Quinn's Supermarket v Attorney General

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1972
Docket Number[1968. No. 432 P.]
Date01 January 1972

Supreme Court

[1968. No. 432 P.]
Quinn's Supermarket v. Attorney General
QUINN'S SUPERMARKET LIMITED and FERGAL QUINN
Plaintiffs
and
THE ATTORNEY GENERAL, JAMES O'LEARY and THE MINISTER FOR INDUSTRY AND COMMERCE
Defendants.

Constitution - Statute - Validity - Delegated legislation - Ministerial order exempting Kosher-meat shops from restrictions on hours of trading applicable to other shops selling meat - Discrimination - Rules governing the eating of Kosher-meat an essential element of Jewish religion - Constitutional guarantees of free profession and practice of religion and against discrimination on the ground of religious profession - Whether guarantees conflict - Victuallers' Shops (Hours of Trading on Weekdays) (Dublin, Dun Laoghaire and Bray) Order, 1948 (S.I. No. 175 of 1948), Arts. 2, 4 - Shops (Hours of Trading) Act, 1938 (No. 3), s. 25 - Constitution of Ireland,1937, Articles 40, 44.

Plenary Summons.

The plaintiffs issued their plenary summons on the 16th February, 1968, and claimed an order declaring that the provisions of the Victuallers' Shops (Hours of Trading on Weekdays) (Dublin, Dun Laoghaire and Bray) Order, 1948, made by the Minister for Industry and Commerce in purported exercise of the powers vested in him by s. 25 of the Shops (Hours of Trading) Act, 1938, and particularly the provisions of Articles 2, 3, and 4 thereof, were repugnant to the Constitution of Ireland; and the plaintiffs also claimed an injunction to restrain the second defendant from proceeding against the plaintiffs for an offence alleged to have been committed by the plaintiffs in contravention of the Order of 1948. The Attorney General and Superintendent James O'Leary of the Garda Síochána were the only defendants named on the summons. After the pleadings had closed, the Minister for Industry and Commerce was added as a party defendant by order of Mr. Justice McLoughlin made on the 24th June, 1968.

The order of Mr. Justice McLoughlin which was made on the 1st July, 1968, pursuant to his judgment, post,declared that the provisions of Articles 2, 3, and 4 of the Order of 1948 (as amended) were "repugnant to the Constitution of Ireland and ultra vires the Shops (Hours of Trading) Act, 1938, and invalid and void in law"; and ordered that the second defendant be restrained from proceeding against the second plaintiff for an offence alleged to have been committed by the second plaintiff in contravention of the terms of the Order of 1948.

On the 19th May, 1970, the plaintiffs filed an affidavit sworn by the Very Reverend Dr. Isaac Cohen, Chief Rabbi of the Jewish Community in Ireland, and describing the relevant tenets of the Jewish religion.

The order of the Supreme Court made on the 2nd April, 1971, pursuant to the judgment of the majority of that Court declared that Articles 2 and 4 of the Order of 1948 (as amended) were invalid having regard to the provisions of the Constitution. As the Supreme Court did not consider that the injunction should continue, the Court ordered that the references to an injunction should be deleted from the order of Mr. Justice McLoughlin.

The second plaintiff was the managing director of the first plaintiff which was the proprietor of a meat shop. The second plaintiff was being prosecuted in the District Court, on the complaint of the second defendant, for having kept the meat shop open in the evening of a weekday in contravention of an Order made in 1948 by the third defendant pursuant to powers vested in him by s. 25 of the Shops (Hours of Trading) Act, 1938. The Order of 1948 declared that it was unlawful for the proprietor of a meat shop in a certain trading area to open or keep the shop open on any weekday before 8 a.m. or after 6 p.m. (except for Saturday) or after 6.30 p.m. on a Saturday. It was not unlawful to open and keep open a meat shop for trade on a Sunday, and shops which sold only Kosher meat opened for a short period on Sunday mornings. The Order of 1948 exempted from the provisions of the Order the proprietors of meat shops in which only Kosher meat was sold. While the hearing of the complaint was still pending in the District Court, the plaintiffs issued a plenary summons in the High Court in which they sought a declaration that the Order of 1948 was invalid having regard to the provisions of the Constitution which state at Article 40, s. 1, that all citizens shall, as human persons, be held equal before the law; and which state at Article 44, s. 2, sub-s. 3, that the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. At the hearing of the plenary summons it was

Held by McLoughlin J. that the Order of 1948 was invalid because (a) it effected a discrimination in contravention of the provisions of Article 44, s. 2, sub-s. 3, of the Constitution and (b) it was ultra vires the Act of 1938.

On appeal by the defendants, and after further evidence, it was

Held by the Supreme Court (Ó Dálaigh ó dálaigh C.J., Walsh, Budd, FitzGerald and Kenny JJ.), in dismissing the appeal, 1, that the guarantee in Article 40, s. 1, of the Constitution was not relevant to the issues raised by the plaintiffs.

2. That, although it could be said that the plaintiffs had suffered a disability by reason of the Order of 1948, the disability had not been suffered or imposed on the ground of the religious profession, belief or status of the plaintiffs and was not a disability within the meaning of Article 44, s. 2, sub-s. 3, of the Constitution.

3. That the evidence established that it was an essential element in the practice of the Jewish religion that, in regard to the eating of meat, only Kosher meat should be eaten and that, in regard to the observance of the Sabbath, no work should be done between sunset on Friday and sunset on Saturday.

4. That the order of 1948, by providing an exemption for proprietors of shops which sold only meat "killed and prepared by the Jewish ritual method," contained a discrimination on the ground of religious profession, belief or status, within the meaning of Article 44, s. 2, sub-s. 3 of the Constitution.

5. That, as the primary object of Article 44, s. 2 (as stated in sub-s. 1) was to secure and guarantee to every citizen freedom of conscience and the free profession and practice of religion, a discrimination within the meaning of sub-s. 3 was not invalid if the implementation of the primary object required the making of that discrimination.

Abington School District v. Schempp (1963) 374 U.S. 203 considered.

6. (Kenny J. dissenting) That Articles 2 and 4 of the Order of 1948 were invalid having regard to the provisions of the Constitution because the complete exemption of proprietors of Koshermeat shops from the effects of the Order in respect of every weekday was a discrimination which was (apart from the Saturday exemption) greater than was necessary in the circumstances to implement the primary object stated in Article 44, s. 2, sub-s. 1, of the Constitution.

7. That the provisions of s. 25 of the Act of 1938 were not invalid having regard to the provisions of the Constitution.

Cur adv. vult.

McLoughlin J. :—

The plaintiffs claim a declaration that a certain Order made by the Minister for Industry and Commerce under s. 25 of the Shops (Hours of Trading) Act, 1938, is ultra vires the said Act and repugnant to the Constitution; and they seek an injunction to restrain the second defendant from proceeding with a summons, pending in the District Court, for an offence alleged to have been committed in contravention of the terms of the said Order. The second plaintiff is the managing director of Quinn's Supermarket Ltd., the first plaintiff, which has shops in Dublin at Finglas and at Sutton for the sale of foodstuffs of all kinds including fresh meat, beef, mutton, and lamb. Those shops are thereof ore "victuallers' shops" within the scope of the Order impugned. That order makes it an offence for the proprietor of such a shop to open or keep open for the serving of customers on any weekday (other than a Saturday) after 6 p.m., or after 6.30 p.m. on a Saturday.

In October of last year the plaintiffs commenced to keep open the shop at Finglas on Fridays, after the normal closing hour of 6 p.m., up to 9 p.m. and likewise at Sutton on Thursdays and Fridays and to serve customers with fresh meat in the victualling sections of these shops. A summons was issued in the District Court in respect of keeping open the Finglas shop after 6 p.m. on the 3rd November, 1967. Further summonses were later brought for several alleged breaches of the Order as amended and extended by a subsequent Order in respect of the shop at Sutton, but I do not find it necessary to deal with these in this judgment.

The Order which the plaintiffs seek to have declared repugnant to the Constitution is the Victuallers' Shops (Hours of Trading on Weekdays) (Dublin, Dun Laoghaire and Bray) Order, 1948. That Order was made by the Minister for Industry and Commerce on the 12th May, 1948. It revoked a previous Order which was in somewhat similar terms and which was applicable only to the county borough of Dublin. The attack on the Order of 1948 is based mainly on the wording of Article 2 of the Order which is as follows:—

"2. In this Order the expression 'victualler's shop' means any shop in which the business of selling any one or more of the following, namely, fresh beef, mutton, lamb, and veal, is carried on (whether any other business is or is not carried on in that shop), but does not include any shop in which the only business carried on therein is that of selling meat killed and prepared by the Jewish ritual method."

It is contended for the plaintiffs that the exception contained in that definition makes the Order repugnant to the provisions of the Constitution (in particular Article 44, s. 2, sub-s. 3, and Article 40) and that it is ultra vires the Shops (Hours of Trading) Act, 1938...

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