Sect. 46.

lated or governed." Thus in that case a prohibitive by-law was held to be invalid; so too in Dick v. Badart (1883), 10 Q. B. D. 387, and Pidler v. Berry (1888), 59 L. T. 230. The real criterion seems to be, whether or not the prohibition is such that it can be regarded as part of and necessary to the regulation and governance; if it can, it is valid. Thus power to regulate burials includes power to make a by-law which has the effect of prohibiting burials altogether in a particular cemetery. (Slattery v. Naylor (1888), 13 A. C. 446; 57 L. J. P. C. 73.) But a power to make by-laws regulating traffic, as in the present section, would not include a power to prohibit traffic on Sundays or any other particular day, unless there are special and reasonable grounds for doing so in a particular case. (Calder and Hebble Navigation Co. v. Pilling (1845), 14 M. & W. 76; 14 L. J. Ex. 223.) In some cases it has been provided (e.g., in Edinburgh Tramways Act, 1871 (34 & 35 Vict. c. lxxxix.), s. 43) that the promoters may not ply carriages for hire upon their tramways on any Sunday without the consent of the local authorities.

If a by-law is only bad in part and is severable, the remaining part may be good. (Clark v. Denton (1830), 1 B. & Ad. 92, 95, per Bayley, J.; Strickland v. Hayes, [1896] 1 Q. B. 290; 65 L. J. M. C. 55 (C. A.).) This view must be considered preferable at the present time to the opposite opinion cited from Comyns' Digest in Saunders v. South Eastern Railway Co. (1880), 5 Q. B. D. 456, 463; 49 L. J. Q. B. 761, 765; in that case the whole by-law was affected with unreasonableness, because it was the penalty which was unreasonable.

A by-law which purports to create an offence and to impose fine or imprisonment ought to be clear, precise and free from doubt as to its meaning and intention. (Foster v. Moore (1879), 4 L. R. I, 670; Nash v. Finlay (1901), 85 L. T. 682; 66 J. P. 183.) A bylaw may be enforced by pecuniary penalty only, not by imprisonment, unless a statute expressly authorises the infliction of the latter (Hall v. Nixon (1875), L. R. 10 Q. B. 152, 159; 44 L. J. M. C. 51), and the penalty must not be left uncertain, though it is enough that a maximum be prescribed, and the penalty be left to be assessed subject to the maximum. (Piper v. Chappell (1845), 14 M. & W. 624 (Parke, B.).) Neither must the by-law reserve to the body making it the power to say whether an offence has or has not been committed, and, if it has, whether there was reasonable excuse for it. (Stationers' Company v. Salisbury (1693), Comb. 221 (Holt, C. J.); and see Parker v. Bournemouth Corporation (1902), 86 L. T. 449; 66 J. P. 440.)

Where a by-law is made for the protection of those who issue it, they cannot avail themselves of it, unless they themselves keep strictly within its provisions. (Jennings v. Great Northern Railway Co. (1865), L. R. 1 Q. B. 7; 35 L. J. Q. B. 15.) A master has been held liable for the breach of a by-law by his servant within

the scope of that servant's employment, though the act which constituted the breach was done against the orders of the master. (Collman v. Mills, [1897] 1 Q. B. 396; 66 L. J. Q. B. 170.)

So a tramway company has been held responsible for the neglect of their engine driver, who failed to comply with the regulations of the Board of Trade with regard to lamps on tramway engines. (St. Helen's District Tramways Co. v. Wood (1891), 60 L. J. M. C. 141.)

It would be otherwise if the act in question constituted a crime. (Chisholm v. Doulton (1889), 22 Q. B. D. 736; 58 L. J. M. C. 133.) Whether a by-law is reasonable or not is a question of fact depending for its answer on the particular circumstances of each The following by-laws of tramway companies have been held to be reasonable :

case.

"Each passenger shall, upon demand, pay to the conductor, or other duly authorised officer of the company, the fare legally demandable for the journey." (Egginton v. Pearl (1875), 33 L. T. (N. S.) 428.)

"Passengers wishing to travel between Stockbridge and Newington, either way, will require to have the tickets issued by conductors changed at the office, 53 North Bridge." The journey in question was performed partly by omnibus and partly by tramway, and the office mentioned was at the point where passengers changed from one to the other. Apthorpe v. Edinburgh Street Tramways Co. (1882), 10 R. 344.) This is an extraordinary decision under the circumstances. (See further as to the same case in the notes to sect. 52, post, p. 218.)

"Each passenger shall show his ticket (if any), when required so to do, to the conductor or any duly authorised servant of the company, and shall also, when required so to do, either deliver up his ticket or pay the fare legally demandable for the distance travelled over by such passenger." Under this by-law a conviction was held to be valid, where a passenger refused to deliver up his ticket or to pay, on the ground that he had not reached the end of his journey, in spite of the fact that he had already paid once. (Heap v. Day (1887), 34 W. R. 627; 51 J. P. 213.)

The same by-law was also held to be not unreasonable in Hanks v. Bridgman, [1896] 1 Q. B. 253; 65 L. J. M. C. 41; and Lowe v. Volp, [1896] 1 Q. B. 256; 65 L. J. M. C. 43.

The first two of these three cases dealt with the latter part of the by-law, the last case with the former part. There was no suggestion of intention to defraud in any of the three, and Kay, L. J., pointed out that the by-law might be improper as including inadvertent breaches if it purported to be made to carry out sect. 51, but was not improper as it was made under the present section, and was intended merely to regulate the travelling upon the tramway. In Gentel v. Rapps, [1902] 1 K. B. 160; 71 L. J. K. B. 105, a by-law made by promoters-" No person shall swear or use offensive

Sect. 46.

Sect. 46. or obscene language whilst in or upon any carriage, or commit any nuisance in or upon or against any carriage, or wilfully interfere with the comfort of any passenger"—was held to be good and not repugnant to the general law, although the local law of the place and Town Police Clauses Act, 1847 (10 & 11 Vict. c. 89), s. 28, required obscene language to be used "to the annoyance of the inhabitants or passengers," if it was to subject the user to a penalty. The ground of the decision was that the by-law was reasonable, as dealing with a nuisance with which the company had power to deal, and that the offence, when committed on a tramcar, was not precisely what it was when committed in the street. Doubt was thrown upon Strickland v. Hayes, [1896] 1 Q. B. 290; 65 L. J. M. C. 55 (C. A.), in so far as it dealt with the question of repugnancy.

See also the notes to sect. 48 for the discussion of similar questions relating to regulations made under that section, the notes to sect. 49 as to penalties, the notes to sect. 51 as to the necessity of fraudulent intent to justify a conviction for the matters therein dealt with, and under by-laws intended to carry the provisions of that section into effect, and the notes to the Board of Trade's Regu lations as to steam power (post, pp. 352 sqq.), for decisions on bylaws of that nature.

The following decisions which have been given on railway companies' by-laws may usefully be referred to in addition to those cited in the notes to sect. 51. Quare whether a railway company has power, under Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), ss. 108, 109, to make a by-law whereby it should be compulsory for a person having no ticket or refusing to show it to leave the carriage, or a by-law whereby a person, who has taken his ticket, can be compelled to produce his ticket whenever called upon. (Saunders v. South Eastern Railway Co. (1880), 5 Q. B. D. 456; 49 L. J. Q. B. 761, per Cockburn, C. J.; but see Barry v. Midland Railway Co. (1867), I. R. 1 C. L. 130.) Where a by-law prohibits a person from travelling without first paying his fare and obtaining a ticket, the company may remove from the carriage a person who has no ticket, although he offers to pay his fare. (McCarthy v. Dublin, Wicklow and Wexford Railway Co. (1870), I. R. 5 C. L. 244 -an unsatisfactory case.) A by-law, providing that a person travelling without a ticket or refusing to show or deliver up his ticket when required should pay the fare from the station whence the train originally started to the end of his journey, is unreasonable. (Saunders v. South Eastern Railway Co., ub. sup.)

In Ex parte National Carriage, &c. Insurance Union (1902), "Times" Newspaper, July 9, the Court refused a rule nisi for a mandamus directed to the Corporation of Manchester to show cause why they should not make by-laws for their tramways as provided by their special Act. The applicants alleged that the absence of

by-laws had increased the number of accidents in respect of which they had had to pay claims.

There is no provision in this Act for the publication of by-laws or for their reception as evidence. In the case of by-laws made under Companies Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16), s. 124, by companies to which that Act (by sect. 1) applies, "for the purpose of regulating the conduct of the officers and servants of the company, and for providing for the due management of the affairs of the company in all respects whatsoever," the production of a written or printed copy having the common seal of the company affixed is sufficient in all cases of prosecution under them. In Motteram v. Eastern Counties Railway Co. (1859), 7 C. B. (N. S.) 58; 29 L. J. M. C. 57, however, it was held that an examined copy of the by-laws of a railway company, made under Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), s. 108, and certified as a true copy by the officer in charge of the original, might be received in evidence as a document of a public nature under Evidence Act, 1851 (14 & 15 Vict. c. 99), s. 14. This case would apparently apply to by-laws made under the present section, whether by a local authority or by promoters.

By Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 31, expressions used in by-laws made under a statutory power shall, unless the contrary intention appears, have the same meaning as they have in the Act conferring the power.

Sect. 46.

be

47. Any such byelaw may impose reasonable penal- Penalties ties for offences against the same, not exceeding forty may b shillings for each offence, with or without further byelaws. penalties for continuing offences, not exceeding for any continuing offence ten shillings for every day during which the offence continues; but all byelaws shall be so framed as to allow in every case part only of the maximum penalty being ordered to be paid.

A by-law is unreasonable, which purports to make an offender liable to pay the fare from the place from which a train started to the end of his journey, inasmuch as it imposes varying penalties for offences of equal criminality. (Saunders v. South Eastern Railway Co. (1880), 5 Q. B. D. 456; 49 L. J. Q. B. 761.) Such a by-law does not create a debt recoverable in a Court of civil jurisdiction. (London and Brighton Railway Co. v. Watson (1879), 4 C. P. D. 118; 48 L. J. C. P. 316 (C. A.); cf. Brown v. Great Eastern Railway Co. (1877), 2 Q. B. D. 406; 46 L. J. M. C. 231.) Secus, where a passenger took a ticket to a more distant station, and alighted at a station en route, to which

Sect. 47.

Power to local

authority to license drivers, con

the fare was greater. In that case the difference between the fares was recoverable civilly by the company as on a contract. (Great Northern Railway Co. v. Winder, [1892] 2 Q. B. 595; 61 L. J. Q. B. 608.) These cases, it is submitted, would apply mutatis mutandis to tramways. See also Foster v. Moore, Hall v. Nixon, and Piper v. Chappell, cited in note (≈) to sect. 46.

48. The local authority (a) shall have the like power of making and enforcing rules and regulations, and of ductors, &c. granting licenses with respect to all carriages (b) using the tramways, and to all drivers, conductors, and other persons having charge of or using the same, and to the standings for the same, as they are for the time being entitled to make, enforce, and grant with respect to hackney carriages, and the drivers and other persons having the charge thereof, and to the standings for the same in the streets (c) and district (a) of or under the control of the local authority: Provided always, that in any district in which any of the powers aforesaid in relation to hackney carriages and the matters aforesaid in connexion therewith are vested in any authority other than the local authority of such district, such authority shall have and may exercise the powers by this section conferred upon the local authority (d).

(a) Defined in sect. 3.

(b) See sect. 34.

(c) "Street" is defined in Town Police Clauses Act (10 & 11 Vict. c. 89), s. 3, as including "any road, square, court, alley, and thoroughfare, or public passage within the limits of the special Act." It has been held that, in reference to hackney carriages, a street is a place over which the public has a right of passage. (Curtis v. Embery (1872), L. R. 7 Ex. 369; 42 L. J. M. C. 39.)

(d) The licensing and regulation of hackney carriages in England generally is governed by Town Police Clauses Act, 1847 (10 & 11 Vict. c. 89), ss. 37 to 68, which are incorporated by Public Health Act, 1875, s. 171, for the purpose of regulating hackney carriages in urban districts. This last-mentioned section provides that the words "within the prescribed distance" in the incorporated provisions shall mean "within any urban district," and limits the duration of licenses to a year. Sect. 68 of Town Police Clauses Act, 1847, gives power to make by-laws, and sets of model by-laws will be