PART III. MISCELLANEOUS ORDERS, REGULATIONS, CIRCULARS, AND OTHER OFFICIAL ISSUED IN THE. YEAR ENDED 30TH SEPT., 1903. that, in I am directed by the Secretary of State to say, for the information of the council of view of the difficulties which arise from time to time in settling the terms of byelaws for counties and boroughs under the Municipal Corporations Act, 1882, and Local Government Act, 1888, he thinks it will be useful if he reminds them of one or two points which should be borne in mind in preparing byelaws for submission to the Home Office. (1.) In the first place, it is desirable that byelaws should always be submitted to the Secretary of State in draft before they are formally made by the council. This is the practice observed by most local authorities and saves much trouble and inconvenience. Once a byelaw is made it is only possible to amend it by formally withdrawing it at a fresh meeting of the council, and going through again the procedure laid down in Section 23 of the Municipal Corporations Act for making the byelaw. The trouble and delay which this course involves are avoided if the byelaw is submitted in draft and the terms settled before it is formally made. (2.) In the case of many of the subjects on which local authorities most commonly make byelaws, there are well-established forms which have been gradually settled in the course of years and are now generally adopted. It seemed to the Secretary of State that trouble might be saved to local authorities when drafting byelaws on these subjects if they had before them those forms which had been found by experience to be the best. He has accordingly had these forms collected and revised, and copies are now enclosed for the future use of the council. The Secretary of State would, however, say, by way of caution, that these forms are not put forward as being fixed or final. They are liable to further revision as experience shows it to be necessary. Even, therefore, when following the exact words of a form the council should still submit byelaws in draft before formally making them. It will also be understood that the Secretary of State is not recom Р mending the adoption of these forms en bloc by the council. Byelaws should only be proposed if they are required by the actual state of things in the district, and it is very undesirable that the council should copy without consideration the byelaws which are in force in other places. The forms are intended simply for the guidance of the council when they have proposals for byelaws under their consideration. (3.) Byelaws are frequently submitted by local authorities which deal with offences that are punishable already under the general law. The Secretary of State would remind the council that byelaws must not deal with offences that are already punishable summarily in virtue of any Act in force throughout the borough or county as the case may be. Among the Acts to which special attention should be paid by the council so as to avoid making byelaws against offences already punishable summarily are the Highways Act, 1835 (especially sections 72 and 78), those provisions of the Town Police Clauses Act, 1847 (especially section 28), and the Towns Improvement Clauses Act, 1847, which are incorporated with the Public Health Act, 1875, and apply in all urban districts; the Public Health Acts Amendment Act, 1890, the Indecent Advertisements Act, 1889, the Vagrancy Acts, and the Malicious Injuries to Property Act, 1861. It may also be pointed out that by the Local Government Act, 1888, section 85, byelaws cannot be made to regulate the use of bicycles, tricycles, &c. (4.) It is of great importance that in framing a byelaw a clear and certain description should be given in the byelaw of the acts which it is intended to prohibit. Unless this is done the byelaws are liable to be upset by the Courts. Vague and general prohibitions which, though aimed merely at some definite nuisance or annoyance, would include within their scope other acts that cannot properly be made the subject of prohibition and punishment must be carefully avoided. The Secretary of State has frequently found it necessary to disallow byelaws couched in such vague terms as "cause any nuisance,” "create any annoyance," &c., which were no doubt intended by the framers of the byelaw to describe certain offensive or dangerous acts that might properly be prohibited, but which would have applied to many other acts that could not properly be made subject to penalty, and which in some cases might not even be reprehensible. In a recent case, Nash v. Finlay, L.T. (N.S.) 85, p. 682, a byelaw which ran "no person shall wilfully annoy passengers in the streets" was held to be invalid on this ground. (5.) Byelaws made by the council must not be "ultra vires.” What will be held to be ultra vires by the Courts must be gathered from the cases already decided. Certain rules have been laid down by the Courts for determining the validity of byelaws, as for example that byelaws must not conflict with the general law; byelaws must be reasonable, &c., which the council should be careful to bear in mind. The following cases may be referred to among others :Johnson v. Mayor of Croydon, 16 Q.B.D. 708. In this case a byelaw which absolutely prohibited the playing of musical instruments in the streets on Sunday was held to be bad as being unreasonable, because it made the playing an offence whether it caused a nuisance or annoyed anybody or not. Macdonald v. Lochrane, 51 J.P. 629. In this case a byelaw which made it an offence for parents to allow children under a certain age to sell in the streets was held to be invalid. A byelaw made solely for the good of the children themselves could not be said to be a byelaw for good rule and government. Booth v. Howell, 53 J.P. 678; Innes v. Newman (1894), 2 Q.B. 292. The kind of nuisance dealt with in byelaws must "generally be one that is common to all and not merely a nuisance to one or two individuals; it must be a nuisance which affects the community at large"; but it is not necessary in any particular case to prove that all the inhabitants were annoyed. Burnett v. Berry (1896), 1 Q.B. 641; White v. Morley (1899), 2 Q.B. 34. A byelaw is not invalid because it creates a new criminal offence, but it will be invalid as being repugnant to the general law if it alters the general law, if it takes away a qualification or a condition which makes an act wrong under the general law, or if it makes unlawful an act which is expressly authorized by the general law. Munro v. Watson, 57 L.T. 366; Parker v. Mayor of Bournemouth, L.R. (N.S.) 86, p. 449. The Secretary of State would call special attention to these cases, which affirm a principle of which the Home Office has frequently had to remind local authorities-that byelaws which prohibit persons doing certain things except by permission or licence of the local authority are bad. Other important cases are Walker v. Stretton, 6c J.P. 313; Kruse v. Johnson (1898), 2 Q.B. 91. In the case of counties, it will often happen that a byelaw will be required by the special circumstances of a particular place (e.g., a seaport or a health resort) but would not be reasonable in other parts of the county. In such cases the byelaw should be limited to the place where the special need arises, under the power given to a County council by section 16 of the Local Government Act to make byelaws for any specified part or parts of the county. (6.) Byelaws should not be made under the general power given by section 23 of the Municipal Corporations Act in regard to matters |