be taken," it was held that the actual tolls in force for the time Sect. 45. being, and not the maximum tolls authorised by the Act, which governed the matter, must be painted up. In the present section the words "for the time being" do not occur. Quare whether under the present section it is not enough to put up and keep unaltered the maximum tolls authorised by the Order or Act, even though the tolls actually charged by the promoters are less than the maximum, and vary from time to time.

Promoters do not, in many cases, exhibit their tolls on the outside of their carriages. There is no reason why proceedings should not be taken against them to compel them to do so. The kind of list and the manner of exhibiting it is not prescribed; it is enough if it is exhibited in a conspicuous place both inside and outside. Contrast London Hackney Carriages Act (6 & 7 Vict. c. 86), s. 7, whereby in metropolitan stage carriages the table of fares has to be painted in a conspicuous manner on the inside of the vehicle, but need not be exhibited outside (see also post, p. 206), and the model clause 63 for light railways (post, p. 618), which is to the same effect.

Byelaws.

46. Subject to the provisions of the special Act (n) Byelaws authorizing any tramway and this Act,

The local authority (o) of any district (o) in which the same is laid down may, from time to time, make regulations as to the following matters:

The rate of speed to be observed in travelling upon the tramway (p):

The distances at which carriages (7) using the tram-
way shall be allowed to follow one after the
other:

The stopping of carriages using the tramway:
The traffic on the road in which the tramway is

laid (r):

by local authority.

certain

The promoters (s) of any tramway and their Promoters lessees (t) may from time to time make regulations, may make For preventing the commission of any nuisance in regulations. or upon any carriage, or in or against any premises belonging to them:

For regulating the travelling in or upon any carriage belonging to them (u).

Sect. 46. And for better enforcing the observance of all or any of such regulations, it shall be lawful for such local authority and promoters respectively to make byelaws for all or any of the aforesaid purposes, and from time to time repeal or alter such byelaws, and make new byelaws, provided that such byelaws be not repugnant to the laws of that part of the United Kingdom where the same are to have effect (x):

Notice of the making of any byelaw under the provisions of this Act shall be published by the local authority or the promoters making the same by advertisement, according to the regulations contained in Part II. of the Schedule (C.) to this Act annexed, and unless such notice is published in manner aforesaid such byelaw shall be disallowed by the Board of Trade (y).

No such byelaws shall have any force or effect which shall be disallowed by the Board of Trade within two calendar months after a true copy of such byelaw shall have been laid before the Board, and a true copy of every such proposed byelaw shall, not less than two calendar months before such byelaw shall come into operation, be sent to the Board of Trade, and shall be delivered to the promoters of such tramway if the same was made by the local authority, and to such local authority if made by the promoters (2).

(n) See sect. 23.

(0) Defined in sect. 3.

(p) The rate of speed authorised by these by-laws is not to exceed that which is permitted by the Board of Trade's Regulations. (See model clause 23, post, p. 434.) This Act, and a by-law regulating the rate of speed, with penalties for breach, made under this section, or the Board of Trade's Regulations limiting the rate of speed on tramways and light railways (post, pp. 354, 365), will not, it is submitted, preclude proceedings being taken against an offender for furious driving to the danger of life and limb under Highway Act, 1835 (5 & 6 Will. 4, c. 50), s. 78. That section applies to " any person driving any sort of carriage." Tramcars are called carriages in sect. 34 (see also note (h) to that section).

In Taylor v. Goodwin (1879), 4 Q. B. D. 228; 48 L. J. M. C. 104, Lush, J., says that "carriage" (sect. 78 of Highways Act, 1835) "will include any vehicle which might be propelled at such a speed as to be dangerous"; and in Cannan v. Earl of Abingdon, [1900] 2 Q. B. 66; 69 L. J. Q. B. 517, "carriage" in that section was defined as "any mechanical contrivance which carries weight over the ground in such a way that the foot of man does not support it." But see now Simpson v. Teignmouth and Shaldon Bridge Co., [1903] 1 K. B. 405; 72 L. J. K. B. 204 (C. A.); and Smith v. Kynnersley, [1903] 1 K. B. 788; 72 L. J. K. B. 357 (C. A.). Driving, too, will apply to the management of a tramcar, whether it be propelled by mechanical or animal power. (See Mellor, J., in Taylor v. Goodwin, ub. sup.) But it may be observed that, though tramcars propelled by mechanical power come within sect. 78 of Highways Act, 1835, for the reasons already given, they are not within the Locomotives Acts if the tramway is built under statutory authority embodying the special tramways code (Bell v. Stockton, &c. Tramway Co. (1887), 51 J. P. 804), though if it has been built without such statutory authority, they might be. (London and South Western Railway Co. v. Myers (1881), 45 J. P. 731.) If they were within the Locomotives Acts they would be subject to the Highway Acts. (See Locomotives Act, 1861 (24 & 25 Vict. c. 70), s. 12; Highways and Locomotives (Amendment) Act, 1878 (41 & 42 Vict. c. 77), s. 38; and Locomotives on Highways Act, 1896 (59 & 60 Vict. c. 36), s. 1.)

Since, then, tramcars fall within sect. 78 of Highways Act, 1835, the existence of by-laws or regulations regulating speed and imposing penalties does not abolish prosecutions under the section. (Wandsworth District Board of Works v. Pretty, [1899] 1 Q. B. 1; 68 L. J. Q. B. 193; Davies v. Harvey (1874), L. R. 9 Q. B. 433; 43 L. J. M. C. 121.) But it will produce two modifications: (i.) The by-laws and regulations and sect. 78 of Highway Act, 1835, must be read together (London County Council v. Wandsworth and Putney Gas Co. (1900), 82 L. T. 562; Uckfield Rural District Council v. Crowborough District Water Co., [1899] 2 Q. B. 664; 68 L. J. Q. B. 1009), so that a driver who complies with the speed limits set by the by-laws and regulations ought not to be convicted of furious driving (see Pilkington v. Cooke (1847), 16 M. & W. 615; 17 L. J. Ex. 141; Mount v. Taylor (1868), L. R. 3 C. P. 645, 654; 37 L. J. C. P. 325, 330). (ii.) If a driver has been convicted or acquitted, either under by-laws and regulations or under sect. 78 of Highway Act, 1835, he may plead autrefois convict or acquit, if proceeded against again on the same facts under sect. 78 or under by-laws and regulations, as the case may be. Compare Wemyss v. Hopkins (1875), L. R. 10 Q. B. 378; 44 L. J. M. C. 101, where a conviction under sect. 78 was held to be a bar to a conviction for assault under Offences against the Person Act, 1861 (24 & 25 Vict. c. 100), s. 42.

Sect. 46.

(r) A model form of such by-laws is printed post, p. 375. For a clause very much extending the scope of such by-laws see London United Tramways Act, 1900 (63 & 64 Vict. c. cclxxi.), s. 35 (37). (s) See sects. 4 and 24.

(t) Defined in sect. 19.

(u) This provision does not prevent the local authority making by-laws under sect. 48, which would come within the words of this provision, without the assent of the promoters or lessees. (Smith v. Butler (1885), 6 Q. B. D. 349.)

A model form of such by-laws will be found post, p. 377.
(x) See note (~).

(y) The Board of Trade has power to disallow only, and not to make, by-laws under this section. It has, however, issued model by-laws (post, pp. 375, 377), which local authorities, promoters and lessees may adopt if they wish. It has also power to make regulations and by-laws with regard to the use of mechanical power. See the model clauses (post, pp. 432, 433), and forms of such regulations and by-laws (post, pp. 352 sqq.).

() With the provisions of this section compare generally Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), ss. 108, 109, and the model clauses, post, p. 617: "A by-law is a local law, and may be supplementary to the general law; it is not bad because it deals with something that is not dealt with by the general law. But it must not alter the general law by making that lawful, which the general law makes unlawful; or that unlawful which the general law makes lawful." "By-laws must not only be reasonable, but must not be repugnant to the general law." (White v. Morley, [1899] 2 Q. B. 34, 39; 68 L. J. Q. B. 702, 703; approved in Thomas v. Sutters, [1900]1 Ch. 10; 69 L. J. Ch. 27 (C. A.).)

The present section contemplates two sets of by-laws, those to be made by local authorities and those to be made by promoters respectively. It now seems to be settled that in criticising the reasonableness of by-laws regard must be had to the body or persons who made them. This view is laid down by Lord Russell of Killowen, C. J., in Kruse v. Johnson, [1898] 2 Q. B. 91, 99, 100; 67 L. J. Ch. 782, 785-6: "The great majority of the cases in which the question of by-laws has been discussed are not cases of bylaws of bodies of a public representative character entrusted by Parliament with a delegated authority, but are for the most part cases of railway companies, dock companies, or other like companies, which carry on their business for their own profit, although incidentally for the advantage of the public. In this class of case it is right that the Courts should jealously watch the exercise of these powers, and guard against their unnecessary or unreasonable exercise to the public disadvantage. But, when the Court is called upon to consider the by-laws of public representative bodies

.

clothed with the ample authority which I have described, and
exercising that authority accompanied by the checks and safeguards
which I have mentioned, I think the consideration of such by-laws
ought to be approached from a different standpoint. They ought
to be supported if possible. They ought to be, as has been said,
' benevolently' interpreted, and credit ought to be given to those
who have to administer them that they will be reasonably ad-
ministered." He grants that it might be necessary in some cases
to condemn even such by-laws as unreasonable, "if, for instance,
they were found to be partial and unequal in their operation as
between different classes; if they were manifestly unjust; if they
disclosed bad faith; if they involved such oppressive or gratuitous
interference with the rights of those subject to them as could find
no justification in the minds of reasonable men.
But it is
in this sense, and in this sense only, as I conceive, that the ques-
tion of unreasonableness can properly be regarded. A by-law is
not unreasonable merely because particular judges may think that
it goes further than is prudent or necessary or convenient, or
because it is not accompanied by a qualification or an exception
which some judges may think ought to be there." The local autho-
rities' by-laws under this section are not subject to such stringent
safeguards as in Kruse v. Johnson, or in Slattery v. Naylor (1888), "
13 A. C. 446; 57 L. J. P. C. 73—a very similar case; but the prin-
ciple would seem to apply almost, if not quite, equally to them. But
in a proper case, as Lord Russell pointed out, the reasonableness of
a local authority's by-law will be considered, and he himself
decided that such a by-law was unreasonable in Alty v. Farrell,
[1896] 1 Q. B. 636; 65 L. J. M. C. 115. In the case, however, of
by-laws made by promoters, the Court will not consider itself
limited in any way in inquiring into the reasonableness thereof.

By-laws of either class will be invalid, whether reasonable or not, (i.) if they are repugnant to the statute under which they are made or to the general law (this is specially provided for in the present section); (ii.) if they are not made in strict accordance with the statute which confers the power of making them-they may have been made in relation to subjects as to which the statute gives no power to make them, or the procedure provided for their making may not have been properly observed. (Brown v. Holyhead Local Board (1862), 1 H. & C. 601; 32 L. J. Ex. 25; Kennaird v. Cory, [1898] 2 Q. B. 578; 67 L. J. Q. B. 809.)

Is a by-law, passed under a power granted for regulating something, invalid if it absolutely prohibits that thing? In Toronto Corporation v. Virgo, [1896] A. C. 88; 65 L. J. P. C. 4, it was said: "Their Lordships think there is a marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regu

Sect. 46.