The Gazette 1984

GAZETTE

JULY/AUGIJST

198

in relation to taxation and fiscal policy. The State

had a special obligation in this regard, and the

Courts should only interfere with extreme caution.

The Courts should not rule a Revenue statute

unconstitutional unless it could be reasonably

justified — See

Murphy -v- Attorney-General

2. As regards Article 40 (1), there was no failure to

treat citizens equally as human persons in the use of

existing valuations. The valuation is concerned

with land and does not discriminate between

persons.

3. As regards Article 40 (3), the High Court had held

with the plaintiffs mainly because of a failure to

respect personal rights. The plaintiffs' case should

not have been based on discrimination and unequal

treatment but rather on an unjust attack on

property rights. The fact that one ratepayer was

obliged to pay more rates than another under a

different valuation system was not an unjust attack

on property rights (see

Central Dublin Development

Co.

-v-

Attorney-General

and

McGee

-v-

Attorney-

General

4. It was not established that the existing anomalies

were so widespread as to make the valuation system

lack any reasonable basis. The failure to provide

means for the revision of valuation could not lead

to the conclusion that the system was unconsti-

tutional.

5. In the High Court it was contended that if a pre-

constitutional statute, enacted before the

Constitution came into force on 29 December 1937

was amended by a post-constitutional statute after

1937, it obtained the benefit of the presumption of

constitutionality. In that case, such a statute should

not be ruled unconstitutional unless no other

construction were reasonably open. (See

McDonald

-v-

Bord na gCon)™.

The valuation system was in

existence in 1937 and formed then the basis of local

taxation.

In response to these arguments the High Court held

that:

(1) The Court should not enter on a consideration of

the relative merits of the different forms of taxation,

which are primarily matters for the legislature.

(2) Kenny J's views in

Gladys Ryan

-v-

Attorney-

General™

about acting with caution and being slow

to interfere should be accepted.

(3) One was not dealing with fiscal or revenue matters

but only with problems of measurement; and that

the Valuation Acts were essentially concerned with

measuring the value of lands.

(4) The question whether the Valuation Acts did or did

not enjoy the presumption of constitutionality was

not important; that it is permissible to look at the

state of affairs as it existed in 1937; but that a statute

of the British Parliament must be read as having its

meaning on the date of its enactment; and that

whether the pre-constitutional statute was or was

not consistent with the Constitution, it was

immaterial whether that statute was carried

forward by Article 50 of the Constitution.

Supreme Court Decision

The arguments on appeal were heard by a full Supreme

Court in December 1983 and that Court delivered a single

judgment on 20th January 1984. The single judgment rule

which was added to the Constitution in 1941 under

Article 34, (4) (5) prescribes that in relation to the

constitutionality of all statutes passed after the date in

which the Constitution came into force (i.e. 29th

December 1937) — only one single judgment may be

given, and no assenting or dissenting judgments should

be disclosed.

The judgment of O'Higgins C.J., was based on the

constitutionality of Section 11 of the Local Government

Act 1946 and it was decided that the collection of the

county rate

independently of buildings

propounded in the

said Section was invalid having regard to Article 40 (3) of

the Constitution. In examining the submissions made,

that Court at first acknowledged the full and careful

judgment of Barrington J. in the High Court and

admitted the necessity to refer to the historical

background of local taxation; but then the Supreme

Court defined narrowly the Valuation Acts as "so much

as is now repealed of the Valuation Act 1852 and of the

five amending Acts of 1854, 1860, 1864, 1874, and 1901;

and that under the Local Government Act (Ireland) 1898,

the administrative and financial functions of the former

grand juries were transferred to newly constituted County

Councils, and the former cess was merged in the existing

poor rate; and that, from then, all sums required to be

raised by way of local taxation were raised by means of

the poor rate.

The Court then came to the conclusion that it was

unnecessary to consider the many changes that had since

been made in the machinery of local government; and

that it was sufficient to say that the term "Poor Rate"

continued to be applied to the method of raising taxation

until the Local Government Act 1946. Under this 1946

Act a County Rate was established for County Councils

and a Municipal Rate for urban authorities. Section 11 of

the 1946 Act obliged County Councils to raise money by

means of the "poor rate". This latter phrase, though not

defined, is a well-known phrase in Local Government

law. Section 11 defined the manner in which the County

Rate was to be levied, and Section 12 defined a County

Rate. The Court concluded that, in so far as land was

concerned, the linking of the County Rate with

valuations determined under the Valuation Act 1852 was

now to be replaced by Section 11 of the 1946 Act; and that

the constitutional challenge raised in this action had

necessarily to confront Section 11. Formerly the only

possibility for a revision of a land valuation had been

prescribed by Section 34 of the Valuation Act 1852; but

that while the general intention of Section 34 was to

provide a scheme for the periodic updating of land

valuations throughout, those powers were in fact never

availed of.

The real question, as perceived by the Supreme Court,

was whether the use of these valuations accorded with the

Constitution, that so far as the Constitution was

concerned, there did not appear to be anything of

significance in the making of the valuation of land; and

that the fact that land was undervalued by an

incompetent valuer in no way harmed the land or

changed its character. In the same way the overvaluing of

poor land did not in any way alter the true value of the

land. What was of concern was the use to which the

valuation was put by the State or by the local authority.

For these reasons, the Court reached what seems to be an

(continued on p. 143)

139