The Gazette 1908-9

MAR., 1909] The Gazette of the Incorporated Law Society of Ireland.

costs may by the said order be referred for

taxation to the Crown and Treasury Solicitor,

and the sum certified under his hand shall be

the sum payable in respect of such costs."

The costs of the owners of the lands acquired

were not yet dealt with by legislation. They

remained as they stood under the Lands Clauses

Acts, the Railways Act of 1851, and the and

schedule to the Housing of the Working Classes

Act of 1890. Those costs were taxable by the

officer of the Court, and measured by reference

to. the scale provided by the Act of 1881

(44 & 45 Vict. c. 44). The question is whether

this portion also of the expense of the acquisi

tion of sites for labourers' cottages is not

dealt with by the provisions of the Act of

1906.

Speaking generally, the object of that

Act as regards the acquisition of sites is to

acquire them (i) more expeditiously and (2)

more economically ; expedition in obtaining a

complete improvement scheme is obtained by

the drastic provisions of sects. 5 and 6 of the

Act of 1906.

Then we approach the question whether the

owners' costs are dealt with.

There is no doubt that under s. 11 material

alterations are made in respect of money lodged

in Court,and sub-s. 12 expressly cuts down County

Court costs.

Sub-s. 4 is important, as it deals

with a case where conveyancing costs would

have come in, and it also provides that "no

approval fee or other charge shall be payable

by the District Council in respect of any re

ceipt given " in pursuance of the sub-section.

This is a direct interference with solicitors'

charges. Then after financial clauses which

intervene there comes the clause—the vital one

—sect. 3 i. [His Lordship read the section, and

continued.]

First,

the subject dealt with in previous

legislation was embraced, and then it brings in

the head of the solicitors' profession as inter

ested parties ; and after dealing with the subject

of sect. 12 in the Act of 1885 it passes on to an

obviously additional subject. The words are

"any fees."

Is this limited to "fees" of the

kind suggested by Mr. Matheson ?

" Fees " is

the technical description of solicitors' remunera

tion, " fees, charges, and disbursements." The

words that follow are of the widest kind, "any

costs," and the two stages are mentioned—

those dealt with already in sect, i 2 of the Act of

1885, "and the carrying into execution of im

provement schemes," i.e., up to their close.

In my opinion the argument as to the con

struction of this section of Serjeant O'Connor

and Mr. Matheson cannot be reconciled with

the language of the section or its policy.

would practically leave sect. 31 inoperative if

we were to confine it to mere procedure or to

the giving of a requisition or the leaving .the

old law as to owners' costs unaltered.

I have no doubt that the section authorizes

the fixing of a scale for solicitors' charges

and the creation of an authority to tax by

reference to the scale.

The Solicitor-General did not contend that

he could support the order of the Lpcal

Government Board, even if the construction of

seet. 3 i which he contended for and I adopt

were correct, because when we come to test

the order, it fixes the costs by a scale non

existent, and

leaves no authority

in Mr.

Mecredy.

Mr. Justice Gibson doubts whether the con

struction of the section is what I think it is,

but he does not decide the point.

Mr. Justice Madden deprives sect. 31 of all

operation in the directions I have mentioned,

and Mr. Justice Kenny thinks the language

not clear enough to justify a taxation on any

but the old recognized schedule of fees and

charges and by the old authority. ' But I think

it clear the section authorizes the fixing of a

scale of costs for owners—costs reasonable and

moderate, having regard to the subject-matter—

and also authorizes the setting up of an inde

pendent authority to tax. The selection of

the authority lies, I think, with

the Local

Government Board.

I wish to make the observation in respect of

the scale prescribed in August, 1908, or any

other scale, that I think no scale or rule can

be supported which excludes in terms or im-

pliedly the owner

from attending on

the

taxation.

I emphasize the word " excludes."

It will be for the Local Government Board

to frame a legal scale and appoint an authority

to tax authorized by the 315! section.

Lastly comes the question whether

cerliorari

lies.

If what they did was a ministerial act

merely,

certiorari

would not lie. The Local

Government Board exercises both ministerial

and judicial functions.

It is settled that the

certificate of a taxing officer connot be quashed

certiorari;

and the

Tyrone Case,

10 Law

Rep. Ir., decides that this is so, though the

taxation

is made a condition precedent to

liability. At first I was inclined to think that

sect. 31 did not go beyond this, but for the

purpose of seeing what the Local Government

Board did in this case we must apply every word

of the 3ist sect, and Rule 55, under which they