East Donegal Co-Operative Livestock Mart Ltd v Attorney General

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 27 July 1970
• Docket Number: [1967. No. 2194 P.]
• Date: 27 July 1970

East Donegal Co-Operative v. Attorney General

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LIMITED and Others

Plaintiffs

and

THE ATTORNEY GENERAL

Defendant.

[1967. No. 2194 P.]

Supreme Court

Constitution - Statute - Validity - Equality before the law - Livestock marts - Control of marts by Minister of State - Licences to trade granted by Minister - Objects of legislation - Whether discretion of Minister was absolute - Livestock Marts Act, 1967 (No. 20 of 1967), ss. 3, 4 - Constitution of Ireland, 1937, Articles 40, 43.

The business of selling cattle, sheep or pigs by auction was controlled for the first time by the Livestock Marts Act, 1967. The Act made the conduct of such business an offence unless an appropriate licence had been granted by the Minister for Agriculture and Fisheries. Sub-sections 1-5 of s. 3 of the Act enabled the Minister to grant or to refuse to grant a licence at his discretion, to attach to a licence such conditions as he should think proper, to amend or revoke a condition if he thought fit and, if he thought fit, to revoke a licence if the holder was guilty of an offence under the Act.

Sub-section 6 of s. 3 provided that, when the Minister intended to refuse on certain grounds to grant a licence, the Minister should first notify the applicant of such intention and of the reasons therefor and that the Minister should consider any representations made by the applicant. Similar provisions were made by sub-s. 6 in regard to an intention of the Minister to revoke a licence but in that event, and if the licence holder so requested, the sub-section also provided for the holding of an inquiry by a barrister having power to take evidence on oath, and for the appearance of the licence holder at the inquiry by counsel or solicitor with power to adduce evidence, and for the consideration by the Minister of the barrister's report before the licence was revoked.

Sub-section 7 of s. 3 provided that if the Minister revoked a licence he should cause a statement of his reasons for doing so to be laid before each House of the Oireachtas. Sub-section 8 of s. 3 provided that a person who conducted the business of a livestock mart, and who had done so immediately before the passing of the Act, should be entitled to a licence if the place at which he conducted the business complied with the regulations made pursuant to the Act. Section 4 of the Act provided that the Minister, if he thought fit, might grant exemption from the provisions of the Act in respect of the conduct of any particular business or business of any particular class or kind. The plaintiffs were either co-operative societies, consisting of citizens of Ireland, that operated livestock marts pursuant to licences granted under the Act or they were farmers and citizens of Ireland whose businesses required the sale of livestock by auction and who were also shareholders in various livestock marts. At the hearing of the plaintiffs' action in the High Court, in which they claimed a declaration that the Act of 1967 was invalid having regard to the provisions of the Constitution of Ireland, it was

Held by O'Keeffe P., first, that such of the plaintiffs as were natural persons and citizens of Ireland were entitled to bring and maintain an action which raised the issue of the validity, having regard to the provisions of the Constitution, of legislation which they considered to be a threat to their interests.

2. That the provisions of the Act of 1967 in respect of the Minister's power to attach conditions to licences and to revoke such conditions gave him an uncontrolled discretion which could be exercised, within the limits of the Act, in a manner which would be a breach of the guarantee of equality before the law given by Article 40, s. 1, of the Constitution.

McDonald v. Bórd na gCon [1965] I.R. 217 considered.

3. That the provisions of the Act of 1967 relating to conditions were so closely connected with the licensing provisions of the Act that the licensing provisions generally must be declared to be invalid having regard to the provisions of the Constitution.

On appeal by the defendant it was

Held by the Supreme Court, 1, that the plaintiffs, being engaged in the type of business which was directly affected and subject to control by the provisions of the Act of 1967, were entitled to bring and maintain their action in order to prevent a threatened infringement of rights guaranteed to them by the Constitution or in order to put to the test an apprehended infringement of such rights.

2. That, as the Act of 1967 was passed after the Constitution came into operation, there was a presumption that the terms of the Act were not invalid having regard to the provisions of the Constitution and that, as between two or more reasonable constructions of the terms of the Act, the construction that was in accordance with the provisions of the Constitution would prevail over any construction that was not in accordance with such provisions.

McDonald v. Bord na gCon [1965] I.R. 217 applied.

3. That such presumption of constitutionality carried the implication that all proceedings, procedures, discretions and adjudications which were permitted or prescribed by the Act of 1967 were intended by the national parliament to be conducted in accordance with the principles of constitutional justice; and that such principles required that the Minister should consider every case upon it own merits, that he should consider the submissions of any applicant or licensee, and that the Minister should give the latter an opportunity to controvert any case that was made in favour of the course that the Minister intended to adopt.

4. That the powers and discretions conferred by the Act of 1967 were further controlled by having to be exercised within the boundaries set by the objects of the Act, which objects were ascertained by an examination of the entire Act, including its long title; and that the limitation of the number of auction marts was not one of the objects of the Act.

5. That the plaintiffs had not established that any portion of s. 3 of the Act of 1967 was invalid having regard to the provisions of the Constitution.

6. That the power of the national parliament under Article 40, s. 1, of the Constitution to have due regard in its enactments to differences of capacity and social function, did not extend to a delegation of that power to a Minister of State so as to enable him to exempt a particular individual from the operation of the Act of 1967 in the circumstances contemplated by s. 4 of that Act, and that the parts of s. 4 which purported to authorise such exemption were invalid having regard to the provisions of the Constitution.

Plenary Summons.

The facts have been summarised in the head-note and they appear in the judgments, post. The first three plaintiffs were the East Donegal Co-Operative Livestock Mart Limited, the Kilkenny Co-Operative Livestock Market Limited and the Carlow Co-Operative Livestock Mart Limited. The fourth, fifth, sixth and seventh plaintiffs were Thomas Cahill, George Claxton, John Burton and James Jordan. The plaintiffs' plenary summons was issued on the 20th September, 1967.

The plaintiffs delivered a joint statement of claim on the 26th April, 1968, in the following terms:—

"1. The first-named plaintiff is a co-operative society with a registered office at Raphoe in the County of Donegal and is the owner and operator of a livestock mart.

2. The second-named plaintiff is a co-operative society with a registered office at Barrack Street, Kilkenny, in the County of Kilkenny and is the owner and operator of a livestock mart.

3. The third-named plaintiff is a co-operative society with a registered office at Fair Green, Carlow, in the County of Carlow and is the owner and operator of a livestock mart.

4. The fourth, fifth and sixth-named plaintiffs are all farmers and reside respectively at Ballyportry, Corofin, in the County of Clare, Rathe House, Kilmainhamwood, in the County of Meath and Minehill Dromagh, Mallow, in the County of Cork.

5. The seventh-named plaintiff is a livestock exporter and resides at Main Street, Bagenalstown, in the County of Carlow.

6. The rights of ownership and management of the three first-named plaintiffs and of each of them in the said respective livestock marts were at the date of the enactment by the Oireachtas of the Livestock Marts Act, 1967, and at all material times and still are vested property rights recognised and guaranteed by the Constitution and in particular by Articles 40 and 43 thereof.

7. The fourth, fifth and sixth-named plaintiffs as such farmers and the seventh-named plaintiff as such livestock exporter have and each of them has interests in the nature of constitutional rights of property, namely, that the working of livestock marts shall not be interfered with by the Government and the Oireachtas in a manner damaging to trade and not required by the principles of social justice or the exigencies of the common good.

8. The said rights hereinbefore described of the fourth, fifth, sixth and seventh-named plaintiffs and of each of them were at the date of the enactment of the Livestock Marts Act, 1967, and at all material times and still are vested property rights recognised and guaranteed by the Constitution and in particular by Articles 40 and 43 thereof.

9. The fourth, fifth, sixth and seventh-named plaintiffs are and all the members of the first, second and third-named plaintiffs are citizens of Ireland.

10. Since the enactment of the Livestock Marts Act, 1967, the first, second and third-named plaintiffs have been granted by the Minister for Agriculture and Fisheries licences to operate livestock marts pursuant to the provision of the Livestock Marts Act, 1967.

11. The Livestock Marts Act, 1967, is repugnant to Article 40 of the Constitution in that:—

• (a) While providing that citizens generally may not carry on a livestock mart without a licence issued by...