The Queen (Corporation of Dublin) v Dublin Metropolitan Police Magistrates

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judgment Date: 11 June 1897
• Date: 11 June 1898

The Queen (Corporation of Dublin)

and

Dublin Metropolitan Police Magistrates (1).

Q. B. Div.

Appeal.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1898.

Market — Markets and Fairs Clauses Act, 1847 (10 & 11 Vict. c. 14) — Special Act — 53 & 54 Vict. c. ccxlvi — Smithfield Market — Tolls on hay and straw — Summary jurisdiction — Incorporation of statute — Construction of statute.

Section 39 of the Markets and Fairs Clauses Act, 1847, provides a summary procedure for the recovery of tolls. Section 1 of the same Act declares that its provisions are not to apply except where it is incorporated by the Special Act authorising the undertaking.

The Act was expressly incorporated by the Dublin Improvement Act, 1849 (12 & 13 Vict. c. 97, s. 71), which, however, contained a clause (sect. 82) declaring that Smithfield Market should at all times remain a free and open market. The Dublin Improvement(amendment) Acts of 1861 (24 & 25 Vict. c. 26) and 1864 (27 & 28 Vict. s. cccv) recite the Act of 1849, and each of these Acts contains a clause directing that it is to be read along with the Act of 1849 and the Acts incorporated therewith.

The Dublin Corporation Act, 1890 (53 & 54 Vict. c. ccxlvi) recited the Acts Of 1849, 1861, and 1864, that some of their provisions required amendment, that it was expedient to authorise the Corporation to take tolls in Smithfield Market, and (by section 86) enacted that when that Market should be completed and opened for use the 82nd section of the Act of 1849 was to be repealed and the Corporation entitled to charge the tolls mentioned in the schedule to the Act On hay and straw exposed for sale.

After the completion of the Market, the Corporation, relying on section 39 of the Markets and Fairs Clauses Act, 1847, sought to recover these tolls on a summons before the Chief Metropolitan Police Magistrate, who held that he had no summary jurisdiction as to the same.

The Corporation having obtained a conditional order for a mandamus to compel the magistrate to hear and determine the summons:—

Held, by the Court of Appeal (reversing the decision of the Queen's Bench Division), that the Markets and Fairs Clauses Act of 1847 was not incorporated with the Act of 1890, and that consequently the tolls could not be summarily recovered before the magistrate.

The mere fact of two statutes being in pari materia, even with an express provision that both shall be construed together as one Act, is insufficient to

justify the application to a new subject-matter in the second Act of the provisions of the earlier Act.

Ward v. Stevenson (1 New Sessions Cases, 162) approved.

Motion to make absolute a conditional order for a mandamus to compel the police magistrates of the city of Dublin to hear and determine summonses issued by the Corporation against the respondents for refusing to pay tolls on hay and straw exposed by them for sale in Smithfield Market.

The Right. Hon. The Mac Dermot, Q.C., O'Connor, Q.C., and P. A. O'C. White, for the Corporation of Dublin, in support of the conditional order.

Ronan, Q.C., O'Shaughnessy, Q.C., Ignatius O'Brien, and T M. Healy, contra.

Cur. adv. vult.

The Right. Hon. The Mac Dermot, Q.C., O'Connor, Q.C., and P. A. O'C. White, for the Corporation of Dublin, in support of the conditional order.

Ronan, Q.C., O'Shaughnessy, Q.C., Ignatius O'Brien, and T M. Healy, contra.

O'Brien, J.:—

The Corporation of Dublin, under a private Act of 1890, (53 & 54 Vict. c. ccxlvi) have a right to take tolls on hay and straw exposed for sale. Under the Dublin Improvement Act of 1849 (12 & 13 Vict. c. 97) they had a right to make a charge for weighing; but it was optional with the parties to weigh in their scales, and the Schedule to the Act is ingeniously constructed with a view to the effect of making the two kinds of charge alike compulsory. They sued for this toll before a Divisional magistrate, who held that he had no jurisdiction; and a mandamus has been applied for. The point is one merely of procedure, and it turns on the question whether the Markets and Fairs Clauses Act of 1847 (10 & 11 Vict. c. 14) applies to Smithfield Market. In the 1st section of that Act it is declared that it shall not apply except where it is incorporated by the special Act authorising the undertaking; and the effect of the 2nd section is that the application of the statute is enlarged to embrace any Act regulating markets, for otherwise it might be confined to those established for the first time.

The objection is that the Dublin Acts, which authorise and regulate the market, do not incorporate the Markets and Fairs Clauses Act; and, on the other hand, that those which do incorporate it do not authorise the tolls. The statute of 1847 is incorporated with the Dublin Improvement Act of 1849; but the latter Act, while allowing toll to be taken for weighing, where the machinery of the Corporation is used, contains in section 82 a positive declaration that Smithfield shall at all times remain a free and open market. While this was the state of things, two subsequent Acts relating to the City of Dublin were passed in the year 1861 and 1864, both also expressly incorporating the Markets and Fairs Clauses Act. These Acts, which, save that of 1864, were all public statutes, are still in operation. However, the Dublin Corporation Act of 1890, which is a private statute, while called an Act to amend the Dublin Improvement Acts from 1849 to 1864, and stating in the preamble that this is the object of it, and while repealing sect. 82 of the Act of 1849, so as to bring Smithfield Market within it, and at the same time greatly enlarging the area, has omitted any clause of incorporation; so that the point comes to this that, where the power to levy the tolls is found, the clause of incorporation is wanting, and, e converse, where the clause of incorporation is inserted, no power to levy tolls is given.

On the one side it is contended that there was really no incorporation at all with the Acts previous to 1890, for you cannot incorporate what is omitted; while, for the Corporation it was argued that what is in section 82 of the Act of 1849, as to Smithfield Market, was merely an exception—a kind of dam that stopped the stream for a time—and when it was taken away and the channel opened, the provision of the Markets and Fairs Clauses Act flowed into the subsequent legislation. And especially it is urged that a statute expressly passed for amending another statute has the effect of making the latter a part of it, not merely for construction, but for substantive enactment, so that the whole series of Dublin Acts becomes the special Act which is required to be incorporated with the Markets and Fairs Clauses Act. There was further the distinct argument that, unquestionably, for the purpose of the toll for weighing, the Act of 1849 must still be adopted.

It certainly is in accordance with common sense, and with the intention, that the general Act should apply wherever there was a market to which it was once extended by statutes that are in existence. But I confess I am not quite satisfied with the reasoning that a statute amending another identifies that other with it as to all its provisions so as to make them apply to a new subject. The last Act is a distinct statute, and capable of satisfying the description of “the Special Act,” which is required to incorporate the Clauses Act, and does not do so; and this is the Act which authorises the toll. If we could interpret the special Act as including any number of statutes connected with each other, one of which incorporated the general Act, and could project that effect into Acts subsequent to it, the difficulty would be overcome. But I should have great hesitation in adopting that mode of bridging over the chasm if this were a question of right—if the legality of the toll was the matter in question—which it cannot be. I am rather disposed to adopt the solution that this is a matter not of right to the toll, but of the procedure, which procedure is unquestionably applicable to the toll for weighing, and that procedure, once established by the Act of 1849, must be considered still to continue. I am therefore of opinion that the view of the magistrate was not correct, and that the mandamus ought to be granted.

Johnson, J.:—

The question for decision is whether, under the Dublin Improvement Acts, the hay and straw toll for weighing and standing in Smithfield Market is summarily recoverable before a Justice.

The governing Act which prescribes and regulates the municipal powers, duties, and remedies of the Corporation of Dublin in respect, inter alia, of the markets, including Smithfield, is the Dublin Improvement Act of 1849 (12 & 13 Vict. c. 97, s. 71), which is a public Act, and incorporates, amongst other Acts, the Markets and Fairs Clauses Act of 1847, except section 13 and such of its clauses as are expressly varied or inconsistent with the Act of 1849. The Markets and Fairs Clauses Act, and the Dublin Improvement Act of 1849 thus constitute one statute. The Lord Mayor is sole Clerk of the Dublin Markets (section 72); power is given to make bye-laws, subject to penalties, for the control and regulation of the markets (sections 73, 74), and to appoint and remove deputy clerks of markets; and the detection and summary punishment of frauds in the markets is also provided for (sections 75–77). These provisions are applicable to all the Dublin Markets, including Smithfield, which, however, is by section 81 of the Act of 1849, “a free market” without toll “for the standing of any beast or animal or cart of hay or straw exposed for sale in the market.” Subject to this exception, in all the markets the office of weighmaster under the 4th Anne (Ireland) is abolished (section 82); power is given to the Lord...