114 / 132
106
The Gazette of th.e Incprporated Law Society of Ireland.
[MAR., 1909
Therefore there has been, in this certificate,
and in the use made of it, an ascertainment,
in effect judicial, of the rights of Lady Mowbray
and Stourton and her trustees to money which
they claimed. This is an assumption of juris
diction, or an excess of jurisdiction, by a
I
public body, entrusted with limited statutory
I
powers, and it therefore appears to me to be a
proper subject for
ceiiiorari.
It is plain that the certificate purported
to determine rights—the amount which the
claimants were entitled to receive had not
been checked, nor was their claim reduced by
any lawful "taxation"; and for these reasons
the certificate is invalid, and must be quashed.
Indeed, the Solicitor-General did not attempt
to uphold it.
As regards the exercise by the Board of the
jurisdiction to make "general rules," I wish
to repeat the warning which I gave in a former
case as to the impossibility of our defining
beforehand what is or may be the proper or
legal scale of costs. What must be ascertained,
and given, under this Act is (in my opinion)
the amount of the costs which must necessarily
be incurred by an owner from whom land is
compulsorily taken. The Board has a wide
power of simplifying procedure ; the value of
the property may be taken into account; the
solicitors are entitled to be remunerated only
according to the amount and value of the work
which they must do. But the owner must be
indemnified against the necessary cost of being
expropriated.
I entertain no doubt that the words of
section 31 cannot be narrowed either to exclude
any fees or costs from the power of the Board
by general rules to fix their amount, and to
provide for their taxation and payment. The
Board may either utilize the existing tribunal
for taxation, or may by general rule provide a
special tribunal for the purpose. The pro
vision for taxation may be made consistent
with economy as well as with expedition. But
natural justice should prevent the Board from
providing that the party chiefly concerned
should not be heard by the taxing authority.
HOLMES, LJ.:—
This is an appeal from an Order directing
the issue of a writ of
certiorari
to remove into
the King's Bench Division, for the purpose of
being quashed, a certificate given by the Local
Government Board pursuant to Rule 55 made
by the Board under the power conferred on it
by section 31 of the Labourers (Ireland) Act,
1906. The Solicitor-General, in his reply, did
not defend the validity of this document; but
he argued that it could not, in accordance ,
with law and practice, be -made the subject of
;
certiorari.
If he had convinced me that this
was so, I should have allowed the appeal; but
;
I should not have felt myself at liberty to
express an opinion on the other important
questions of law which have been discussed
on both
sides, and which, if the writ of
certiorari
were refused, must be decided
in
other proceedings.
Having, however, come to the conclusion
that, in the circumstances of the case, the writ
lies for reasons which I shall state presently,
I propose to consider in the first place the
grounds on which I hold that the certificate
is illegal. The questions in controversy will
be best understood by stating what is admitted
to have been the law previous to the Act
of 1906.
Under a series of statutes beginning in 1883,
called the Labourers (Ireland) Acts, a course
of procedure was prescribed to enable local
authorities to purchase lands compulsorily for
the purpose of providing labourers' cottages,
and it was enacted that the mode of taking
lands by compulsion was to be that laid down
by the Land Clauses Acts as amended by the
Second Schedule
to
the Housing of
the
Working Classes Act, 1890.
I do not propose
to examine these provisions in detail, inasmuch
as I understand it is not denied by the Solicitor-
General that the title costs of the vendor were
taxed by one of the taxing masters of the
Supreme Court pursuant to section 53 of the
Land Clauses Consolidation Act, 1845, as
amended by the Railways (Ireland) Act, 1851,
and the Railways Act (Ireland), 1864.
It is, I think, also admitted that in taxing
these costs, the Master acted on a scale of fees
prescribed by orders made under the Solicitors
Remuneration Act, 1881.
This being the
state of the law when the Act of 1906 was passed,
the arguments of the Respondent's counsel
turned mainly on
the changes
introduced
.thereby in relation to their costs.
Some such
changes are introduced by express enactment
in the nth and other sections; but it is not
about these provisions that the controversy has
arisen.
It turns upon the construction of the
following words in section 31 :—" The Local
Government Board, after consultation with or
notice of consultation, sent to the President of
the Incorporated Law Society of Ireland, may
make Rules which, subject to the provisions of
the Act, may fix the amount of any fees, and
may provide for the taxation and payment of
any costs to be received, allowed, or paid