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WHITE v CUBITT
[DIVISIONAL COURT]
[1930] 1 KB 443
HEARING-DATES: 15 November 1929
15 November 1929
CATCHWORDS:
Hackney Carriage - Stage Carriage - Motor Car - Plying for Hire in "public street, road or place" - Private Ground level with Road and unfenced - Metropolitan Public Carriage Act, 1869 (32 & 33 Vict. c. 115), s. 4.
HEADNOTE:
A motor car of which the respondent was the owner and driver plied for hire within the Metropolitan Police district, though not licensed to do so, upon a certain piece of ground. The piece of ground was private property belonging to an adjoining public house but rented to the respondent, it was level with the public street but marked off from it by a line of stone sets not raised above the street level; the public had no leave of access thereto except for the purpose of using the public house or the motor car. The car when standing thereon was in full view of the street:-
Held, that the piece of ground was a "public street, road or place" within the definition of the expression "stage carriage" in s. 4 of the Metropolitan Public Carriage Act, 1869, and, the motor car being in other respects within that definition, that the respondent was liable to the penalties imposed by s. 7 of the Act upon the owner and driver of an unlicensed stage carriage which plies for hire.
Observations in Birmingham and Midland Motor Omnibus Co. v. Thompson [1918] 2 K. B. 105, 113, 114 applied.
INTRODUCTION:
CASE stated by justices for the county of Surrey.
On May 1, 1929, Charles E. H. Cubitt (hereinafter called "the respondent") appeared before the justices sitting at Mortlake petty sessions to answer a complaint made by Joseph Albert White (hereinafter called "the appellant"), a police constable, by order and on behalf of the Commissioner of Police of the Metropolis, which charged that the respondent was the owner of an unlicensed metropolitan stage carriage, to wit, a motor car, index mark and number M. C. 7393, found plying for hire within the Metropolitan Police district, at the time and place mentioned below, contrary to the Metropolitan Public Carriage Act, 1869, s. 7. n(1) A similar
n(1) The Metropolitan Public Carriage Act, 1869, which is entitled: "An Act for amending the Law relating to Hackney and Stage Carriages within the Metropolitan Police district," contains the following provisions:-
Sect. 4: "In this Act 'stage carriage' shall mean any carriage for the conveyance of passengers which plies for hire in any public street, road, or place within the limits of this Act, and in which the passengers or any of them are charged to pay separate and distinct or at the rate of separate and distinct fares for their respective places or scats therein."
complaint was made by the appellant against the respondent as driver of the motor car, and by consent both the complaints were heard together.
The following facts were proved or admitted:-
On February 11, 1929, at 11.15, the respondent with a four-seater motor car, of which he was the owner and driver, was at the side of the Railway Tavern public house at the corner of Upper Richmond Road and Rocks Lane, Barnes. The motor car was standing in full view of the public highway on a private piece of ground, with a concrete surface, belonging to the public house, but rented to the respondent. The concrete surface was level with the road, but was separated from the highway by a line of stone sets, which formed a demarcation, but were not raised above the level of the road. That piece of ground was only used for purposes of the public house, and the public had no access thereto save for the purpose of using the public house or of entering the motor car. The motor car was licensed for revenue purposes as a hackney carriage, but was not licensed by the Commissioner of Police to ply for hire. Two ladies crossed from the road to the concrete surface and entered the motor car. The appellant and another police officer approached the motor car, whereupon the respondent said: "Are you going to the golf course?" The appellant replied, "Yes," and the respondent said, "That will be sixpence each." The appellant and the police officer accompanying him then entered the motor car, and each paid the respondent sixpence, in return for which the respondent handed each of them a ticket from a roll of consecutively numbered tickets with the price 6d. printed on each ticket. The respondent then drove the appellant together with the three other occupants of the motor car, from the concrete surface to the Richmond Park
Sect. 7: "If any unlicensed hackney or stage carriage plies for hire, the owner of such carriage shall be liable to a penalty not exceeding five pounds for every day during which such unlicensed carriage plies. ... The driver also shall in every such case be liable to a like penalty unless he proves that he was ignorant of the fact of the carriage being an unlicensed carriage. ...."
golf course. The respondent had on several occasions waited with his motor car upon the concrete surface and had conveyed members of the public therefrom to that golf club at a charge of sixpence for each person. The respondent did not exhibit any notice or advertisement to indicate that the motor car was for hire.
For the respondent it was contended: (1.) That the motor car was not plying for hire within the meaning of the Act; and (2.) that, assuming there was a plying for hire, it was not "in a public street, road, or place," in that the concrete surface was private property, and not repairable at the public expense.
For the appellant it was contended: (1.) That the vehicle was plying for hire; and (2.) that although the concrete surface belonged to the public house it was a "public place," in so far as it was not fenced off in any way, and the public could have access to it.
On the facts above stated the justices came to the conclusion that the vehicle was not in any public street, road, or place, and they therefore dismissed the complaints.
The question of law for the Court was whether on these facts the justices were right in dismissing the complaints.
COUNSEL:
H. D. Roome for the appellant. The justices ought to have convicted the respondent of the offence with which he was charged. The respondent's motor car was not licensed to ply for hire, and therefore, if it was a stage carriage within the meaning of the Metropolitan Public Carriage Act, 1869 n(1) , the respondent became liable, both as owner and as driver, to the penalty imposed by s. 7 of that Act. The respondent's motor car was a stage carriage within the meaning of that Act. The circumstances of the present case brought the motor car within every part of the definition of "stage carriage," which is contained in s. 4 of the Act. The expression "plies for hire" in that definition was applicable to the motor car at the time and place in question.
[ Moresby for the respondent. It is not now contended that the motor car did not ply for hire within the meaning of the definition.]
The piece of ground on which the motor car plied for hire was a "public street, road or place" within the meaning of the definition. It was part of a "public street." Apart from authority the circumstances show that, though it was private property, it came within that expression. It was level with the street, it was not separated from the street by any fence or partition, it was freely accessible to the public using the street, and it was so situated that a vehicle standing upon it was in full view of the street and could be entered by persons from the street as easily as if it was on the street. Moreover there is authority for the view that this piece of ground is a street inasmuch as in the case of Birmingham and Midland Motor Omnibus Co. v. Thompson n(1) both Avory and Atkin JJ. expressed the opinion that a piece of ground even less closely connected with the street than this was a part of the street. If this piece of ground was not part of the street, it was clearly a "public place" within the meaning of the definition.
That view is supported by the circumstances already mentioned. It is also in accordance with the authorities, a person having been held to have committed an indecent act in a public place who committed the act in an open place out of sight of the highway to which the public were in the habit of going without any right to do so: Reg. v. Wellard n(2) ; and it having been held that under the Vagrancy Acts the expression public place applied to a railway platform: Ex parte Davis n(3) ; a railway carriage in transit: Langrish v. Archer n(4) ; and a field used as a recreation ground: Turnbull v. Appleton n(5) . Even though the place was not a public place within the letter of the Act it should be treated as a public place within the spirit and intention of the Act, because to hold otherwise would be to sanction the mischief which the Act seeks to prevent - namely, the driving of stage carriages by unlicensed and presumably unqualified persons: per Avory J. in Birmingham and Midland Motor Omnibus Co. v. Thompson. n(1)
Moresby for the respondent. The decision of the justices was right. The respondent's motor car was not at the time in question a "stage carriage" within the Metropolitan Public Carriage Act, 1869, s. 7. n(2) It was not at that time within the definition of that expression given for the purposes of the Act in s. 4 thereof, because it did not at that time ply for hire in any "public street road or place" within the meaning of the last-mentioned section. The piece of ground upon which the motor car happened to be at that time was not a "public street" or "public road" within the section. This appears from the circumstances. The piece of ground was private property belonging to the proprietor of the neighbouring public house, it was separated from the road by a line of stone sets, and the public had no access to it except by permission of the owner for the limited purposes of using the public house or entering the motor car. The same view is borne out by the authorities. In Curtis v. Embery n(3) it was held that ground belonging to a railway company and separated from the highway only by a gutter was not a "street" within s. 3 of the Town Police Clauses Act, 1847.
[LORD HEWART C.J. The notion of a thoroughfare runs throughout the whole of the definition of the word "street" given in that section for the purposes of that Act.]
In Case v. Storey n(4) a hackney carriage while on the premises of a railway company by their leave for the use of their passengers was held not to be plying for hire in any public "street" within the meaning of the Hackney Carriage Act, 1831. The statements made by Avory and Atkin JJ. in Birmingham and Midland Motor Omnibus Co. v. Thompson n(1) to the effect that the place there in question was a public "street" were mere obiter dicta which were not necessary for the decision in that case. Neither was this piece of ground a "public place" within the meaning of s. 4 of the Act of 1869.
The word "place" in the section must be construed as ejusdem generis with the words "street" and "road" which accompany it in the section: see per Kelly C.B. in Case v. Storey. n(1) All these words are qualified by the adjective "public." The public have no doubt a right to enter the public house during lawful hours, but there is a direct entrance to the public house from the street, and the fact that they are at present permitted to pass over this piece of ground for the purpose of reaching the public house does not therefore make the piece of ground a public place. In Case v. Storey n(1) , already referred to, a hackney carriage while on the premises of a railway company for the convenience of their passengers was held not to be plying for hire in a "place" within the meaning of the Hackney Carriage Act, 1831. As s. 7 of the Act is a penal section the expression "stage carriage" there used must be strictly construed. The case of Reg. v. Wellard n(2) and other cases of a similar kind were criminal cases, and in order that a place may be a public place for the purposes of these cases all that is necessary is that it be a place that the public can see.
PANEL: LORD HEWART C.J., SWIFT, and BRANSON JJ
JUDGMENTBY-1: LORD HEWART C.J
JUDGMENT-1:
LORD HEWART C.J: This is a case stated by magistrates, and the question which it involves arises out of the hearing of a complaint made by the present appellant on behalf of the Commissioner of the Metropolitan Police against the respondent, the owner of an unlicensed stage carriage being a motor car, which, as the appellant alleged, was found plying for hire within the limits of the metropolitan police district, contrary to s. 7 of the Metropolitan Public Carriage Act, 1869. A similar complaint was made against the respondent as driver, and both complaints were heard together. In the result the justices dismissed the complaint, and the question for this Court is whether in so doing they came to a correct determination in point of law.
The case really turns upon the true interpretation, in relation to the facts, of the definition of the expression "stage carriage" in s. 4 of the Metropolitan Public Carriage Act, 1869. n(1) [His Lordship read that section and continued:] It is frankly conceded by Mr. Moresby on behalf of the respondent that upon the facts of the present case all the elements in that definition were to be found except that the place here referred to was not a "public street, road or place." It is not denied that there was here a plying for hire. It is not denied that the locus referred to was a place. But it is said that it was not a public place within the meaning of this particular definition. [His Lordship reviewed the facts stated in the case to have been proved or admitted, observing that the respondent had conveyed or been ready to convey from the piece of ground in question to the golf club any member of the public who desired to go there without reference to any particular class or condition of the public to which he might belong, and continued:] In those circumstances the justices came to the conclusion that the vehicle was not in any public street, road or place, and their conclusion cannot be disturbed if in point of law that was an inference which could properly be drawn from the facts which had been proved.
The attention of the Court has been very properly directed to certain cases which are thought to have some bearing upon the matter here in question. It has not been necessary to refer to the series of cases involving controversies that may be thought to be of a somewhat artificial kind as to the meaning of the expression "plying for hire." But various cases have been cited for the purpose of illustrating the proposition that this particular place was not a public place within the meaning of this Act, though at the same time it is freely admitted that there is no case directly in point. The question is not concluded by authority, and we approach it as if it were a tabula rasa.
It seems to me that much light is thrown upon the matter by the observations of Avory J. in the case of Birmingham and Midland Motor Omnibus Co. v. Thompson. n(2) In that case he used these pregnant words: "I should like to add that if it were necessary to discuss the question whether these omnibuses were under the circumstances plying for hire in a street I should have liked further time to consider it.
I am not satisfied that it has been decided in any previous case that under such circumstances as those of the present - namely, the gate of the yard being open, placards and notices directing the public to the yard, and the omnibuses being visible from the street - these omnibuses might not properly be said to be plying for hire in a street, but it is not necessary to decide that, and I postpone the expression of any opinion upon it." n(1) In the same case Atkin J., now Lord Atkin, said: "There is one matter that I should like to refer to, though I express no opinion upon it namely, whether, if this case had to be sent back for decision upon the question, it would not have been open to the magistrates to find that the appellants here were permitting their omnibus to be used for plying for hire in a street. In this case the magistrates have found the contrary. I only desire to say that in another case it appears to me that upon similar facts it might be possible for the magistrates to come to a different conclusion." n(2)
It seems to me that those observations made with reference to the circumstances of that case are applicable a fortiori to the circumstances of the present case. Here the whole scheme and purpose of the arrangements which have, not without ingenuity, been made, were to enable this motor vehicle to ply for hire by attracting the public through being manifestly exhibited near the edge of the highway at a place to which the public were invited, to which the public had resort, and around which there was no sort of barrier, physical or other, to prevent the ingress and egress of the public.
In my opinion this place was as public as it could be, and was selected for the purpose of the respondent precisely because it was as public as it could be. Upon the materials, I think, there was no evidence to justify the justices in coming to the conclusion that for the purposes of this section, and with reference to the mischief against which this section is directed, this was not a public place.
I think, therefore, that the case ought to go back to the justices with a direction to convict.
JUDGMENTBY-2: SWIFT J
JUDGMENT-2:
SWIFT J: I agree.
JUDGMENTBY-3: BRANSON J
JUDGMENT-3:
BRANSON J: I agree.
DISPOSITION:
Appeal allowed.
Case remitted.
SOLICITORS:
Solicitors for appellant: Wontner & Sons.
Solicitors for respondent: Pierron & Morley.
_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin
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