Powell v May

 

Powell v May

LEISURE AND LICENSING

KING’S BENCH DIVISION

LORD GODDARD LCJ, HUMPHREYS AND HENN COLLINS JJ

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

29, 30 JANUARY, 15 FEBRUARY 1946

Corporations – Bye-laws – Validity – Repugnancy to general law – bye-law prohibiting betting in public places – Street Betting Act, 1906 (c 43), ss 1(1), (4), 2

– Betting and Lotteries Act, 1934 (c 58), ss 2(1), 20.

Gaming and Wagering – Betting in public place – Bye-law repugnant to general law – Street Betting Act, 1906 (c 43), ss 1(1) (4), 2 – Betting and Lotteries

Act, 1934 (c 58), ss 2(1), 20.

A race meeting, confined to horse racing, was held in a field which was neither an approved racecourse nor a licensed track. The notice required by the

Betting and Lotteries Act, 1934, s 2, had been given to the chief constable of the county and bookmaking had been carried on in the field on 1 day only during

the previous 12 Months. The field was part of a farm adjacent to the highway and was enclosed on all sides by a hedge, but there was one gateway opening on

to the highway through which the public obtained access to the field on payment of a fee. A number of bookmakers were present, including the appellant, who

there carried on the business of bookmaking. The appellant was convicted by a court of summary jurisdiction under a bye-law made by the local county

council and on appeal to quarter sessions the conviction was confirmed subject to the opinion of the court as to whether the decision was right in point of law.

The bye-law, which was made under the Municipal Corporations Act, 1882, s 23, was, for all essential purposes, in the same terms as those in the Street

Betting Act, 1906, s 1(1). It did not, however, provide, as does the Street Betting Act, 1906, s 1(4), that, in the case of an enclosed space, betting was only

unlawful if at or near every public entrance there was conspicuously exhibited by the owners or persons having the control of the place a notice prohibiting

betting therein. No such notice was exhibited on this occasion:—

Held – The bye-law was repugnant to both the Street Betting Act, 1906, and the Betting and Lotteries Act, 1934, which, in effect, permit bookmakers to bet at

race meetings provided they observe certain conditions; and it was beyond the powers of the county council to enact a bye-law which prohibited them from

doing that which the general statutes enabled them to do. The conviction should, therefore, be quashed.

Notes

A statute seldom expressly enacts that something shall be lawful, but it is frequently provided that something which would otherwise be unlawful shall be

lawful if certain conditions are observed. A bye-law making unlawful that which is expressly provided to be lawful would be void for repugnancy, and it is

decided in this case that this repugnancy extends to bye-laws contrary to statutory provisions giving implied authority to act on fulfilment of conditions. As

Channell J, said in Gentel v Rapps, a bye-law is repugnant “if it expressly or by necessary implication professes to alter the general law of the land.”

As to Effect of Repugnancy to General Law on Validity of Byelaws, see Halsbury, Hailsham Edn, Vol 8, p 47, para 81; and for Cases, see Digest, Vol

13, pp 328, 329, Nos 651–655.

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Cases referred to in judgment

Thomas v Sutters [1900] 1 Ch 10, 25 Digest 435, 327, 69 LJCh 27, 81 LT 469.

Strickland v Hayes [1896] 1 QB 290, 38 Digest 164, 97, 65 LJMC 55, 74 LT 137.

White v Morley [1899] 2 QB 34, 25 Digest 436, 330, 68 LJQB 702, 80 LT 761.

Gentel v Rapps [1902] 1 KB 160, 13 Digest 328, 653, 71 LJKB 105, 85 LT 683.

Appeal

Appeal by a bookmaker from a decision of quarter sessions dismissing his appeal against a conviction by a court of summary jurisdiction for an offence under

a county council bye-law. The facts are sufficiently set out in the judgment.

Gilbert Beyfus KC and Roger Willis for the appellant.

Ralph Sutton KC and Carey Evans for the respondents.

Cur adv vult

15 February 1946. The following judgment was delivered.

LORD GODDARD LCJ [delivering the judgment of the court]. In this case the appellant was convicted by a court of summary jurisdiction in the county of

Glamorgan for an offence under bye-law No 7, made by the Glamorgan County Council. On appeal to the quarter sessions the conviction was affirmed

subject to the opinion of the court as to whether the decision was right in point of law. The bye-law in question is in these terms:

‘No person shall frequent and use any street or other public place either on behalf of himself or any other person for the purpose of bookmaking or

betting or wagering or agreeing to bet or wager of paying or receiving or settling bets. “Public place” includes “any common, public park, pleasure

ground, roadside waste, foreshore, churchyard or chapelyard and any open space to which the public have access for the time being.’

The facts found by quarter sessions are that on 22 July 1944, a race meeting was held in a certain field at Laleston which was neither an approved

racecourse nor a licensed track. The racing was confined to horse racing and the notice required by the Betting and Lotteries Act, 1934, s 2, had been given to

the chief constable of the county and bookmaking had been carried on in the said field on 1 day only during the previous 12 months. A number of bookmakers

were present at the meeting, among them the appellant, who there carried on the business of bookmaking. The field is part of a farm which is adjacent to the

highway and is 16 acres in area. It is enclosed on all sides by a hedge, but there is one gateway opening on to the highway through which the public obtained

access to the field on the payment of 2s 6d.

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

Those are the only facts material for the purpose of the present case. There is no finding when the bye-law was made, but it was found that it was made

under the Municipal Corporations Act, 1882, s 23, and the same power of making bye-laws as is thereby given to municipal corporations is conferred on

county councils by the Local Government Act, 1888, s 16, now replaced by the Local Government Act, 1933, s 232. The objection taken by the appellant to

this bye-law is that it is ultra vires the county council because it is repugnant to the general law of the land. Bye-laws in form indistinguishable from the

present have been before the courts on more than one occasion and upheld, but all those cases were before the Street Betting Act, 1906, and therefore also

before the Betting and Lotteries Act, 1934, and the question that has to be decided in the present case is whether this bye-law can be regarded as valid although

it goes beyond the provisions of those general Acts, and makes something unlawful which is expressly exempted from the provisions of those Acts and which,

it is accordingly argued, is at least inferentially permitted by them. There is no question but that a bye-law which is repugnant to the general law is invalid, but

it is not so easy to determine what is covered by the word “repugnant” and under what circumstances a bye-law is to be held invalid on that ground.

Obviously it cannot permit that which a statute expressly forbids, nor forbid that which a statute expressly permits, though it can, of course, forbid that which

otherwise would be lawful at common law, otherwise no prohibitory bye-law could be valid. It is but seldom that a statute expressly enacts that something

shall lawful, unless indeed it is dealing with the conferment of powers upon some body or person, but it is by no means unusual to find a statute which, while

making some particular thing unlawful, goes on to 􀂭 445􀀉 provide that the thing prohibited may be done, or at least not be prohibited, if certain conditions are

observed. If Parliament prohibits a certain thing from being done and imposes a penalty for doing it, and in the same Act says the prohibition is not to apply,

or that no penalty is to be incurred, if the very same thing is done in a certain way or under certain conditions, it seems almost pedantic to say that Parliament

has not at least impliedly authorised the doing of that thing subject to the conditions laid down.

Turning to authority, in Thomas v Sutters, Lindley MR gave what seems to be a most useful and helpful test for deciding whether a bye-law is invalid on

the ground of repugnancy. Explaining his earlier decision in Strickland v Hayes, he said that the bye-law in the earlier case was hopelessly bad because it

dealt precisely with a matter with which Parliament had already dealt in an Act addressed to the very same thing. Before we consider the bye-law in relation

to the two statutes we have already mentioned, we will refer to two judgments of Channell J whose opinions are always treated with the utmost respect in

matters relating to local government. In White v Morley the judge said ([1899] 2 QB 34, at p 39):

‘… bye-law … is not bad because it deals with something that is not dealt with by the general law. But it must not alter the general law by making

that lawful which the general law makes unlawful; or that unlawful which the general law makes lawful.’

In that case bye-law in the same terms as the present was in question in days before the Street Betting Act was passed. It was argued that the subject-matter

had already been dealt with by the Metropolitan Streets Act, 1867, s 23, which made it an offence to obstruct a street by there or more persons assembling for

the purpose of betting, but the court held that the section was a provision relating to traffic in streets and dealing with obstruction, while the bye-law aimed at

frequenting a street for the purpose of betting, which was a different thing and a different mischief. Then in Gentel v Rapps the same judge said ([1902] 1 KB

160, at p 166):

‘A bye-law is not repugnant to the general law merely because it creates a new offence, and says that something shall be unlawful which the law

does not say is unlawful. It is repugnant if it makes unlawful that which the general law says is lawful. It is repugnant if it expressly or by necessary

implication [we emphasise those words] professes to alter the general law of the land … Again, a bye-law is repugnant if it adds something inconsistent

with the provisions of a statute creating the same offence; but if it adds something not inconsistent, that is not sufficient to make the bye-law bad as

repugnant.’

The bye-law in that case was made under the Tramways Act, 1870, which enabled the promoters of a tramway to make bye-laws preventing nuisances in

any carriage belonging to them. The bye-law provided that:

‘No person shall swear or use offensive or obscene language whilst in or upon any carriage.’

It did not contain any such words as “so as to be a nuisance or annoyance to others,” although the Towns Police Clauses Act, 1847, which was in force in the

district, and a local Act, both prohibited the use of obscene language “so as to be a nuisance or annoyance to others.” So there one had the case of a general

prohibition in the Town Police Clauses Act and also in a local Act in force in the district and a bye-law applicable to a limited class of case, namely, swearing

in tramcars. There is nothing in the general Act saying that persons may swear anywhere but in the public street, so a bye-law dealing with swearing in a

particular place, though in one sense an extension of the statutory prohibition, is in no way in conflict with it. That is just the sort of case with which we think

Jeune P, was dealing in that passage in his judgment in Thomas v Sutters on which counsel for the respondents so strongly relied, where he said ([1900] 1 Ch

10, at p 16):

‘When an Act of Parliament has forbidden certain things to be done in certain places, it seems to me perfectly consistent with that that a

municipality, with regard to their particular locality, should go somewhat beyond the Act, not contravening its spirit, but carrying it out, and making

regulations somewhat wider than those to be found in the Act.’

The spirit of the Act was in no way contravened by the bye-law in question. The Act forbids swearing or obscene language in public so as to be a nuisance or

annoyance to others, and a bye-law forbidding altogether swearing in tramcars 􀂭 446􀀉 where it must of necessity be a nuisance is not inconsistent with the

general provisions of the Act.

We turn now to the Street Betting Act, 1906, and the Betting and Lotteries Act, 1934. Sect 1(1) of the former Act makes it an offence for any person to

frequent or loiter in streets or public places for the purpose of bookmaking or betting or wagering or agreeing to bet or wager or paying or receiving or settling

bets and the words are for all essential purposes the same as those contained in the bye-law. Sect 1(4), after providing what shall be include in the word

“street,” provides that the words “public place” shall include any public park, garden, or seabeach, and any unenclosed ground to which the public for the time

being have unrestricted access, and shall also include every enclosed place (not being a public park or garden) to which the public have a restricted right of

access. Pausing there for a moment, it seems to deal with exactly the same places as does the bye-law. The only distinction is that the Act distinguishes

between enclosed and unenclosed places, while the bye-law deals with any open space to which the public have access for the time being and therefore

includes both unenclosed and enclosed spaces. The Act, however, provides that for the purpose of the section, in the case of an enclosed space betting is only

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

unlawful if at or near every public entrance there is conspicuously exhibited by the owners or persons having the control of the place a notice prohibiting

betting therein. If, therefore, under that Act a person were summoned it would be a good defence to show that the place where he was betting was an enclosed

place to which the public had a restricted right of access and that there was no notice exhibited prohibiting betting.

Sect 2 of the Street Betting Act, 1906, provides that nothing contained in this Act shall apply to any ground used for the purpose of a racecourse for

racing with horses or adjacent thereto on the days on which races take place. There is no finding in the case that this field was a racecourse but it was

undoubtedly a track as defined by sect 20 of the 1934 Act, and so as within cl (b) of the proviso to sect 2 of the 1934 Act. Sect 2(1) provides that bookmaking

shall not be carried on on any track unless the occupier of the track is the holder of a licence in force under this Act authorising the provision of betting

facilities on that track. But then it goes on to provide that the foregoing provisions of the subsection shall not apply in relation to anything done on any track

on any day if during the year in which that day falls bookmaking has not been carried on on that track on more than 7 previous days, and notice of the

intention to permit bookmaking on that track on that day has been given beforehand to the chief officer of police. Both these provisions were satisfied in this

case. Now it seems to us that if these statutes had provided in terms that it should be a good defence to a prosecution to prove those matters to which we have

referred, a bye-law which says that those facts should provide no defence would be repugnant to the general law, and this is precisely what this bye-law

effects. It deprives a bookmaker of the defence which he would have had under sect 1(4) of the Street Betting Act, 1906, that there was no notice prohibiting

betting exhibited. It would deprive him of showing that the ground on which he was betting was a racecourse and that racing was taking place on the day on

which he was betting and it would also deprive him of relying upon the provisions of sect 2(1) of the Act of 1934. That is the effect of the bye-law and it is by

its effect and not by its mere form that it must be judged.

In our opinion this bye-law is repugnant to both these Acts. In effect those Acts do permit bookmakers to bet at race meetings provided they observe

certain conditions. In our opinion it is beyond the powers of a county council to enact a bye-law which prohibits them from doing that which the general

statutes enable them to do. We think, therefore, that the appeal should be allowed and the decision of the quarter sessions reversed and the conviction before

the magistrates quashed.

Appeal allowed with costs. Case remitted to quarter sessions with direction to quash conviction.

Solicitors: Field, Roscoe & Co agents for A Frank Hill & Co Cardiff (for the appellant); Torr & Co agents for Richard John, Cardiff (for the respondents).

C StJ Nicholson Esq Barrister.

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[1946] 1 All ER 448