R (Irish Union of Distributive Workers and Clerks) v Rathmines U.D.C.

• Jurisdiction: Ireland
• Judgment Date: 22 October 1928
• Date: 22 October 1928
• Court: Supreme Court (Irish Free State)

High Court.

Supreme Court.

R. (I.U.D.W. and C.) v. Rathmines U.D.C.

THE KING, at the prosecution of the Irish Union of Distributive Workers and Clerks

and

RATHMINES URBAN DISTRICT COUNCIL (1)

Mandamus - Local authority refusing to perform statutory duty - Legislation pending to repeal Act which imposed the duty - Application by Trade Union for mandamus - Status - Specific legal interest - Early closing of shops - Mandamus to compel the institution of legal proceedings - Shops Act, 1912 (2 Geo. 5, c. 3), sect. 13 - Shop Hours (Drapery Trades, Dublin and Districts) Act, 1925 (No. 39 of 1925), sects. 3, 4, and 5.

Mandamus.

On the 1st February, 1926, the High Court granted a conditional order for a writ of mandamus, directed to the Rathmines Urban District Council, commanding them, according to their duty and authority in that behalf, to enforce the provisions of the Shop Hours (Drapery Trades, Dublin and Districts) Act, 1925. The order was obtained on the application of the Irish Union of Distributive Workers and Clerks. Their general secretary, Luke Joseph Duffy, was added as a prosecutor by the Court when the conditional order was granted. This Union and the said Luke J. Duffy now applied to make the conditional order absolute. The application for the conditional order had been based on the affidavit of Duffy, who stated that his affidavit was made at the instance, and with the approval, of his Union. The affidavit set forth the facts as follows:—This Union was a registered trade union of shop workers and clerks, with branches in all important towns in Ireland, and its objects were to secure definitely fixed hours of labour, and to promote the early closing of all shops, and generally to promote the welfare and protect the interests of all shop workers and clerks. The Union catered for shop workers, of whom upwards of 6,000 members were persons directly affected by the Shop Hours (Drapery Trades, Dublin and Districts) Act, 1925, as being employees in shops to which the Act applied. In the Rathmines Urban District, the actual membership of the Union was under 100. As general secretary of the Union, he (Duffy) had written, or caused to be written, letters to the clerk of the Rathmines Urban District Council to request and urge the Council to enforce the provisions of the said Act. But the Council had nevertheless refused, and persisted in refusing, to enforce the Act. On the evening of Saturday, the 23rd January, 1926, he had inspected several shops within the Council's area. These shops were, he believed, shops in which one or more of the trades specified in sect. 3 of the Act was being carried on. Each of these shops—ten in number—was open after 8 p.m. From inquiry, he ascertained that these shops were not exempted under sect. 6 of the Act, and ought to have been closed at 7.30 p.m. On that evening the Council were the only authority having power within their district to enforce the provisions of the Act. The Act had been introduced as a result of representations made on behalf of his Union, which was the principal organized body of shop workers in the Irish Free State, and was as such deeply interested in the enforcement of the Act. He also stated in his affidavit that the application for the writ of mandamus was made at the instance of his Union, as prosecutor, pursuant to a resolution duly passed for the purpose by the Executive Committee thereof on the 20th January, 1926. Under the rules of the Union, the Executive Committee had power to use "whatever means they might consider necessary for the furtherance of the objects of the Union." As to the letters written to the Council:—the first was written on 9th July, 1925, and asked that instructions be issued by the Council for the enforcement of the Act; the second, dated 23rd July, 1925, enclosed a list of firms in the Council's area stated to have been open after 7.30 p.m. on Saturday evening, 18th July, 1925—shops stated not to be entitled to be open at that hour; the third, dated 12th August, 1925, was written by the Union's solicitor, complaining that a great number of small shopkeepers were not complying with the Act, and threatening legal proceedings unless given an assurance that the law would be put into force. On 25th September, 1925, he (Duffy) had forwarded to the Council a list of premises within the Council's jurisdiction which had, in breach of the Act, been open after 7.30 p.m. on 19th of that month, and threatening legal proceedings. On 15th October, 1925, he again wrote to the Council stating that the firms mentioned in his letter of 25th September had been open again on Saturday, 19th September, after 7.30 p.m., and offering to supply a witness of the fact.

The prosecutors also relied on an affidavit made by Mrs. Marie Johnson, a member of the Rathmines Urban District Council, and of their Public Health Committee. She stated that the question of the enforcement of the Act had come before the Public Health Committee on several occasions between August and December, 1925, and on each occasion there was read a report on the operation of the Act from their inspector, Dixon, who was appointed by, and paid a special remuneration of £15 per annum by, the Council because of his duties in connection with the Act. Every such report contained the names of such persons as he had found infringing the Act, with particulars of the offence, but no steps had been taken by the Committee to enforce the Act until 11th November, 1925, when a resolution was passed by the Committee recommending that the Council should obtain the opinion of their Law Agent as to whether they were obliged to prosecute certain delinquents named by the inspector for offending against the Act. This recommendation duly came before the Council at their next meeting, whereupon the Council resolved that the matter be referred back to the Committee, a majority of the Council being reluctant to enforce the Act. At the meeting of the Committee, held on the 16th December, 1925, a motion, duly made and seconded, to prosecute certain persons named by the inspector as having offended against the Act was rejected. On the 6th January, 1926, at a meeting of the Council, the following resolution was duly proposed and seconded:—"That the minute of the Public Health Committee of the 16th December, 1925, not to prosecute persons who offend against the Dublin and District Shop Hours Act, 1925, be referred back, with an instruction to the Public Health Committee to prosecute persons who offend against the above Act." This resolution was defeated. A report from the inspector, read at a meeting of the Committee held on 22nd January, 1926, showed that the number of offenders under the Act had increased.

For the purpose of opposing the application to make absolute the conditional order for mandamus, the Rathmines Urban District Council relied on an affidavit of Seacombe Mason, their clerk, who denied that no steps had been taken by the Public Health Committee towards enforcing the Act until 11th November, 1925. He had brought the letters mentioned by the said Luke J. Duffy before the Council. He had been instructed at a meeting of the Public Health Committee, dated 26th August, 1925, to warn by letter each of the shopkeepers mentioned in the letter written by Duffy to the Council on the 23rd July, 1925. At the same meeting it was resolved that notices as to prosecuting shopkeepers who infringed the Act be inserted in the newspapers. He had issued such warnings, and had caused the necessary notices to be inserted in the daily press of 4th September, 1925. The letters of warning had the effect of having the law obeyed generally. A trader, Mulvey, had, in consequence of such warning, closed his shop; whilst a trader, Keogh, had dismissed his assistant, and was on 25th September, 1925, carrying on business by himself. He (deponent) had warned Mrs. Lynch and Mrs. Ceannt, traders mentioned by the said L. J. Duffy in his letter to the Council of 25th September, 1925. The Council were anxious to enforce the law, but, having regard to the satisfactory results obtained, were reluctant to take legal proceedings during the pendency of the amending Bill then before An Dáil. Six months had not elapsed in the case of any of the offences referred to by Duffy since their alleged commission.

The Council also relied on an affidavit made by their inspector, Dixon, who stated that on 15th July, 1925, he had been instructed by the clerk of the Council to inspect the shops of all traders affected by the Act. On 1st August he had personally warned any trader open after 7.30 p.m. on Saturdays. He had been constantly employed by the Council, with strict instructions to see that traders within his district were complying with the Act; and, in accordance with the directions of the clerk of the Council, he had duly reported all breaches of the Act, and in all such cases warnings had been issued by him personally.

The Council also relied on an affidavit of Mrs. Kettle, chairman of the Public Health Committee, who stated that, having regard to the results from the warnings issued, the Committee were satisfied that no necessity arose for prosecutions. She denied that any member of the Committee was at any time opposed to the enforcement of the Act, or that it was the policy of the Council not to put it into force.

Sir Simon Maddock, chairman of the Council, in an affidavit, corroborated the affidavit of Mrs. Kettle; stating that letters of warning to offenders had been so effective that the Council considered it unnecessary to take proceedings, especially having regard to the fact that a Bill for the amendment of the Act had passed the second reading, and was pending before the Dáil.

It appeared from the inspector's report, dated 28th September, 1925, that, with reference to Mrs. Lynch, already referred to, the Act "had never been observed by her."Also, in the same report, it was stated: "She was warned during last...