support at an hotel, but it does not touch this case. | above into the position of not being able to recover All the provisions of the Act of Parliament will be for supply of lodging and meat to individuals. rendered consistent if it is held that the provisions The legislature did not contemplate such a conof the Act should apply as well to the person who clusion. As well might it be said that a man pays as the person who receives; and then it would going to a printer, and getting him to print placards be the same as to both. As it is, a penalty is im- with the view of furthering the election of a canposed not merely upon the agreeing to pay, but didate, and as the printer knew that such was the upon the paying. The defendant was clearly liable object, that he could not recover his legitimate to an action for violation of the statute for agreeing wages for such his work. The defences do not go to pay but as the twelve months have expired beyond this; they do not state an illegal agreement. within which such action should have been com- The second defence is clearly bad, and is founded menced, an action cannot be brought against him; on the 16th section, and I think the demurrer is but if he was to pay this demand now, he would very properly allowed as to that one. But as to the render himself liable to another action for so paying first defence, let me turn to the Act of Parliament, contrary to the statute. The court will not compel which is a penal statute, as it imposes penalties; him to that thing, which would so render him liable and let me see did it contemplate the mulcting of a to an action. The policy of the statute was to dis- a tradesman of his wages because he knew that the countenance all undue expenses connected with fruits of his work would be used for the purpose elections, and that could not be more effectually at- of promoting the election of a candidate. The detained than by disabling all parties concerned from fendant is not alleged to be an agent: the Act of recovering upon foot of contracts involving such Parliament requires the agent's name to be returned expenditure. The second defence is grounded on to the election auditor; he is not an agent then, the 16th section, which requires all bills to be sent and he comes down and gets breakfast and dinner in within one month after the election to the can- for himself and friends, and I dare say he said it didate or his agent, or the right to recover is barred. was with the view of promoting the election of John I am of opinion that the provisions of the 16th sec- Ball. [Reads the 24th section.] Against whom tion are such as can only be relied upon by the can- is this enactment pointed? Against the person didate himself, and no other persons can avail them- paying, or promising to pay, who is made liable selves of its protection. The arguments for the se- under the Act, not against the person who receives cond defence were not much pressed, and I think the money, or that receives the promises to pay; rightly. On the whole of the case I am of opinion and if there was any doubt of this, the penalty that the demurrer to the second defence must be is imposed on the person who pays, or promises or allowed, and the demurrer to the first defence over- agrees to pay, and not the person who receives, ruled. following the very words of the prior enactment, and showing that it was only upon the one person the Act contemplated imposing the penalty. If that be so, without further occupying public time, how are we to construe the Act of Parliament as to two parties entering into an agreement to supply such matters. The contract here between the parties is merely a contract to supply necessaries for a particular person. I am of opinion that the demurrer to the first defence is well founded also, and should be allowed. of PERRIN, J.-I concur entirely in the judgment my brother O'Brien. CRAMPTON, J.-I believe I am in the disagreeable position of differing from the other members of the court on this nice point. The plaint was for the supply of lodging and meat, for which the defendant was liable to pay; that is the contract. The defendant in his defence admits the contract, but would avoid the payment by saying this was an illegal contract which precludes the plaintiff from recovering the amount due under the contract. It LEFROY, C.J.-I concur in the judgment of my would be a curious consequence if a plaintiff brothers O'Brien and Perrin, and have the misforcould not recover for such a contract as this. It is tune to differ from the judgment of my brother quite true, I admit, that if there is an illegal con- Crampton. If the effect of our decision was to be tract, neither party can recover; but I say, here such as he adverts to, I would be very sorry to be there is no illegal contract stated on the pleading. a party to such a decision: viz., if a man goes to The action is for lodging and meat supplied; but it an election, and brings a friend, and has the inis stated that the object was to procure the election tention of promoting the election of a certain canof one of the candidates, and that the plaintiff was didate, and obtains for himself the accommodation aware that such was the object. Now, if there was of an hotel and food, and that for this the hotelno illegal agreement-and there is no illegal con- keeper could not recover-if our decision goes that tract stated on the pleading-the cases which have length, I think it would not have law to support it. been mentioned are not in point at all. The Act of We have only to read a few lines of the Act of Parliament does a totally different thing than make Parliament to see how the law is. The folly of the such a contract void. A case might be put of a parties in this case was the not traversing the very man going to an hotel and entertaining his friend gist and point of the case-viz., the object and there, and that the hotel-keeper knew that it was purpose for which the goods were supplied-and for the purpose of furthering the election of a can- show that this case came clearly within the very didate, but that the hotel-keeper did not know that words of the Act of Parliament. The words are, it was illegal. Now, if this present case be law," no person shall pay or agree to pay." The deit will put the hotel-keepers in such cases as the feuce is not the setting up of an illegal contract as f against a legal one, but it is an action for the payment of money; and the Act of Parliament says if any person shall pay or agree to pay any expenses of an election, or any sum whatsoever, with the view of promoting the election of a candidate, save to the candidate or through the election auditor, it shall be illegal. Now, the two savings are put out of the way here, for the defence negatives them; therefore the case is reduced to the simple point of whether a man shall be compelled by the court to do a thing which, if he did of his own accord, he would be guilty of an offence against the Act; for it says, if he pays or agrees to pay, except in the two cases mentioned, he shall be guilty of a violation of the Act and incur a penalty. I need not now prove that a man is guilty of the violation of a statute if he incurs a penalty under it. My brother O'Brien has shown that a man shall not violate an Act of Parliament if it imposes a penalty. We have a violation here; and if we have facts admitted which would subject the party to a penalty, either is enough. There are no other or further authorities than those mentioned by my brother O'Brien, and which are good binding authorities. And this brings me simply to the terms of the summons and plaint, and defence. The summons and plaint is for meat, drink, provided, and monies expended, for the use of the defendant; the defence is, that all those things and monies paid and advanced were severally and respectively provided for the purpose and with the view and intention of promoting the election of a particular candidate named, and it negatives that they were furnished to that candidate, or any other candidate, or with any intimation to the election auditor; and therefore the two exceptions which would except the plaintiff from the consequences imposed by the Act of Parliament are negatived in the defence; and the demurrer admits it: for the party having demurred, admits everything in the defence to be true. The plaintiff does not show that the goods were supplied for the defendant's own use. The defendant alleges that the plaintiff knew very well for what purpose and object they were furnishedthat he admits by his demurrer; and how can he turn round and say, I will creep out of this Act of Parliament by showing at the bar of the court that they were not furnished for that purpose, though the demurrer admits it. He cannot use an argument to take him out of the Act of Parliament, when his demurrer admits all acts which clearly bring him within the Act of Parliament. I cannot add anything further to the very clear and satisfactory exposition of the law and authorities given by brother O'Brien. It only remained for me to justify my views for agreeing with him that the matters set out on the pleading bring the case within the Act of Parliament; and if that Act is to be available at all, I do not see that it could be made available on any other defence than the present one. I cannot understand how we could grant a judgment which would enable execution to issue to compel a party to pay when the Act imposes a penalty for such paying. It would be a curious way of avoiding the Act of Parliament. I am of my opinion the demurrer to the first defence should be overruled, and the demurrer to the second defence allowed. Attorney for plaintiff-Harloe T. Phibbs. [Before the full Court.] THE QUEEN AT THE PROSECUTION OF CHARLES BLAKE, EDMUND CONCANNON, WILLIAM GANNON, AND MARTIN CLORAN . THE TOWN COMMISSIONERS OF TUAM AND RICHARD KELLY, CHAIRMAN OF SAID TOWN COMMISSIONERS.-15th Nor. 1858. Practice-Mandamus-Quo Warranto-17 4 18 Vict. c. 103-Towns Improvement (Ireland) Act, 1854-10 Vict. c. 16-Commissioners Clauses Act-Election-Town Commissioners Chairman. In proceedings under the Towns Improvement (Ireland) Act, where there is a dispute as to the election of commissioners, the rule is, the court will direct a mandamus to issue where there has been no elec tion at all, or even a colourable election, but if there has been a formal election, and an objection has been made to a person or persons as not being duly qualified to vote at such election, then a 66 quo warranto" would be the proper writ to issue. THIS case came before the court upon a motion to show cause against a conditional order for a mandamus. It appeared from the affidavits that the provisions of the Towns Improvement (Ireland) Act, 1854, were in the month of November, 1855, adopted in the town of Tuam, in the county of Galway, and fifteen commissioners were elected pursuant to its provisions, for the purpose of carrying it into effect in said town; that Richard Kelly was elected, and has continued to be the chairman to the present time; that he duly convened a meeting of qualified ratepayers, for the 15th of October, 1858, for the purpose of electing five commissioners in the room of five, who under the provisions of the Act were to go out of office by rotation, but who were capable of re-election, of whom Richard Kelly was one. The meeting took place, and the out-going commissioners were duly proposed and seconded for re-election; and three persons named Martin Cloran, William Quin, and Denis Shine, were duly proposed and seconded by duly qualified electors, as fit persons to be commissioners, in the room of the like number of the out-going ones. No person objected, save Richard Kelly, who instead of going to a poll, called on the clerk of the union to read the description of the qualification of said candidates, from the rate-book of 1856. He was remonstrated with, and it was pointed out, that the 25th section of the Act provides for the qualification of the commissioners, to be ascertained by the then last Poor Law valuation of the premises out of which he qualifies, and that the last rating of valuation was made in the year 1858. The Chairman persisted, and the clerk read from the rate-book of 1856, the valuation of Martin Cloran's premises as being £11 10s., at same time, the chairman was informed that the valuation of Cloran's premises for the purposes of the Act, for the year 1858, was over £12, but the chairman declared him ineligible for said office of commissioner, and declined to receive any votes in support of his nomination. The chairman also declared William Quin ineligible, and declined to receive any votes in support of his nomination, on the ground that William Quin appeared in the rate-book of 1856, as rated to the sum of £17 10s., but said rating was for a house, office, and garden. The chairman also declared Denis Shine ineligible, and declined to receive any votes for him, on the ground, that although rated as well for 1856, as for 1858, to the sum of over £12, for premises within said town of Tuam, yet the rating was made in respect of a house, offices, and yard, whereas the Act required the necessary qualification to issue out of a dwelling-house only. These decisions were strongly objected to at the time. The chairman's own qualification, as appeared on the rate-book of 1856, was for a "dwelling-house and Herald's office," being the office of a newspaper, and in the rating of 1858, for a "house, offices, yard, and garden;" therefore, if the chairman's construction of the Act was correct, he was himself disqualified to be re-elected as Towns Commissioner. The qualification of two other of the outgoing commissioners, appeared by the rating of 1856, to be for a "house and land," and a "house and shop." Immediately subsequent to such refusal of the chairman to receive votes for the three last named persons, three other duly qualified persons were duly put in nomination, being fit and qualified persons to fill the office, and same were put in nomination, before four o'clock on the 15th day of October, nevertheless, the chairman declined to put said parties in nomination, or accept any votes for them, or even place their names upon the minutes. In the chairman's affidavit, it appeared that he considered it right, after the nomination and rejection by him of the three persons first named, and before the three latter persons were nominated, to ask aloud, whether there were any other persons to be proposed, and no one being then nominated, he declared the nomination closed, and that the nomination of the last three persons was proposed subsequently. The meeting of the 15th of October was then adjourned to the 25th of October, by the chairman to enable the parties to obtain the opinion of counsel, being more than one week from the 15th of October, although the Act of the 10th Vict. c. 16, s. 33, only authorises the adjournment for one week. Counsel's opinion was obtained on the 19th of October, by the present prosecutors, who declined to show it to the chairman out of the public meeting. On the 18th of October, a notice signed by seven ratepayers, was served upon the chairman, calling upon him to hold the adjourned meeting upon the day authorised by the statute, viz., the 22nd of October, whereupon the chairman published the statutable notices of his intention to hold the election on the 22nd. Accordingly on that day, he proceeded to hold said election, and without giving an opportunity to any person of proposing or seconding another candidate, he said he had learned from the clerk of the union that Mr. Shine was sufficiently rated, and, accordingly, he would declare him qualified to be put on the list, but that in the case of Quin and Cloran, he had not seen anything to lead him to alter his decision. The opinion of counsel not having been shown to him, he must declare them disqualified, and as no objection was made to the qualifications of the other five candidates, he declared them qualified, and as Mr. Jeremiah Tully, one of the five outgoing commissioners had tendered his resignation, by substituting Mr. Shine in his place, that would make up the full number of commissioners to fill the five vacancies, and he thereupon declared those five persons including Mr. Shine, to be duly returned commissioners for the borough of Tuam, and inasmuch as his duties of returning officer were gone through, he declared the proceedings at an end. At this meeting, counsel's opinion was produced and explained by Edmund Concannon, but the chairman paid no attention to it. The electors generally protested against these proceedings. Armstrong, Q.C. (with him H. Fitzgibbon) shows cause. The proper course has not been adopted in this case. It is not a case for a mandamus to issue but for an application for a quo warranto to try the right of those commissioners who now claim to hold the office. A candidate for the office should be rated for a dwelling-house in the town for £12 or upwards. The meaning of the Act was, that there should be such a good house as would be some guarantee for the respectability of the party seeking the office. The Poor Law rating should be a year old. No person having been proposed subsequent to the first three persons, the chairman, after a reasonable time, declared the nomination closed When the election has been grossly irregular, the court will interfere by mandamus, but where it may turn out that there was a proper election, they will permit the parties to agitate the right by a quo warranto. [Crampton, J.-As you state the chairman's (Kelly's) affidavit, he does not state there was any election on the occasion.] The court will not treat this as a void election. If there has been no election, there is no person to whom this mandamus can go. [O'Brien, J.—He continues to be chairman until another is elected.] A mandamus to admit a recorder was refused, because there was a recorder de facto, and the party had another remedy by quo warranto, though both of them claimed under the same election-Rex v. The Mayor of Colchester (2 T. R. 259). Fitzgibbon, Q.C. (with him Beytagh.) contra.There are eighty-four duly qualified electors in this town, and the five commissioners alleged to be duly elected never received a single vote to entitle them to that position. The 25th section does not refer to dwelling-houses, as regards the twelve months' rating, and the qualification from dwelling-houses, must be taken from the last rating. The rating of 1858 was the last before the 15th of October. The court would not call upon Edward Beytagh on same side, but called on Henry Fitzgibbon in reply, who referred to the 19th section of the Commissioners Clauses Act. LEFROY, C.J.-In this case the court is of opinion, that the mandamus must go, and as it is to go, I shall abstain from giving an opinion upon the important points of law or fact, which might prejudice the trial of the matters upon the return of the mandamus. As to the practice of proceeding by quo warranto, there is no doubt that the general way to try the right of a person to a public office, is by a quo warranto, and a mandamus sometimes arises out of a quo warranto, after the right has been ascertained. The law upon this subject is very accurately laid down in the case in 2 Term Reports mentioned by Mr. Armstrong. The rule is simply this, that if there has been no election at all ora colourable election, then a mandamus is a proper course to proceed by, or it may be tried by a quo warranto also; but if there has been a formal election, and an objection has been made to a person or persons, as not being duly qualified to vote at such election, then a quo warranto would be the proper course. We are not proceeding on the ground of whether there was an election or not; but when it is made appear to the court that there is an important question of law or fact to be decided, then it is usual to grant the mandamus. The court sometimes permits the case to stand, to enable an action to be brought; but in this case we will permit the writ of mandamus to go. Rule accordingly. Attorney on behalf of the prosecutor, Thomas Higgins. MICHAELMAS TERM. [Before the full Court.] Moore v. The GREAT SOUTHERN AND WESTERN for consequential injury to land abutting on a public road by the lowering of such public road in pursuance of the powers contained in the Railway Acts. An action does not lie against a railway company Semble-The 53d and 55th sections of the 8 and 9 action being founded upon the injuries necessarily | There is no remedy but compensation-Little v. consequential on the execution of the works of the The Dublin and Drogheda Railway Company (7 I. C. company, could not be legally supported. The L. 82, S.C. 9, Ir. Jur. 436); Watkins v. The Great question was reserved for the opinion of the full | Northern Railway Company (16 Queen's B., R. 961). court, with liberty (if they should be of opinion that the action did not lie) for the defendants to have a nonsuit entered. This action is brought for a permanent injury. It is not the case where a company requires to interrupt a road, and during the interruption are bound Armstrong, Q.C. (with him Heron), for the to make an accommodation road. It is only a case plaintiff. This action is specially saved by the Rail- of a temporary obstruction of a road, where the way Acts. Although the common law action is in company are bound to make a substituted road, general taken away where a public highway is in- that would come within the 53d and 55th sections. terrupted, an action does not lie at common law There is no special damage here. [Perrin, J.— unless special damage be shown, but where special As I understand the term special damage, it means damage is shown, such an action is saved. By the the injury which a man himself suffers alone, and Railways Clauses Consolidation Act (8 & 9 Vict. c. independent of every person else.] The company 20,ss. 53 and 55), if any person has a right of way interfered only with the public road; they have left over any road, and has suffered special damage, he it safe and not dangerous to the passers along it, has his action on the case. The plaintiff had a and have only caused an injury to the plaintiff by right of way, and the company not having made making it difficult for him to get from his house to an accommodation road, are liable. The question the road. No road has been temporarily interfered is, has there been such special damage sustained with here. The following passage from Lord St. by the plaintiff as will enable him to sustain this Leonards' opinion in the Caledonian Railway Comaction-Chichester v. Lethbridge (Willes, R. 71).pany v. Ogilvy (2 Macqueens, H. L. c. 248), in reThe following case was not so strong as the present-marking on the case of The Queen v. The Eastern Dobson v. Blackmore (9 Queen's B. 991). There is a case of private injury to the plaintiff disclosed on the pleadings-Rose v. Groves (5 M. and Gr. 613). Counties Railway (ubi supra), said, "In that case there was an actual injury, I should say, to the land; at all events, there was an injury to the owner of the land, which would give him an imFitzgibbon, Q.C. (with him the Right Hon. J. D. mediate right, no doubt, to compensation. From Fitzgerald, Q.C., and C. J. Coffey) contra.-This his land he had been enabled to step at once upon case is not within the 55th sec., as the company the road, which had been lowered by the company, were not bound to make an accommodation road. and it had been so lowered that he lost his access to The plaintiff was bound to seek for compensation that road, unless he had new appliances in order to as an injury to his landed property. The company enable him to approach it. There was therefore a cut the public road, as they were entitled to do real injury; there was a ground of complaint there under the powers contained in the Acts of Parlia- personal to himself, and which was not open to the ment. Unless there is a particular right of way rest of the world. It was a general complaint in the plaintiff he does not come within the 53d when he got to the road: when he got there he had or 55th sections, which are connected. The 14 to sustain an injury in common with all the rest of and 15 Vic. c. 7, ss. 9, 10, and 11, repeal the the Queen's subjects; that is to say, the road Lands Clauses Consolidation Act so far as relates might be rendered a great deal less easy to travel to the taking of land, and an arbitrator is substi- upon than it was before it had been crossed. For tuted for the proceedings under that Act. The that he would have no remedy; it is a common inplaintiff should have gone before the arbitrator. convenience-all are subject to it; and the power He has lost his common law right of action. Com- to commit that injury was given by Act of Parliapensation is provided in cases where land is taken Lent for the public benefit; and therefore the or injuriously affected by the making of the rail- benefit which is received by the public from the way-The London and North Western Railway Com-railway is considered to be the only compensation pany v. Smith (1 Mac. and Gor. 216). The right to compensation extends to and may be asserted in respect of consequential damage-The East and West Indian Docks and Birmingham Junction Railway Company v. Gattke (3 Mac and Gor. 155); The London and North Western Railway Company v. Bradley (3 Mac and Gor. 336); The South Stafford Railway Company v. Hall (1 Simon, N.S. 373). The plaintiff could have come to this court for a D. C. Heron, in reply.-The fallacies of the other mandamus to compel the arbitrator to award him side are that they assume that this injury is percompensation, and compensation may be awarded manent, and that it was quite impossible to make for injury done, without entering upon or taking a road for the plaintiff. The company's engineer the land-namely, by lowering a road upon which proved it was quite possible. There is no remedy the land abutted, and a peremptory mandamus was for this case, except under the 55th section. Speawarded in Regina v. The Eastern Counties Railway cial damage has been confessedly sustained. It is Company (2 Queen's B. R. 347). The plaintiff can-averred in the plaint that the company did not make not have both compensation and an action at law. a sufficient road before they lowered the public road. to which the Queen's subjects in general are entitled either in respect of the damage caused at the particular spot over which the railway travelled, or in respect of which the road in that spot had been lowered." The 53d and 55th sections only apply to such roads as are temporarily obstructedTanner v. The South Wales Railway Company (5 E. and B. 628). |