Supreme Court dismisses appeal, holding committee's commercial sale of headstones is within statutory powers.

THE SUPREME COURT

370/2006

Hardiman, J.

Kearns, J.

Macken, J.

Between/

DAVID PIERCE TRADING AS SWORDS MEMORIALS

AND ANDREW PIERCE MONUMENTS

Plaintiffs/Appellants

-and-

DUBLIN CEMETERIES COMMITTEE

GLASNEVIN CEMETERY MONUMENT WORKS LTD

GLASNEVIN CREMATORIUM LTD

Defendants/Respondents

Judgment delivered by Macken, J. on the 30th day of July 2009.

This is an appeal from a judgment of the High Court (Laffoy, J.) delivered on the 11th May 2006 and the order dismissing

the plaintiff’s claim made on the 23rd May 2006. It concerns the correct interpretation of the Dublin Cemeteries Committee

Act 1970 (“the Act of 1970”) a private Act by which the first defendant (“the committee”) was established, which

committee replaced a body corporate, Dublin Cemeteries Committee (“the 1846 committee”), established under the

Cemeteries Act 1846, in turn described as a public Act. The committee is a registered charity for tax purposes and has

incorporated the second and third named defendants which are limited liability companies. The committee owns and

manages several cemeteries in Dublin City and County, including Goldenbridge Cemetery, Glasnevin Cemetery,

Palmerstown Cemetery, Dardistown Cemetery and Newlands Cross Cemetery. Goldenbridge cemetery (which is now full)

and Glasnevin Cemetery already existed at the time of the passing of the 1846 Act and the creation of the 1846 committee,

whereas the last three named cemeteries were established between 1978 and 1999 to serve the much larger population of

Dublin.

The plaintiff has been engaged in business since 1988. This business involves the design, construction and sale of

headstones and monumental sculpting, also in the Dublin area, which was originally conducted in partnership with his

brother but in 1999 the first plaintiff acquired his brother’s interest in the business. It has been carried on from the beginning

from Swords in County Dublin and the plaintiff’s business services cemeteries in the City and County of Dublin which

would ordinarily include all of the cemeteries owned and managed by the committee.

In the High Court proceedings the plaintiff alleges that the manner in which the second defendant (“the company”) carries

on its business is unfair to him and to other persons who operate both monumental sculpting businesses and provide

headstones, and is damaging to such businesses. Before the plaintiff commenced these proceedings he raised these issues

with politicians, the Revenue Commissioners with the Competition Authority, but without any successful outcome.

As was stated by the learned High Court judge, the nub of the plaintiff’s complaint is that the Act of 1970 does not

empower the committee, or any company operating under the control of the committee such as the company or the third

defendant (I deal with both together in this judgment) to sell on a commercial basis, monuments or headstones or to provide

inscription services or similar products or services and that its activities, whether operated by the committee itself, or

through the medium of the company, are ultra vires the Act of 1970. The plaintiff sought declarations that neither the

committee nor the company was entitled to engage in the commercial sale of headstones, nor entitled to prohibit the

engagement of monumental sculptors, such as the plaintiff, for the purposes of placing inscriptions on headstones, inter

alia, in the Garden of Remembrance at Glasnevin cemetery. The plaintiff also sought injunctions to prevent or prohibit the

committee engaging in any such activity, and damages for breach of his constitutional right to earn a livelihood.

It was accepted by the committee that if it was not entitled to engage in the activities which the plaintiff contended were

ultra vires its powers, then any company owned or controlled by the committee such as the company, could not either

engage in such activities. The core issue in the case in the High Court was whether the activities, as contended by for the

plaintiff, were ultra vires the powers of the committee under the Act of 1970. It follows therefore that if they were, the

company established by the committee and under its control, cannot carry on the same activities.

In an earlier decision delivered on the 28th day of May on the question whether the plaintiff had locus standi to bring the

proceedings, I found that the respondents could not succeed by virtue of the provision of the Competition Act 1991 in

preventing the plaintiff from seeking the relief which he claims in these proceedings.

The background: the legislation

The Act of 1846 included in its preamble that the committee for the management of Goldenbridge and Glasnevin cemeteries

had existed prior to the enactment of that Act but that its members had either died or had declined to act. Certain named

persons and other persons who might be nominated and elected to fill vacancies were constituted the 1846 committee and

they were granted power by the legislation, inter alia, to hold Goldenbridge and Prospect cemeteries. Further the Act of

1846 provided that it would be lawful for the 1846 committee subject to such conditions as they might think proper, to sell –

1 the exclusive right of burial in any vault catacomb or place of burial constructed by them within the cemeteries

2 the right of constructing any vault catacomb or place of burial within any such cemetery with exclusive right of burial

therein

3 the right of single internment in any vault catacomb or other place of burial constructed within the cemeteries or in the

open ground thereof

4 the right of erecting and placing any monument tombstone or gravestone in the cemeteries or any monument or

monumental inscription on the walls of the chapels or other places within the cemeteries.

It was also provided by the Act of 1846 that internments vaults catacombs burial places monuments tombstones and

gravestones in the cemeteries would be subject to such regulation restrictions and conditions as the 1846 committee

established under that Act, should from time to time make. Further it was expressly provided that monumental inscriptions

should be approved by the 1846 committee before being inscribed. The committee was also given power to enforce its

regulations restrictions and conditions by being empowered by erasing or removing an unauthorised inscription and by taking

down and removing any unauthorised monument, tombstone and such like.

Turning to the Act of 1970, this was described as an Act “to establish a body corporate to undertake and carry out the

functions at present undertaken and carried out by the ‘Dublin Cemeteries Committee’ and “to enlarge and extend such

functions”. The preamble also recited the Act of 1846, the acquisition by the 1846 committee of further lands in the parish

of Glasnevin, and to avid doubts which had arisen in relation to the nature and constitution of the 1846 committee and as to

its power to acquire and provide burial facilities in the county and county borough of Dublin elsewhere than in the parish of

Glasnevin aforesaid to sell or dispose of land, and to invest or deal with surplus monies.

The committee was established by s.3 as “a body corporate with perpetual succession and an official seal … and power to

sue and be sued in its said name and to purchase, take, hold, and dispose of land and other property”. Members of the 1846

committee were to be members of the committee established under the Act of 1970, and subject to certain exceptions were

to hold office for life. Further the committee was to be self perpetuating subject to an upper limit on membership.

Of particular importance in relation to this case are the provisions of s.16 and also s.17 of the Act of 1970 which

respectively provide as follows:

“16 The objects for which the Committee is established are as follows:

( a ) To maintain, improve and extend the existing Cemeteries and to preserve the bodies interred in them from

disturbance and desecration. ( b ) To acquire, provide, maintain, improve, lay-out, construct and operate in the County

and County Borough of Dublin cemeteries, burial grounds and other places and means for the burial, interment,

preservation or disposal of human remains in accordance with the rites, services and beliefs of any of the religious

denominations specified in Article 44 of Bunreacht na hÉireann or of any other religious denomination existing in the

Republic of Ireland on the establishment date.

17 Subject to the provisions of this Act, the Committee shall have, in addition to any other powers vested

in or conferred on it by any other provision of this Act power:-

(a) to purchase, take on lease or otherwise acquire any lands …

(b) to sell, improve, manage, develop, exchange, lease, hire, mortgage, dispose, turn into

account or otherwise deal with all or any part of the undertaking property and rights of the

Committee.

(c) to borrow …

(d) to invest …

(e) to employ …

(f) to accept … grants, subscriptions, donations, devises, and bequests for all or any of the

purposes of the Committee and generally to manage, invest and expend all moneys or property

belonging to the Committee.

(g) …

(h) …

(i) to build, construct, erect, improve and maintain buildings, chapels, monuments,

headstones and structures for use or decoration in or in connection with cemeteries or burial

grounds.

(j) To bury …

(k) To do all such other things as the Committee may consider incidental or conducive to the

attainment or advancement of any of the objects of the Committee.”

Of relevance in this appeal are the provisions of s.17(i) and (k). The former provides for a power to build construct erect,

inter alia, headstones and structures for use or decoration in or in connection with cemeteries or burial grounds, and (k)

gives all appropriate ancillary powers or powers incidental or conducive to the attainment of any of the objects of the

committee. It does not seem to me that it is necessary to refer to other sections of the Act save to say that all of the

functions of the committee can be performed to any of the members or employees of the committee authorised in that

behalf.

The judgment:

Having dealt with the question of locus standi, in favour of the appellants, the learned High Court judge then considered the

claim that the activities being carried on by the committee through the company were ultra vires the powers of the

committee under the Act of 1970. I now turn to the learned judge’s findings. In light of my agreement with the findings of

the learned High Court judge and her conclusions, it is useful to set out the most relevant parts of the judgment at this stage.

Having referred in particular to Keane v An Bórd Pleanála [1997] 1 IR 184 the learned trial judge cited as a correct

statement of the law the following extract of Hamilton, C.J. in that case:

“The powers of a corporation created by a statute are limited and circumscribed by the statute which

regulate it, and extend no further than is expressly stated therein or is necessarily and properly required

for carrying into effect the purposes of incorporation or maybe fairly regarded as incidental to or

consequential upon those things which the legislature has authorised. What the statute does not expressly

or impliedly authorise is to be taken to be prohibited.”

She also adopted the extracts from the judgment of Hamilton, C.J. in Howard v Commissioners of Public Works [1994] 1

IR 101 at p.112 in the following terms:

“It has long been established that the general principle of the construction of the powers of statutory

corporations that whatever may be regarded as incidental to, or consequential upon, those things which

the legislator has authorised, ought not (unless expressly prohibited) to be held by judicial construction

to be ultra vires (Attorney General v Great Eastern Railway Company [1885] App. Cas. 473 at 478).”

Both extracts have been cited with approval in several judgments of this Court, and represent, at this stage, correct law.

The learned High Court judge pointed out that the corporations involved in the latter two cases were both public bodies, but

noted correctly in my view, that in the case of statutory corporations established by Private Act of parliament the normal

canons of construction applicable to the ascertainment of the powers of statutory corporation, must be applied having regard

to the special rules of construction which have evolved in relation to such Acts. In that regard she cited extracts or

commentaries from academic writings including Collins and O’Reilly on Civil Proceedings and the State (2nd edition

Thomson Roundhall, 2004) and Bennion on Statutory Interpretation in the latter of which is found the following citation:

“There are special criteria for the construction of private Acts. These arise because a private Act is

essentially a derogation, for the benefit of a few, from the law generally applying. Some private Acts

notably estate Acts, are little more than conveyances of land. The ‘little more’ amounts to something

which the law precluded the parties from doing for themselves, hence they resort to private Bill

procedure. … It follows that estate Acts, which are still passed today, are to be construed more as private

conveyances than statutes. …

It has been said of private Acts generally that their wording ‘is to be treated as the language of the

promoters of them’. The Act is framed by the very persons who desire that the general law shall be eased

in their private favour. So where there is any doubt its language is to be construed against them. The

rule is verba cartarum fortius accipiuntur contra proferentem (the words of written instruments are to be

taken most strongly against those who put them forward).”

The learned trial judge also referred to a more recent application of the strict approach to construction of a Private Act

found in the decision of the Court of Appeal (Civil Division) of England and Wales in Corporation of London v The

Secretary of State for Environment, Food and Rural Affairs and Covent Garden Market [2004] EWCA Civ. 1765.

The appellants had submitted that the question for the court was whether the Act of 1970, properly construed, gave the

committee power to sell headstones on a commercial basis, to which the respondents replied that the power to manufacture

headstones could not have been contemplated unless there was an entitlement to receive payment for the headstones it

erected. The appellants accepted that s.17 paragraph (i) of the Act of 1970 contained an express power to manufacturer

headstones, but argued that this was an innovation and that the 1846 committee did not have express power to do so under

the 1846 Act. Because of the innovation in the Act of 1970, however, they argued that paragraph (i) could not lawfully

confer an express power to manufacture headstones for sale. Therefore, it was said, it was necessary to consider three

questions, that is, whether the power to sell headstones (1) is expressly conferred by some other provision, or (2) is an

incidental power, or (3) can be implied applying the normal canons of construction.

In relation to the first question the appellants submitted that paragraph (b) does not empower the committee to sell a

headstone manufactured by the committee under paragraph (i), because, it was said, the context of paragraph 17(b) suggests

that it is essentially a power to deal with lands owned by the committee. The learned High Court judge did not accept that

argument but found that under paragraph 17(b) the committee has power to sell “any property” , whether it is office

equipment or a lawnmower, or, subject to compliance with s.18, land. The actions enumerated in paragraph (b) she found,

do not relate exclusively to land. Leases and mortgages of chattels are a common phenomenon, whereas the use of the word

“hire” is not a concept which applies in relation to land. The appellants had argued that the words “undertaking property”

meant property properly held for the purposes of the undertaking, leading to the conclusion that under paragraph 17(i) the

committee had power to manufacture headstones only for the purposes of maintaining a cemetery and not for the purposes

of sale. It was suggested that this interpretation was borne out by the legislative history and the preamble to the Act of 1970

indicating that the legislative intent was to clarify existing powers but not to extend them. It was accepted however that in

the event of any inconsistency between the operative part of the Act of 1970 and its long title or preamble, the operative

part must prevail.

The learned High Court judge found that the appellant’s approach to the interpretation of s.17 required a reading into that

section of something which is not there. The intention of the legislature she found in enacting paragraph (i) was clear,

namely an intention to vest in the committee a power to construct or manufacture specified items, including headstones, and

also power to manufacture other structures, but with an express restriction in that such other structures must be for the use

or decoration in or in connection with cemeteries or burial grounds. Because of that restriction the committee does not have

power to manufacture, say, garden gnomes. The learned High Court judge found that there was no other restriction in

paragraph 17(i) and she could see no basis for reading into it a condition or proviso limiting the power to manufacture

headstones solely for the purposes of maintaining the cemeteries. Further she found that there was no basis for reading into

paragraph 17(b) any limitation on the committee’s power of sale, other than the limitations stipulated in s.18 in relation to

land. Nothing else in the Act of 1970 necessitated the implication of any limitation in s.17 paragraph (b) or paragraph (i) to

avoid inconsistency. The learned trial judge clarified that in the plain words of s.17 the committee has power to manufacture

headstones, and that any headstones it manufactures thereupon becomes “undertaking property”. It is entitled to sell any

headstones so manufactured by virtue of paragraph (b). That interpretation is not so wide as to authorise the committee to

do anything, as the plaintiff had suggested. The defendant does not have power to manufacture items extraneous to their

powers, such as garden gnomes, nor power to sell any such items.

The appeal:

In this appeal the appellants contend, in essence, that the learned trial judge erred in law in her interpretation of s.17 of the

Act, in particular s.17(b) and in (i) of the Act and further erred in finding on her interpretation that they conferred a power

on the committee to manufacture and sell headstones on a commercial basis. In particular the appellants allege that this

interpretation:

1. Failed to take adequate account of the first sentence of s.17 of the Act that the powers referred to were “subject to the

provisions of the Act”

2. Failed adequately to take account of the final sentence of s.17(i) that the power to “construct” inter alia headstones was

“for use or in decoration in or in connection with cemeteries or burial grounds”.

3. Erroneously interpreted the power in s.17(i) to “construct” as a power to manufacture on a commercial basis.

4. Erroneously equated the bare power to “sell” property in the possession of the first named defendant, with a power to

enter into the business of the commercial sale thereof.

5. Incorrectly expanded the power in s.17(b) to “deal with undertaking property” and to “construct” inter alia headstones so

as to confer upon the first named defendant a power which went beyond its expressly limited statutory objectives under

s.16.

6. Failed to have adequate count of the objects of the first named defendant provided for in s.16.

7. Failed to take adequate account of the provisions of the Act as a whole.

8. Interpreted the provisions of s.17(b) and (i) out of their proper context and legislative intent and finally

9. Misunderstood the provisions of the sections relied on to such an extent that the construction placed upon the sections by

the learned trial judge to construct and sell commercially headstones could have permitted it to become a seller of

lawnmowers or office equipment or to commence business or even to become a property developer.

The appellants cited several other grounds of appeal, but in the oral argument before this court, the central case made on

behalf of the appellants was that the learned trial judge had misconstrued the provisions of the Act of 1970 in particular in

relation to the power to construct manufacture and sell headstones. While I sympathise with the plaintiff’s failure to

persuade the Competition Authority to carry out any investigation as a result of the complaint which he made to that

Authority some time ago the only issue for consideration in this appeal turns on the question of whether the power which the

Committee claims to have to construct and sell headstones, is ultra vires the Act of 1970, and I now turn to the submissions

made on behalf of the parties on that issue.

Mr Hogan, senior counsel for the appellants, and Mr Allen, senior counsel on behalf of the respondents, were in substantial

agreement as to the tests to be applied in the interpretation of such Private Acts were content to rely effectively on the same

case law in that regard, which was also relied upon by the learned High Court judge. Mr. Allen on behalf of the respondents

did suggest that the more recent English case law suggests a more fluid and less rigid approach. I do not consider it

necessary to analyse that more recent case law, as I consider the approach of the learned High Court judge, on her analysis

of the law, correct. Nor were counsel for each of the parties in disagreement with the appropriate extracts from Bennion on

Statutory Interpretation which ought to be applied or with the general approach which should be adopted in relation to the

issue of statutory interpretation of a private Act insofar as objects and powers are concerned.

In reality where the parties disagree is in their acceptance or rejection of the analysis carried out by the learned High Court

judge of the particular statutory provisions found in the Act of 1970 and in particular on her interpretation of s.17(b) and (i),

in the light of the object clause found in s.16, and the provisions of the Act of 1846. .

The objects provided for in s.16 of the Act of 1970 are clear and have been set out above in that part of the judgment

relating to the legislative framework. The powers of the committee flowing from those objects are equally clearly set out in

s.17 of the Act of 1970. It seems to me that no limitation whatsoever is to be found in s.17 of the Act of 1970 which for

convenience is, in its relevant part, in the following terms:

“17 Subject to the provisions of this Act, the Committee shall have, in addition to any other powers

vested in or conferred on it by any other provision of this Act power:-

(a) …

(b) to sell, improve, manage, develop, exchange, lease, hire, mortgage, dispose, turn into

account or otherwise deal with all or any part of the undertaking property and rights of the

Committee.

(c) …

(d) …

(e) …

(f) …

(g) …

(h) …

(i) to build, construct, erect, improve and maintain buildings, chapels, monuments,

headstones and structures for use or decoration in or in connection with cemeteries or burial

grounds.

(k) to do all such other things as the Committee may consider incidental or conducive to the

attainment or advancement of any of the objects of the Committee”

The committee contends in this appeal it has an express power by s.16, to “construct and operate” cemeteries in the County

and County Borough of Dublin and a specific power under s.17(i) to “build, construct, erect, improve and maintain …

monuments, headstones and structures … in connection with cemeteries …”. This is correct, on the clear wording of the

provision. The provisions of s.16 in respect of which the power contained in s.17, including s.17(b) and s.17(i) are granted,

appear to me to be adequately broad to include all the powers contended for on behalf of the respondents. Nor is there any

ambiguity in the wording used in s.17(i) which would require or would have required the learned High Court judge to adopt

a different and more restricted approach to the one adopted. The learned High Court judge, correctly in my view, also drew

specific attention to the fact that, tellingly, the power to sell land is subject to certain restrictions in s.18 of the Act of 1970,

whereas in relation to the powers found in s. 17 in respect of other property, no restrictions or conditions are imposed. It

might be thought normal that if any such restriction or condition was to be imposed, it would be found in the terms of the

legislation.

I agree with the respondent’s fairly simple contention that if there is a power to construct monuments or tombstones it is

tautologous to suggest that these cannot be done on a commercial basis, given that the construction or manufacture is for the

purpose of sale, and such power of sale is found in paragraph 17(b). I accept also the learned trial judge’s interpretation of

the various words used in the latter paragraph, and their application respectively to chattels on the one hand, and to land on

the other, and with the conclusion she drew from this interpretation.

It is also argued on appeal that, in line with the case law on interpreting such Private Acts in a strict and even limited

manner, since there was no right to construct monuments in the Act of 1846, there could be no legitimate right to do so

pursuant to the Act of 1970, and the Act should be interpreted as meaning that any monuments if constructed could only be

for maintenance or remedial works within the cemeteries.

I do not accept that this is a legitimate argument in the context of the present case. Under the act of 1846, there was a clear

right to construct vaults, and such like, for example, as well as a right to control the erection of monuments and of

inscriptions, and to remove both. The purpose of the Act of 1970 is, inter alia, to provide for an extension of the functions

previously vesting in the 1846 Committee. I consider that the powers provided for in the Act of 1970, can readily be

included in the phrase ”an extension of the functions”, of the Committee, if it were necessary to do so. The power to sell as

well as to construct monuments, following on from the power to construct, for example, vaults, is clearly within “an

extension of the functions” while at the same time being wholly related to the objects clause in s.16 of the Act of 1970,

which include as an object the acquisition construction and operation of cemeteries and other burial grounds. On this ground

also, I find myself in agreement with the arguments of the Committee that the power it contends for is properly permitted by

the terms of the Act of 1970.

I am satisfied that the learned High Court judge correctly analysed the position in law, properly interpreted the provisions of

the Act of 1970, in particular the relevant provisions relating to objects and powers, and came to a correct view that the

powers vesting in the first named respondent included a power to construct headstones and sell on a commercial basis.

Provided therefore that the respondents are carrying on the activities complained of, as I find they are, within the powers

and objects of the Act, the plaintiff cannot succeed in this appeal. For the purposes of the claim made in these proceedings,

which is limited strictly to whether or not the committee have, by carrying on the business of the manufacture and sale of

headstones through the company, acted ultra vires its powers, I am satisfied it has not.

I would in the circumstances dismiss the appeal and affirm the order of the High Court.