Connor v Butler

• Jurisdiction: Ireland
• Judgment Date: 27 February 1902
• Date: 27 February 1902
• Court: King's Bench Division (Ireland)

Connor

and

Butler (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1902.

Food and Drugs Acts, 1875, 1899 (38 & 39 Vict. c. 13; 62 & 63 Vict. c. 51)—Summary jurisdiction—Right of local inspector to prosecute for penalties in his own name.

Where, under section 2 of the Food and Drugs Act, 1899 (62 & 63 Vict. c. 51), the Local Government Board, or Board of Agriculture, through their officer, procure samples of an article of food (e.g. margarine) for analysis, and communicate the certified result of the analysis, when made, to the secretary of the local authority, the secretary of the local authority may, without any special resolution, transmit such certificate to the inspector appointed under the Food and Drugs Act of 1875; and he without antecedent authorization may proceed in his own name to prosecute for any penalties to which the vendor may be liable.

Case Stated.

At Bray Petty Sessions on the 4th January, 1902, the defendant, Thomas Butler, was charged upon three complaints alleging—

“(1). That On 12th November, 1901, At Main-street, Bray, County Wicklow, he, the said defendant, did unlawfully refuse to sell an article of food, namely, butter, to one Patrick Duignan, an inspector of food and drugs, who applied to purchase said article of food exposed for sale by retail in his shop, and who tendered the price of the quantity which he required for the purpose of analysis.

“(2). And That On The 12th November, 1901, At Main-street, Bray, County Wicklow, he, the said defendant, having exposed margarine for sale by retail did fail or neglect to attach to each parcel so exposed and in such manner as to be clearly visible to the purchaser a label marked in printed capital letters not less than one-and-a-half inches square the word ‘margarine,’ contrary to the statute in such cases made and provided.

“(3). And that on the 12th day of November, 1901, at Main-street, Bray, county Wicklow, he, the said defendant, having sold margarine by retail, the same not being in a package duly branded

or durably marked, did not deliver said margarine to the purchaser in a paper wrapper marked with capital block letters not less than half an inch long and distinctly legible with the word ‘margarine,’ contrary to the statute in such cases made and provided.”

Upon the hearing the Justices made the following orders:—

On the first summons, “No jurisdiction, summons having been issued without direction of the local authority, and in the name of the inspector of food and drugs to the local authority, who did not seek to purchase the articles of food; and on each of the second and third summonses, “No jurisdiction, summons having been issued without the direction of the local authority and in the name of the inspector of food and drugs to the local authority, who did not take the samples.”

On the application of the complainant the Justices stated the present case.

At the hearing of the summonses, Patrick Duignan, an inspector of the Department of Agriculture and Technical Instruction for Ireland, proved having visited the grocery and provision shop of the defendant, No. 2, Main-street, Bray, on the 12th November, and the happening of the facts alleged in the three summonses, and that, having on the same day ultimately procured from the defendant for analysis a sample of a butter-like substance, he divided same into four parts and dealt with three of such parts in the manner directed by section 14 of the Sale of Food and Drugs Act, 1875, as amended by 62 & 63 Vict. c. 51, and sent the fourth part to the Board of Agriculture.

The following facts were admitted by both complainant and defendant:—

1. That the Board of Agriculture communicated the result of the analysis of said sample to the secretary of the county council (the local authority) on the 4th of December, 1901.

2. That the next meeting of the county council was held on the 9th day of December, when the result of the analysis was for the first time brought before them, and that at that meeting the following resolution was passed:—“Resolved—That the report on margarine offences be sent to our inspector in Bray to deal with.”

3. That the complainant was the inspector of food and drugs under the local authority.

4. That the summonses were issued on the 6th December, 1901.

In view of the opinion of the magistrates no evidence on the part of the defendant was tendered.

It was contended on the part of the complainant that when a constable prosecuted for adulteration it was not necessary to prove that he was directed by the local authority to prosecute: Hale v. Cole (1); that the local authority had appointed an inspector and given him full authority to take all necessary proceedings to enforce the Adulteration of Foods Acts, and that it was only through him that they caused any analysis to be made; that as a duty was cast on the local authority, communication to the secretary was communication to the authority; and that on communication of the result of the analysis to the secretary of the local authority, the local authority were in the same position as to taking proceedings as if the analysis had been procured by their inspector, as they acted through him in these matters.

On the part of the defendant it was contended that on the date of issuing the summonses (6th December, 1901), the county council had not authorized the proceedings to be taken, and had not had the result of the analysis before them; that therefore the summonses could not be maintained (62 & 63 Vict. c. 51, s. 2, ss. 1, 1a, and 2); that communication of the result of the analysis to the secretary could not be communication to the local authority, as the local authority had a discretion as to whether they would proceed or not; and if they desired to proceed they must by resolution thereupon cause proceedings to be taken; that an inspector for the local authority taking proceedings under the Act of 1875 did not do so by reason of any general delegation of authority, but because he was the person causing the analysis to be made: 38 & 39 Vict. c. 13, s. 20; that in fact there had been no general delegation of authority to the complainant, and that the resolution of the local authority of the 9th December was in itself bad in law and inoperative, as it should have been an express direction to cause proceedings to be taken in the name of the local authority; that the prosecutor in these cases was not the person causing the

analysis to be made; that by section 2, sub-section 2, the prosecutor should be the county council; and that therefore the summonses were all bad in law.

The Justices stated that they were of opinion that at the date of the issuing of the summonses, the county council as local authority had not caused proceedings to be taken, inasmuch as the result of the analysis was not placed before a meeting of the council until the 9th December; further, that the complainant (an inspector of food and drugs under the local authority), not being the person causing the analysis to be made (38 & 39 Vict. c. 63, s. 20), could not maintain any of the summonses in his name, and accordingly decided against the complainant, at whose request they now stated the present case for the opinion of the Court, as to whether they were correct in point of law in their determination or as to what should be done in the premises.

C. Atkinson, and The Solicitor-General (Campbell, K.C.), for the complainant and appellant.

W. G. Gibson, and Wakely, K. C., for the respondent.

Cur. adv. vult.

C. Atkinson, and The...