Duffy v Corporation of Dublin

• Jurisdiction: Ireland
• Judgment Date: 10 May 1974
• Date: 10 May 1974
• Docket Number: [1971. No. 3233 P]
• Court: Supreme Court

Supreme Court

[1971. No. 3233 P]

Duffy v. Corporation of Dublin

LUKE F. DUFFY and Others

Plaintiffs

and

The Right Honourable THE LORD MAYOR, ALDERMEN and BURGESSES of the City of Dublin

Defendants.

Statute - Interpretation - Ordinary meaning - "Shall be lawful"- Local authority - City cattle market - Whether corporation obliged to continue to maintain market - Markets and Fairs Clauses Act, 1847 (10 Vict. c. 14), s. 14 - Dublin Improvement Act, 1849 (12 & 13 Vict. c. 97), ss. 79, 80 - Dublin Improvement Acts Amendment Act, 1864 (27 & 28 Vict. c. cccv), s. 10.

Appeal from the High Court.

On the 7th September, 1971, the defendants decided to close the Dublin cattle market at North Circular Road from the 1st October, 1971. The plaintiffs were members of the Dublin Cattle Salesmasters Association; they brought an action in the High Court to compel the defendants to continue the market. On the 13th July, 1972, the plaintiffs' claim was dismissed by O'Keeffe P. and they appealed to the Supreme Court.

Section 79 of the Dublin Improvement Act, 1849, provides that it shall be lawful for the Corporation of Dublin at any time, and from time to time, as they think fit to purchase lands to be appropriated and used as a market as therein mentioned. Section 80 of the Act of 1849 provides that "it shall be lawful" for the corporation to build and provide upon the land to be purchased, and for ever afterwards to maintain and improve, one or more market place or market places for the sale of cattle. Pursuant to the sections, the defendants purchased land and provided a cattle market thereon in the year 1864. Owing to changes in the marketing of cattle, the market's trade diminished to such an extent that a substantial subsidy from the local rates was required to keep the market open. The defendants decided to close the market and the plaintiffs, members of an association of cattle salesmen, brought an action in the High Court in which they claimed a declaration that the defendants were obliged by statute to continue to hold markets for the sale of cattle at the market on the appointed days. On appeal by the plaintiffs from the dismissal of their claim, it was

Held by the Supreme Court (Walsh, Henchy and Griffin JJ.), in disallowing the appeal, 1, that, in accordance with its ordinary meaning, the phrase "it shall be lawful" was equivalent to the conferring of a power.

2. That the context of ss. 79 and 80 of the Act of 1849 did not justify the application of any other meaning to the phrase.

3. That, accordingly, those sections merely enabled the defendants to do the acts there specified, and did not oblige them to do such acts.

Cur. adv. vult.

Walsh J. :—

I have read the judgment of Mr. Justice Henchy and I agree with it.

Henchy J. :—

The defendants have held a market for the sale of cattle, sheep and pigs on a site at North Circular Road, Dublin, since 1863. The site was acquired by the defendants for a market pursuant to powers vested in them by the Dublin Improvement Act, 1849. For a considerable time it was the premier market in the country for the sale of cattle for export, but in recent times it has fallen into decline. The number of animals sold annually in it has dropped

steadily. Between 1963 and 1972 the average number of cattle offered for sale at the weekly market fell from 2,156 to 591, and for sheep the fall was from 7,017 to 1,628 for the same period. In fact the market has been kept going only with the help of an annual subvention from the rates that had mounted to over £33,000 by 1972. Those losses have continued despite increases in the rates of tolls collected, reductions in the market area, and the employment of fewer people in the running of the market.

It is said that one of the main reasons for the decline in the fortunes of the market has been the establishment in recent times of cattle marts throughout the country and, in particular, in nearby centres such as Ashbourne, Maynooth and Baltinglass. The defendants were advised that those new outlets were adequate to deal with the number of animals now being offered for sale at the Dublin cattle market, that the decline in sales in the market was irreversible, and that it would be desirable to close the market because of the steadily increasing burden on the Dublin ratepayers of subsidising it.

The defendants took those matters into account and, having been advised that it was within their discretion to discontinue the market, decided in September, 1971, to close it down from the 1st October, 1971. That decision met with strong and immediate reaction from the plaintiffs, who are members of the Dublin Cattle Salesmasters Association. They contended that the defendants are bound by statute to keep the market open, but the defendants maintained that there was nothing to prevent them from closing it. The plaintiffs thereupon instituted proceedings in the High Court seeking orders which would have the effect not alone of keeping the market open but also of compelling the defendants to provide an auction mart in the market. The case came before the President, Mr. Justice O'Keeffe, who held that there was no legal obligation on the defendants to keep the market open. Accordingly, he dismissed the plaintiffs' claim. From that decision the plaintiffs have appealed to this Court. An interlocutory injunction was granted in the High Court restraining the defendants from closing the market pending the decision of the High Court, and by an order of this Court made on the 31st July, 1972, a further injunction to the same effect has been granted pending the determination of this appeal. So the market remains open unless and until this Court decides that the defendants are entitled to close it.

As I have stated, the origin of the Dublin cattle market is to be found in the Dublin Improvement Act, 1849. Section 71 of the Act of 1849 enacts that the Markets and Fairs Clauses Act, 1847 (with the exception of the clause prohibiting sales elsewhere than in markets and such other clauses as are expressly varied by or inconsistent with the Act of 1849), shall be...