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WEEKES

2. Kixg.

1885.

Nuisance

.

The questions of law upon which the case was stated for the opinion of the court were therefore :

1. Whether the 2nd proviso at the end of the 91st section of the Public Health Act, 1875, applied to the offence charged against the appellant ? 2. Whether the justices should have received evidence to Black smoke

emitted from show the construction of the fireplace or furnace ?

chimney. If the court should be of opinion that the construction placed by the justices on the 2nd proviso was correct, then the said order was to stand; but if the court should be of opinion otherwise, then it was desired that the case should be remitted to them to hear the appellant's witnesses.

The 91st section of the Public Health Act, 1875 (38 & 39 Vict. c. 55), is, so far as material, as follows:

91. For the purposes of this Act

7. Any fireplace or furnace which does not as far as practicable consume the smoke arising from the combustible used therein, and which is used for working engines by steam, or in any mill, factory, dyehouse, brewery, bakehouse, or gasworks, or in any manufacturing or trade process whatsoever, and any chimney (not being the chimney of a private dwelling-house) sending forth black smoke in such quantity as to be a nuisance, shall be deemed nuisances liable to be dealt with summarily in manner provided by this Act. Provided

Secondly. That where a person is summoned before any court in respect of a nuisance arising from a fireplace or furnace which does not consume the smoke arising from the combustible used in such fireplace or furnace, the court shall hold that no nuisance is created within the meaning of this Act, and dismiss the complaint if it is satisfied that such fireplace or furnace is constructed in such manner as to consumo as far as practicable, having regard to the nature of the manufacture or trade, all smoke arising therefrom, and that such fireplace or furnace has been carefully attended to by the person having the charge thoroof.

Poland for the appellant.—The second proviso at the end of the section applies to the whole of the 7th sub-section, and the justices ought to have heard the appellant's evidence as to the construction of the furnace, and, if satisfied therewith, to have dismissed the information. If the justices are right in the construction placed by them on the section, then any chimney of a manufactory sending forth black smoke comes within the section, and it is no defence that it is being used in carrying on a trade or manufacture. The anomaly would therefore arise that, if a furnace is constructed to consume as far as possible, having regard to the nature of the manufacture, the smoke arising therefrom, it may send forth any amount of sulphurous smoke, so long as it is not black, but however scientifically it is constructed it must not be allowed to send forth even the small quantity of the less injurious black smoke necessary to start the fires. [POLLOCK, B.-Are there not two things mentioned in the section: first, the sending forth of black smoke in such quantity as to be a nuisance; and secondly, the sending forth of any kind of smoke to a greater extent than necessary ?] The section was intended, while protecting the public on the one hand, to give manufacturers the amount of licence necessary to enable them to carry on their business, and it was not the intention of the Legislature, according to the proper construction of this proviso,

WEEKES

1885.

to make the sending forth of any kind of smoke an offence

against the Act if the best precautions are taken in the conKING.

struction and management of the furnace to prevent it from being a nuisance. [POLLOCK, B.-In that case would not the paragraph

dealing with the sending forth of black smoke be surplasage ?] Nuisance Black smoke

No. It would apply in cases other than those of trades or emitted from manufactures; e.g., greenhouses, stables, or bathhouses, where chimney. inferior fuel is frequently used.

Hollams, for the respondent, was not called upon.

POLLOCK, B.-I am of opinion that this appeal must be dismissed. I entertain no doubt that the order of the justices is right, and ought to stand. By the 7th sub-section of the 91st section of the Public Health Act, 1875, two distinct offences are, in my opinion, contemplated and legislated upon. I will deal with the last in order first, and I find that it is provided that any chimney (not being the chimney of a private dwelling-house) sending forth black smoke in such quantity as to be a nuisance is to be the subject of a penalty. That, to my mind, is a clear and distinct offence. Then the other offence is the having any fireplace or furnace which does not as far as practicable consume the smoke arising from the combustible used therein, and which is used for working engines by steam, or in any mill, factory, dyehouse, brewery, bakehouse, or gaswork, or in any manufacturing or trade process whatsoever. The smoke mentioned in this paragraph may be more or less injurious than the black smoke mentioned in the following paragraph, but however that may be, the Legislature provides with respect to it that it is to be reduced to a minimum. When the sub-section is once read in this manner it is clear that the second proviso at the end of the section refers to the first paragraph of the sub-section and not to the second. The appellant, therefore, cannot, I think, avail himself of this proviso to protect himself against the charge which is brought against him, and the justices were, in my opinion, quite right in refusing to receive evidence of the construction of the furnace.

Day, J.-I also entertain no doubt in this case, and I think that the order of the justices must stand.

Solicitors for the appellant, Clarke and Calkin, for Clarke and Howlett, Brighton.

Solicitor for the respondent, Harwood, for Fitzhugh, Woolley, and Barnes, Brighton.

QUEEN'S BENCH DIVISION.

March 2 and 4, 1885.

(Before Lord COLERIDGE, C.J., and SMITH, J.)

Snow (app.) v. HILL (resp.) (a) Betting Place kept or used for betting Moving about in

inclosed fieldBetting Houses Act (16 $. 17 Vict. c. 119). An inclosed field was let to a committee for the purpose of holding

certain dog races, to which the public were admitted on payment of an entrance fee. The appellant attended the meeting, and moved about in the field and made bets with various persons present. Held, that the appellant could not be convicted under the 16 & 17

Vict. c. 119, sects. 1 and 3, of having "used a place for the purpose of betting with persons resorting thereto.NASE stated under 20 & 21 Vict. c. 43, by the stipendiary

magistrate of the borough of Stoke-upon-Trent. The appellant was on the 19th day of August, 1884, committed on an information laid by the respondent, a superintendent of police, charging that the appellant " being a person using a certain place, to wit, a field situated at West Brompton, in the parish of Wolstanton, in the county of Stafford, unlawfully did use the said place for the purpose of betting with persons resorting thereto upon certain events and contingencies of and relating to certain dog races, contrary to the provisions of the statute 16 & 17 Vict. c. 119."

The following facts were proved :

On the 7th day of July, 1884, dog races for prizes, open for public competition after entries made by the owners of the dogs, were held in an inclosed field about five acres in extent, in the parish of Wolstanton, which field had on a former occasion been used for a similar purpose. The ground had been let for hire for the purposes of the race meeting to a committee, who carried out the arrangements for the racing and the admission of the persons who resorted to the ground.

The public were admitted to one portion of the field (which was divided by a rope from that part of the field on which the races were run) on payment of an entrance fee of 6d. each to the gatekeeper appointed by the committee. (a) Reported by DUNLOP HILL, Esq., Barrister-at-Law,

B BB

VOL. XV.

Sxow The public had access also to another portion of the field, also HILL.

divided by a rope from that part of the field on which the races

were run, and forming one side of such field, of the length of 1885. about 100 yards, and about seven yards in depth, on payment of Betting

an entrance fee of 1s. each to the gatekeeper. Place kept or

A great number of persons (many hundreds) were present at used for the race meeting, within both the reserved portions of the field, Moving about the appellant being in the latter. inclosed field.

The appellant was seen to receive from and pay money to persons with whom he had been heard to make bets. He had no particular location on the reserved space, but during the afternoon freely moved about in the reserved ground. He carried no umbrella; had no box, stool, or satchel, or any distinctive mark, and did not exhibit his name.

The magistrate was of opinion that the ground as above described on which the appellant acted in the manner above stated was a "place" within the meaning of the 16 & 17 Vict. c. 119. He was also of opinion that the case was governed by Eastwood v. Miller (30 L. T. Rep. N. S. 716 ; L. Rep. 9 Q. B. 440), and he accordingly convicted the appellant in the penalty of 201. and costs.

By sect. 1 of 16 & 17 Vict. c. 119, it is provided : No house, office, room, or other place shall be opened, kept, or used for the purpose of the owner, occupier, or keeper thereof, or any person using the same, or any person procured or employed by, or acting for or on behalf of such owner, occupier, or keeper, or person using the same, or of any person having the care or management, or in any manner conducting the business thereof, betting with persons resorting thereto; or for the purpose of any money or valuable thing being received by or on behalf of such owner, occupier, or keeper, or person as aforesaid, as or for the consi. sideration of any assurance, undertaking, promise, or agreement, express or implied, to pay or give thereafter any money or valuable thing on any event or contingency of or relating to any horse race, or other race, fight, gamo, sport, or exercise, or as or for the consideration for securing the paying or giving by some other person of any money or valuable thing on any such event or contingency as aforesaid.

By sect. 3 : Any person who being the owner or occupier of any house, office, room, or other place, or a person using the same, shall open, koep, or use the same for the purposes hereinbefore mentioned, or either of them, or any person who being the owner or occupier of any house, room, office, or other place, shall knowingly or wilfully permit the same to be opened, kopt, or used by any other personfor the purposes aforesaid, or either of them, or any person having the care or managemont of, or in any manner assisting in conducting the business of any house, office, room, or place opened, kept, or used for the purposes as aforesaid or either of them, shall on summary conviction thereof before any two justices of the peace, be liable to forfeit and pay such penalty not exceeding 1001. as shall be adjudged by such justices.

John Rose for the appellant.-Under this statute two classes of cases have come before the courts, viz. (1) those against the owners or occupiers of racecourses and betting houses; and (2) those against persons for using or frequenting such racecourses or other places for the purpose of betting. The magistrate has confused the two classes and has convicted the appellant upon the authority of Eastwood v. Miller (30 L. T. Rep. N. S. 716; L. Rep. 9 Q. B. 440), which was a decision relating

Svow

HILL.

to the occupier of grounds kept and used for the purpose of betting. The appellant did not open, keep, or use the field for the purpose of betting with persons resorting thereto, and therefore the conviction was wrong. The cases relating to owners or

1885. occupiers—viz., Eastwood v. Miller (sup.), Haigh v. The Cor

Bettingporation of Sheffield (31 L. T. Rep. N. S. 536), and Reg. v. Cook Place kept or (51 L. T. Rep. N. S. 21; 13 Q. B. Div. 381)-do not apply. used for(Lord COLERIDGE, C.J.-How do you get over the words in the Moving about

inclosed field. 3rd section" or other place or a person using the same ?”] Those words must be read as person using the same as owner or occupier.” The appellant did not keep or use this field for the purpose of betting, within the meaning of the Act. In Galloway v. Maries (45 L. T. Rep. N. S. 763; 8 Q. B. Div. 276) the respondent stood upon a small wooden box at a race meeting and remained there during the meeting making bets with different persons; and in Shaw v. Morley (19 L. T. Rep. N. S. 15; L. Rep. 3 Ex. 137) the appellant, at Doncaster races, made bets with different persons from a wooden structure which had been erected for the use of betting, men.

Both were held to come within the meaning of “place” as defined by the 16 & 17 Vict. c. 119, s. 3. So also in Bows v. Fenwick (30 L. T. Rep. N. S. 524 ; L. Rep. 9 C. B. 339) the appellant took up his position at à race meeting under a large umbrella which he fixed in the ground by means of a spike, and it was held this was a "place" within the same section. He cited also Doggett v. Cattarns (12 L. T. Rep. N. S. 355; 19 C. B. N. S. 765). There was no "place" kept or used by the appellant; as the case states, he freely moved about in the reserved ground. The respondent did not appear.

Cur. adv. vult. March 4.-SMITH, J.-This case was argued before Lord Coleridge and myself, and I have now to deliver the judgment of the court. The question for our determination is whether, under the circumstances set out in the case, the appellant could or could not have been convicted under the 16 & 17 Vict. c. 119, ss. 1, 3. He was convicted by the magistrates upon the authority of Eastwood v. Miller (sup.). We are of opinion that the conviction must be quashed. The Act was passed for the purpose of preventing persons from keeping betting houses and other places, and for the purpose of betting with persons resorting thereto. In order to constitute an offence under the statute it must be proved that the house or other place is occupied or kept by the person charged, and occupied or kept for that purpose. This is clear from the language of the first section, which runs : “No house, office, room, or other place, shall be opened, kept, or used, for the purpose of the owner, occupier, or keeper thereof, or any person using the same

· betting with persons resorting thereto.” The Act does not make it an offence for persons to resort to such places; it is aimed at the owner or occupier who keeps them for the purposes mentioned. In Shaw

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