I make my painful way through an unexplored administrative code" — deserved consideration, and that consequently the constitu- tionality of the vital impunged Sections of the Valuation Acts deserved to be decided separately. This would have had the inestimable advantage that it would have been possible for each Judge of the Supreme Court to have given a separate judgment, instead of the decision being confined to a single judgment. There was nothing to prevent the Court from delivering a separate single judgment on the constitutionality of Section 11 of the Local Government Act 1946 if it wished. One of the indirect results of this judgment appears to be that historical legal research is hardly to be encouraged, if a modern statute passed since the enactment of the 1937 Constitution can be relied upon to determine the constitutionality of the case. Unless there had been a previous decision of the House of Lords to the same effect, it is hardly conceivable that, if this case had been heard by the House of Lords, one of the Law Lords would not have considered in the greatest detail the meaning to be attached to the expression "poor rate" between 1852 and the present day, if he considered it

necessary. The careful and well researched High Court judgment of Barrington J. in this case could well have been decided on the ground of infringement of Natural Law rights, instead of on the constitutionality of the Valuation Acts. Some examples of legal historical judgments, though not referring to the Constitution, may well be mentioned. Budd J. undertook a deep historical study of the history of the Royal Hospital, in In Re Royal Hospital, Kilmainham 18 to determine whether or not that institution was a legal charity. In Moore -v- Attorney- General 19 the plaintiffs claimed a several fishery in the tidal waters of the River ERNE. The majority of the Supreme Court (Kennedy C.J. and Murnaghan J.) had upheld the claims of the defendants on the grounds that as no several fishery existed on the River Erne before the death of Henry II, there was consequently no English law in existence at that time in that area. It seems difficult to conclude that such vital evidence would not be admissible if those cases could have been determined in relation to their constitutionality of a statute passed after the Constitution had come into force. In "American Constitutional Development", 2nd edn. (1954) at p. 820, Swisher states: "The American Supreme Court was entangled many times in the intricacies of rate-making for public utilities. The problems involved as much economic theory and practice as law. The conceptions of legally trained Judges as to the reasonableness of highly complicated financial arrangements determined decisions on constitu- tionality. Although not mentioned in the Consti- tution, its point of contact was the due process clause of the Fourteenth Amendment. In Smyth -v- Ames — 169 U.S. 466 — [1898], the Supreme Court decided that rates fixed by government must allow a fair return upon a fair value of the property. As to the fair value, the Court said that original cost, market value, earning capacity, cost of operation were to be considered in measurement, but it gave no indication as to how these several factors were be be weighed. But, unfortunately, the Supreme Court remained without a scientific approach to the problem and without any definite rules." It would therefore seem that in concentrating on measurement, Barrington J. was only following the lead given to him by the American Supreme Court. In this case, the Supreme Court appears to have accepted the definition of positivism propounded by Salmond on Jurisprudence: "Law may be defined as the body of principles recognised and applied by the State in the adminis- tration of justice. In other words the law consists of the rules recognised and acted on by the Courts of Justice." In this definition the notion of the Constitution as the fundamental law is rejected. Professor Swisher's views, expressed in his book, "The American Supreme Court in Modern Role (1958) deserves consideration. He said at p. 65:

"There is a judicial function that is in itself positive. Whether in the process of stopping Government action or refusing to stop it, the Supreme Court (continued on p. 134) 143