GORDON v. CANN.

time of "one hour after sunset "at Bristol had not then actually as yet arrived.

8. On behalf of the appellant the defendant's solicitor contended that it was manifest that the appellant did not wish to defy the law, but to comply; he did not rest on the absence of mens rea as a ground for dismissing the information, as he relied on other purely legal grounds, viz.:

That the Act of 1880-the Statutes (Definition of Time) Act-referred to statutes and documents mentioning the time of the clock or hours or minutes of the day, and not to those mentioning the movements of the

sun.

That the solar day was not the same everywhere, but varied according to latitude and longitude and the time of the year.

That the sun was sometimes before and sometimes after mean time.

That the Local Government Act, 1888, was a later statute than that of 1880; that by section 85 it intended to provide for lights being used according to the varying hours of darkness in different places, and did not require that they should be used between the same times of the day at each of the extreme ends of England.

That if other than the natural meaning of the words "sunrise" and "sunset" were to be applied a special definition of such words would be given; and he quoted the regula tions made under the Merchant Shipping Acts in reference to lights in illustration of his argument, and referred to the common law time for levying a distress.

9. On behalf of the respondent his solicitor contended that the object of the statute of 1880 was to provide one certain, easily ascertainable time for all England; and that it regulated all statutes as well as documents in which there were "expressions relative to time."

That one "hour after sunset" was an expression relative to time. That no other time than Greenwich mean time was specifically stated in the Act of 1888, and, consequently, to take "Greenwich mean time" was the correct method of ascertaining when bicycle lamps should be lighted in any part of England.

10. We considered that it was to the advantage of the public that there should be a readily ascertained time for lighting bicycle lamps, and that it should be the same all over England. That the true construction of the

63 J. P. 324.

two Acts of Parliament which had been quoted was to read them together, and so to regulate and fix the time. The Local Government Act, 1888, refers to "one hour after sunset," which we regarded as an "expression of time," and when there is such an "expression of time" the Act of 1880 defines that it is to be held to be "Greenwich mean time." Consequently we convicted the defendant, who had no lamp lighted when spoken to by the police officer, and we fined him 5s., with 98. for costs, which amount he paid subject to this appeal.

11. The question of law for the opinion of the court in this case is: Whether the Statutes (Definition of Time) Act, 1880, applies to section 85 of the Local Government Act, 1888, so as to require the expres sions one hour after sunset," and "one hour before sunrise" to be interpreted as meaning

66

66

one hour after sunset at Greenwich," and 66 one hour before sunrise at Greenwich." If so, the conviction is to be affirmed, otherwise it is to be quashed.

Given under our hands at the Petty Sessional Courthouse, in the city and county of Bristol, this 27th day of October, 1898. (Signed) WM. A. LATHAM,

W. DOVE WILLCOX.

Macmorran, Q.C. (A. Glen with him), for the appellant.-"Sunset" is not an expres sion of time within the meaning of the Definition of Time Act, 1880. If "sunset" was an expression of time within the Act it must be read as equivalent to "Greenwich mean sunset," which, it was capable of being contended, must mean 6 p.m. all the year round. The Local Government Act intended to provide for lights being used according to the varying hours of darkness in different places. If the interpretation of the magisstrates was adopted it would lead to obvious practical absurdities.

There was no appearance for the respondent.

LAWRANCE, J.-I am not surprised that no one has appeared on behalf of the respondent. In my opinion there is no doubt that the magistrates are wrong. The conviction must be quashed.

CHANNELL, J.-I am of the same opinion. Appeal allowed. Solicitors for the appellant: Darley and Cumberland, for Gilmore, Mawer, and Lloyd, Bristol.

แ

The Middlesbrough Improvement Act, 1877 (40 & 41 Vict. c. xxx.), s. 25, enacts: The corporation from time to time may make such bye-laws as they think fit for the prevention of betting . in the public streets, passages, Albert-park, and recreation grounds, and other places of public resort within the borough and may impose penalties for the breach and nonobservance thereof not exceeding 51. for each offence."

Held, that the bye-law was not ultra vires, and

that a place to which the public habitually resorted, although without any permission from the owner, was a place of public resort within the meaning of the Act and bye-laws.

Case stated by the stipendiary magistrate for the borough of Middlesbrough.

The appellant was summoned upon an information laid by the respondent, by which the appellant was charged for that he on the 2nd of June, 1898, at the borough of Middlesbrough, did use and frequent a certain place called the Betting Ground, in Snowdonroad, for the purpose of bookmaking or betting, contrary to the bye-law in such case made and provided.

By the Middlesbrough Improvement Act, 1877 (40 & 41 Vict. c. xxx.), s. 25, "The corporation from time to time may make, and

63 J. P. 325. when made may repeal, amend or alter such bye-laws as they may think fit for the prevention of betting, gambling, and playing of pitch-and-toss, and of public offences and nuisances in the public streets, passages, Albert-park and recreation grounds, and other places of public resort within the borough, and may impose penalties for the breach or non-observance thereof not exceeding 51. for each offence."

The bye-law under which the proceedings were taken is as follows: "Any person who shall frequent and use any street, passage, recreation ground, or other place of public resort within the borough of Middlesbrough, either on behalf of himself or of any other person, for the purpose of bookmaking or betting, or wagering or agreeing to bet or wager with any person shall be liable to a penalty not exceeding 51. for each offence."

The following facts were either proved or admitted :

The place called the "Betting Ground" was a piece of private ground, situate in the borough of Middlesbrough, about 70 yards by 35 yards upon which the owner was from time to time building houses. It was not enclosed by any barrier or fence, but was bounded by Snowdon-road, Italy-street, Charlotte-street, and Washington-street. On two sides there were flagged footpaths. The piece of ground was used by bookmakers and members of the public averaging in number about 300 persons daily, who went there for the purpose of betting, but without permission from the owner to do so. On the day in question the appellant and other bookmakers frequented and used the piece of ground for the purpose of bookmaking and betting. The appellant and the other bookmakers did not confine themselves to any spot in the piece of ground, and had no apparatus to denote the spot on which they carried on their business, but moved about and made bets in various parts of the piece of ground. The appellant and other bookmakers conducted their business in an orderly manner and did not cause any nuisance, annoyance or obstruction whatever to persons using the streets or footpaths which bounded the piece of ground, or to any of the residents in the houses in the immediate neighbourhood, and no complaint had been made to the police that the presence and conduct of the appellant or other bookmakers or persons who used the piece of

KITSON v. ASHE.

ground caused either a nuisance or annoyance or obstruction to the public.

It was contended on behalf of the appellant that the bye-law did not apply to private property within the borough, and that the piece of ground on which the appellant had been bookmaking and betting was neither a street, passage, recreation ground nor other place of public resort within the meaning of the bye-law.

It was further contended that if the piece of ground was either a street, passage, recreation ground or other place of public resort within the meaning of the bye-law, then the bye-law was unreasonable and ultra vires, because bookmaking and betting were not illegal, and in the case of private property the bye-law must be confined to matters causing a nuisance, annoyance or obstruction to the public in the borough.

The stipendiary magistrate was of the opinion that the piece of ground was a place of public resort within the meaning of the bye-law, and that the bye-law was not ultra vires and convicted the appellant.

The question for the opinion of the court was whether upon the above statement of facts the magistrate came to a correct conclusion in point of law, and if not, what should be done in the premises.

R. Luck for the appellant.-The magistrate was wrong in both points argued before him. In the first place the bye-law does not apply to private property. The Middlesbrough Improvement Act, 1887, s. 25, only empowers the corporation to make bye-laws as to the prevention of gambling and betting "in public streets, passages and recreation grounds and other places of public resort." The case finds as a fact here that the Betting Ground is private property, and the corporation under this bye-law cannot interfere with what goes on there. A place of "public resort" must be a place where the public have a right to resort, here they could be excluded by the owner if he chose. In the second place the byelaw is ultra vires, and therefore void. It does not come within the words of the section which enables it to be made, for it omits the word "public" before streets. Betting is not in itself illegal unless it is carried on in contravention of the Betting Act, 1853 (16 & 17 Vict. c. 119), but this byelaw purports to turn into a criminal offence

63 J. P. 325. what was no offence before. On that ground the bye-law is invalid. He referred to Strickland v. Hayes, [1896] 1 Q B. 290; 60 J. P. 164

Scott Fox, Q.C., for the respondent.—The bye-law comes within the powers conferred by the Act and applies to this case. It is not necessary that a "place of public resort" should mean a place where the public have a right to resort, it is sufficient, as is found in this case, that they do in fact resort there. The argument that as the bye-law creates a new offence, and is, therefore, invalid, cannot be supported after the decisions in Burnett v. Berry, [1896] 1 Q. B. 641; 60 J. P. 375, and Kruse v. Johnson, [1898] 2 Q. B. 91; 62 J. P. 469.

LAWRANCE, J.-I am of opinion that the conclusion arrived at by the magistrate in this case was perfectly right, and ought to be affirmed. The bye-law under which the appellant was convicted is set out in the case, is made under the powers conferred by section 25 of the Middlesbrough Improvement Act, 1877 (40 & 41 Vict. c. xxx.), and with the exception of one word follows the words of that section. The only difference between the two is that the "public" occurs before the word "streets" in the section, but not in the bye-law. But the sole question we have to decide here is whether betting on private ground, where people habitually assemble for betting, is betting in a place of "public resort" within the meaning of the section and the bye-law. The case states that the place in question is called the Betting Ground. It is clearly a place of public resort in the ordinary sense of the words. The public do, in fact, go there, though if the owner pleased they could be turned off; but in the same way people could under certain circumstances be turned out of many other places, such as parks and recreation grounds, which are undoubtedly places of public resort. It is like the case of a vacant piece of ground, such as one sometimes sees situate between a highway and a dwelling-house, on to which the public do as a matter of fact go, although the land belongs to the owner of the house, and he could exclude the public from it if he chose to do so. That would certainly be correctly described as a place of public resort. It does not matter who the owner is, or what his rights are, so long as the place is in fact resorted to by the public.

KITSON v. ASIE.

CHANNELL, J.-I am of the same opinion. The question which came before the court in Burnett v. Berry, [1896] 1 Q. B. 641, was altogether a different case. There it was a

question whether such a bye-law as this could be made under the provisions of the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), s. 23. In my opinion a bye-law could not be made under the Middlesbrough Improvement Act, 1877 (40 & 41 Vict. c. xxx), to prevent betting in a purely private place, but this bye-law does not purport to do that. I think the byelaw now before us covers the present case and that it is within the power conferred by the Act. It is really the same point whichever way it is put, for the words of the byclaw substantially follow the words of the Act. The bye-law imposes a penalty on any. one who shall "use or frequent any street, passage, recreation ground or other place of public resort within the borough" for the purpose of betting. The only question is, To what places do these words extend? Does "other place of public resort" mean a place to which the public are entitled to go as of right, or a place to which the public do go as a matter of fact? I think that the latter is the true meaning, as the owner of this land does permit the public to go on it, and the public do in fact go there. I think it comes within the words of the bye-law, and the conviction must be upheld.

Appeal dismissed.

Solicitors for the appellant: Hamlin, Grammer and Hamlin, for Wilkes and Wilkes, Middlesbrough and Darlington.

Solicitors for the respondent: Belfrage and Company.

63 J. P. 326.

QUEEN'S BENCH DIVISION.

March 22.

ATTORNEY-GENERAL v. FURNESS RAILWAY COMPANY AND ANOTHER.

Revenue

- Railway company Duty on passenger fares exceeding 1d. a mileReserved accommodation in third class -5 & 6 Vict. c. 79, s. 2, and scheduleCheap Trains Act, 1883 (46 & 47 Vict. c. 34), ss. 2, 8.

Where a railway company who had abolished second-class carriages on their railway made an additional charge for reserved accommodation in their third-class carriages, it was held that this extra payment was a "fare" within section 8 of the Cheap Trains Act, 1883 (46 & 47 Vict. c. 34), and was liable to duty as such under 5 & 6 Vict. c. 79, s. 2, and schedule.

Information by the Attorney-General claiming duty on "fares" from the defendant railway company.

(1) By the Act 5 & 6 Vict. c. 79 (section 2 and schedule), there is charged and payable to her Majesty for and in respect of all passengers conveyed for hire upon or along any railway a duty at and after the rate of 51. for 1001. upon all sums received or charged for the hire, fare, or conveyance of all such passengers.

(2) The regulations for charging the duty are contained in that Act and in 10 & 11 Vict. c. 42, ss. 1, 2; 11 & 12 Vict. c. 118, s. 2, and 26 & 27 Vict. c. 33, s. 13.

(3) By section 4 of the said Act 5 & 6 Vict. c. 79 it is enacted in effect that every railway company in Great Britain should keep an account of all money received or charged daily for fares, and deliver the same to the Commissioners of Stamps and Taxes monthly.

(5) By the Cheap Trains Act, 1883 (46 & 47 Vict. c. 34), certain alterations were made in the charge of duty, and section 2 (1) provides that fares not exceeding the rate of 1d. a mile shall be exempt from duty, but fares for return or periodical tickets shall be exempt from duty only where the ordinary fare for the single journey does not exceed that rate. By section 8, "The term 'fare' includes all sums received or charged for the hire, fare, or conveyance of passengers upon or along any railway."

ATTORNEY-GENERAL v. FURNESS RAILWAY

COMPANY AND ANOTHER.

(6) The defendant company, the Furness Railway Company, is a railway company to which the said Acts apply. . . . It was incorporated on the 23rd of May, 1844 (7 & 8 Vict. c. 22), and its offices are in Barrow-inFurness. The line extends from Carnforth to Whitehaven and covers a distance of 1701 miles, and there are 34 stations for taking up and setting down passengers. The general manager and secretary is the defendant Alfred Aslett.

(7) The third-class fares charged on the said railway have since the passing of the Cheap Trains Act, 1883, been reduced, and are now at the rate of 1d. a mile.

(10) The following statement (issued with the authority of the defendant company) describing the proposed new practice was published in the Railway Times of the 12th of June, 1897 :-"The directors of the Furness Railway Company have decided to issue 'supplementary reserve tickets' to holders of third-class tickets on the following liberal terms-up to 15 miles, 3d. per passenger; 16 to 30 miles, 6d. per passenger; 31 to 50 miles, 9d. per passenger; 51 to 75 miles, 1s. per passenger; 76 to 100 miles, 1s. 3d. per passenger; 100 to 150 miles, 1s. 6d. per passenger. . . . A certain number of thirdclass compartments will have labels placed on the windows, as is now done to indicate 'Smoking,' simply with the words 'Reserved tickets. All the station-masters and guards will be supplied with these labels, and the reserved compartments will be increased or diminished day by day in accordance with requirements."

(11) The new practice of the defendant company described in the preceding paragraph commenced on or about the 1st of July, 1897, when the issue of second-class tickets was abolished, and in lieu thereof "reserved accommodation" was provided by the issue of "supplementary reserved tickets," and certain third-class compartments were reserved for the holders of these tickets. In many cases the additional charge so levied brings the fare up to an amount exceeding the former second-class fares.

(12) The scale of charges now in force is as follows:-Up to 10 miles-single journey 2d., return 3d..; 11 to 20 milessingle journey 3d., return 4d.; 21 to 30 miles -single journey 4d., return 6d. ; 31 to 45

63 J. P. 326.

miles-single journey 6d., return 9d.; 46 to 60 miles-single journey 9d., return 18. 3d.; 61 to 75 miles-single journey 18., return 1s. 6d.

(13) The defendants have not included in their return or monthly accounts any statement of the receipts derived from the issue of "supplementary" or "reserved" tickets, and they also continue to claim exemption from duty in respect of receipts for third-class tickets, whether "supplementary" or "reserved" tickets have or have not been used in conjunction therewith, and they deny that the payments for "supplementary reserved accommodation" form part of the fares, and refuse to account in respect thereof. The Attorney-General prays that it may be declared that the defendant company are liable to pay duy at the rate of 5l. for every 1007. in respect of all passengers conveyed by them for hire, upon or along their said line of railway, upon all sums received or charged for the hire, fare, or conveyance of such passengers (including sums received or charged for what is called by the defendants "supplementary" or reserved" accommodation), except when the total fare or sum charged or received does not exceed the limit specified in section 2 (1) of the Cheap Trains Act, 1883.

The Solicitor-General (Sir R. Finlay, Q.C.) (Vaughan Hawkins with him) was stopped by the court.

Cripps, Q.C. (Harold Russell with him).— The payment in question is not a fare. It is a payment for increased comfort. If a rug or pillow is hired by a passenger from the railway company, no one would think of levying passenger duty for payments in respect thereof. This payment was of a kindred nature. In respect of Pullman cars, duty is not payable. That, however, is because the Pullman Car Company is a distinct company. The case as to sleeping carriages-AttorneyGeneral V. London and North-Western Railway Company, 6 Q. B. D. 216-is not decisive against this view. As a matter of convenience, there being no complete record kept of these extra payments, it would be extremely difficult for the company to include in their monthly return of fares so much of the money received for this extra accommodation as should bring up the fare to above 1d. a mile.