146 / 322
GAZETTE
JULY/AUGIJST
19
rights of property were, but only recognised private
property as an institution and forbade its abolition; and
that the rights in respect of particular items of property
were protected by Article 40 (3).
As regards Article 40 (1) the plaintiffs submitted that,
because the Valuation Acts failed to provide a rational
and fair system of valuing the property of citizens, the
Acts failed to hold citizens equal before the law. In the
High Court, Barrington J. stated that the concept of
equality before the law was the most difficult and elusive
concept in the Constitution. As O'Dalaigh C.J. stated in
the State (Hartley) - Governor of Mountjoy Prison
2
2)
"A diversity of arrangements does not affect
discimination between citizens and their rights.
Their legal rights are the same in the same
circumstances."
See, also, Finlay P. in
Landers -v- Attorney-GeneraP.
As Kenny J. stated in
Murtagh Properties -v- Cleary
4
"Article 40 (1) is not a guarantee that all citizens
shall be treated by the law as equal for all purposes,
but it means that they shall, as human persons, be
held equal before the law. It relates to their essential
attributes as persons."
The learned Judge had already expressed identical
views in
Quinn's Supermarket
-v-
Attorney-General.
5
See also Pringle J. in
De Burca -v- Attorney-General.
6
The net result is that Article 40 (1) is not dealing with
human beings in the abstract but with human beings in
society.
The plaintiffs' basic complaint was that the unit of
measurement employed was so outdated and inaccurate
that it failed to achieve the legitimate purpose of
classifying landholders by reference to the value of their
lands which the legislature had in mind, and
consequently could not make relevant distinctions. The
unintentional effect was that equals were treated
unequally and unequals equally. As was stated in
Italy-v-
European Commission
1
"discrimination in substance would consist in
treating either similar situations differently, or
different situations identically."
The High Court held that the Valuation Acts did not
respect the plaintiffs' rights to equality before the law in
relation to their property rights; but the Supreme Court
reversed this finding and held that Article 40 (1) dealt
only with the citizen as a human person, and required for
each citizen as
a human person
equality before the law;
and that, consequently, a system of taxation imposed on
occupiers, which had proved to be unfair and arbitrary
and even unjust, was not cognizable under Article 40(1).
See judgment of Walsh J. in
Quinn's Supermarket -v-
Attorney-GeneraP.
The inequality of which the Plaintiffs
complained in this case did not concern their treatment as
human persons
but rather concerned the manner in which
as
occupiers and owners of land
their property was rated
and. taxed.
TTie three submissions made by the Plaintiffs in
relation to Article 40 (3) with regard to their property
rights, (which were in fact one comprehensive
submission, as emphasised in
Re Haughey*
(a) were: (i)
The existing valuation system constituted an unjust
attack on property rights; (ii) One of the unspecified
rights of the Constitution protected by Article 40 (3)
under the decision in
Gladys Ryan -v- Attorney-GeneraP
0
was the taxpayer's right to a non-arbitrary, rational
and consistent tax system; (iii) The Valuation Acts denied
to the plaintiffs the fair procedures contemplated by
Article 40 (3).
Article 40 (3) (1) reads as follows:
"The State guarantees in its laws to respect, and, as
far as practicable by its laws to defend and vindicate
the personal rights of the citizen."
Article 40 (3) (2) reads as follows:
"The State shall, in particular by its laws protect as
best it may fromunjust attack, and in the case of
injustice done, vindicate the life, person, good name
and property rights of every citizen."
The obligation "to defend" and "to protect" in Article
40 (3) refers primarily to the activities of the State in
guarding citizens against the unconstitutional actions of
third parties. Consequently these words are limited by the
words that follow "as far as practicable" and "as best it
may" while the obligation "/o
respect
" appears to be
absolute. But this obligation "
to vindicate in the case of
injustice done
" may arise as much from the wrongful acts
of third parties as from the wrongful acts of the State.
Kenny J. had already stated in the Supreme Court in
Crowley -v- Ireland and the Minister for Education
11
"The obligations imposed by the State in these
subsections is as far as practicable
by its laws
to
defend and vindicate the personal rights of the
citizen. It is not a general obligation to defend and
vindicate those rights. It is a duty
by its laws,
for it is
through laws that the State expresses the will of the
people who are the ultimate authority."
There has been in fact no revision of the agricultural
prices prevailing in 1849-52; yet in the intervening 135
years a total revolution has taken place in agriculture.
The introduction of modern drainage and of mechanisa-
tion and the use of lime and articficial fertilisers has made
valuable lands previously thought to be poor. The old
system of valuing lands had not taken into account any of
these factors, nor had it taken into account the influential
social factors such as the overthrow of landlordism, the
system of freehold farming and the revolution in
transport as well as in agricultural marketing and prices
implied by Ireland's entry into the European Economic
Community. It followed that in the High Court
Barrington J. held that the Valuation Acts and the
consequential property valuations of the plaintiffs' lands
did not respect the property rights of the plaintiffs under
Article 40 (3). The Supreme Court upheld Barrington J.
on this point by stating that the complaints of the
plaintiffs that Article 40 (3) had not been observed, were
fully justified; that the lack of uniformity, inconsistencies
and anomalies were of themselves an unjust attack on the
property rights of the plaintiffs in finding themselves with
poor land for which they paid more than their neighbours
with better land.
A.G.'s Submissions
Consideration should now be given to some of the
arguments made by the Attorney-General on behalf of
the State, as restated by the Supreme Court. The
arguments were as follows:
1. In using the Valuation Acts for assessing rate
liability, the State was exercising its true functions
138