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Cite as: [1980] IESC 1, [1983] IR 58

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State (O'Rourke) v. Kelly [1980] IESC 1; [1983] IR 58 (28th July, 1980)

Supreme Court

The State (at the prosecution of Martin O’Rourke)

(Plaintiff)

v.

James A. Kelly and The Attorney General

(Defendants)

No. 58 of 1979

[28^th July, 1980]

Status: Reported at [1983] IR 58

O’Higgins C.J.

The prosecutor challenges the constitutionality of s. 62 of the Housing Act, 1966, on the grounds that sub-s. 3 thereof has the effect of imposing on the District Justice a mandatory obligation to issue the warrant mentioned in the section, and thereby constitutes an invasion of the judicial domain by depriving the District Justice of any real judicial discretion. The Court does not feel that there is any substance in this submission. Sub-s. 3 of s. 62 states:-

“(3) Upon the hearing of an application duly made under subsection (1) of this section, the justice of the District Court hearing the application shall, in case he is satisfied that the demand mentioned in the said subsection (1) has been duly made, issue the warrant.”

1. It will be seen that it is only when the provisions of sub-s. 1 of s. 62 have been complied with and the demand duly made to the satisfaction of the District Justice that he must issue the warrant. In other words, it is only following the establishment of specified matters that the sub-section operates. This is no different to many of the statutory provisions which, on proof of certain matters, make it mandatory on a court to make a specified order. Such legislative provisions are within the competence of the Oireachtas. The Court, therefore, rejects the complaint that the section is invalid having regard to the provisions of the Constitution on the ground alleged.