Julius v Lord Bishop of Oxford and Another: HL 23 Mar 1880

A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words ‘it shall be lawful’ merely conferred a power, not a duty.
Lord Cairns said: ‘But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person on whom the power is reposed, to exercise that power when called upon to do so.’ and the cases decided ‘that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised.’
Lord Penzance said that the true question was whether regard being had to the person enabled, to the subject matter, to the general objects of the statute and to the person or class of persons for whose benefit the power was intended to be conferred, the words do or do not create a duty.
Lord Selborne said that the question was whether it could be shown from any particular words in the Act or from the general scope and objects of the statute that there was a duty.
Lord Blackburn said: ‘though giving a power is prima facie merely enabling the donee to act, and so may not inaccurately be said to be equivalent to saying he may act, yet if the object of giving the power is to enable the donee to effectuate a right, then it is the duty of the donee of the power to exercise the power when those who have the right call upon him so to do. And this is equally the case where the power is given by the word ‘may’, if the object be clear.’

Lord Selborne, Lord Penzance
[1880] UKHL 1, (1880) 5 AC 214, [1874-80] All ER 43, 42 LT 546, 49 LJQB 577
Bailii
England and Wales
Cited by:
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Lists of cited by and citing cases may be incomplete.

Administrative, Ecclesiastical

Leading Case

Updated: 11 November 2021; Ref: scu.263823

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