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104
The Gazette of the Incorporated Law Society of Ireland.
[MAR., 1909
amount of all the fees to be received, allowed,
or paid in respect of the subject-matter of this
section."
Were anything further necessary to demon
strate that an authority other than the Supreme
Court taxing masters can be constituted under
rules, it would be found insect. ia,sub-s. 6&y,of
the Act of 1885, page 75. Under this provision,
from which the words of sect. 31 seem to have
been copied, a general rule was made by His
Excellency in Council not only prescribing a
scale, but constituting an authority to tax.
These considerations have brought me to the
conclusion that there was an affirmative inten
tion in the Legislature that these costs should
not be taxed by the Supreme Court taxing-
officers, but should be taxed by some tribunal,
officer, or person, for a remuneration which
these rules themselves would prescribe.
Upon the whole, then, I have arrived at a
clear conclusion that, upon the two principal
points which have been argued for the.respon
dents, the appellants are entitled to succeed,
viz., that the rules under the section may alter
the scale of fees, and that the Local Govern
ment Board have power
to prescribe the
authority or person by whom the taxation
shall take place.
Strangely enough, the con
clusion at which I have arrived, adverse to
the respondents on the points of real impor
tance which were argued, leads me
to the
conclusion that they were entitled to succeed
on the appeal, upon which, in my opinion, they
would have been defeated, had we been in their
favour upon those two principal points.
I
regard the fixing of a scale of fees, or the
taxing of a bill of costs, without reference to
any prescribed scale, as a power of a very
different nature from one to tax according to
scale.
In my opinion, fixing a scale for solici
tors' remuneration for work in relation to title to
real property is a judicial act.
Further, I am
of opinion that, when these costs were ascer
tained, Sir George Roche was entitled to be
paid for the work done, according to the scale
fixed under the Solicitors' Remuneration Act
of 1881. The Local Government Board had
no jurisdiction to alter that scale, save by a
General Order, and it is not pretended that any
such General Order was in existence at the
time these costs were taxed. They appear to
me to have misconstrued their' judicial power
under sect. 31, and to have applied, by a par
ticular order in the particular case, a scale
which only could have been made operative by
a General Order applicable to all cases.
In
so doing they, in my opinion, transgressed the
limit of their judicial power ; and having done
so in reference to a code which limits the sum
paid to that certified, and thus alters rights,
their act in doing so is examinable upon
cer-
tiorari,
and being so examined ought to be
quashed.
For these reasons I think the Order ought
to be affirmed.
FITZ GIBBON, L.J.:—
I am not certain that, after the judgments
which have been delivered, I ought to say
more than that I concur, as I do, with the
Lord Chancellor and the Chief Baron. But
the Counsel for the Local Government Board,
in opening this appeal, founded it upon dis
satisfaction with observations and
dicta
of
individual judges, rather than upon questioning
the decision of the Court below, and I there
fore state my view of the case, though I do not
know whether it will satisfy the Board or not.
I hope to
focus
my observations upon the
Labourers Act, 1906, section 31, and upon
the document which the King's Bench has
ordered to be quashed.
Whenever
the question arises, as here,
whether
certiorari
lies, I hold that it is the
duty of the Court to examine all the circum
stances of the case. We should first ascertain
the origin of the scope of the jurisdiction
which is impeached, or is alleged to have been
exceeded, and the character of the body or
person
claiming
the
jurisdiction
is
also
material.
The jurisdiction here must be found in
section 31, which contains three clauses. The
principal enactment is in the first sentence of
clause (i)—
" The Local Government Board may make
General Orders for carrying into effect the
Labourers Acts."
The next sentence is limited to Rules which
may be made for a specific purpose :—
"Those Rules, among other things, may.
subject to the provisions of this Act, for the
purpose of securing expedition, fix the period
within which inquiries shall be held, and im
provement schemes dealt with."
"This Act" is, by section 35, to be con
strued as one with the Labourers Acts, 1883
to 1903. We were told that the function of
the Board was to promote expedition and
economy. This sentence enables it to promote
expedition by fixing periods, but the conclusion
of the clause imposes a. condition precedent
upon the exercise of the power to promote
economy in costs :—