1910 ATTORNEY- occasions on which they had granted any permission or licence JOYCE J. to use the baths for any purpose other than swimming it had been on the express condition that no money should be taken at the doors, and if on any such occasion money had been so taken it had been done in breach of such condition and without the WALTHAMsanction, authority, permission, or knowledge of the defendants; and the defendants did not claim, threaten, or intend so to take or permit money to be so taken. There was evidence that on some occasions money had in fact been taken at pay-boxes which were fixed inside the entrance to the baths, and that, upon complaints being made of this, movable pay-boxes were placed by the defendants' licensees upon land belonging to the defendants just outside the building, and that these had been used for the purpose of taking money for admission to the entertainments. It was proved that the defendants for the purpose of letting the baths for entertainments used a printed form of application to be filled up and signed by intending licensees. This form stated that the applicant having perused the conditions and regulations thereto attached undertook to abide by and conform to the same in the event of his application being granted. Amongst the conditions and regulations attached to the form were the following: "14. No money must be taken at the doors"; and " 24. If any hirer refuse or omit to comply with any of these conditions or regulations or with any instructions conveyed to him by the clerk of the council, on behalf of the council, he and his servants may be excluded until he comply with the same, but without relieving him from his obligations under any contract or agreement." Younger, K.C., and W. Payne, for the plaintiff. The plaintiff is entitled to the injunction asked for. The prohibition of the statute is absolute, and the defendants, who have it in their power to prevent the breach of it, are responsible for any such breach. Under their agreements with their lessees or licensees they have the power, and they are bound to use it, of preventing any breach of the statutory prohibition. The statute expressly makes the commissioners responsible for any breach of the STOW URBAN COUNCIL. 1910 ATTORNEY- r. STOW COUNCIL. The JOYCE J. conditions under which the licence for music and dancing is granted, and that licence must be read as if the prohibition against taking money at the doors were inserted in it. The defendants cannot hold the licence except on the terms of the WALTHAM Act of 1899, and that Act imposes the condition. The defendants URBAN could have stopped this breach of the statute by exercising their right of re-entry under clause 24 of their agreement. They cannot get rid of their statutory obligation by inserting a condition in their agreements and taking no steps to enforce it: Attorney-General v. London and North Western Ry. Co. (1) Hughes, K.C., and J. Mansfield, for the defendants. defendants are not guilty of any breach of the statute. They have let the baths subject to a condition that the statute shall not be broken. They cannot be compelled to bring an action against their licensees or to turn them out. There is no ground for an injunction to restrain them from permitting the prohibited act from being done: Hall v. Ewin (2); Powell v. Hemsley. (3) The Court will not grant a mandatory injunction in such a case: Glossop v. Heston and Isleworth Local Board. (4) The AttorneyGeneral complaining that a public body is offending against a statute is not entitled ex debito justitiæ to an injunction : Attorney-General v. Birmingham, Tame, and Rea District Drainage Board. (5) The commissioners are made responsible by s. 2 (c) for any breach of the conditions on which the music and dancing licence is granted, but those conditions do not include the proviso against taking money at the doors, and the defendants are not responsible under the statute for the acts of their licensees or lessees. Younger, K.C., in reply. One of the members of the defendant council is a director of a company to which the baths were let and by which the provisions of the Act were broken. The defendants therefore had complete notice that the Act was being disregarded and they cannot escape responsibility. They have clearly permitted and assisted in the doing of an unlawful act. (1) [1900] 1 Q. B. 78. (3) [1909] 2 Ch. 252. (2) (1887) 37 Ch. D. 74, 78. (4) (1879) 12 Ch. D. 102, 120, 122. (5) Ante, p. 48, GENERAL It is no answer to say that they have inserted in their lessees' JOYCE J. agreements a condition that the act shall not be done. The 1910 plaintiff is entitled to an injunction restraining the defendants ATTORNEYfrom permitting, assisting, facilitating, or conniving at or v. acquiescing in money being taken at the doors. It is not WALTHAMnecessary for the defendants to take any proceedings in order to stop what is being done with their assistance. referred to Seton on Judgments, 6th ed. vol. i. p. 540.] [He also Cur. adv. vult. Feb. 4. JOYCE J. The defendants in this case are the owners of the public baths and washhouses at Walthamstow, and they are authorized by statute to let the baths for entertainments and so on. There is a provision in the Act of 1899 that no portion of the premises is to be let otherwise than occasionally to any person or persons for that purpose, and that no money for admission be taken at the doors. No reason for this provision as to not taking money at the doors is indicated in the Act, nor does it appear in whose interest (if it be in the interest of anybody) that provision was inserted. I am told that it was for the protection of certain persons formed into an association, of which the relator is secretary. It is by no means clear to me why these persons should be protected at all, nor how, if at all, this Act protects them. No penalty is imposed by the Act itself, nor is any remedy provided for a breach of its provisions. The action is for an injunction to restrain the defendants, that is, the Urban District Council of Walthamstow, from taking, or permitting to be taken at the doors, money for admission to the public baths on such occasions as they are let for the purposes of music or dancing, and there is an allegation in the statement of claim that the defendants have taken or permitted to be taken money at the doors of the public baths for admission to such entertainments. The defendants are not under any covenant or contract of any sort or kind. Where there is an express covenant not to permit a thing to be done, an injunction may probably and in most cases, if not all, would be granted against permitting it to be done, although where the defendants are not STOW URBAN COUNCIL. 1910 STOW URBAN COUNCIL. JOYCE J. in actual possession of the premises upon which the act complained of is being done it is not clear what would constitute a ATTORNEY- Violation of the injunction if granted. The defendants have let GENERAL or granted licences for the use of the baths for music or some WALTHAM entertainment, and it was suggested that the lessees or licensees, whatever they may be, have, some time back, taken money at the doors, and it is alleged, though perhaps not very distinctly, that they are now evading or seeking to evade the provisions of the statute by the erection of pay-boxes a short distance from the doors and taking money in those pay-boxes, not actually at the doors themselves. It is sought to compel the defendants somehow or other to prevent the lessees or licensees from doing what is done on the assumption that it is a contravention of the statute. Now, if an injunction be granted as asked, it would or might render the defendants liable to sequestration, or it might possibly render the members of the council subject to attachment or committal for the conduct or misconduct of their lessees or licensees, even though the defendants as a body disapproved or bona fide objected to what was being done. This is really what is sought to be obtained, namely, that the Attorney-General may be in a position to apply for a writ of sequestration or an order for attachment and committal against the members or some of the members of the council. But when we look at the statute there is nothing in it as to the responsibility of the defendants, that is the owners of the baths, for the lessees or licensees. Although it is provided that they are to be responsible for any breach of the conditions upon which the licence is granted by the county council, or whatever body it may be, to use the place at all for music or dancing, there is no provision that they are to be responsible for the conduct of any lessee or licensee in reference to the provisions of this Act as to money for admission being taken at the doors. It seems to me that I am asked to impose this responsibility and to make the defendants responsible for that not only responsible for what I have indicated, but also responsible for that for which the Act does not make them responsible. In other words, I think, I am asked to add another clause to the Act. Now I do not doubt that the defendants might be restrained 1910 GENERAL t. from causing a violation of this provision of the statute if in fact JOYCE J. they did cause or intended to cause it. I think also they might be restrained from authorizing, if they threatened or intended or ATTORNEYclaimed the right to authorize, their lessees or licensees to take money at the doors. But in fact they have not authorized, or WALTHAMat all events it is not shewn to me that they have authorized it-on the documents they have not-and the most that it comes to is that they have not been so energetic as they might be, or used their best endeavours to prevent the violation of the Act. Upon the whole I think that, if any such order as asked were made, I should, as I have said, be imposing upon the defendants a responsibility for the misconduct of their lessees or licensees, and I should be adding to the provisions of this Act something not enacted by it. The Attorney-General can take proceedings against the really guilty parties if he pleases to do so. I will not say what the form of those proceedings would or might be. I do not see how I could possibly compel the defendants to commence an action or take proceedings against their lessees or licensees, nor do I think it would be reasonable; at all events I do not see my way to compel the defendants to take the responsibility of excluding their lessees or licensees on the ground of what has been done with reference to the pay-boxes, thus compelling the defendants to take the risk of the result of a decision as to whether or not taking money at the pay-boxes outside the building is an evasion, or is an unlawful evasion, of the provisions of the Act of Parliament. The result is that this action fails and must be dismissed. Solicitors: P. J. Rutland; Cartwright & Cunningham. STOW URBAN COUNCIL. G. A. S. |