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GAZETTE
SEPTEMBER 1981
Jacob was dismissed and, at a special meeting on 10
January 1900, Dr. Blaney was appointed to this
post. Dr. Jacob contended unsuccessfully that the
resolutions passed at these meetings were null and
void and that Dr. Blaney's appointment was
irregular.
Dr. Jacob also contended unsuccessfully that he
could only be dismissed for cause, otherwise he
would be entitled to reinstatement. It was held that
the surgeon of an infirmary is merely the paid servant
of the Governors; the Governors may dismiss him
arbitrarily.
(5)
R. (McMorrow)
r.
hitzpatrick
I 19181 2 l.R. 103.
This case dealt with the construction of S. 29 of the
Petty Sessions Clerk (Ireland) Act, 1858. which gave
the Lord Lieutenant full power to prescribe
conditions of age for candidates for the post of Petty
Sessions Clerk; this office was to be held at the
pleasure of the local Justices and of the Lord
Lieutenant. This was a motion by the plaintiff to
make absolute a conditional order of
Mandamus
directed to the Justices of the Peace for a Petty
Sessions District in Leitrim, commanding them to
elect a clcrk of Petty Sessions for that district in the
manner required by law. The limits of age were set
out in the regulations. The plaintiff was appointed
Clerk by the local Justices, although he was under the
prescribed age; the Lord Lieutenant would not accept
the appointment and ordered a fresh election. This
was ultimately held on 3 1 August 1917. The plaintiff
went forward again as a candidate and secured a
majority of votes from the Justices, but Captain
Fitzpalrick, R.M., declared the next candidate
elected, as he was within the prescribed age limit. The
Court then discharged the conditional order of
mandamus
as the order of the Lord Lieutenant was
final.
Having summarised the five cases, this writer fails to
sec how one of the most important posts in the State from
the point of view of security, that of Commissioner of the
Garda, can be compared to the positions of County
Surgeon, Corporation Treasurer, or Clerk of a Petty
Sessions District — particularly when the majority
judgments of the Supreme Court had emphasised that, if
the correct procedure had been adopted, the dismissal of
the Commissioner would have been valid.
As regards the modern case law, Henchy J,
emphasised that the decided cases on the point of Natural
Justice were few, not of recent origin and are all of one
opinion. Only three cases decided in the last half century
were referred to — namely,
Ridge
i\
Baldwin
119641 A.C.
4 0 and
Glover
r.
B.L.M. Ltd.
I 19731 LR. 3 88 - which
contained an
obiter
judicial observation that a person who
holds office at will and pleasure is not entitled to
Natural
Justice,
but neither case was concerned with a person
holding such an officc.
Malloch
i\
Aberdeen Corporation
I 19711 2 All. E.R. 1278 dealt with a schoolmaster who
held officc at will or pleasure but, since the body with
powers of removal (the British Education Board) was
required by statute to give each of its members three
weeks noticc of the consideration of the office holder's
dismissal at a meeting, it was held that the requirement of
Natural Juslicc was thereby imputed and applied.
Kenny J. emphasised that, in
Ridge
r.
Baldwin \
19641
A.C. 40, Section 191 (4) of the Municipal Corporations
Act. 1882, had there a safeguarding provision for the
Chief Constable of Brighton, but that there was no
(statutory) safeguarding provision of any kind for the
holder of the office of Commissioner; this leads inevitably
to the conclusion that Kenny J. considers that the
combined principles of Natural Justice and of Article 40
(3) of the Constitution arc to be ignored.
The majority decision of our Supreme Court in
Garvcy's case is of primary importance, inasmuch as it
has specifically related the principles of Natural Justice,
as principles of fair procedure and fair play, to Article 40
(3) of the Constitution. By doing so, it has reinforced the
dictum of Gavan Duffy J. in
The State (Burke) v. Lennon
I 19401 LR. at p. 154:-
"Thc Constitution is the Charter of the Irish people.
and I will not whittle it away".
In a separate action on 19th December 1979 McWilliam
J. awarded Mr. Garvey a sum for damages and for
compensation for loss of office. It was established that
Mr. Garvcy had been paid his full salary as
Commissioner up to 7th May 1979.
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