1907.

Hawarden

"District Water

send compensation water down the brook, but by way of compensation to the riparian proprietors for a breach of that duty: Lewis v. Swansea Davies-Cooke v. Corporation (1888) 4 Times L. R. 122. 706. Some reference seems to District Waterhave been made before the justices to section 16 of the Summary Juris- works Company. diction Act, 1879, which enables a court of summary jurisdiction to Hawarden dismiss the information in the case of an offence of a "trifling character. It does not, however, appear that the justices acted on that section; and, in any case, the offence in this case is not such as can Le regarded as "trifling" within that section: Phillips v. Evans, 1896, 1 Q. B. 305; 65 L. J. M. C. 101; Nisbet v. Lloyd (1904) 2 L. G. R. 1277; Barnard v. Barton (1905) 69 J. P. 281.

RALPH BANKES for the Company. The justices had power to reduce the penalty in the present case either under section 16 of the Summary Jurisdiction Act, 1879: Salt v. Scott-Hall, 1903. 2 K. B. 245; 1 L. G. R. 753; 72 L. J. K. B. 627, or under section 4: Rex v. Fowler (1894) 64 L. J. M. C. 9.

As regards the second case, in which the Company are appellants, it is submitted that the obligation to send compensation water down the brook had never arisen, as the works of the Company had never been completed.

COURTHOPE MUNROE in reply.

LORD ALVERSTONE C.J. In these cases, which are certainly not very well stated, both the decisions are in my opinion right on the facts before us, and I think that both appeals ought to be dismissed.

It is convenient to take the appeal of the Waterworks Company first, because it raises a question which comes before the other, namely, whether there ought to be any penalty at all. Mr. Bankes' contention is that because, looking at the whole scheme of the deposited plans, there was a much larger scheme that there was power to make reservoirs which would have brought together some 62,000,000 gallons, whereas the Company only collected 15,000,000 gallons-therefore the liability to the penalty had not arisen. That seems to me to go a great deal too far. It is sufficient to remember, when that kind of argument is adduced, that in these cases we have to deal with statutory bargains. The promoters get their Act of Parliament upon certain terms. They are to construct the works for their own benefit, and are to construct them within a certain time, and the fact that the promoters either did not choose or were not able to make the works within that time cannot, in my judgment, justify putting a narrow construction on the Act of Parliament. If the argument were sound, the Company, if they no longer have power to take lands compulsorily, and cannot construct the works if they cannot get the land-if these compulsory powers have

works Company v. Davies-Cooke.

Hawarden

1907. gone-have rid themselves of the obligation to obey section 45, at any Davies-Cooke v. rate so far as the penalty is concerned. In my judgment that is not Hawarden how the section should be construed. Section 44 provides that the District Waterworks Company. Company shall have power to divert, collect, use, get and appropriate various streams, and amongst others the Garth Brook. If the streams District Water- had remained in the ordinary way, as they do under some of the older works Company v. Davies-Cooke. Acts of Parliament, the riparian proprietors below would have claimed compensation in respect of the diminution in the flow of the water which they used for irrigation and other purposes. But for a great many years there had been a practice of sending compensation water down the stream to take the place of pecuniary compensation. I think that section 45 means what it says, that when the Company have completed the works to take the water out of Garth Brook-when they interfere with Garth Brook by means of their works--they are bound to send down not less than 250,000 gallons every twenty-four hours. That gives effect to the statutory contract, and it makes it common sense. That is what the body of riparian proprietors are to get; instead of each of them putting forward a money claim, they are to get the use of so much compensation water instead of the old water in the brook. Then comes section 47, which provides that if the Company omit or fail to deliver into the Garth Brook the minimum quantity, they shall be liable to a penalty of £5 a day. It is said that that is £5 a day compensation money in addition to compensation water. cannot so read it. I cannot think that the section meant to give the penalty as money due to each of the people or to the body of people in respect of the water taken away plus their compensation water, or it would not have been put into a penalty clause enforceable under the Summary Jurisdiction Acts. I think that it is, as it purports to be on the face of it, a penalty for a breach of the statutory obligations imposed by section 45. Therefore in my judgment Mr. Bankes' point, which was that the Company were not liable at all, fails because the Act of Parliament really provides that if the Company divert water from the Garth Brook they are to send compensation water down. The justices only inflicted a penalty of 1s. a day instead of £5 a day, and I rather wish that there had been a fuller statement of the grounds upon which they reduced the penalty. It seems to me, however, dealing with the matter as an order made, that they clearly had power to reduce the penalty. I have already said that I do not read section 47 as meaning that £5 is to be payable in lieu of money compensation. I think it is a statutory protection to the body of riparian proprietors below to secure the observance of section 45. That being so, when I observe that the penalty is to be recoverable in the manner provided by the Summary Jurisdiction Acts, or any Act or Acts amending the

1907.

same, and that the Waterworks Act was passed in 1883, I certainly come to the conclusion that section 4 of the Summary Jurisdiction Davies-Cooke v. Act, 1879, applies. That section provides that "where a court of Hawarden District Watersummary jurisdiction has authority under this Act or under any other works Company. Act, whether past or future, to impose imprisonment or to impose a Hawarden fine for an offence punishable on summary conviction, that court may, works Company in the case of imprisonment, impose the same without hard labour, v. Davies-Cooke. and reduce the prescribed period thereof, or do either of such acts; and in the case of a fine, if it be imposed as in respect of a first offence, may reduce the prescribed amount thereof."

I am quite satisfied, for the reasons that Mr. Bankes has urged, that the penalty in this case was imposed in respect of a first offence. I am satisfied, at least I take it from him, and I think that the case supports him, that there was no proof of a previous conviction, that there was no proof in a proper way that the justices were to deal with the case as one of a second offence. It is true that they refer to something which transpired, but that was common to more than one, or certainly one of the cases cited before us, and the fact that something had been mentioned would not of necessity have forced them, if it were a case of the same kind, to deal with it as a second breach.

I am

I think, therefore, that under section 4 of the Act of 1879 they clearly have power to reduce the penalty. I have more doubt about section 16. I do not myself exactly know what are the limits. not prepared to say that we may not regard this as being a case which the justices did not consider sufficiently important for them to convict, but in which they thought they had power to order so much in payment of costs under the first part of section 16. At any rate, I am unable to say—whether under one section or the other-that they did not come to a right conclusion. And I hold that they were right in thinking that they could reduce the penalty. I think that both appeals must be dismissed.

DARLING J. I agree.

A. T. LAWRENCE J. I am of the same opinion.

Appeals dismissed.

Solicitors for Mr. Davies-Cooke-Cunliffes and Davenport, for W. H. Churton and Sons, Chester.

Solicitors for the Waterworks Company--Birch, Cullimore, and Douglas, Chester.

Reported by Gilbert Metcalfe, Esq., Barrister-at-Law.

District Water

1907.

April 9, 10.

bigh Court of Justice.

KING'S BENCH DIVISION.

MARSHALL u. GRAHAM.
BELL U. SAME.

Education-School attendance-Bye-laws-Day exclusively set apart for religious observance-Ascension day-Reasonable excuse for non-attendance--5 & 6 Edw. VI. c. 3-Elementary Education Act, 1870 (33 & 34 Vict. c. 75), ss. 7. 74.

Children of members of the Church of England cannot be required by bye-laws under the Elementary Education Acts to attend school on Ascension Day; for that day is, within the meaning of section 74 of the Elementary Education Act, 1870, "a day exclusively set apart for religious observance by the religious body"-i.e., the Church of England-to which the children's parents belong.

66

Even were Ascension Day not such a day, the fact that a child of a member of the Church had been sent to church by his parent on that day would be a reasonable excuse" within that section for the non-attendance of the child at school during the time necessary for its attending church.

Semble, per Phillimore J., that, apart from any question of reasonable excuse, it is a defence to proceedings under such bye-law's in respect of the non-attendance at school to show that the child was absent in the discharge of a legal duty; that there is a legal duty on a child, who is a member of the Church of England, to attend church on Ascension Day under the 5 & 6 Edw. VI. c. 3; and that consequently it is a defence to proceedings in respect of the nonattendance of such a child at school on that day to show that it was at church and was thereby prevented from attending school.

These were two cases stated by justices for the West Riding of Yorkshire, which were heard together.

The first case was stated in proceedings taken by the respondent Graham against the appellant Marshall, wherein the appellant was charged for that he, being the parent of a certain child, to wit, John Marshall, being not less than five nor more than fourteen years of age, did unlawfully neglect to cause such child to attend school without lawful excuse for the whole time required by the bye-laws made by the County Council of the West Riding as local education authority under Part III. of the Education Act. 1902, contrary to the bye-laws and the

statute.

The material paragraphs were as follows:---

5. Upon the hearing of the information as aforesaid the following facts were admitted in evidence before us :

1907.

Bell v. Same.

(a) The Darfield Mixed School is, and since the 1st day of April, 1904, has been, a non-provided public elementary school within the Marshall v. meaning of the Education Acts, 1870 to 1902, conducted in connection Graham. with, and so far as religious instruction is concerned according to the principles of, the Church of England. It is situate within the area for which the County Council for the West Riding of Yorkshire is the local education authority. The said Darfield Mixed School is the school selected for John Marshall, and is and has been attended by him for some time. The said John Marshall is aged about eleven and a half years. The appellant is the parent of the said John Marshall.

(b) The said bye-laws made May 25, 1905, by the County Council of the West Riding of Yorkshire, and duly sanctioned by the Board of Education on August 4, 1905. provide (amongst other things) as follows:-

2. The parent of every child of not less than five nor more than fourteen years of age shall cause such child to attend school unless there be a reasonable excuse for non-attendance. . . .

"3. The time during which every child shall attend school shall be the whole time for which the school selected shall be open for the instruction of children of similar age.

"4. Provided always that nothing in these bye-laws . . . (b) shall require any child to attend school on any day exclusively set apart for religious observance by the religious body to which its parent belongs.

6. Every parent who shall not observe or shall neglect or violate these bye-laws or any of them shall upon conviction be liable to a penalty not exceeding with costs twenty shillings for each offence."

(c) The respondent Thomas Graham was duly authorised to prosecute the said appellant and to lay the said information.

(d) On May 24, 1906, the school was open for the instruction of children of eleven and a half years of age, both in the morning and in the afternoon.

(e) On May 24, 1906, being Ascension Day, the said John Marshall was wholly absent from the said school in the morning, and attended school as usual in the afternoon. The appellant Timothy Marshall stated in evidence that it was by his desire and direction that the said John Marshall did not attend school on the morning of that day, and that in accordance with such desire and direction he attended church in the morning and went to school in the afternoon.

(f) The appellant belongs to the religious body of the Church of England.

(g) No evidence was adduced before us that Ascension Day was or is