found in Mackenzie & Handford's Model By-laws, vol. i. p. 272, Sect. 48. vol. ii. p. 87.

The above provisions only apply to urban districts. If a rural district council wishes to make by-laws on the subject, it must apply to the Local Government Board for the powers of an urban district council in the matter.

It is frequently the case that the licensing and regulation of hackney carriages is provided for by special local Acts, and put in the hands of an authority other than the ordinary local authority. For instance, Bristol Encroachment Act, 1837 (1 & 2 Vict. c. lxxxv.), ss. 31, 32, give the power to make regulations for licensing, &c., to the town council, and provide that the licences shall be signed by two justices of the peace. Hence we have the proviso in the present section preserving the powers of such authorities other than the local authority.

These local Acts are preserved by Public Health Act, 1875, ss. 340, 341, and that Act is not intended to repeal local Acts. (Burton v. Salford Corporation (1883), 11 Q. B. D. 286; 52 L. J. Q. B. 668; In re Monmouth Corporation and Monmouth Overseers (1878), 38 L. T. 612, 617.)

The result of these sections, then, coupled with the proviso to the present section, seems to be that where an authority having power to license under a local Act has become an urban sanitary authority under Public Health Act, 1875, it may license tramcars either under the local Act or under the provisions of Town Police Clauses Act, 1847, incorporated with Public Health Act, 1875 (see Lea v. Facey (1887), 19 Q. B. D. 352; 56 L. J. Q. B. 536 (C. A.)); but where the local Act gives power to another body to license or take part in licensing, then the authority of such body still remains.

In Scots burghs hackney carriages are licensed and regulated by Burgh Police (Scotland) Act, 1892 (55 & 56 Vict. c. 55), ss. 270 to 273 inclusive and Schedule V., as amended by Town Councils (Scotland) Act, 1900 (63 & 64 Vict. c. 49). The sections and schedule of the former Act specifically allude to tramway cars, and provide for the regulation of their condition and management and of their passengers' behaviour in very wide terms. They also provide for the authorisation of shelters for tramcar drivers, but apparently not for conductors.

In the Metropolitan Police District and the City of London and its liberties hackney carriages are still governed by a series of provisions: London Hackney Carriage Act, 1831 (1 & 2 Will. 4, c. 22), London Hackney Carriages Act, 1843 (6 & 7 Vict. c. 86), London Hackney Carriages Act, 1850 (13 & 14 Vict. c. 7), London Hackney Carriage Act, 1853 (16 & 17 Vict. c. 33), London Hackney Carriage (No. 2) Act, 1853 (16 & 17 Vict. c. 127), Metropolitan Streets Act, 1867 (30 & 31 Vict. c. 134), Metropolitan Public Carriage Act, 1869 (32 & 33 Vict. c. 115), and London Cab Act, 1896 (59 & 60

Sect. 48. Vict. c. 27). They are licensed by the Commissioner of Police under the provisions of orders of the Home Secretary, made under sect. 6 of Metropolitan Public Carriage Act, 1869. These orders will be found in Archibald's Metropolitan Police Guide (ed. 3), pp. 1271-80. These orders also contain divers other regulations as to hackney carriages.

The identification of a tramcar with a "hackney carriage" in this section is somewhat remarkable, because singularly inappropriate. A tramcar much more nearly resembles a "stage carriage," and while the definition of "hackney carriage" in Town Police Clauses Act, 1847, s. 38, is unsuitable to it, that of "stage carriage' in Metropolitan Public Carriage Act, 1869, s. 4, includes it exactly, and consequently that of "hackney carriage," which there means every carriage plying for hire which is not a "stage carriage," excludes it (see also as to this note (h) to sect. 34).

The words of the present section, however, are explicit. But it will be observed that the present section does not make the Acts relating to hackney carriages apply to tramcars (the Acts relating to stage carriages do so apply), but merely gives the local authority or other authority, as the case may be, power to license tramcars and the persons having charge thereof, and to make and enforce rules and regulations with regard thereto just as they may do in the case of hackney carriages and the persons in charge thereof, and the standing of the same. This is further shown by Town Police Clauses Act, 1889 (52 & 53 Vict. c. 14), which extends "hackney carriage" in certain cases to include "omnibus," but expressly makes "omnibus" exclude "tramcar." The position of tramcars and those in charge of them appears, therefore, to be as follows:

(i.) They are subject to any by-laws made by local authorities, promoters and lessees under sect. 46.

(ii.) They are subject to rules and regulations and to licenses made and granted under the present section.

(iii.) They are subject to the provisions of the various Acts relating to stage carriages, as being by their nature stage carriages (see note (h) to sect. 34 for a discussion of the question).

(iv.) They are governed by the provisions of this Act which relate to carriages used on tramways. These must be taken to apply in preference to other general enactments which are applicable to tramcars. Sect. 45, for instance, in prescribing a table of fares both inside and out, but not prescribing that it should be painted, differs materially from London Hackney Carriages Act, 1843 (6 & 7 Vict. c. 86), s. 7, and must be applied in preference. (See Cousins v. Stockbridge (1866), 30 J. P. 166.) Again, take the matter of the overcrowding of a tramcar. Proceedings may be taken in respect of this under Railway Passenger Duty Act, 1842 (5 & 6 Vict. c. 79), ss. 13, 15 (Brian v. Aylward (1902), 18 T. L. R.

371), or any other Act relating to stage carriages whether local or general, or under by-laws made by promoters or lessees under sect. 46 "for regulating the travelling in or upon any carriage belonging to them," if they deal with this particular matter, or under rules and regulations made by the proper authority under the present section (as in Stokell v. Baldwin (1892), 8 T. L. R. 346). It is the practice to license a tramcar to carry so many passengers inside and so many outside only. An offence has been committed against the terms of such a licence, if the number either inside or outside exceeds the number prescribed for inside or outside respectively, although the total prescribed number is not exceeded (Black v. Neilson (1897), 2 Adam Just. Ca. 424; 25 R. 98), and even although there is a regulation that a conductor shall not carry in his car a greater number of passengers than that specified in the licence as the maximum number of passengers. (Stokell v. Baldwin (1892), 8 T. L. R. 346.) Regulations as to overcrowding or other regulations made under this section may be enforced by the police or the local authority, or the promoters or lessees. Where such a regulation is made for the protection of the public (e.g., a regulation as to overcrowding), a member of the public is entitled to enforce it either against the driver or conductor, if the regulations make them liable to penalties (Badcock v. Sankey (1890), 54 J. P. 564), or, semble, against the promoters or lessees (City of Oxford Tramway Co. v. Sankey (1890), 54 J. P. 52), or such officer or other person as any statute or regulations make liable. Passengers have also been fined for aiding and abetting conductors, under Summary Jurisdiction Act, 1848 (11 & 12 Vict. c. 43), s. 5 (see In re Stevens (1898), 62 J. P. 810). The fact that the promoters or lessees have made or might make similar regulations under sect. 46 does not prevent the proper authority from making regulations under the present section without the assent of the promoters or lessees. (Smith v. Butler (1885), 16 Q. B. D. 349.)

It has been held that a London tramway company was bound to obey a by-law made by a local authority, to the effect that all vehicles during a certain period should carry a lamp exhibiting a white light; and that the carrying of a coloured light was not a proper compliance therewith. The by-law was expressed not to apply to a vehicle which was by statute or rule required to carry a lamp, but no regulation had been made to that effect under Metropolitan Public Carriage Act, 1869 (32 & 33 Vict. c. 115), 8. 9, or otherwise. (Adamson v. Miller (1900), 44 So. J. 278; 16 T. L. R. 185.)

But the Court, it seems, will consider the reasonableness of such regulations. (Adamson v. Miller, ub. sup. ; cf. Elwood v. Bullock (1844), 6 Q. B. 383, 401; 13 L. J. Q. B. 330.) In Toronto Corporation v. Toronto Street Railway Co. (1888), 15 Ont. App. 30, it was held that a

Sect. 48.

Sect. 48. by-law made by the local authority that all cars within the city should have two men in charge of them was invalid as being an invasion of the domestic concerns and internal economy of the company. Several American cases therein cited were followed. But a by-law forbidding "canvassing" for passengers by persons other than the driver and conductor of an omnibus, and by them except when opposite an omnibus while it was on an omnibus stand, was held to be intra vires in Rutherford v. Somerville (1901), 4 F. (J. C.) 15.

It is provided by Public Health (Confirmation of Bye-Laws) Act, 1884 (47 & 48 Vict. c. 12), s. 3, that rules and regulations made by an urban authority under the present section shall be deemed to have required or to require the confirmation of the confirming authority (which is now the Local Government Board (sect. 2)), and not to have required or to require any other confirmation, allowance or approval. This overrides Wallasey Tramway Co. v. Wallasey Local Board (1883), 47 J. P. 821, where it was held that certain regulations as to overcrowding had to be confirmed by quarter sessions or a judge under Town Police Clauses Act, 1847 (10 & 11 Vict. c. 89), s. 202.

The proper authority has discretion to refuse a licence or to postpone the grant of it. (Ex parte Mitcham (1864), 5 B. & S. 585; 33 L. J. Q. B. 325.) But such discretion must be properly and honestly exercised. Where the authority had made an agreement only to license certain persons, and had then cancelled it as ultra vires, but had in fact acted in accordance with its terms in the matter of licensing, a mandamus was directed to issue to them to hear and determine the applications for licences. (R. v. Barry District Council (1900), 16 T. L. R. 565.) Considerable suspicion, for instance, would arise where the licensing authority were the owners of a tramway and refused to license the cars or servants of a competing line, as in R. v. Blackpool Corporation (1899), 34 L. J. Newspaper, 691.

The authority are entitled to require the personal attendance of an applicant for a driver's licence, even where the manager of the company for which he drives appears and applies on his behalf. (Banton v. Davies (1891), 17 Cox, C. C. 469; 66 L. T. 192; 56 J. P. 294.)

If the local authority is the owner of and works a tramway, the tramcars must be licensed by the body which represents the police authority, whether it be a committee of the local authority or otherwise (see Black v. Neilson (1897), 2 Adam Just. Ca. 424, 429; 25 R. (J. C.) 98, 103); and it will be the duty of that body to see that the local authority obeys the police or other local regulations (e.g., against loitering or overcrowding), to which the tramcars of a local authority are just as much subject as if they belonged to private promoters.

Sect. 49.

Offences.

obstruction of

laying out

49. If any person wilfully obstructs any person Penalty for acting under the authority of any promoters (e) in the promoters in lawful exercise of their powers in setting out or making, tramway. forming, laying down, repairing, or renewing a tramway, or defaces or destroys any mark made for the purposes of setting out the line of the tramway, or damages or destroys any property (f) of any promoters (e), lessees (g), or licensees (h), he shall for every such offence be liable to a penalty not exceeding five pounds (i).

(e) See sects. 4 and 24.

(f) The expression is quite general, but possibly the rest of the section limits the word to the meaning of property used in connection with the tramways by the persons named. If this is so, the drafting is remarkably poor. Again, if this is so, how close must the connection be? Would office furniture, for instance, be included?

(g) Defined in sect. 19.

(h) See sects. 35 to 40.

(i) It will be observed that this section inflicts a penalty on certain offenders, but does not provide that such penalty shall be in addition to other remedies which may be enforceable against them, as sect. 27, for instance, provides. But it would appear that in most of the cases contemplated by the section the injured persons might have, in addition to the penalty, damages to the extent of the injury suffered by them.

The doctrine of Atkinson v. Newcastle and Gateshead Waterworks Co. (1877), 2 Ex. D. 441; 46 L. J. Ex. 775 (C. A.), that, where a statute prescribes penalties for a breach, the person injured by the breach has no right of action, whether the penalty goes into the pocket of the person injured or not (compare Clegg, Parkinson & Co. v. Earby Gas Co., [1896] 1 Q. B. 592; 65 L. J. Q. B. 339), must be qualified in various respects.

(i.) It depends for its applicability in any particular case on the purview of the Legislature in its dealing with that case. (Atkinson v. Newcastle and Gateshead Waterworks Co., ub. sup., per Lord Cairns, L. C.; Borough of Bathurst v. Macpherson (1879), 4 A. C. 256; 48 L. J. P. C. 61; Milnes v. Huddersfield Corporation (1886), 11 A. C. 511; 56 L. J. Q. B. 1.)

(ii.) Where a statute merely prohibits a thing from being done in general, and not for the advantage of any particular person or

S.

P