By-laws must be—

1. INTRA VIRES, i.e. not ultra vires. The precise power to the local authority to legislate must be carefully examined. If the power is to regulate" certain matters, an attempt to prohibit" would be ultra vires. Under the Advertisements Regulation Act, 1907, a local authority, as therein defined, may make by-lawsSection 2 (1) for the regulation and control of hoardings and similar structures used for advertising purposes when they exceed 12 feet in height. It would be futile for a local authority to purport to make by-laws under this statute dealing with advertisements on hoardings only 8 ft. in height. Again, under the same Statute-Section 2 (2)— power is given for "regulating, restricting, or preventing the exhibition of advertisements in such places and in such manner or by such means as to injuriously affect the amenities of a public park or pleasure promenade or to disfigure the natural beauty of a landscape." In this case a much wider power is conferred. As nothing is said as to hoardings in this sub-section, the by-laws may deal with advertisements whether posted on walls of buildings or on posts or trees if the amenities of a public park or landscape are spoiled. But though a power may seem wide, care must be taken to keep the by-laws within the scope of the power. Section 23 of the Municipal Corporations Act, 1882, authorizes the making of by-laws "for the good rule and government of the Borough and for the prevention and suppression of nuisances not already punishable in a summary manner by virtue of any Act in force throughout the Borough." County Councils as well as Municipal Corporations may exercise this power for areas within the county but outside boroughs; so may Metropolitan Borough Councils (see London Government Act, 1899, Section 5 (2) and Part II of Schedule 2), but in the latter case they must not be inconsistent with the by-laws of the London County Council.

In Strickland v. Hayes (1896), 60 J.P. 164, a by-law made by the Worcester County Council came before the King's Bench Division for consideration. The by-law ordered that in such part of the administrative county as was not comprised in a borough no person shall in any street or public place, or on land adjacent thereto, sing or recite any profane or obscene song or ballad or use any profane or obscene language." Penalty, not exceeding 40s. for each offence. The Court held that the by-law was invalid even as to such acts done in a street or public place, and not merely on land adjacent thereto, because it was not stipulated that the acts must be done to the annoyance of the public. According to, the Court it was possible for someone under the terms of the by-law to be convicted of using obscene language without anyone hearing it or being annoyed by it. It would seem difficult, however, to prove the offence without someone having heard it. However, the judgment of Lindley, M.R., is instructive, and therefore extracts from it will no doubt be useful

"The important objection is this-that the by-law is unreasonable and is not in accordance with the authority given to make it, inasmuch as it goes a great deal too far. That appears to me to be a very formidable objection. I trust in what I am about to say it will not be thought that I have any particular sympathy with people who use profane language or sing obscene songs in public. But, on the other hand, it is extremely important to see that, under colour of making by-laws, by-laws are not made which go beyond the powers of those who make them, whoever they may be. Now the Act of Parliament which authorizes this particular by-law is, as I have said, Section 16 of the Local Government Act, 1888, which refers to Section 23 of the Municipal Corporations Act, 1882, and I cannot find under that Act any indication in the general words as to good rule and government of any power to create new criminal offences. I am quite aware of the fact that by-laws are intended to spell out Acts of Parliament; but it is extremely important to see that the power of making such by-laws is strictly confined within the authority conferred upon the county council. Now I have no hesitation in saying that I think this by-law goes a great

deal too far. Whether it is divisible or not is another matter. The by-law is this: 'No person shall in any street or public place, or on land adjacent thereto, sing or recite any profane or obscene song or ballad or use any profane or obscene language.' Taking the expression or on land adjacent thereto,' that is an extremely wide prohibition, and it goes far beyond what is necessary for the good rule and government of the county. It would apply to anybody-a person swearing in a passion in any place, a yard, or stable, or house adjacent to a public highway. To uphold that I think would be to go a great deal further than the makers of this Act of Parliament ever contemplated. It might give rise to a very considerable tyranny if we were to construe that section in the wide sense in which the language of this by-law is couched. I do not doubt that that is bad. It goes a great deal too far. Well, but then it does not follow that the rest of the by-law is bad. There are plenty of authorities ever since the case of Rex v. Company of Free Fishermen of Faversham, 8 T.R. 352, 4 Rev. Rep. 691, which show that if upon the true construction of a by-law you can sever it into parts, one may be bad and the other good. There is not the slightest difficulty in severing this by-law and reading it in this way: 'No person shall in any street or public place sing or recite any profane or obscene song or ballad, or use any profane or obscene language.' There is no difficulty in striking out or on land adjacent thereto,' and leaving the by-law a complete by-law, be it good or bad. I consider the by-law as distinctly severable, and I proceed to read it: 'No person shall in any street or public place sing or recite any profane or obscene song or ballad or use any profane or obscene language.' Now, what strikes one on reading it thus is this, that there is not a word here to show that it ought to be construed so as to mean to the annoyance of the public. When you look at the Act of Parliament dealing with precisely the same thing-namely, Section 28 in the Town Police Clauses Act, 1847—you find, when the legislature is creating an offence of this description, it does govern it by saying 'to the obstruction, annoyance, or danger to the residents or passengers.' It is quite possible here that someone may be convicted for reciting or singing a bawdy song or swearing or cursing in a public place without a soul hearing it or being annoyed. I doubt very much whether it is competent for the county council to make a by-law which goes that length. I do not think that the true construction of this by-law as it now stands necessarily involves the annoyance of the publicall you have to do is to show the justices that an offence has been committed, annoyance or no annoyance. I think that goes too far. That is to say, such a by-law as this,

unrestricted as it is-I was going to say incautiously worded, but unrestricted as it is-goes far beyond what is necessary for the good rule and government of the county. It seems to me that we are bound to act on this view, and declare the bylaw bad. The only effect will be that it will have to be more carefully worded. I think it goes too far, although I have no sympathy with the appellant in this case."

2. BY-LAWS MUST NOT BE UNREASONABLE. In Parker v. Bournemouth Corporation (1902), 66 J.P. 440, a by-law purported to prohibit the sale or hawking of articles on the seashore except in pursuance of an agreement with the Corporation. The Court held that this by-law was invalid, because it was unreasonable. It would enable the Corporation to make any agreement they chose, without question as to its reasonableness, and to refuse licences to any particular persons. It also illustrates the absence of another essential feature of by-laws, namely, certainty, next dealt with.

Lord Alverstone, L.C.J., in the course of his judgment, said: "I think that the by-law under which the appellant was summoned is bad for the reason that it withdraws altogether from those who may have to interpret it and consider its validity any question as to whether the agreement referred to in it is a reasonable agreement or not. It puts it in the power of the Corporation to make any agreement they like; and the question which we have to consider is whether a by-law which reserves to the Corporation the right to refuse any particular person is on the face of it a good by-law. I think it is not. The Corporation can, of course, deal with the matter by altering the by-law."

In Kruse v. Johnson (1898), 62 J.P. 469, the following by-law made by the Kent County Council was held not to be unreasonable

"No person shall sound or play upon any musical or noisy instrument or sing in any public place or highway within 50 yards of any dwelling-house after being required by any constable or by any inmate of such house personally or by his or her servant to desist."

It was contended by the appellant that the by-law was invalid on (inter alia) the ground that it was unreasonable,

because it gave power to interfere with the liberty of the subject arbitrarily and capriciously, but the Court decided otherwise. Lord Russell of Killowen in the course of his judgment said

But, first, it seems necessary to consider what is a bylaw. A by-law of the class we are here considering I take to be an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers, ordering some thing to be done or not to be done, and accompanied by some sanction or penalty for its non-observance. It necessarily involves restriction of liberty of action by persons who come under its operation as to acts which, but for the by-law, they would be free to do or not do as they pleased. Further, it involves this consequence, that, if validly made, it has the force of law within the sphere of its legitimate operation.”

Then, after dealing with the power under Section 16 of the Local Government Act, 1888, Section 23 of the Municipal Corporations Act, 1882, and Section 187 of the Public Health Act, 1875, he proceeds

"We thus find Parliament has thought fit to delegate to representative public bodies in towns and cities, and also in counties, the power of exercising their own judgment as to what are the by-laws which to them seem proper to be made for good rule and government in their own localities. But that power is accompanied by certain safeguards. There must be antecedent publication of the by-law with a view, I presume, of eliciting the public opinion of the locality upon it, and such by-laws shall have no force until after they have been forwarded to the Secretary of State. It is to be observed, moreover, that the by-laws having come into force, they are not like the laws of the Medes and Persians; they are not unchangeable. The power is to make by-laws from time to time as to the authority shall seem meet, and if experience shows that in any respect existing by-laws work hardly or inconveniently, the local authority, acted upon as it must necessarily be by the public opinion of those concerned, has full power to repeal or alter them. . . . I have thought it well to deal with these points in some detail, and for this reason that the great majority of the cases in which the question of by-laws has been discussed are not cases of by-laws of bodies of a public representative character entrusted by Parliament with delegated authority, but are for the most