« EelmineJätka »
sessment; and although this may be a The important question then remains, hardship on the appellant, no weight was whether the proviso limits the assessment given to this objection in a similar case- in the aggregate to this 1s., or only the The King v. Staffordshire (2). If the annual payment. The Justices were right Court hold that notice is requisite before in holding the former to be the true conthe time for appealing runs, there may struction ; if the local authority found it be different times for appealing for each of necessary to execute structural works of 500 houses, and, in fact, there will be 500 such a value as this amount of 1s. would assessments, the propriety of each depend- not cover, they ought to have proceeded ing on the other; so that, until the time under the 16th section and obtained the for the last appeal has past, no one will be sanction of two Justices; the legislature able to tell whether the whole collective intended to confine the power of the local assessment is good or not.
authority of expending of their own motion
to a comparatively small sum ; the other LORD CAMPBELL, C.J.-The assessing construction would leave no practicable the different houses and the giving notice
limit. There can be but one assessment, at each are two successive acts going to whether spread over several years or not, make up the liability of the person as
and the limit of 1s. is to “such assessment,” sessed. If the act had said within fourteen that is, the one aggregate assessment. days of the making of the assessment, Atherton and Cross, contrà.-It must possibly the appeal might not have been be conceded that the original assessment in time; but here the act empowers the was erroneous, the rateable value of the local authority to assess the houses, and property being only 101. 10s.; but on the after fourteen days' notice thereof to levy true construction of the section, the asand collect; and then there is a vague sessment ought only to be reduced to an power given to appeal with reference to annual payment of 10s. 6d., being 1s. in another act, the words of which are not the pound on that value. The local austrictly applicable to the present. I think, thority are to assess to a payment, which therefore, the fourteen days must run from is to be made at once or distributed over the time when the person's liability com- several years. The use of the word “asmenced, when the assessment may be said sessment” is conceded to be not strictly to have been complete.
correct when meant to be applied to the ERLE, J.-It is clear the notice of ap- rateable value; and therefore when the peal is in time. There is no assessment legislature says such assessment, it may on the person until the person assessed well mean the annual assessment, becomes liable, i. e., after notice. The amount to be paid annually as assessed ; enactments of the two statutes are well and it is to be observed that the limit is reconciled by thus holding; the fourteen the highway rate, which is an annual asdays for collecting and the fourteen days sessment; and in The Queen v. Warner (3) for appeal commence concurrently from the Court upheld an assessment, under the notice.
this very section, which was a perpetual
annual payment of 6d. in the pound. SecMonk then proceeded to the other tion 16. would not be applicable to the points.—The appellant can scarcely hope present case: it refers to the same class of to convince the Court, that in the expres- cases as the previous sections, viz., nuision “ 1s. in the pound on the assessment sances existing on private premises. Secto the highway rate, assessment means tion 21. is the first section that applies to the sum assessed and not the rateable public nuisances. value.
[LORD Campbell, C.J.-Words are not LORD CAMPBELL, C.J.-Mr. Cross has always used in their strict sense; it is too satisfactorily shewn that section 16. does clear for argument; the rateable value not refer to a public nuisance, but to at which the premises are assessed to the those on private premises; and that the highway rate must be meant by assess- committee could not have proceeded in the ment.]
(3) 6 E. & B. 395; s.c. 27 Law J. Rep. (n.s.) (2) 3 East, 150.
present case under that section ; their only the highway, and by section 21. the surmode of proceeding, therefore, is that un- veyors are empowered to enter lands lying der section 22. On looking at the general near it, to cleanse ditches, &c. Then scope of the act, I am of opinion that the comes section 22, by which the local assessment may be spread over several authority may take such measures, by years, provided that in no one year the structural works or otherwise, mero motu, assessment exceed 1s. in the pound on the on the highway, as may seem reasonable, rateable value of the premises as assessed as long as they do not invade private to the highway rate. We have to put a rights. And then comes the question, are reasonable construction on the statute, they limited by the proviso to an exwhich was passed for the purpose of re- penditure, in the whole, of 1s. in the pound moving nuisances of great magnitude, in on the rateable value liable to the highway the removal of which great expense would rate? It is quite obvious that the removal of necessity be incurred; and if we were of such nuisances as are contemplated by to say that the whole sum assessed for that section may require works of much any one work must not exceed 1s. in the greater value than such an assessment of pound, in very many instances this 22nd 1s. would meet; and the legislature says section would become wholly inoperative. in such a case you shall make the requisite Therefore, inasmuch as the legislature in works, but you shall distribute the expense this section contemplates works of great over several years; and the proviso must expense, provision is made for spreading mean in such a manner that in no one the assessment over many years; and then year the assessment be greater than the 1s. comes the proviso, and when that says that in the pound. such assessment shall not exceed a certain proportion, the annual assessment, not the Per Curiam aggregate assessment spread over several
Assessment to be amended by years, may well be understood. This I
reducing the sum of 1l. 7s. think a reasonable construction, and not
to 10s. 6d. likely to lead to inconvenience, whereas inconvenience would continually result from an opposite conclusion.
WRAY V. ELLIS.
Penalty-Receiver of the Metropolitan
Police District-Right to Moiety of Penalty they must apply to two Justices, to obtain their sanction for works involving a very
Incorporation of Statutes - Gaming large outlay, and that without their sanc
Houses Act, 17 f. 18 Vict. c. 38.-2 & 3
Vict. c. 71. s. 47. tion the limit of expenditure imposed was that of a sum not exceeding in the whole By section 47. of 2 & 3 Vict. c. 71. (the 1s. in the pound on the rateable value. Act for regulating the Metropolitan Police But I am satisfied that the distinction Courts ), it is enacted, that where by any act taken is right—that section 16. applies or acts, any penalties or forfeitures, or shares to structural works required in respect of any penalties or forfeitures, are or shall of private nuisances, to which alone sec- hereafter be made recoverable in a summary tions 12, 13. and 14. relate ; and that the manner before any Justice or Justices of the order of Justices is only required when Peace, and by such act or acts respectively it becomes necessary to enter on private the same are or shall be limited and made premises to abate the nuisance, who may payable to, 8c., or to any person or persons in such case, by section 16, order the for- whomsoever, save the informer, who shall mation of structural works. The act, hav- sue for the same, fc., in any case the same, ing by the succeeding sections disposed of if recovered or adjudged before any of the the costs of this class of cases, then proceeds said Magistrates, shall be recovered for to a new class, viz., those connected with and adjudged to be paid to the Receiver
for the Metropolitan Police District, &c. (4) Wightman, J. and Hill, J. were in the Court
By section 8. of the 17 d. 18 Vict. c. 38. for Crown Cases Reserved.
(the Act for the Suppression of Gaming Houses ), it is enacted, that one-half of sitting at the police court aforesaid, for that any pecuniary penalty, which shall be ad- he, the said Abraham Levy Goodman, on judged to be paid under that act, shall be the 15th day of July, in the year aforesaid, paid to the person laying the information, being then the occupier of a room in Co&c., and the remaining half shall be applied ventry Street, in the parish of St. Martinin aid of the poor-rate of the parish in which in-the-Fields, in the said county, and withthe offence was committed, and shall be paid in the said district, did use the said room for that purpose to the overseer or other for the purpose of unlawful gaming being person authorized to receive poor-rates in carried on therein, contrary to the statutes such parish :-Held, that where a convic- in such case made and provided. And I tion under the latter act took place at a adjudge the said Abraham Levy Goodman, police court in the metropolis, and a penalty for his said offence, to forfeit and pay the was adjudged to be paid, and was paid, the sum of 50l., to be paid and applied accordReceiver of the Metropolitan Police District ing to law; and if the said sum be not was entitled to claim one-half of such paid forthwith, I adjudge the said Abraham penalty.
Levy Goodman to be imprisoned in the
House of Correction for the said county at Special CASE stated for the opinion of Cold Bath Fields, in the said county, and this Court.
within the said district, for the space of The case was substantially as follows: six weeks, unless the said sum shall be The action was brought by the plaintiff, sooner paid.-Given under my hand and as Receiver for the Metropolitan Police seal, &c. P. Bingham (L.s.). District, to recover from the defendant, This conviction took place, and the said under section 47. of the 2 & 3 Vict. c. 71, penalty or forfeiture was adjudged to be intituled, “An Act for regulating the Police paid under the 17 & 18 Vict. c. 38. (an Act Courts in the Metropolis," a moiety of a for the Suppression of Gaming Houses), penalty or forfeiture of 501. imposed upon by which act such penalty or forfeiture is Abraham Levy Goodman, under the fol- made recoverable upon summary conviclowing circumstances :-Before and at the tion before two Justices of the Peace; and time of the passing of the said act, a police the conviction aforesaid was made by and court was and now is established at Marl- before P. Bingham, Esq., so being and borough Street, within the metropolitan acting as such Magistrate and Justice of police district, under the name of the Police the said court, having when acting as Office, in the parish of St. James, Westmin- such Court, the power to exercise the jurisster, and P. Bingham, Esq. is a Magistrate diction of two Justices of the Peace. At of the said court, and executes the duties the time of the said conviction the plainof a Justice of the Peace, under the said tiff was, and ever since hath been, and statute, at the said court. On the 22nd now is, Receiver for the Metropolitan of July 1857, the said A. L. Goodman was Police District. The penalty or forfeiture convicted at the said court, by and before of 501. was paid by the said A. L. Goodthe said Magistrate, for using, on the 15th man to the defendant, as clerk of the of July 1857, for the purpose of unlawful peace for the said county of Middlesex, in gaming being carried on therein, a certain
open court, pursuant to an order of Quarroom of which he was occupier, in Coven- ter Sessions, he having appealed against try Street, &c., within the limits of the the conviction, and one moiety thereof was Metropolitan Police District. The follow- paid by the defendant to the overseers of ing is a copy of the conviction :
St. Martin-in-the-Fields. The 2 & 3 Vict. County of Middlesex, Beitremember- c. 71. s. 47, above first mentioned, enacts and Metropolitan Po-ed that on the as follows:-"And be it enacted, that
lice District, to wit. 22nd day of July where by any act or acts, any penalties or A.D. 1857, at the Police Court, Marlborough forfeitures, or shares of any penalties or Street, in the county of Middlesex, and forfeitures, are or shall hereafter be made within the Metropolitan Police District, recoverable in a summary manner before Abraham Levy Goodman is convicted be- any Justice or Justices of the Peace, and fore the undersigned, one of the Magistrates by such act or acts respectively, the same of the police courts of the metropolis, are or shall be limited and made payable
to Her Majesty, or to any body corporate, or to any person or persons whomsoever, save the informer, who shall sue for the same, or any party aggrieved, in every such case the same, if recovered or adjudged before any of the said Magistrates, shall be recovered from and adjudged to be paid to the said receiver for the time being, and not to any other person."
The act secondly above mentioned (the 17 & 18 Vict. c. 38.) contains, at section 8, the following enactment :-" One-half of any pecuniary penalty which shall be adjudged to be paid under this act shall be paid to the person laying the information upon which the conviction takes place, and the remaining half shall be applied in aid of the poor-rate of the parish in which the offence shall have been committed, and shall be paid for that purpose to the overseer or other person authorized to receive poor-rates in such parish."
The plaintiff contends that the moiety of the said penalty of 501., which is directed by the last of the two acts mentioned above (the 17&18 Vict. c. 38.) to be paid to the overseers, ought to be paid to the plaintiff, as receiver for the time being of the Metropolitan Police District. The defendant denies that this is so, and contends that the said moiety was payable under the said act to the overseers of the said parish of St. Martin-in-the-Fields, and was properly paid over to them, as mentioned above.
The question for the opinion of the Court was, whether the moiety of the said penalty or forfeiture of the said sum of 501. claimed by the plaintiff was payable to him as such receiver as aforesaid. If the Court should be of opinion that such moiety was so payable, judgment should be entered for the plaintiff. If the Court should not be of opinion that the said moiety was so payable, judgment should be entered for the defendant.
tion of the legislature in passing the 17 & 18 Vict. c. 38. The intention was, by section 8, to carry out the provision in the 2 & 3 Vict. c. 71. s. 47 ; and if that construction is entertained by the Court, the 17 & 18 Vict. c. 38. s. 8. will still remain in operation, for it will extend to all cases except such as arise within the area of the Metropolitan Police Courts.
[LORD CAMPBELL, C.J.-You seek to import into the 17 & 18 Vict. c. 38. s. 8. the words "unless recovered or adjudged before the police courts in the metropolis."]
Yes; for the former act is not repealed by the latter. He referred to The Queen v. the Justices of Glamorganshire (1), and to The Queen v. the Inhabitants of St. Peter, Barton-on-Humber (2).
Atherton (Maude with him), for the defendant.--If the later act were read without any knowledge of the earlier one, there could be no doubt as to the answer to be given to the question, for upon the face of section 8. there is no reference to any particular district.
It was competent for the legislature to repeal the 2 & 3 Vict. c. 71. s. 47. by express words, or by necessary implication; and though, no doubt, there are no repealing words, it is submitted that by necessary implication the legislature has repealed it. The fact that particular districts are referred to does not shew that this is not the right construction ; and there is nothing in the words to lead one to the belief that it was intended that the two acts should be incorporated.
[Hill, J.-If they are not incorporated all these proceedings are void, for by the 17 & 18 Vict. c. 38. s. 4. the penalties are to be recovered before two Justices; and it is by the 2 & 3 Vict. c. 71. s. 14. that any one of the Police Magistrates is empowered to do alone any act which is directed to be done by more than one Justice.]
That is so ; but it does not follow that the plaintiff is entitled to recover, for the 8th section disposes conclusively of the whole penalty, giving one-half to the overseers, and one-half to the informer; and the 2 & 3 Vict. c. 71. does not touch a
T. F. Ellis, for the plaintiff (Nov. 12). - The conviction orders the penalty to be paid and applied according to law; and it is submitted that the plaintiff, as receiver, is entitled to recover that moiety which has been paid to the overseers by the defendant. The proper way of determining the question is to find out what was the inten
(1) 13 Q.B. Rep. 561; s.c. 18 Law J. Rep.(N.s.) M.C. 118.
(2) 17 Q. B. Rep. 630; s. c. 21 Law J. Rep. (N.s.) M.C. 23.
new offence, and a new penalty neither of tertained great doubts whether this excepwhich were known or contemplated, at the tion ought to be understood; but upon the time it was passed.
whole we think that by implying the T. F. Ellis, in reply, referred to The exception, we shall have the best chance Seamen's Hospital Society v. the Mayor, of fulfilling the intention of the legislature. &c. of the Borough of Liverpool (3), where In the year 1839, when the Act for the the plaintiffs sought to recover certain Regulation of the Police Courts in the penalties imposed for breaches of the 7 & 8 Metropolis passed, the legislature, merely Vict. c. 112. (the Merchant Seamen's Act). legislating for the metropolis, enacted that These penalties had been paid over to the all such penalties recovered before a Police treasurer of the borough, but inasmuch as Magistrate of the metropolis should be by the 5 & 6 Will. 4. c. 76. s. 126, which paid to the receiver of the police ; and authorized that to be done, it was provided that the enactment should extend to all that nothing therein contained should ex- penalties created by any subsequent statute. tend to any penalties or forfeitures reco- This may be tantamount to an enactment vered under any act relating to the Customs, that this clause, as to the application of Excise, and Post-office, or to trade or navi- the penalties, where the recovery is before gation, &c., and inasmuch as the 7 & 8 a Police Magistrate, shall be understood to Vict. c. 112. was an act relating to trade be included in every subsequent act by and navigation, it was decided that the which penalties are created. Such a clause plaintiffs were entitled to recover.
would not be inconsistent with the 8th
Cur. adv. vult. section of the 17 & 18 Vict. c. 38, and it The judgment of the Court was now
might either follow that section, or be delivered by
introduced as a proviso upon it. There
fore, that section will have full operation LORD CAMPBELL, C.J.-- What we have over the whole kingdom, except within to consider in this case is, whether the the area of the metropolis Police Courts, legislature, by the 17 & 18 Vict. c. 38. and there even, if the penalties are recos. 8, meant to repeal the 2 & 3 Vict. c. 71. vered before two Justices of the Peace,
. 47, so far as concerns the application of instead of a Police Magistrate. It is difpenalties to be recovered under the former ficult to suppose any reason that should act before a Police Magistrate of the have induced the legislature to apply metropolis. The prospective enactment, penalties under the Gaming Act recovered directing the application of penalties there- before Police Magistrates differently from after to be made recoverable in a summary all other penalties so recovered; and there manner, would be in full force as to the being an express prospective enactment, we application of such penalties made reco- ought not unnecessarily to imply a repeal. verable by a subsequent statute, unless There can be little use in referring to cases that statute contains a repeal, either par- where a similar question has arisen on acts tial or total, of the prospective enactment; of parliament differently framed, for they but, of course, the legislature might at any only illustrate the general principle, which time repeal this enactment, either partially is not in dispute. But the case to which or totally. Without any express repeal, Mr. Ellis referred seems to be identical if a subsequent enactment is contrary to, with the present; and although it cannot and inconsistent with, a prior enactment, be considered by any means a conclusive the prior enactment is repealed. Whether authority, the point not having been the two enactments in this case are con- argued, it may be entitled to some weight, trary and incompatible must depend upon for it did present this point; and the arguwhether the second does or does not im- ment that the receiver was not entitled to pliedly contain the exception, "unless the penalties, if well founded, would have recovered or adjudged before the police been fatal to the application which the courts in the metropolis.” We have en- Court granted. We therefore think that
we ought to give (3) 4 Exch. Rep. 180; s.c. 18 Law J. Rep. (N.s.)
Judgment for the plaintiff, Exch. 371.