State Actors
Cases
Macauley v. Minister for Posts and Telegraphs
[1966] 1.R. 345 (High Court).
Kenny J.:
In June, 1963, the plaintiff, Mr. William P. Macauley, a farmer who lives at Manor Kilbride, County Wicklow, was so dissatisfied with the telephone service which he was getting that he decided to take legal pro ceedings against the Minister for Posts and Telegraphs. His legal advisers decided to claim a judicial declaration that the Minister was under an obligation to provide a proper, reasonably efficient and effective telephone service for him under the agreements for telephone service which he had signed. On the 26th June, 1963, his solicitors sent to the Attorney General’s Office a draft of the plenary summons which they proposed to issue with a certificate from a well known member of the Bar that the case was a proper one for the grant of the Attorney General’s fiat. On the 28th June his solicitors were informed by letter that the practice was that a state ment of the facts about the proposed action had to be sent to the Attorney General before he could consider the grant of a fiat. A statement of facts was sent on the 9th July and a long correspondence followed. The then Attorney General did not grant or refuse a fiat but asked for more informa tion. This correspondence continued until the 10th February, 1964, when the plaintiff’s solicitors abandoned their attempt to get the fiat and, on the 24th February, issued a plenary summons in this Court against the Minister in which they claimed a number of declarations.
Shortly after the issue of the summons, some preliminary skirmishing took place in this Court in the course of which counsel for the Minister stated that his client had not been served with the summons and had not entered an appearance. The matter was then put on a more regular basis by a motion, issued on the 21st April, 1964, in which the Minister applied for an order that “the purported service of the originating plenary summons herein be set aside on the ground of irregularity in that the provisions of section 2, sub-section 1, of the Ministers and Secretaries Act, 1924, have not been complied with.” This is the section which provides that a Minister of State may sue and (subject to the fiat of the Attorney General having been in each case first granted) be sued in his official name. I adjourned the hearing of the motion to allow the plaintiff to serve notice of it upon the Attorney General because I was informed that the plaintiff wished to contest the constitutional validity of this section. On the 11th May, 1964, the Court ordered that a preliminary issue, whether s. 2, sub-s. 1, of the Act to which I have referred is repugnant to the Constitution, in so far as it requires the fi_at of the Attorney General to be obtained before proceedings can be validly instituted against a Minister of State, be tried. Mr. Macauley’s desire to bring proceedings in connection with his telephone service has produced a most interesting debate in which issues of great historical interest and of even greater constitutional importance have been discussed with learning and ability.
Part·of the long title to the Ministers and Secretaries Act, 1924, was: “An Act for constituting and defining the Ministers and Departments of State in Saorstat Eireann pursuant to the Constitution and declaring the functions and powers of the Attorney-General.” Section 1 of it provided
that there was to be established in Saorstat Eireann the Departments of State named in the 11 following sub-paragraphs, ” … each of which said Departments and the powers, duties and functions thereof shall be assigned to and administered by the Minister hereinafter named as head thereof.” One of these Departments was the Department of Posts and Telegraphs and the Minister for Posts and Telegraphs was the head of this Depart ment. Section 2, sub-s. 1, provided that each of the Ministers, heads of the Departments of State mentioned in s. 1, was to be a corporation sole under his “style or name aforesaid,” was to have perpetual succession and “may sue and (subject to the fiat of the Attorney General having been in each case first granted) be sued under his style or name aforesaid.”
The Constitution of the Irish Free State adopted by the Constitution of the Irish Free State (Saorstat Eireann) Act, 1922, on the 25th October, 1922, did not contain any provision about an Attorney General. Section 6 of the Ministers and Secretaries Act, 1924 (passed on the 21st April, 1924), provided, however, that there was to be vested in the Attorney General of Saorstat Eireann (who was to be appointed by the Governor General on the nomination of the Executive Council) the business, powers, authorities, duties and functions formerly vested in or exercised by the Attorney-General and the Solicitor-General for Ireland. In the interval between the establishment of the Irish Provisional Government by the Articles of Agreement for a Treaty between Great Britain and Ireland, signed on the 6th December, 1921, and the passing of the Ministers and Secretaries Act, 1924, there was a law officer of the Provisional Govern ment (see the Irish Provisional Government Public Notices made on the 31st March, 1922, and on the 9th September, 1922).
… Counsel’s first argument in support of his contention that s. 2, sub-s. 1, was unconstitutional in so far as it required the fiat of the Attorney General to be granted before proceedings could be taken against a Minister was that the fiat referred to in the Act of 1924 was to be granted by the holder of the office of Attorney-General, an office which, he said, existed in 1924 but did not exist in 1963. He said that the Constitution of 1937 represented a clear break with the past, that the Attorney General is no longer the King’s Attorney in any sense and that the office of Attorney General under the Act of 1924 was “a carry over” from the former officer who was called the law officer of the Crown. He maintained that the origin of the fiat referred to in the Act of 1924 was the immunity of the Crown from legal proceedings and that the fiat was thus inconsistent with the nature of the State established by the Constitution of 1937. He added that the reference in Article 30 of the Constitution to the Attorney General exercising and performing all such powers, functions and duties as are conferred or imposed on him by the Constitution or by law could not
include the power of giving or withholding the fiat conferred by the Act of 1924.
Until recent times Irish law had not worked out a clear concept of the State as a legal entity or a legally recognised person because, until 1921, the State was personified in the King. English law has not yet succeeded in doing this. The Courts in England and, until 1921, in Ireland were the King’s Courts and the King could not therefore be sued in his own Courts by the processes which were appropriate as between subject and subject. The growth of the areas in which acts of the King’s Ministers might
affect the rights and property of subjects and the numerous injustices which the rule that the King could not be sued in his own Courts worked, produced a form oflegal proceedings called “a petition of right” by which a subject who had been deprived of property by the actions of the King’s Ministers or by those employed in the public service could obtain redress in the Courts. The basic principle adopted by the High Court (which invented this form of relief) was that a subject who claimed that a legal right of his had been infringed by the actions of a Minister of State or of those in the public service could bring proceedings against the Crown by a petition of right if he would have been entitled to redress for violation of the right if the defendant had been another subject. Thus, the person who brought the petition of right had to establish that he had a right which the law recognised and which, if he were asserting it against a fellow-subject, would be vindicated by the writs and summonses which were then issued by the Courts. The history of the development of this idea will be found in volume 9 of Professor Holdsworth’s History of English law. . ..
… the history of the petition of right may explain why the fiat of the
Attorney-General was introduced into the Act of 1924: it establishes that the concept of granting the fiat came from the royal immunity from being sued in the Courts of law. It does not follow, however, that the granting or withholding of the fiat is inconsistent with the form of State which was established by the Constitution of 1937. The fiat of the Attorney General may have been, in a historical sense, the result of the royal fiat but it was
I not in any sense the same fiat. It was created by an Act of the Oireachtas of the Irish Free State and was not a legacy from the functions of the law
officers of the Crown. In my opinion, the office of the Attorney General established by the Act of 1924 was a new office and the transfer to the holder of that office of the powers formerly vested in the King’s Attorney General and Solicitor General did not create any similarity in or link between their offices. I reject the argument that the words in Article 30, section 1, of the Constitution relating to the Attorney General, that he “shall exercise and perform all such powers, functions and duties as are conferred or imposed on him by this Constitution or by law,” relate only to the powers, functions and duties conferred or imposed on him by the Constitution or by laws passed subsequent to its enactment because, in my opinion, the words “by law” include the Ministers and Secretaries Act, 1924. I do not accept the view that the office of Attorney General created in 1924 ceased to exist in 1937 or that it became an entirely new office when the Constitution was passed. The absence of any reference to the Attorney General in the Constitution of the Irish Free State and the presence of Article 30 in the Constitution does not mean that the offices were different. The Constitution does not seem to me to have altered the essential nature of the office, or its functions and duties.
For these reasons all the arguments advanced by the plaintiff on this
branch of the case fail.
This is, I think, a convenient place to deal with an argument advanced by counsel for the Attorney General,. He said that the cause of action given against a Minister of State by the Act of 1924 was an entirely new cause of action which did not exist before, that it was given subject to the grant o( the fiat and that a citizen who wished to take advantage of the grant could do so only if he complied with the condition which the Oireachtas had attached to it (the obtaining of the fiat). If one looks at the form only, the type of action against a Minister which the Act of 1924 granted is new in the sense that the action is brought against a Minister and not against the King. If however the substance is looked at, it seems to me that the changes were that proceedings after 1924 could be brought by a summons in the High Court or a civil bill in the Circuit Court and not by petition and that the action could be brought against a Minister of State and not against the King. The essential nature of the remedy is, in my opinion, unchanged though the form by which the remedy is sought has altered. I reject the argument that the cause of action given by the Act of 1924 was a new
cause of action and that the citizen must therefore take it subject to the condition imposed ….
Byrne v. Ireland
[1972] IR 241
Supreme Court
O’DALAIGH C.J. :
I agree with the judgments of Mr. Justice Walsh and Mr. Justice Budd. The President has asked me to say that he concurs in the judgment of Mr. Justice Budd.
WALSH J. :
The plaintiff claims that when she was lawfully walking along the public highway at Bray in the County of Wicklow the footpath upon which she was walking subsided, and that this was due to the negligence and breach of duty of persons employed in the Department of Posts and Telegraphs when they had been laying installations under the footpath. The plaintiff has claimed that these persons were employees of the State and that the State is vicariously liable for their negligence. The portions of the defence relevant to this appeal are those which claim that the Court cannot exercise jurisdiction over the State as the judicial power granted by the Constitution does not of common right extend to actions against the sovereign authority. It claims further that the action, being one based on an alleged tortious act or omission, was not maintainable in law by reason of the immunity of the State against such actions as sovereign authority. It is also claimed that the action could not be maintained against the Attorney General as a representative of the State and that the representative order, which the plaintiff seeks, could not be made. By order of the President of the High Court dated the 6th November, 1967, it was directed that special issues53 be tried by a judge without a jury.
By the Constitution which was adopted and enacted by the People and came into force on the 29th December, 1937, the People created a State which is described in Article 5 of the Constitution as “a sovereign, independent, democratic state” and under Article 4 the name of the State in the English language is “Ireland”. If the State can be sued, then in my opinion it can be sued by its official name which is “Ireland” in the English language.
Article 6 of the Constitution provides54 that all powers of government legislative, executive and judicial “derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to
decide all questions of national policy, according to the requirements of the common good.” Article 46 of the Constitution provides that every proposal for an amendment of the Constitution shall, upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by referendum to the decision of the People, and Article 47 provides that every such proposal for an amendment shall be held to have been approved by the People if, upon having been so submitted, a majority of the votes cast at such referendum shall have been cast in favour of its enactment into law. The preamble to the Constitution is a preamble by the People formally adopting, enacting and giving themselves a Constitution.
It appears to me abundantly clear from those provisions that the State is the creation of the People and is to be governed in accordance with the provisions of the Constitution which was enacted by the People and which can be amended by the People only, and that in the last analysis the sovereign authority is the People. This is in contrast to the position in the United States of America where Chief Justice John Marshall initially established the basic premise that the United States was created by the States and the people of the States, and not by the people separated from the States. It is also in contrast to the position which prevailed in England and now in Great Britain that the King was the personification of the State and that, even with the development of constitutional monarchy where the distinction between the King in his public and private capacities could be perceived, no legal acknowledgment of this distinction was made with the consequence that the King, or the Crown, was and remains the personification of the State in Great Britain.
Article 6 of our Constitution, having designated the powers of government as being legislative, executive and judicial and having declared them to have been derived from the People, provided that these powers of government are exercisable only by or on the authority of the organs of State established by the Constitution. The question which now arises for decision is whether the judicial power of government which is exercised by the judiciary through the Courts is exercisable so as to bind theState itself, one of whose organs is the judiciary.
It has already been established that the State is a juristic person capable of holding property: see Comyn v.The Attorney General 55 and Commissioners of Public Worksv. Kavanagh .56 It was implicit in the judgments in those cases that the State could have been sued as such. Drummond’s famous dictum that property has its duties as well as its rights is no less true in this context. Even in mediaeval England the petition of right was available for all proprietary actions in the wide sense of the term in that it lay not merely for the recovery of land but for claims for damages for interference with proprietary rights, and also for the recovery of chattels. Not only in England but in many other countries in Europe the inviolability of propery was acknowledged in law as a right superior even to that of sovereignty itself. The petition of right fell into disuse from the fifteenth century onwards until the nineteenth century during which time it was superseded by the real actions. In a very full investigation of the history of the petition of right, Lord Sommers in the Bankers’ Case 57 was able to treat as precedents (for the competence of the petition of right in contract) cases in which the facts corresponded to those in modern suits in contract but which had been decided as proprietary actions. Therefore, the concept of proprietary actions lying against the State, even when the King was the personification of the State, is not a new one.
The point which arises in the present case is whether a right of action lies against the State for a wrong and, in particular, whether the State is vicariously liable for the wrongs committed by its servants. The learned High Court judge, Mr. Justice Murnaghan, who tried these issues came to the conclusion that the State is not so liable and he based his rejection of the submission on the statement in Article 5 of the Constitution that Ireland is “a sovereign . . . state.” He says that “the simple statement that ‘Ireland is a sovereign . . . state’ is completely inconsistent with the propositions that the State is subject to one of the organs of State, the judicial organ, and can be sued as such in its own courts.” This appears to me to assume that, even if the State is the sovereign authority and not simply the creation of the acknowledged sovereign authority, the People, the concept of being sued in court is necessarily inconsistent with the theory of sovereignty. In the first place I think that the learned trial judge misconstrued the intent of Article 5 if he construed it as a constitutional declaration that the State is above the law. Article 1 of the Constitution affirms that the Irish nation has the “sovereign right to choose its own form of Government.” Our constitutional history, and in particular the events leading up to the enactment of the Constitution, indicate beyond doubt, to my mind, that the declaration as to sovereignty in Article 5 means that the State is not subject to any power of government save those designated by the People in the Constitution itself, and that the State is not amenable to any external authority for its conduct. To hold that the State is immune from suit for wrong because it is a sovereign state is to beg the question.
In several parts in the Constitution duties to make certain provisions for the benefit of the citizens are imposed on the State in terms which bestow rights upon the citizens and, unless some contrary provision appears in the Constitution, the Constitution must be deemed to have created a remedy for the enforcement of these rights. It follows that, where the right is one guaranteed by the State, it is against the State that the remedy must be sought if there has been a failure to discharge the constitutional obligation imposed. The Oireachtas cannot prevent or restrict the citizen from pursuing his remedy against the State in order to obtain or defend the very rights guaranteed by the Constitution in the form of obligations imposed upon the State; nor can the Oireachtas delegate to any organ of state the implementation of these rights so as to exonerate the State itself from its obligations under the Constitution. The State must act through its organs but it remains vicariously liable for the failures of these organs in the discharge of the obligations, save where expressly excluded by the Constitution. In support of this it is to be noted that an express immunity from suit is conferred on the President by Article 13, s. 8, sub-s. 1, and that a limited immunity from suit for members of the Oireachtas is contained in Article 15, s. 13,
and that restrictions upon suit in certain cases are necessarily inferred from the provisions of Article 28, s. 3, of the Constitution.
It is also to be noted that Article 45 of the Constitution, which sets forth certain principles of social policy intended for the general guidance of the Oireachtas, contains an express provision that the application of those principles”shall not be cognisable by any Court under any of the provisions of this Constitution.” This express exclusion from cognisance by the Courts of these particular provisions reinforces the view that the provisions of the Constitution obliging the State to act in a particular manner may be enforced in the Courts against the State as such. If, in particular cases, the State has already by law imposed on some organ of State or some servant of the State the duty to implement the right or protection guaranteed by the Constitution then, in cases of default, it may be sufficient and adequate in particular instances to bring proceedings against the person upon whom the duty has been so imposed; but that does not absolve the State, upon which the primary obligation has been imposed, from responsibility to carry out the duty imposed upon it. If under the Constitution the State cannot do any act or be guilty of any omission save through one or more of its organs or servants, it is nonetheless answerable because of the identification declared by the provisions of Article 6 of the Constitution.
The suggestion advanced in this case that the State cannot be made amenable for civil wrong stems from the English feudal concept that “the King can do no wrong.”There is some authority for believing that this phrase originally meant precisely the contrary to what it now means, and that its original meaning was that the King must not, was not allowed to, and was not entitled to, do wrong. However, while for many centuries past there has been no doubt as to the meaning of the phrase “the King can do no wrong”, that is a concept which differs from the concept that he was immune from suit. A great variety of devices emerged for obtaining relief against the Crown; some of these took the form of suits against the officers or agents of the King personally where no consent was necessary, and some of them took the form of suits against the King himself where it was permitted by the grant of a petition of right rather than by suing by writ. The grant of a petition of right in such a case was based precisely on the proposition that the King had acted contrary to law. In the sphere of tort the petition of right did not normally lie outside real actions. Tortious immunity was a judge-made rule. It would appear to have been based on the view that it would be a logical anomaly for the King to issue or enforce a writ against himself. The theory was that the King, as the source of all justice, was incapable of committing a wrong. But the theory was reserved for torts which lay outside the sphere of interference with proprietary rights. There does not appear to be any record of how this doctrine fared in England during the years of the republic under the Cromwellian regime. The theory at least included the safeguard, frequently of little practical worth, that the servant of the Crown was personally liable for the wrongs committed by him in the performance of his service; this was based on the presumption that the officer who committed the wrongful act did so of his own accord and was thus liable for it because the King, who was incapable of committing a wrong, could not have authorised it.
By contrast, when the doctrine of sovereign immunity was imported into the United States, the doctrine was extended to cover the officers and agents of the State and over the course of years it could be availed of even by municipal authorities. The doctrine appears to have been imported into the common law in the United States as basic to the common law without, perhaps, a proper recognition of the nature of its origin, namely, that it rested upon the King being the personification of the State and, therefore, was applied only to a person. The fact that this English theory of sovereign immunity, originally personal to the King and with its roots deep in feudalism, came to be applied in the United States where feudalism had never been known has been described as one of the mysteries of legal evolution. It appears to have been taken for granted by the American courts in the early years of the United States though not without some question, since Chief Justice Jay in Chisholm v. Georgia 58
said: “I wish the state of society was so far improved and the science of government advanced to such degree of perfection that the whole nation could in the peaceable course of law be compelled to do justice and be sued by individual citizens.” In later cases the United States courts defended the doctrine of immunity on the grounds that it was vital for the efficient working of government. Mr. Justice Holmes sought to justify it in Kawananakoav. Polyblank 59 by saying that “a sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” It had also been suggested that the immunity rested on a policy imposed by necessity. In United States v. Lee 60 after full historical investigations the Supreme Court of the United States reached the conclusion at p. 206 of the report “that it has been adopted in our courts as a part of the general doctrine of publicists, that the supreme power in every State, wherever it may reside, shall not be compelled, by process of courts of its own creation, to defend itself from assaults in those courts.” other decisions based it on public policy. In England the enactment and operation of the Crown Proceedings Act, 1947, and in the United States the Federal Torts Act, 1945, would appear to have invalidated these rationalisations.
Under our own constitutional provisions it is the Oireachtas which makes the laws and it is the judiciary which administers them; there is no apparent reason why the activities of either of these organs of state should compel the State itself to be above the law.
That the concept of state liability is not a juristic problem is also evident from the laws of several other countries. In France prior to the revolution the principle of le Roi ne peut mal faire prevailed as in the English legal theory upon the same basis of the King being the personification of the state. Since the revolutionary period the liability of the state gradually grew until finally, in the Blanco case of 1873, it was clearly established that the state was liable for the tortious act of its servant if it amounts to a faute de service, though the public servant involved may be personally liable for actions which are clearly outside the scope of his employment. In France these actions against the state for the tortious actions of its servants are heard in the administrative courts. In Germany the law developed in a somewhat similar way. Article 839 of the German Civil Code of 1896 and Article 34 of the Constitution of the Federal Republic of Germany make the state liable to a third party for the tortious activities of the state’s servants in the exercise of their public functions, and these actions may be brought before the ordinary civil courts.
Many other countries in the world have imposed, to a greater or lesser extent, liability on the state for the tortious acts of public servants, and included in these are common-law countries in the British Commonwealth. Section 78 of the Constitution of the Commonwealth of Australia (appearing in s. 9 of the Commonwealth of Australia Constitution Act, 1900) provided that the legislature of Australia might make laws for conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power. Part 9 of the Judiciary Act of 1903 permitted suits by and against the Commonwealth and the States; it gave a right to sue the Commonwealth both in contract and tort without a petition of right and laid down that “in any suit in which the Commonwealth or a State is party the rights of parties shall as nearly as possible be the same and judgment may be given and costs awarded on either side as in a suit between subject and subject.” Under the Canadian Petition of Right Act the Crown can be sued in the Court of Exchequer and Separate Court on petition of right in contract and tort. Although a previous limitation in tort to “public work” was abolished by the Exchequer Act, 1938, a petition of right is still required. In New Zealand the Crown can now be sued in contract and tort under the Crown Proceedings Act, 1950. Under the Crown Liability Act, 1910, the former Union of South Africa could be sued without petition of right in contract and for torts arising “out of any wrong committed by any servant of the Crown acting in his capacity within the scope of his authority as such servant.” In India a distinction has been drawn between acts of State and ordinary acts done under cover of municipal law. The latter case would include the negligence of the driver of a military vehicle in the ordinary use of that vehicle, as distinct from acts arising out of the exercise of a sovereign power like that of making war for which the State would not be liable: see Union of India v. Jasso .61
In our own context it is to be noted that the Factories Act, 1955, applies to factories belonging to or in the occupation of the State: see s. 3, sub-s. 9, and s. 118 of the Act of 1955. Section 59 of the Civil Liability Act, 1961, makes the Minister for Finance liable for the negligent use of a motor vehicle belonging to the State; that section replaced virtually identical provisions in s. 116 of the Road Traffic Act, 1961, which had replaced s. 170 of the Road Traffic Act, 1933. For an example of a similar statutory provision enacted by the Oireachtas of Saorstat Eireann , see s. 6 of the Conditions of Employment Act, 1936.
I have referred to these several different matters for the purpose of indicating that there is ample support for my view that immunity from suit for wrong is not a necessary ingredient of State sovereignty.
For many years in this country, like the American experience, the notion of sovereign immunity of the State seems to have been accepted as part of the common law, without full regard to its true origin in the common law. The confusion was increased by the fact that the King enjoyed some place under the Constitution of the Irish Free State, 1922, and by the fact that in these years the law was practised and interpreted by persons who, quite naturally, had been mostly orientated by education and practice towards a system in which this concept of sovereign immunity of the Crown held sway.
However, I have not found any Irish case decided since 1922 which deals with the point at issue here. There were cases which dealt with the question of whether or not the Crown, or the State, enjoyed prerogative rights of exemption from statutory provisions. In In re Maloney 62 a question arose under s. 4 of the Preferential Payments in Bankruptcy (Ireland) Act, 1889, whether the Land Commission could rely on the prerogatives of the Crown to give their claim priority. In that case the Land Commission were acting for and on behalf of the Minister for Finance and counsel in the course of his argument conceded that the prerogative of the Crown, on which the Land Commission relied, could not be disputed. In his judgment Johnston J., in referring to the concession made by counsel, omitted to refer to the point of whether or not the Constitution of the Irish Free State, 1922, had impaired or extinguished the prerogative. In that case it was also conceded by counsel that the royal prerogative of not being bound by a statutory provision, unless it was expressly or by necessary implication referred to, remained in full force and effect in the Irish Free State because Article 12 of the Constitution of the Irish Free State, 1922, provided that the Oireachtas should consist of the King, the Dail and the Senate, and because Article 51 of that Constitution provided that the executive authority of the Irish Free State was to be vested in the King and would he exercisable in accordance with the law and constitutional usage governing the exercise of the executive authority in the case of the Dominion of Canada by the representative of the Crown. In my view, the reference to the constitutional usage of Canada, in addition to being the basis of a concession, was used too generally in the context because it did not follow that, because in the law of Canada the Crown had the prerogative right to claim priority in the payment of debt, the right necessarily existed also in the Irish Free State. Five years later in Galway County Council v. Minister for Finance 63 Johnston J. at p. 232 of the report rejected the plea of the Galway County Council, that sums claimed by the Minister were statute barred, by saying: “There can be no doubt, and it has not been argued in the present case to the contrary, that the prerogative and prerogative right can be relied upon by the Irish Free State, and is part of the law of the land . . . I can see nothing in sect. 51, sub-sect. 7, that suggests that it was intended to have any applicability to the Crown or the State, and I think, therefore, that the defendant is entitled to rely on this set-off.” In this context it is to be noted that by virtue of s. 3 of the Statute of Limitations, 1957, a State authority is now put on the same footing as
a private citizen where limitations of many kinds of actions are concerned. A State authority means a Minister of State, or the Commissioners of Public Works in Ireland, or the Irish Land Commission, or the Revenue Commissioners or the Attorney General. There are certain exceptions which prevent the statute being pleaded in actions for the recovery of tax or duty under the care and management of the Revenue Commissioners, or certain other fines, taxes or duties. It is to be noted that in the Galway C.C. Case 64a further reference is made to the position in Canada and that reliance was placed on Maritime Bank of Canada (Liquidators) v. Receiver General of New Brunswick 65where it was decided that the prerogative right could be relied upon not only by the Dominion Government but also by the Provincial Governments in Canada.
In Cork County Council v. Commissioners of Public Works 66 the question before the former Supreme Court was whether the Commissioners of Public Works were liable for the rates on houses which had formerly belonged to the Crown. That case, like the Galway C.C. Case 64, is unsatisfactory as an examination of the question on principle because the Cork County Council admitted that, in so far as the houses in question were concerned, the State enjoyed the same right of prerogative immunity as that which had been enjoyed by the Crown. The constitutional question propounded was whether the defendants, the Minister for Finance and the Commissioners of Public Works, were “entitled to enjoy the like immunity from liability for rates as was formerly claimed and enjoyed by the Crown prior to the Constitution of the Irish Free State.” Murnaghan J. stated at p. 571 of the report that it was unnecessary to give any answer to that question because of the admission made by the plaintiffs, and that the case then was concerned only with the extent of the prerogative. Formerly, the Crown was not liable for rates unless it was engaged in private trading. At p. 578 of the report O’Byrne J. referred to Article 73 of the Constitution of the Irish Free State in this context. Article 73 was the one which carried forward all the laws in force at the date of the coming into operation of that Constitution save to the extent to which such laws were inconsistent with that Constitution. He treated Article 12 and Article 51 of that Constitution as saying that the prerogative rights of the Crown, being part of the common law of England and of Ireland up to the date of that Constitution, continued to apply as part of the common law in the Irish Free State by virtue of Article 73. The implication being, though not expressly stated, that there was nothing in that Constitution inconsistent with such continuance.
In my view, that was an erroneous over-simplification of the issues. He appears to have overlooked the fact that the basis of the Crown prerogatives in English law was that the King was the personification of the state. Article 2 of the Constitution of the Irish Free State declared that all the powers of government and all authority, legislative, executive and judicial, in Ireland were derived from the people of Ireland and that the same should be exercised in the Irish Free State through the organisations established by or under and in accord with that Constitution. The basis of the prerogative of the English Crown was quite inconsistent with the declaration contained in that Article. The King enjoyed a personal pre-eminence; perfection was ascribed to him. These were the prerogatives pertaining to the royal dignity. It was under this heading that he was personally immune from civil or criminal proceedings. So far as the royal authority was concerned, the prerogative relating to this was a general one by virtue of which the King was the supreme head of the executive; he had the prerogative right to make treaties and alliances with foreign states and the power to declare war and to make peace, and he was regarded as the fountain-head of justice and the general conservator of the peace of the kingdom. In the early days the King sat in person to administer justice and all jurisdictions in the civil courts were derived from him, either mediately or immediately. To this very day in England every civil suit in the High Court commences in the form of a command by the sovereign to the defendant to enter an appearance. In criminal proceedings the Sovereign acts as prosecutor, and judges derive their appointments from the Sovereign. In Ireland it is to be noted that by Article 30, s. 3, of the Constitution of Ireland, 1937, all crimes and offences in any court, other than a court of summary jurisdiction, shall be prosecuted in the name of the People, who are the sovereign authority.
The provisions of Article 2 of the Constitution of the Irish Free State expressly rejected the concept that any of the powers of government, legislative, executive or judicial, derived from the Crown. The position of the King in the Constitution of the Irish Free State was confined to the express provisions in that regard which were contained in that Constitution; and that position was owed not to any right on the part of the King but rather to the election of those who enacted the Constitution to give him a place in it. Article 12 of that Constitution made him a part of the Oireachtas and Article 51 vested the executive authority of the Irish Free State in him to be exercisable “in accordance with the law, practice and constitutional usage governing the exercise of the Executive Authority in the case of the Dominion of Canada, by the Representative of the Crown.” The reference to “the law, practice and constitutional usage . . . of Canada” had its origin in Article 2 of the Agreement for a Treaty between Great Britain and Ireland of the 6th December, 1921, and has been examined by Kingsmill Moore J. (when he was in the High Court) in In re Irish Employers Mutual Insurance Association Ltd. 67 at p. 218 of the report. It is unnecessary to investigate what was the law, practice and constitutional usage of Canada governing the exercise of the executive authority by the King; Article 51 of that Constitution by its very terms circumscribed the exercise by the King of the executive authority vested in him by the Article. It covered such matters as the declaration of war (although active participation in war, save in the case of invasion, required the assent of the Oireachtas under Article 49 of that Constitution), the making of treaties, the accrediting of diplomats and the dissolution of parliament. These were powers expressly granted to the King and could not be enforced in so far as they conflicted with the rights of any private individual, whether existing by virtue of the provisions of the constitution of the day or the law of the day. As supreme head of the executive the King, through the
officers and departments of the executive, was primarily concerned with carrying into execution all the Acts passed by the Oireachtas of Saorstat Eireann . Even assuming that in such capacity he enjoyed the royal prerogative of being personally immune from any civil or criminal proceedings, it did not mean that everything transacted by the then executive council was just and legal; nor was any personal immunity thereby afforded to individual officers or servants of Saorstat Eireann . He was but the executive organ of Saorstat Eireann , and if he had a personal immunity that did not relieve the principal, Saorstat Eireann , from making good the damage caused by the executive organ in carrying out the executive powers of government of the principal, Saorstat Eireann , which itself was the creation of the sovereign People.
So far as the judicial sphere was concerned, Article 68 of that Constitution provided that Judges of the Supreme Court, the High Court and other courts established under that Constitution should be appointed by the representative of the Crown on the advice of the executive council; and Article 66 of that Constitution, which dealt with the finality of the decisions of the Supreme Court, added a proviso to the effect that a person should retain the right to petition the King for special leave to appeal from the Supreme Court to “His Majesty in Council” or, in other words, to the Privy Council. The position and power granted to the King in that Constitution owed everything to the express provisions to that effect in that Constitution. In Saorstat Eireann he was not the personification of the State and, therefore, the common-law immunities or prerogatives of the King which were personal to him did not exist in Saorstat Eireann because any such claim postulated, of necessity, the acceptance in the Constitution of Saorstat Eireann of the King as the personification of the State. All royal prerogatives to be found in the common law of England and in the common law of Ireland prior to the enactment of the Constitution of Saorstat Eireann , 1922, ceased to be part of the law of Saorstat Eireann because they were based on concepts expressly repudiated by Article 2 of that Constitution and, therefore, were inconsistent with the provisions of that Constitution and were not carried over by Article 73 thereof. I am fortified in this view by the opinion expressed by Murnaghan J., and concurred in by all the members of the former Supreme Court, in In re Irish Employers Mutual Insurance Association Ltd. 68 at p. 240 of the report. In my view, the assumptions and the concessions in the cases which I have mentioned, that the former royal prerogatives were carried over by common law into the law of Saorstat Eireann , were incorrect. While those cases dealt with statutory provisions and the question whether or not the State was bound by the statutory provisions, the observations which I have made as to the question of the prerogatives apply with even greater force to causes of action which are not based upon statutory provision.
So far as statutory provisions are concerned, it is to be noted that in the Cork C.C. Case 69 both O’Byrne J. and Black J. referred to United States v. Hoar 70 which was decided by Mr. Justice Story, a justice of the United States Supreme Court, while he was acting as a Circuit Justice. The case involved the question of whether the United States could be barred from recovering in assumpsit in the Federal Court in Massachusetts by the Massachusetts statutes of limitations. Section 34 of the Judiciary Act of 1789 provided that “the laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.” Mr. Justice Story framed the issue as to whether that was the case where the statutes of limitations of Massachusetts applied. He held that the federal sovereign was privileged not to be bound by the statutes of limitations of a state and that, in the absence of a federal statute waiving the privilege, the state statute did not apply to the United States. Mr. Justice O’Byrne cited a passage from p. 330 of the report of United States v. Hoar 70; I now propose to cite that passage with a sentence from the passage which was omitted by O’Byrne J.: “We find accordingly, in our own state, the doctrine is well settled, that no laches can be imputed to the government, and against it no time runs, so as to bar its rights ( Inhabitants of Stoughton v.Baker 71); so, that it is clear, that the statutes of limitations pleaded in this case would be no bar to a suit brought to enforce any right of the state in its own courts. But, independently of any doctrine founded on the notion of prerogative, the same construction of statutes of this sort ought to prevail, founded upon the legislative intention.Where the government is not expressly or by necessary implication included, it ought to be clear from the nature of the mischiefs to be redressed, or the language used, that the government itself was in contemplation of the legislature, before a court of law would be authorized to put such an interpretation upon any statute. In general, acts of the legislature are meant to regulate and direct the acts and rights of citizens; and in most cases the reasoning applicable to them applies with very different, and often contrary force to the government itself. It appears to me, therefore, to be a safe rule founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act.” The text that I have quoted appears in the American report which I have already cited; the sentence which I have placed in italics does not appear in the passage as quoted by O’Byrne J. In my view it is a most vital sentence because it rationalises the principle expressed by Story J. Mr. Justice O’Byrne went on to say that he would be prepared, apart from any special reason arising out of the Constitution, to follow the reasoning of Story J. and to hold that the same rule was applicable in this State. It is to be noted that the state referred to by Story J. in the passage quoted is the State of Massachusetts and not the United States. Mr. Justice Black in his judgment also referred to the American decision. I think Professor Kelly in his book “Fundamental Rights in Irish Law and Constitution” (2nd ed. at p. 326) is correct in his observation that these two judges, of the three who decided that case, relied not only upon their view of the constitutional provisions but also upon the rationalisation of the principle underlying the prerogative right in question.
So far as the constitutional provision in question is concerned, I have already dealt with the observations of O’Byrne J. in his reliance upon the provisions of Articles 12, 51 and 73 of the Constitution of the Irish Free State. He also relied upon the provisions72 of Article 49 of the Constitution of Ireland, 1937, as carrying over the Crown prerogatives which, for the reasons he stated, he felt had been part of our common law after the year 1922. If, however, I am correct in the view I have expressed that this was an erroneous construction of the Constitution of Saorstat Eireann , then such privileges, prerogatives, and other rights which are carried over by Article 49 of the Constitution of Ireland are only those which were exercisable in or in respect of Saorstat Eireann immediately before the 11th December, 1936, whether by virtue of the Constitution of Saorstat Eireann or otherwise by the authority in which the executive power of Saorstat Eireann was then vested. Exemption from the provisions of a statute by virtue only of a royal prerogative existing at common law is not one of them.
At this point it is also relevant to note In re The Irish Aero Club ; Gillic v. Minister for Industry and Commerce .73In the winding up of the company the Minister for Defence claimed priority against other general creditors. His claim was grounded on s. 38, sub-s. 2, of the Finance Act, 1924, and he also submitted that the State was entitled to enjoy the prerogative which had accorded to the British Crown a right to a payment in full in priority to its subjects. At p. 209 of the report Gavan Duffy J. said:”. . . in the course of the hearing, Mr. Dixon, on behalf of the two Ministers, has expressly abandoned this second claim, very properly, if I may say so, for such a claim would be hard to reconcile with the Constitution.” Gavan Duffy J. emphatically rejected the claim of the Minister for Posts and Telegraphs in In re P.C. 74 to be entitled to the common-law royal prerogative of payment in priority to other debtors: see pp. 314-16 of the report. He observed at p. 314 of the report that it was well established that whenever the King’s claims and those of his subjects”came into competition, the King’s claims must be preferred, not because he was the executive authority, but by reason of the pre-eminence which he enjoyed at common law over all persons, on the principle expressed in the phrase detur digniori.” He pointed out, as had Kennedy C.J. in In re K. 75, that in Saorstat Eireann the Central Fund was a State fund and was in no sense a royal exchequer, and that the latter concept would have been in violation of Article 61 of the Constitution of Saorstat Eireann .
In so far as the State may be exempted from the provisions of a statute, it may possibly be capable of being rationalised on the basis on which it was done in United States v. Hoar 76, and which was adopted by O’Byrne J. as one of his reasons; but it is not necessary to decide that matter in this case as we are not concerned with the construction of a statute or with the question of whether or not the State is bound by the restrictive provisions of some statute. With reference to the quotation from United States v. Hoar 76, it is well to bear in mind that the vital words are: “Where the government is not expresslyor by necessary implication included, it ought to be clear from the nature of the mischiefs to be redressed, or the language used, that the government itself was in contemplation of the legislature, before a court of law would be authorized to put such an interpretation upon any statute.”Immediately before the passage cited from the judgment of Story J., there appears the sentence: “And though this is sometimes called a prerogative right, it is in fact nothing more than a reservation, or exception, introduced for the public benefit, and equally applicable to all governments.”It is already apparent from the provisions of s. 3 of the Statute of Limitations, 1957, which I have mentioned earlier in this judgment77, that in areas outside the collection of the public revenues and taxes and kindred subjects the public benefit no longer appears to the Oireachtas to require that the State, in its several departments therein mentioned, should have exemption from the provisions of the limitation periods laid down in that statute.
I wish to make it clear that nothing I have said is to be taken as expressing any view, one way or the other, upon the competence of the Oireachtas to exempt the State in respect of general statutory duties from liability for breaches of those duties committed by its officers, servants or employees within the scope of their service or employment. This case is concerned with the ability of the plaintiff to maintain a common-law action against the State for the tortious acts of its employees.
I have already stated the reasons for my opinion that the King had no place in the Irish legal system after 1922, save that which was expressly provided by the terms of the Constitution of Saorstat Eireann . The power and position granted to him by Article 51 of that Constitution did not purport to grant immunity from suit in exercise of the executive authority of the Irish Free State thereby declared to be vested in him. In my view, for the reasons I have already stated, no such immunity was available in Saorstat Eireann by virtue of any inherent quality in the royal person. If immunity from suit could have been claimed for the State, it could only have been on the basis of a rationalisation such as that enunciated in United States v. Hoar 78 and adopted by O’Byrne J. in Cork County Council v. Commissioners of Public Works 79; that immunity, if it existed, would have been enjoyed by Saorstat Eireann and not by the King.
There is no basis, theoretical or otherwise, for a claim that the State can do no wrong or, in the particular context, that Saorstat Eireann could do no wrong; and there is no basis, in theory or otherwise, for a submission that the State cannot be made vicariously liable for a wrong committed by its officers, employees and servants in the course of the service of the State. Earlier in this judgment I have given my reasons for holding that immunity from suit is not a necessary ingredient of State sovereignty.
Several provisions of the Constitution of the Irish Free State imposed obligations upon the State and conferred rights on the citizens as against the State and a breach of these, or a failure to honour them, on the part of the State would clearly have been a wrong or a breach of obligation; it is of no consequence that the wrong or breach might not be within the recognised field of wrongs in the law of tort. In principle, a wrong which arises from the failure to honour an obligation must be capable of remedy, and a contest between the citizen and the State in the pursuit of such a remedy is a justiciable controversy cognisable by the Courts save where expressly excluded by a provision of the Constitution if it is in respect of obligations and rights created by the Constitution, or save where expressly excluded by law if it is simply in respect of rights or obligations created by law. To take one example, Article 10 of the Constitution of Saorstat Eireann provided that all citizens of the Irish Free State “have the right to free elementary education.” In my view, that was clearly enforceable against Saorstat Eireann if no provision had been made to implement that Article of its Constitution. There are several instances in the Constitution of Ireland also where the State undertakes obligations towards the citizens. It is not the case that these are justiciable only when some law is being passed which directly infringes these rights or when some law is passed to implement them. They are justiciable when there has been a failure on the part of the State to discharge the obligations or to perform the duties laid upon the State by the Constitution. It may well be that in particular cases it can be shown that some organ of the State already has adequate powers and in fact may have had imposed upon it the particular duty to carry out the obligation undertaken by the State, but that would not mean that the State was not vicariously liable for the non-performance by its various organs of their duties.
Even if one were to adopt the concept that the State can do no wrong because, as it acts by its organs, agents or employees, any wrong arising must be attributed to them rather than to the State itself, the doctrine of respondeat superior would still apply. That doctrine is not invalidated by showing that the principal cannot commit the particular tort. It rests not on the notion of the principal’s wrong but on the duty of the principal to make good the damage done by his servants or agents in carrying on the principal’s affairs. It may well be that in many cases the appropriate organ of State, or the officer or person, charged with the particular duty could be compelled by mandamus proceedings to carry out the duty imposed including, if necessary, an order to apply to the Oireachtasfor the necessary finance: see Conroy v. Minister for Defence. 80 However, that does not exonerate the State as the principal from the damage accruing from the failure to do so or from the damage accruing from the wrongful manner in which it was done.
Where the People by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available. It is as much the duty of the State to render justice against itself in favour of citizens as it is to administer the same between private individuals. The investigation and the adjudication of such claims by their nature belong to the judicial power of government in the State, designated in Article 6 of the Constitution of Ireland81, which is vested in the judges and the courts appointed and established under the Constitution in accordance with the provisions of the Constitution.
In my view, the whole tenor of our Constitution is to the effect that there is no power, institution, or person in the land free of the law save where such immunity is expressed, or provided for, in the Constitution itself. Article 13, s. 8, sub-s. 1 (relating to the President) and Article 15, ss. 12 and 13 (relating to the Oireachtas) are examples of express immunities. For an example of provision for the granting of immunity, see Article 29, s. 3, by which diplomatic immunities may be granted. There is nothing in the Constitution envisaging the writing into it of a theory of immunity from suit of the State (a state set up by the People to be governed in accordance with the provisions of the Constitution) stemming from or based upon the immunity of a personal sovereign who was the keystone of a feudal edifice. English common-law practices, doctrines, or immunities cannot qualify or dilute the provisions of the Constitution: see The State (Browne)v. Feran .82 I think it is apposite to quote here the words of Murnaghan J. in In re Tilson 83 where he said at p. 32 of the report: “The archaic law of England rapidly disintegrating under modern conditions need not be a guide for the fundamental principles of a modern state. It is not a proper method of construing a new constitution of a modern state to make an approach in the light of legal survivals of an earlier law.”
While the King had a limited place in the Constitution of Saorstat Eireann , he had no place in the present new republican form of constitution which was enacted in 1937 and came into force on the 29th December, 1937. The present Constitution provides at Article 28, s. 2, that the executive power of the State shall, subject to the provisions of the Constitution, be exercised by or on the authority of the Government. Section 3 of that Article provides that war shall not be declared and that the State shall not participate in any war save with the assent of Dail Eireann , except that in the case of actual invasion the section provides that the Government may take whatever steps it may consider necessary for the protection of the State and that the Dáil, if not sitting, shall be summoned to meet at the earliest practicable date. Article 29, s. 4, reserves exclusively to the authority of the Government the exercise of the executive power of the State in connection with its external relations. By Article 15 the national parliament (to be known as the Oireachtas) consists of the President of Ireland, Dail Eireann and Seanad Eireann . Article 34 expressly reserves the administration of justice to the judges and the courts to be appointed and established under the Constitution, subject to the provision in Article 37 for the exercise of limited functions and powers of a judicial nature by other persons or bodies duly authorised by law to exercise such functions in matters other than criminal matters. The defendants have placed reliance upon the provisions of Article 49 of the Constitution. Section 1 of that Article provides as follows:
“All powers, functions, rights and prerogatives whatsoever exercisable in or in respect of Saorstat Eireann immediately before the 11th day of December, 1936, whether in virtue of the Constitution then in force or otherwise, by the authority in which the executive power of Saorstat Eireann was then vested are hereby declared to belong to the people.”
This is a reference to the Constitution (Amendment No. 27) Act, 1936, which provided in s. 1 that several[
Articles of the Constitution of Saorstat Eireann set out in the schedule to that Act were amended, or otherwise dealt with, in the manner set out in the schedule. The Act came into force on the 11th December, 1936, and the effect of it was to remove from the Constitution of Saorstat Eireann all references to the King, the representative of the Crown, and the Governor General. In particular the effect of the changes, in so far as Article 51 of that Constitution was concerned, was to divest the King of the executive authority of Saorstat Eireann and to vest it in the Executive Council. At that date the King was Edward VIII who had abdicated from the throne of England on the 10th December. On the 12th December, 1936, the Executive Authority (External Relations) Act, 1936, came into force and it provided that the diplomatic representatives of Saorstat Eireann should be appointed on the authority of the Executive Council, and that every international agreement concluded on behalf of Saorstat Eireann should be concluded by or on the authority of the Executive Council. Section 3 of that Act provided that so long as the king recognised by Australia, Canada, Great Britain, New Zealand and South Africa as the symbol of their co-operation continued to act on behalf of those nations on the advice of their several governments for the purpose of the appointment of diplomatic and consular representatives and the conclusion of international agreements, and so long as Saorstat Eireann was associated with those nations, the king so recognised was thereby authorised to act on behalf of Saorstat Eireann for the like purposes as and when advised by the Executive Council to do so. The same section provided that, immediately upon the passing of that Act (12th December, 1936), King Edward VIII should cease to be King for the purpose of those activities and for all other, if any, purposes and that his successor for the time being would be his successor under the law of Saorstat Eireann . The joint effect of those two Acts was to remove the King entirely from the Constitution of Saorstat Eireann , to remove from him all powers and functions in relation to the executive or other authority of Saorstat Eireann or the exercise of any of the powers of government of Saorstat Eireann , and to authorise him to act on behalf of Saorstat Eireann only when so advised by the Executive Council to do so in respect of certain matters concerned only with external relations. It is to be noted that neither of these Acts made any reference whatsoever to the immunities or prerogatives of the King, if any, which existed in Saorstat Eireann on the 10th December, 1936; these Acts made no reference whatsoever to any question of succession to or transmission of these prerogatives or immunities, if any. It is unnecessary to enquire what powers, functions, rights or prerogatives were exercisable by the King on the 10th December, 1936, in or in respect of Saorstat Eireann as, for the reasons I have already given, they did not include a right of immunity from suit in the courts of Saorstat Eireann . Therefore, the provisions of Article 49, s. 1, of the Constitution of Ireland which vested in and declared to belong to the People all the powers, functions, rights and prerogatives whatsoever exercisable in or in respect of Saorstat Eireann immediately before the 11th December, 1936, whether in virtue of the Constitution of Saorstat Eireann or otherwise, did not carry over or set up all immunity from suit. It was quite within the competence of the People in enacting the Constitution of 1937 to provide for an immunity from suit which did not exist prior to the coming into operation of the Constitution, but no such provision was made. Section 2 of Article 49 provides84 that save to the extent to which provision is made by the Constitution or might thereafter be made by law for the exercise of any such power, function, right or prerogative by any of the organs established by the Constitution, the powers, functions, rights and prerogatives mentioned in s. 1 shall not be exercised or be capable of being exercised in or in respect of the State, save only by or on the authority of the Government. Even assuming that such a common-law immunity from suit did exist so as to be capable of being carried over by Article 49 of the Constitution in accordance with the terms of that Article, is would become thereby the immunity of the People as distinct from the State. While the present action in its original form was an action brought against the People, the parties were changed85 so that it is now an action against the State and the Attorney General, and the original plea in the defence claiming the immunity of the People as the sovereign authority from such action must be read as a plea claiming such immunity on behalf of the State. In either its original form or in its present form the plea would, in my view, fail even if such immunity were vested in and belonged to the People, because there is no evidence of any authority from the Government for the assertion of any such claim and, by virtue of s. 2 of Article 49 of the Constitution, no such claim could be set up in respect of the State save only by or on the authority of the Government. It is to be noted that the same situation arose in In re P.C. 86 where Gavan Duffy J. expressed the same view on the necessity for evidence of authority from the Government for the assertion of the claim of immunity.
As the pleadings and the evidence already taken in the present case indicate, the claim of the plaintiff arises out of an allegation of negligence in the carrying out of certain works on the public road in County Wicklow, which works consisted in the laying of telephone or telegraph cables for the Department of Posts and Telegraphs by persons employed in that Department. Section 1(ix) of the Ministers and Secretaries Act, 1924, sets out the functions of that Department and provides that the head of the Department shall be the Minister for Posts and Telegraphs. The Minister is a corporation sole with perpetual succession and, as such, may be sued under his style or name: see s. 2, sub-s. 1, of the Act of 1924. The officials and other employees in that Department are not the employees of the Minister for Posts and Telegraphs, and he cannot be made liable in damages for the tortious acts committed by these employees even though they may have been appointed by him to their particular employment. Both they and the Minister are persons employed by or under the State and in my view it makes no difference if, being civil servants, they are civil servants in the service of the Government or are civil servants in the service of the State a distinction which was adverted to in McLoughlinv. Minister for Social Welfare .87 All such persons employed in the various Departments of the Government and the other Departments of State, whether they be in the Civil Service or not, are in the service of the State and, for the reasons I have already given, the State is liable for damage done by such persons in carrying out the affairs of the State so long as that person is acting within the scope of his employment. The decision of this Court in The Attorney General v. Ryan’s Car Hire Ltd. 88 provides no support for a contrary view. That case simply decided that the State employee who was involved in the case was not a servant of the menial status in respect of the loss of whose services the State could seek to avail of the actionper quod servitium amisit, which action was based on a feudal concept having its origins in the rules of law applicable to villein status.
The concept of a Minister or a member of the Government being a fellow servant or fellow employee of the other persons employed in his Department was fully discussed in Carolan v. Minister for Defence 89 and, while the constitutional position has altered since that decision, I think the concept is still valid. In that particular case it was held by the High Court that members of the Defence Forces and the Minister for Defence were fellow servants in the employment of the Government. The real point of the case, however, was whether the Minister for Defence was the employer of such members or their fellow employee. The court’s view that they were both in the employment of the Government is not, I think, of any great materiality because no point was raised as to whether they were in the employment of the Government as distinct from the State. In McLoughlin v. Minister for Social Welfare 90 it was indicated that persons in the Civil Service may be in the Civil Service of the State rather than the Civil Service of the Government, but I think that the correct view is that they are all in the service of the State. In Carolan v. Minister for Defence 89 Sullivan P. referred at p. 66 of the report to the Minister for Defence and his subordinates as “both being servants of the public” and at p. 68 he referred to the subordinates as “servants of the public in the employment of the Government, and, as such, fellow-servants of the Minister for Defence . . .” As the Minister is not a servant of or in the employment of the Government, it seems quite clear that the court in that case was not deciding that the subordinate was in the service of the Government as distinct from the State. It is in the latter instance only that he is a fellow servant with the Minister. This latter concept is one which was recognised by s. 64 of the Workmen’s Compensation Act, 1934, just as it is recognised by s. 59 of the Civil Liability Act, 1961, in relation to motor vehicles used by the different Departments of Government or of the State. The Government is the organ of State established by the Constitution to exercise the executive power of the State subject to the provisions of the Constitution, and by the Constitution it is bound to act as a collective authority and to be collectively responsible for the Departments of State administered by the members of the Government. It is responsible to Dail Eireann . It was not claimed in the present case that the plaintiff’s action should have been more properly brought against the Government than against the State, and I do not think that such claim would have been sustainable; but it is ironic to note that, if such were the case, the very provisions of Article 49, s. 2, of the Constitution which were relied upon by the defendants to enforce their claim for immunity from suit would not be applicable to a suit against the Government itself.
I come now to deal with the joining of the Attorney General as a defendant in these proceedings. Article 30 of the Constitution constitutes the office of Attorney General. It provides that the Attorney General shall be the adviser of the Government in matters of law and legal opinion, and that he shall exercise and perform all such powers, functions and duties as are conferred or imposed on him by the Constitution or by law. By virtue of the Constitution he is an independent constitutional officer of State with powers and duties some of which are of a quasi-judicial nature and some of an executive nature. However, he is not in any sense the servant of the executive, and any exercise by him of executive powers is not the exercise of the executive powers of the Government but rather those of the Attorney General himself: see O’Dalaigh J. (as he then was) in McLoughlin v. Minister for Social Welfare 91 at pp. 24 and 25 of the report. The
Attorney General is not answerable for the acts of the Government or of its members, or for the acts of those in the service of the State. Section 6, sub-s. 1, of the Ministers and Secretaries Act, 1924, specifies particular powers, functions and duties which are vested in the Attorney General, including the administration and business generally of public services in connection with the representation of the Government and of the public in all legal proceedings for the enforcement of law and the assertion or protection of public rights and all powers, duties and functions connected with the same. In the case of O’Doherty v. The Attorney General 92 a somewhat similar point was raised with regard to the propriety of joining the Attorney General in an action in which, ultimately, an order for mandamus was made to compel the referee under the Military Service Pensions Act, 1934, to carry out his functions in accordance with law. It would appear from the report that the mandamus was directed only to the referee. At p. 585 of the report Gavan Duffy J. said: “My view is that the plaintiff was right in joining the Attorney General. The Referee is a statutory delegate, reporting upon some 60,000 cases for the Minister for Defence; he is doing very difficult work of an administrative character, but so extensive that the normal machinery of the Department of Defence could not cope with it; the Minister is necessarily interested in an attack of this kind upon the proceedings of the Referee, an attack which in some cases might have far-reaching effects, if successful; and the State is interested, because the work of the Referee in the case of every successful applicant leads directly to a demand on public funds. The Minister for Defence was not sued and the Minister for Finance was not sued; the public interest was represented by the Attorney-General instead. I think that was right.” He went on to note that no additional costs would be incurred by joining the Attorney General as the referee and the Ministers or the Attorney General, when sued, should have the same solicitor and counsel, except in a case where the referee was defending his own conduct which was not supported by the Government and where he had decided to fight the case though the Government disapproved. In the present case I think the same general reasoning applies. There can be no doubt that when the State is sued it is entitled to defend itself; this power or right to defend itself is one which can be exercised in respect of the State only by or on the authority of the Government by virtue of the provisions93 of Article 49, s. 2, of the Constitution. If in such a case it is the Attorney General’s opinion that the Government should authorise the defence by the State of the claim brought against it, the defence is a matter of public interest and is properly financed out of public moneys. If the Government does not wish to authorise the defence by the State, then the Attorney General would not defend the case either. In all such cases it is my view that the correct procedure would be to sue the State and to join the Attorney General in order to effect service upon the Attorney General for both parties. In effect the Attorney General would be joined in a representative capacity as the law officer of State designated by the Constitution. If the claim should succeed, judgment would be against the State and not against the Attorney General.
It is unnecessary at this juncture to consider how such a decree would be executed or enforced but it is sufficient to say that an order for mandamus to compel compliance with the judgment would be an appropriate step and not without precedent.
For the reasons I have given, the order of the High Court should be reversed and in lieu thereof an order should be made answering in the affirmative the question raised in each of the four issues directed to be tried by the Order of the 6th November, 1967. I have had the privilege of reading the judgment about to be delivered by Mr. Justice Budd and I agree with it.