126 / 196
of Art. 50. The feudal theory that the King can do no
wrong "is also inconsistent with Art. 40, section 3 where-
by the State guarantees in its laws to defend and vindi-
cate the personal rights of the citizen, and, by reason
of such inconsistency, cannot be carried over.
(3) Whether the action could be maintained against
the Attorney General as representing Ireland, and
whether the representative order can be made?
Per Walsh J.
Art. 30 of the Constitution sets up the office of
Attorney General. By virtue of the Constitution, he is
an independent constitutional officer of State, with
powers and duties, some of which are of a quasi-judicial
nature, and some of an executive nature. He is not
however in any sense the servant of the Executive, and
any exercise of his powers is an exercise of his powers
as Attorney General. He is not answerable for the acts
of the Government or for the acts of those in the ser-
vice of the State.
In all such cases, the correct procedure would be to
sue the State and join the Attorney General to effect
service upon both parties. In effect the Atorney General
would be joined in a representative capacity as the law
officer of the State designated by the Constitution. If
the claim should succeed, judgment would be given
against the State and
not
against the Attorney General.
Per Budd J.
Under Art. 30 of the Constitution the Attorney
General is to be the adviser of the Government in
matters of law.
In A.G. v Northern Petroleum Tank
Co. Ltd.
1936) I.R., the proceedings were instituted
by the Attorney General against the owners of a steam-
ship in respect of damage to a water drain in Cork
Harbour. It was contended that the action did not lie
at the suit of the Attorney General, but Johnston J. re-
jected this and held that the powers given to the
Attorney General by S.6 of the Ministers and Secretaries
Act 1924 placed the matter beyong controversy.
In O'Doherty v the Attorney General
(1941) I.R.
Gavan Duffy J. in a military service pension matter,
ultimately made an order of mandamus to compel the
referee under the Act to carry out his functions accord-
ing to law; it was also stated that the plaintiff was
right in joining the Attorney General as representing
the public interest. Accordingly it was right to join
the Attorney General, since the administration of public
services in connection with the representation of the
Government and of the public is vested in him, as is
the protection of public rights, and of all matters
ancillary thereto.
(4) Whether the persons alleged to have committed
any of the tortious Acts alleged were employees or
agents of Ireland.
Per Walsh J.
These rights are clearly justiciable where there has
been a failure by the State to discharge its obligations.
The doctrine of "Respondeat Superior" rests on the
duty of the principal to make good the damage done by
his servants or agents in carrying on its affairs.
In a dissenting judgment, Mr. Justice Fitzgerald said
in his opinion the appeál should be dismissed. A State
to be sovereign did not have to have a King. The
immunity which existed in England and in this country
prior to 1922, based as it was on the Royal Prerogative,
no longer existed in this country. In his opinion it did
not follow that the State was not entitled to immunity,
it being declared to be "sovereign".
If the liability of the State for the tort of a public
servant was to be established it should, in his view,
be imposed by the legislature as had already been done
in this country under the Road Traffic Act and the
Workmen's Compensation Act. It was significant that
in 1947 such liability on the State was imposed by
the Statute. Mr. Justice Fitzgerald added that in his
view, the extension of the liability of the State as juris-
tic person to the law of tort, involved such a radical
change in the accepted view both of the courts and of
the legislature that this Court should decline to under-
take such a step. Such an extension of the meaning of
a "juristic person" would appear to leave the State
liable to the same control and sanctions applicable to a
private individual, including the criminal and bank-
ruptcy jurisdictions.
CONFLICT ABOUT EXTRADITION LAW
OFFENCES MUST CORRESPOND
The Supreme Court in Dublin, in a reserved judgment
delivered yesterday, held that a district justice could
not order a person to be extradited unless the offence
specified in the warrant corresponded with an offence
under the law of the State. It also held that the prisoner
must be delivered to the police force of the area in
which the warrant was originally directed for execution.
The Supreme Court had heard an appeal from the
High Court by Michael Furlong, no fixed address,
against an order for his extradition to England. His
extradition was sought for the purpose of bringing a
charge against him that at St. Ives, he entered the
office of A.R.C. (Concrete) Ltd., as a trespasser and
stole a ticket machine, value £39, the property of
A.R.G. (Concrete) Ltd.
The order of the District Court was made under Sec-
tion 47 (1) of the Extradition Act, 1965, for the deliv-
ery of the accused at some convenient point of depar-
ture (in this case Dublin Airport) from the State into
the custody of the police force of the place in which the
warrant had been issued for his delivery to that place
and for his remand until he was so delivered.
In his judgment, the Chief Justice (Mr. Justice O
Dalaigh) said that sub-section (2) of Section 47 of the
Extradition Act, 1965, provided that an order under
sub-section (1) should not be made if it appeared to
the Court that the offence specified in the warrant did
not correspond with any offence under the law of the
State which was an indictable offence or was punish-
able on summary conviction by imprisonment for a
maximum period of at least six months.
The offence spedified in the warrant against Mr.
Furlong was under Section 9 of the English Theft Act,
1968. Under the Theft Act, certain acts which in Eng-
land would constitute "stealing" would not be regarded
as constituting larceny in Ireland, that is to say, would
not be an offence in Ireland.
A District Justice, he said, cannot order extradition
unless the offence specified in the warrant is demon-
strated to correspond with an offence under the law
of the State.
"The position in this case is that we do not know,
and the district justice did not know, whether the
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