The Gazette 1908-9

113 / 132

MAR., 1909] The Gazette of the Incorporated Law Society of Ireland. 105
"The Local Government Board, after con
sultation ivith or notice of consultation sent to the
President of the Incorporated Law Society of
Ireland^ may make rules which, subject as
aforesaid, may fix the amount of any fees, and
may provide for the taxation and payment of
any costs, to be received, allowed, or paid, in
relation to the confirmation by the Local
Government Board, and the carrying into
execution of improvement schemes."
What more certain symptom can be found
that this power is judicial than that it is to be
exercised only after consultation with the
responsible Head of the Law Society, who
is e.v officio a member of the Rule-making
Authority of the Supreme Court ?
Clause (2) gives quasi-legislative powers of
adapting Statutes, and Clause (3) indicates the
wide scope of the power by directing all Rules
and Orders made under it to be laid before
Parliament.
I hold this section to confer not only minis
terial or executive powers, but also powers
that may be exercised judicially, and even
legislative powers.
This Court had to consider similar powers
of the Local Government Board under the
Public Health Acts tw r years ago, in
the Kingstown Case (18 509) upon an
application for a prohib
In the Exchequer, the Lord Chief Baron
held that prohibition did not lie, because the
power questioned was " quasi-legislative," and
this Court affirmed the decision. The head-
note is as follows :—
" The Local Government Board, in exer
cising its functions as to provisional orders,
is not a Court, nor are purely legislative
powers, or powers of promoting legislation,
on principle, subject to prohibition ; but an
usurpation of jurisdiction of a judicial character
by the Board might be prohibited."
In that case (p. 515), I find that I indulged
in a prophecy which is now fulfilled. I said : —
"I am far from satisfied that under colour,
or in the course of exercising these powers,
the Local Government Board might not—for
example, as to costs, or the attendance of ivitnesses
—attempt, or be proved likely to attempt,
an usurpation of a jurisdiction of a judicial
character, which it ivould be right to prohibit."
What was done by the Board in this case ?
The answer must be found in the Certificate
of April 13, 1908. I read that document not
merely as a judicial act, but as a formal
judgment declaring the rights of parties upon
perhaps the most touchy of all subjects—the
amount of money to which they are lawfully
entitled.
There is no right of suit, nor any means of
recovering any costs for the local bodies which
are the vassals of the Local Government Board,
except upon a document issued by the Board
fixing the amount and authorizing the payment.
The Certificate says :—
"In pursuance of section 31 (i) of the
Labourers Act, 1906, and Article 55 of the
Labourers Order, 1906, the Local Government
Board have arranged for the taxation of the
costs claimed in the above matter, and after
taxation do certify that the sum payable by the
District Council of the Dunshaughlin Rural
District in respect of such costs is Four Pounds,
Eleven Shillings, and Four Pence."
This recites an exercise of the power to
" provide for the taxation " of the costs, and a
" taxation " of them. But the President of the
Law Society was not consulted ; the statutory
condition precedent was ignored, and when
we examine the evidence, we shall find that
there was no taxation. Is not this certificate,
both in form and substance, an adjudication—
a judicial pronouncement—that the claim
to the difference between £4 i is. 4-J. and
^8 13.?. 6(L made by a party having a lawful
right to a sum legally ascertainable shall be
disallowed ?
To find what the alleged " taxation " really
was, we must look at the document sent to
Mr. Mecredy, and it shows that he made no
taxation. He merely gave a recommendation,
which he based, by direction of the Board,
on a "new scale" of which he was not the
author. He was asked on April i, 1908, to
" indicate the deductions which might rea-
" sonably be made from the bill, and the
"amount which he would recommend the
" Board to certify as payable in respect of the
" costs claimed."
He "indicated" deductions amounting to
£4 14^. 6(f., but the Local Government Board
allowed more, and therefore did not act on his
recommendation.
On April 13, 1908, the order of the Board
was made in these words :—
" (i) Let the costs be certified at ^4 i is. ^d.
(2) Return the Bill to the C. with the certificate
as to amount payable."
There is no reference to Mr. Mecredy in
the certificate, nor does it mention the " new
scale"; and it is now admitted that the " scale"
was, at the date of the certificate, only in
draft: its existence had not been made known
outside the Office of the Board.