The Gazette 1974

which declares that "The sole and exclusive power of

making laws in the State is vested in the Oireachtas".

R follows that the usurpation by the Judiciary of an

exclusively legislative function is no less unconstitu-

tional than the usurpation by the Legislature of an

exclusive judicial function. In the Road Traffic Act

1968, the main recommendations of the Report of the

Commission on Driving while under the influence of

ink and drugs (1963) were followed. But the Com-

mission recommended that proof, that an accused

Person's blood-alcohol level exceeded the permitted

level should merely be

prima-facie

evidence, and this

^as not accepted. If the word "conclusive" is omitted,

toe certificate would merely be deemed evidence; this

^ould set up as law something which the Legislature

had deliberately and unambiguously rejected. The

Legislature, on trying to make the certificate "con-

elusive" evidence had not directed its attention to what

^ould happen if it were not conclusive. It follows that

y-44 (2) (a) is declared unconstitutional as totally

mvalid. The plaintiff's appeal will accordingly be

allowed, and his conviction will be declared invalid.

[Maher v. Attorney-General and Murphy; Full

Supreme Court per Fitzgerald C.J.; unreported; 16th

Jtoy 1973.]

Supreme Court calls for rules of co-operative Societies

to be revised.

. The Supreme Court commented on the rules govern-

ing

co-operative agricultural societies throughout the

country and called for an up-to-date revision of them

m the interest of the members of the societies and of

'he public in general."

The Court was giving its decision in an appeal from

Kenny J. i

an action arising out of a dispute

between members of the Kantoher Co-operative Agri-

cultural and Dairy Society Ltd., with registered office

t Killeady, Ballagh, Limerick.

By a two-to-one majority the Supreme Court reversed

'he ruling of Mr. Justice Kenny in the High Court

a n

d held that the 15 members of the society who

°ught the action were not properly removed from the

committee of management of the society by the general

Meeting held on May 23, 1972. Costs were awarded

gainst the chairman and three other members of "the

n e vy

committee" of management, who were named

a s

defendants in the action.

I ne Chief Justice (Mr. Justice Fitzgerald) said that

number of the rules of the Kantoher society as

Panted were quite meaningless and also inappropriate

a society which had been in existence for 11 years

before the rules were adopted in 1915.

^les first issued by I.A.O.S.

. M r . Justice Griffin, who agreed with the judgment of

be Chief Justice, said that the rules of the Kantoher

tociety were in the standard form published and issued

y toe Irish Agricultural Organisation Society Ltd. and

bey were informed that almost all co-operatives in the

country operated under similar rules.

In view of the fact that a large number of co-

operative societies operate under similar rules, and of

be fact that some of these societies nowadays own

tory substantial assets, it appears to me to be impera-

llv

e that in the interest of the members of the societies

a n

d of the public in general, up-to-date revision of the

'toes should take place."

The plaintiffs had claimed that at a special general

meeting of the society on 23 May 1972 a resolution that

the original committee of management, composed of 36

members, including the 15 plaintiffs, be removed from

office was proposed by the chairman, Michael McEnery,

Ballintubber, Newcastle West, Co. Limerick (a defen-

dant in the action), and was carried by a simple

majority by a show of hands. The number voting in

favour of the resolution was less than two-thirds of the

members present. The defendant, Michael McEnery,

then purported to conduct the election of a "new com-

mittee" of management and elected a "new com-

mittee" consisting of Mr. McEnery, the three other de-

fendants and 32 other members of the society.

The Chief Justice in his judgment said that the

plaintiffs challenged the validity of the resolution on

the ground that it was invalid as it was not competent

for the society to pass such a resolution without a

majority of two-thirds. The defendants, other than the

society, contended that the resolution was valid in-as-

much as it had the approval of a simple majority of

those present at the meeting. In his opinion the resolu-

tion required a two-thirds majority, and might not even

with such a majority be effective to remove the whole

committee, as this resolution purported to do.

Mr. Justice Griffin, in his judgment, said that these

proceedings were commenced on 21 July 1972 and the

pleadings were closed on 29 November 1972 but not-

withstanding the fact that the action was pending in

the High Court, the new committee purported to have

called a special géneral meeting for 16 December 1972

for the purpose of authorising the formation of two

new societies which would have the effect of transferring

the creamery business from the existing society to one of

the new societies and the remaining business and assets

of the existing society to another new society, and

then to dissolve the society.

This, said the judge, was a rather high-handed action

of the defendants pending the determination of this

action and it was not surprising that an interlocutory

injunction was granted by Mr. Justice Kenny restrai-

ning the passing of any such resolution pending the

determination of the action. The action came for hear-

ing before Mr. Justice Kenny on 3 April last and was

dismissed.

In his judgment, the intention of the draftsman of

the rules of the Kantoher society and of the members in

adopting them was that Article 40 (election of com-

mittee and officers) was to be construed as requiring

a two-thirds majority of the members present at any

special general meeting duly called for that purpose, for

the removal of the members of the committee of man-

agement or the public auditor. The plaintiffs were not

properly removed from the committee of management

by the general meeting of 23 May 1972, and he would

allow the appeal.

Mr. Justice Budd who, in his judgment, agreed with

the decision of Mr. Justice Kenny in the High Court,

said the resolution passed at the meeting in May 1972

by a simple majority removing the plaintiffs was a good

and valid resolution.

He stressed that the words used in Rule 40 were to

the effect that the members of the committee first

elected were to continue in office until the next annual

general meeting of the society unless "previously" re-

moved by a resolution passed by a majority of two-

thirds of the members present at any general meeting

called for that purpose. The word "previously" in his

mind referred to a period previous to the next annual