The Gazette 1984

GAZETTE

JULY/AUGIJST

The Unconstitutionality of the County

Rate on Land

(continued from p. 139)

unusual finding — namely that the declarations sought in

respect of the Valuation Acts ought not to have been

sought, and, having been sought, ought not to have been

granted by the High Court. The relief sought by the

plaintiffs consisted of a declaration that the Valuation

Acts from 1852 to 1864 were repugnant to the Constitu-

tion and void, as well as a declaration that various other

statutory provisions were unconstitutional, and also

relating to consequential decisions affecting the

imposition of taxes. The relief sought by the plaintiffs was

based on a plea that the rateable valuations constituted

an arbitrary, discriminatory and inequitable basis for the

imposition upon the plaintiffs of taxes and contributions.

The plaintiffs had succeeded in the High Court in

obtaining a declaration of inconsistency with the

Constitution in respect of Section 34 of the 1852 Act and

a declaration of invalidity in respect of the other

impugned statutory provisions in so far as they related to

the Valuation Acts. Such use had ceased either by repeal

or by administrative action. It followed that the Plaintiffs

should apparently have sought a declaration of invalidity

under Section 11 of the Local Government Act 1946; that

the Griffith valuation was many years out of date, had

never been revised, was inconsistent even within the same

County, and consequently lacked fairness and uniformity.

On this basis the Supreme Court held that Section 11 of

the Local Government Act 1946, to the extent that it

authorised the collection of the county rate on land

independently of buildings, was invalid having regard to

Article 40 (3) of the Constitution.

Review of Decision

With great respect, it seems curious that, for the reason

that the valuation was not pertinent to the Constitution,

the Supreme Court was of opinion that the declaration in

respect of the named sections of the Valuation Acts ought

not to have been sought in the High Court, and, having

been sought, ought not to have been granted. It would

seem that the dictum of Gavan Duffy P. in

Devanney

-v-

Dublin Bord of Assistance

that — "I proffer my solution

with all the diffidence of an ill-equipped explorer who

penetrates an unknown land as I make my painful way

through an unexplored administrative code" — deserved

consideration, and that consequently the constitu-

tionality of the vital impunged Sections of the Valuation

Acts deserved to be decided separately. This would have

had the inestimable advantage that it would have been

possible for each Judge of the Supreme Court to have

given a separate judgment, instead of the decision being

confined to a single judgment. There was nothing to

prevent the Court from delivering a separate single

judgment on the constitutionality of Section 11 of the

Local Government Act 1946 if it wished.

One of the indirect results of this judgment appears to

be that historical legal research is hardly to be

encouraged, if a modern statute passed since the

enactment of the 1937 Constitution can be relied upon to

determine the constitutionality of the case. Unless there

had been a previous decision of the House of Lords to the

same effect, it is hardly conceivable that, if this case had

been heard by the House of Lords, one of the Law Lords

would not have considered in the greatest detail the

meaning to be attached to the expression "poor rate"

between 1852 and the present day, if he considered it

necessary. The careful and well researched High Court

judgment of Barrington J. in this case could well have

been decided on the ground of infringement of Natural

Law rights, instead of on the constitutionality of the

Valuation Acts.

Some examples of legal historical judgments, though

not referring to the Constitution, may well be mentioned.

Budd J. undertook a deep historical study of the history

of the Royal Hospital, in

In Re Royal Hospital,

Kilmainham

to determine whether or not that

institution was a legal charity. In

Moore

-v-

Attorney-

General

the plaintiffs claimed a several fishery in the

tidal waters of the River ERNE. The majority of the

Supreme Court (Kennedy C.J. and Murnaghan J.) had

upheld the claims of the defendants on the grounds that

as no several fishery existed on the River Erne before the

death of Henry II, there was consequently no English law

in existence at that time in that area. It seems difficult to

conclude that such vital evidence would not be admissible

if those cases could have been determined in relation to

their constitutionality of a statute passed after the

Constitution had come into force.

In "American Constitutional Development", 2nd edn.

(1954) at p. 820, Swisher states:

"The American Supreme Court was entangled

many times in the intricacies of rate-making for

public utilities. The problems involved as much

economic theory and practice as law. The

conceptions of legally trained Judges as to the

reasonableness of highly complicated financial

arrangements determined decisions on constitu-

tionality. Although not mentioned in the Consti-

tution, its point of contact was the due process

clause of the Fourteenth Amendment. In

Smyth

-v-

Ames

— 169 U.S. 466 — [1898], the Supreme Court

decided that rates fixed by government must allow a

fair return upon a fair value of the property. As to

the fair value, the Court said that original cost,

market value, earning capacity, cost of operation

were to be considered in measurement, but it gave

no indication as to how these several factors were be

be weighed. But, unfortunately, the Supreme Court

remained without a scientific approach to the

problem and without any definite rules."

It would therefore seem that in concentrating on

measurement, Barrington J. was only following the lead

given to him by the American Supreme Court.

In this case, the Supreme Court appears to have

accepted the definition of positivism propounded by

Salmond on Jurisprudence:

"Law may be defined as the body of principles

recognised and applied by the State in the adminis-

tration of justice. In other words the law consists of

the rules recognised and acted on by the Courts of

Justice."

In this definition the notion of the Constitution as the

fundamental law is rejected.

Professor Swisher's views, expressed in his book, "The

American Supreme Court in Modern Role (1958)

deserves consideration. He said at p. 65:

"There is a judicial function that is in itself positive.

Whether in the process of stopping Government

action or refusing to stop it, the Supreme Court

(continued on p. 134)

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