65 J. P. 568.

KING'S BENCH DIVISION

May 7.

SOUTH EASTERN AND CHATHAM RAILWAY COMPANY v. LONDON COUNTY COUNCIL.

Railway-Locomotive emitting black smoke -No evidence of locomotive being constructed on principle of consuming its own smoke-Railway Clauses Consolidation Act, 1845 (8 Vict. c. 20), s. 114Regulation of Railways Act, 1868 (31 & 32 Vict. c. 119), s. 19. The appellants were summoned for allowing certain locomotives to emit black smoke for more than three minutes on various occasions. Evidence was given that the coal used was smoky coal, but no evidence was given that the locomotives were not constructed on the principle of consuming their own smoke.

Held, that the appellants were rightly convicted under the Railway Clauses Consolidation Act, 1845, s. 114, as amended by the Regu lation of Railways Act, 1868, s. 19.

Case stated by Gilbert G. Kennedy, Esq., one of the magistrates of the police courts of the metropolis, sitting at the Greenwich Police-court.

1. On the 10th of January, 1901, the appellants appeared before me, sitting at the Greenwich Police-court, to answer five several informations laid by the respondents.

2. The said informations were all in the same form, and each of them respectively charged that the appellants did, upon the day and at the place in each of the said informations respectively mentioned, and hereinafter set out, use upon their said railway (at the place in the said information mentioned), a "locomotive steam engine" (namely, the locomotive steam engine of which the number was inserted in the said information, and hereinafter set out) "using coal or other similar fuel emitting smoke, and not then constructed on the principle of consuming and so as to consume its own smoke, whereby they had rendered themselves liable to the penalty prescribed by the statute in that case made and provided."

65 J. P. 568.

3. The days, places, and engines respectively mentioned in the five informations were as follows:

September 6th, between Brockley and
Honor Oak Park, Engine No. 278.
September 6th, between Brockley and
Honor Oak Park, Engine No. 691.
September 7th, between Brockley and
Honor Oak Park, Engine No. 278.
September 12th, between Hither Green and
Grove Park, Engine No. 277.
September 13th, between Hither Green and
Grove Park, Engine No. 281.

4. By section 114 of the Railway Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), it is provided as follows:

"Every locomotive steam-engine to be used on the railway shall if it use coal or other similar fuel emitting smoke be constructed on the principle of consuming and SO as to consume its own smoke, and if any engine be not so constructed the com. pany or party using such engine shall forfeit 51. for every day during which such engine shall be used on the railway."

5. By section 19 of the Regulation of Railways Act, 1868 (31 & 32 Vict. c. 119), it is provided :

"Where proceedings are taken against a company using a locomotive steam-engine on a railway on account of the same not consuming its own smoke, then if it appears to the justices before whom the complaint is heard that the engine is constructed on the principle of consuming its own smoke but that it failed to consume its own smoke so far as practicable at the time alleged in the complaint through the default of the company or of any servant in the employment of the company such company shall be deemed guilty of an offence under the Railway Clauses Consolidation Act, 1845, s. 114." 6. The respondents did not call any evidence to show that the engines in question were not constructed on the principle of consuming and so as to consume their own smoke but called an inspector in their employ as a witness who was sworn and stated that he had seen the respective engines when hauling trains up a rising gradient between the respective points mentioned emit black smoke in each case for three minutes [here followed particulars of dates and times].

7. The same witness gave it as his opinion that the coal which he had seen in the tenders of the engines complained of as they

SOUTH EASTERN AND CHATHAM RAILWAY

COMPANY v. LONDON COUNTY COUNCIL. were passing was north country coal, and that the north country coal was a smoky coal in the sense that it made more smoke than Welsh coal, but not so much as Staffordshire coal. The witness had several years experience in the coal trade and had special knowledge of different kinds of coal.

8. The respondents then called a second witness, who had been in the employment of the Midland Railway Company as an engine driver and stoker for upwards of 20 years. He had not seen the occurrences spoken to by the last witness or the appellants' engines or coal, but stated as his opinion that it was as a general rule unnecessary for a locomotive to emit smoke for a longer period than one minute.

9. The appellants called no evidence, but contended that the only offence the commission of which was charged in the said informations was the offence described in the aforesaid section 114 of the Railway Clauses Consolidation Act, 1845, and that there was no evidence in support of such charge. Secondly, that if the said informations should be held to charge the commission of the offence mentioned in the aforesaid section 114 as amended by the aforesaid section 19 of the Regulation of Railways Act, 1868, then there was no evidence that the said engines had at the times and places aforesaid failed to consume their own smoke so far as practicable, or that such failure arose through any default on the part of the company or any servant of the company.

10. The respondents contended that the statements of their witnesses aforesaid were evidence that the said engines had at the times and places aforesaid failed to consume their own smoke "so far as practicable," and also that such failure had arisen either through the default of the company, or through the default of a servant of the company, and that the commission of such offence was respectively charged in the said informations.

11. I was of opinion that the respondents' said contention was correct, and I so ruled, and upon the said facts as proved to me I convicted the defendants in each case.

12. The question of law for the opinion of the court is whether my said ruling that there was evidence to support a conviction was correct in point of law.

G. G. KENNEDY.

65 J. P. 568,

James Fox (C. A. Cripps, K.C., with him), for the appellants.-No evidence was given in this case that the engines were not properly constructed so as to consume their own smoke. The smoke may have been emitted owing to the carelessness of the driver or stoker. It has been held in the case of Manchester, Sheffield, and Lincolnshire Railway Company v. Wood, 2 E. & E. 344, that where an engine is properly constructed there is no liability even though the emission of black smoke is due to the carelessness of those in charge. Section 19 of the Regulation of Railways Act, 1868, does not make the emitting of black smoke an offence, it merely states that the default of the company's servant shall be an offence, but it still leaves as the gist of the offence having an engine which is not constructed so as to consume its own smoke.

Avory, K.C. (Dumas with him), for the respondents. The sole question here is whether there was any evidence on which the magistrate could infer that these engines were not consuming their own smoke through the default of the company or their servants. The emission of black smoke is in itself primâ facie evidence. If the engine was constructed on the principle of consuming its own smoke then the emission of black smoke is a proof of the default of the company's servants; if the engine was not so constructed then the appellants are also liable.

Fox in reply.

Lord ALVERSTONE, L.C.J.-I am of opinion that we cannot interfere in this case. I do not assent to the major proposition submitted on the part of the county council that the mere fact of smoke issuing is sufficient of itself without any evidence to show that there was default of the company or default of a servant, but I do think the statute meant under ordinary circumstances no smoke should come out. In this case it appears that between certain stations twice on the same day and on the next day, and in another place on two consecutive days, smoke, and it appears to have been black smoke-although I do not know that very much turns on that except for one point I will mention in a moment-issued for three minutes. The magistrate had before him the evidence of not only the issue of black smoke, which would point to a smoky coal being used, but of an expert

MERSEY DOCKS AND HARBOUR BOARD v. BIRKENHEAD UNION AND OTHERS. of a poor rate assessment. The lairages were buildings of brick and wood, roofed partly with felt and partly with slate used for the reception and slaughter of cattle brought from abroad, and for the cooling and preservation of the carcases. The premises were the only place in this neighbourhood at which foreign animals could be landed except under penalties as provided by the Diseases of Animals Act, 1894, but there were similar lairages for foreign animals in other towns, such as Deptford, Manchester, Hull, Cardiff, Bristol and Glasgow. The appeal came by way of special case stated by the Recorder of Birkenhead. The special case is set out at length at 64 J. P. 36, where a full statement of the facts appear and a full report of the judgments of the learned judges of the Court of Appeal (A. L. Smith, Collins and Vaughan Williams, L.JJ.).

Both the Divisional Court (Lawrance and Channell, JJ.) and the Court of Appeal affirmed the order of quarter sessions, where the recorder admitted evidence as to profits for the purpose of using it, together with other evidence, to test the values given by the appellants and respondents respectively. The appellants, the Mersey Docks and Harbour Board, appealed to this House.

Asquith, K.C., Marshall, K.C., and Horridge, K.C., for the appellants, were heard in support of the appeal.

Pickford, K.C., Tobin and Montgomery, for the respondents, were not called upon to argue.

Earl of HALSBURY, L.C.-In this case it appears to me, for the reasons which have been given by the Court of Appeal, and having regard to the subsequent explanation. of the learned recorder, that this appeal ought to be dismissed with costs. I cannot help thinking that a great deal of the hesitation and confusion which has arisen upon the subject-matter which your lordships have heard debated now on the part of the appellants has arisen from the advisory character of the judgments which have been given from time to time by the various courts before whom this rating question has come. The thing that the Legislature has called upon the overseers to do is to solve a simple question of fact, and although it may be by no means simple as regards the mode in

66

65 J. P. 579. which they are to arrive at it, the question of fact is simple enough as stated-that is to say, they are to make the rate upon an estimate of the net annual value of the said hereditaments rated thereunto-that is to say, of the rent at which the same might reasonably be expected to let from year to year, free of all usual tenant's rates and taxes and tithe commutation rentcharge, if any, and deducting therefrom the probable average cost of the repairs, insurance and other expenses, if any, necessary to maintain them in a state to command such rent." (The Parochial Assessment Act, 1836 (6 & 7 Will. IV. c. 96), s. 1.) That is the proposition which is put before the parish officersthat is the question which they have to answer; and they are to arrive at that value, so far as I know, unfettered by any statute as to the way in which they can do it. I am not aware of any rule of law or any statute which has limited them as to the mode in which they shall arrive at it. It is not a question of law at all, it is a question of fact. These questions have from time to time come before the courts, and have been argued as questions of law; but that is where, instead of doing what the statute has directed them to do, the overseers, or those who were acting on the part of the parish, have thought proper either to include something which by law ought not to be included, or to exclude something which ought to have been included. Of course, in that sense, when you are dealing with a question of fact which has to be answered by any tribunal, it may be that a question may come up in the argument as a matter of law; but still one must bear in mind that the thing to be done is to answer a plain question of fact, namely, What is the rent which a tenant might reasonably be expected to give for the premises, subject to the deductions mentioned in the statute, as a tenant from year to year? Now, the first part of the proposition is that you are to rate-what? Not the tenant's trade. I will deal presently with some questions, and see how they arise with reference to whether you are entitled to go into the question of profit and loss. The trade is excluded from valuation by the terms of the statute. You are to rate the premises according to their value; therefore it would be very wrong indeed to rate the trade, or to treat it as you would if you were dealing with the question for the

MERSEY DOCKS AND HARBOUR BOard v. BIRKENHEAD UNION AND OTHERS. income tax. You are not rating the income -you are rating the premises; so that where you have premises of a similar character with equal facilities for carrying on trade you have a very facile mode of coming to the conclusion what sum would reasonably be given by any tenant from year to year for such premises. But if, instead of doing that, you choose to go into elaborate calculations of how much the building cost to erect, and when erected, what would be the value of it, you are elaborating and making more complex and difficult the simple proposition which the Legislature has put before the overseers to answer. Observations have from time to time been made by some learned judges saying that this should have been done or the other should have been done in rating cases; but that was not as pronouncing judgment upon the law of evidence as to whether or not such and such a topic was legitimate or not in order to arrive at the conclusion which the Legislature has directed the overseers to arrive at, but merely indicating what was the ordinary and reasonable means of arriving at the conclusion at which they were bound to arrive. I am the more anxious to point this out because I think in these later days we have got rid of a good many of those sources of confusion which arose from the advisory character, as I have said, of the judgments given by various courts-we have, I hope, got rid of the confusion arising from words being used not in the strict sense, but as matter of advice to the justices in determining such questions, and sometimes getting printed in the law reports as if they were decisions upon the law of evidence in this country. I protest against any such view, and in this very case, although, as I said, during the last half-century we have arrived at conclusions which get rid of a great deal of the confusion that at one time existed, I find that one learned judge-Channell, J.uses a phrase which I am afraid I cannot assent to, namely, that "wherever you can arrive at" the value "in that way, which is the ordinary way"—that is, "by comparing it with other similar tenements "-" bound to arrive at it in that way." If that means that that is the facile and proper mode of doing it I should agree, but if it is laid down as a proposition of law that that is the only means by which it can be arrived at,

you are

65 J. P. 579.

I am bound to say I am not able to assent to that view. Again, I find that Collins, L.J., says in the same way: "Hence the rule that in ordinary cases where the standard of rent is applicable evidence of actual profit made cannot be received. But it is equally true that where no such standard of comparison exists, it is legitimate to inquire into the profits actually earned." Again, I am compelled to say that I cannot concur with the form in which that proposition is put. It is not a question of deciding what according to the law of evidence is receivable, but what is the natural and ordinary and usual mode by which you can answer the proposition put by the Legislature to the overseers. That proposition appears to me to be a very intelligible one if unclouded by all those questions which have from time to time been raised by ingenious persons, for a good many academic questions have been discussed at the expense of the parishes. What you are to find out is what a tenant will reasonably give, looking, surely, at all the circumstances of the particular occupation, including therein the business that has been done on the premises. I think I had occasion to say in a former case that it would be a very extraordinary thing if, although you can give evidence by expert testimony as to what kind of business might be done, you are not at liberty, in point of law, to ascertain what business has been done. It seems to me that no such proposition could reasonably be maintained. To go into the amounts of profits and losses as if you were finding out what a man's income is would be absolutely irrelevant; but for the purpose of ascertaining what a tenant would be likely to give, to suggest that that is something which in point of law you have no right to inquire into would be equally absurd. All the circumstances of the particular occupation, the mode in which the trade is being carried on, and the circumstances affecting either the restriction or the amplitude of the trade, are all legitimate subjects of inquiry, and the only question of law is whether the particular tribunal has followed the line I have indicated or not. Surely those who are complaining of what has been done by the tribunal must establish either that something has been excluded from the calculation which by law ought to be included, or that something has been included which by law ought not to have been included. The ques