Taxi Driver Online

Again, another case of which I'm not sure if I have previously posted but just in case I haven't then by all means indulge yourself.
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DRUMMOND v. PENDREICH

HIGH COURT OF JUSTICIARY

LORD JUSTICE-CLERK, LORDS WHEATLEY, WALKER.

Statutory Offences – Police Acts – Licensing of hackney carriages – Magistrates empowered to alter statutory regulations as to licences to ply for hire – Alterations extending definition of hackney carriages and including 'operating for hire' – Whether ultra vires – Burgh Police (Scotland) Act, 1892 (55 and 56 Vict. cap. 55), secs. 270, 271 and Sched. V, regs. 1 and 2 (h).

Statute-Bye-law-Benevolent interpretation.

Sec. 270 of the Burgh Police (Scotland) Act, 1892, provides that the magistrates of a burgh may license to ply for hire, within a prescribed distance from the principal post office, such number of hackney carriages as they think fit, 'and they shall also license all other carriages let for hire within the burgh.' Sec. 271 provides that with respect to hackney carriages the regulations contained in Sched. V of the Act shall be observed, 'but such regulations may be altered by the magistrates ...' Sched. V, by reg. 1, defines 'hackney carriage' as 'every wheeled vehicle, whatever may be its form or construction, used in standing or plying for hire in any street, within the prescribed distance ...'; and provides, by reg. 2 (h), that any person plying within the prescribed distance any hackney carriage for hire without a licence shall be liable to a penalty.

In the purported exercise of their power to alter the regulations contained in Sched. V the magistrates of a burgh adopted altered regulations, which, inter alia, extended the definition of 'hackney carriage' by including in it 'any carriage kept by the owner in any building, garage, yard or other premises for the purpose of being let out for hire'; and extended reg. 2 (h) to penalise any person 'operating or' plying for hire a hackney carriage without a licence.

The owner of a private hire car, which was not licensed as a hackney carriage, kept it in a garage in the burgh for the purpose of letting it out on hire. Having used it to convey two fares from one point to another, both within the prescribed distance, he was convicted of an offence against the altered form of reg. 2 (h). In an appeal he contended that the alterations to regs. 1 and 2 (h) were ultra vires.

Held (diss. The Lord Justice-Clerk) that the alterations were ultra vires of the magistrates; (per Lord Wheatley) in respect that, applying Aldred v. Miller, 1925 J.C. 21, a benevolent interpretation should be put on the magistrates' power to alter the regulations; that, the definition of 'hackney carriage' having, by its inclusion in the Schedule, been made subject to alteration, the extension of it could not be said to be ultra vires simply because it departed from the traditional concept of the term; and that the words 'operating or' were appropriate to the wider licensing powers resulting from the extended definition; and (per Lord Walker) in respect that both alterations were justified by powers conferred on the magistrates, expressly or by necessary implication, by sec. 270.

Alexander Drummond was charged in the Police Court, Dunoon, on a complaint at the instance of Kenneth Watt Pendreich, Burgh Prosecutor, which set forth that 'you did, about 12.15 A.M. on Sunday, 31st January 1971, at a part thereof in Argyll Street, Lower John Street and George Street, in the burgh of Dunoon, county of Argyll, being a place within the prescribed distance set out in the Regulations regarding General and Private Hackney Carriages and Proprietors and Drivers of such Hackney Carriages enacted by the magistrates of the burgh of Dunoon by virtue of the powers conferred upon them by the Burgh Police (Scotland) Acts, 1892 to 1903, operate or ply for hire a hackney carriage, being a vehicle kept by you at a place, namely, lock-up premises in Johnston Terrace in said burgh within the said prescribed distance for the purpose of being let out for hire, namely, a Ford Cortina saloon car, registration mark RVS 117J, without there being in force in relation to the said hackney carriage a licence issued in accordance with the said regulations: Contrary to the Regulations regarding General and Private Hackney Carriages and Proprietors and Drivers of such Hackney Carriages enacted by the magistrates of the burgh of Dunoon by virtue of the powers conferred upon them by the Burgh Police (Scotland) Acts, 1892 to 1903, upon the 12th day of November 1963, regulation 3 (h), and the Burgh Police (Scotland) Act, 1892, Schedule V.' The accused pled not guilty, but on 30th August 1971, after trial, he was found guilty as libelled. At his request the magistrate stated a case for the opinion of the High Court of Justiciary.

The case set forth that the following facts were admitted or proved:-

'(1) At about 12.15 A.M. on 31st January 1971 the appellant uplifted a fare at Ardnadam Pier by hiring his Ford Cortina motor car, registration mark RVS 117J, to Tyrone Peter Lee and Catherine Gallacher for a journey to the George Hotel, Dunoon, via Argyll Street, Lower John Street and George Street, all in Dunoon, for which he was paid 50 pence on arrival. (2) The appellant was the driver of the said motor car on that occasion. (3) The appellant resides at 9 Miller Terrace, Dunoon, and keeps the said motor car in a lock-up garage at Johnston Terrace, Dunoon, for the purpose of letting it out for hire. (4) The said motor car owned by the appellant is not licensed by the magistrates of the burgh of Dunoon as either a general or a private hackney carriage. (5) The appellant is not licensed by the magistrates of the burgh of Dunoon as a hackney carriage driver. (6) Ardnadam Pier is situated in the landward area of the county of Argyll. (7) Ardnadam Pier is within five miles from the principal post office of the burgh of Dunoon. 8. The George Hotel is situated in the burgh of Dunoon. (9) The George Hotel is within five miles from the principal post office of the burgh of Dunoon. (10) While the appellant's vehicle was on hire and being driven by him from Ardnadam Pier to the George Hotel, Dunoon, part of the journey was in the landward area of the county of Argyll and part within the burgh of Dunoon. (11) There is nothing to distinguish the said motor car from an ordinary car.'

The question for the opinion of the Court was:-'On the facts stated was I entitled to convict the appellant?'

The case was heard before the High Court of Justiciary on 8th December 1971.


Kilgour, M'Neill & Sime, W.S., for Stewart & Bennett, Dunoon-Drummond & Co., W.S.
04 February 1972

At advising on 4th February 1972,-

LORD JUSTICE-CLERK (Grant).-The appellant was convicted in the Police Court at Dunoon on a complaint alleging a contravention of regulation 3 (h) of the Regulations regarding General and Private Hackney Carriages and the Drivers and Proprietors thereof enacted by the magistrates of the burgh and of Schedule V to the Burgh Police (Scotland) Act, 1892, 2 which these regulations were designed to alter. The regulations bear to be made under powers conferred by section 271 in particular of the 1892 Act2 and consist of a comprehensive rewriting of the regulations contained in Schedule V. Section 271 provides that 'with respect to hackney carriages the regulations contained in Schedule V of this Act shall be observed, but such regulations may be altered by the magistrates, with the approval of the sheriff.' By the new regulation 3 (h) it is provided that 'any person operating or plying within the prescribed distance any hackney carriage for hire without a licence ... shall for every such offence be liable to a penalty ...,' the 'prescribed distance' being, in the words of regulation 1 (g), 'within five miles from the principal post office of the burgh,' that being also the distance laid down in section 270 of the 1892 Act. 2

In Schedule V as originally enacted the definition of hackney carriages is to be found in regulation 1. This starts by defining hackney carriages as 'every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street, within the prescribed distance ...' and goes on to include within the definition carriages standing upon such street with a hackney carriage plate and to exclude therefrom certain duly licensed stage coaches. In other words, hackney carriages were defined (subject to the prescribed distance rule) as carriages which were in 1892, had been for many years before and still are regarded, in common parlance, as being hackney carriages, together with carriages which masquerade as such. In particular, the definition did not include that substantially different species of vehicle, the private hire cab.

In their amending regulations, however, the magistrates have purported to alter all this and to amend the definition in substantial and drastic

1 1925 J.C. 21, Lord Justice-Clerk Alness at pp. 26-7.

2 55 and 56 Vict. cap. 55. fashion. The amended definition of hackney carriage is to be found in the new regulation 1 (g) and, subject to certain 'deeming' provisions and to certain exceptions in respect of stage coaches, 'self-drive' vehicles and vehicles used for certain business purposes, it runs thus:-'"Hackney carriage" means every wheeled carriage, whatever may be its form or construction and however drawn or propelled, which shall be used in standing or plying for hire in any street within five miles from the principal post office of the said burgh, and also includes any carriage kept by the owner in any building, garage, yard or other premises for the purpose of being let out for hire.' Under regulation 2 hackney carriages are divided into two classes, and head (a) covers 'every hackney carriage kept by the owner in any building, garage, yard or other premises for the purpose of being let out for hire,' such a carriage being referred to as a 'private hackney carriage.'

It is under this head that the appellant's vehicle is said to fall. I note here that neither in regulation 1 (g) nor in regulation 2 (a) is there any geographical limitation as to the whereabouts of the premises etc. in which the vehicle is kept. There is nothing to indicate whether, if there is to be some limitation, it should be measured by the burgh boundaries or the five-mile limit-and, as appears from the stated case, the two are by no means the same. If some limitation was intended, I must confess that I cannot guess what it was. It seems to me that we have to accept the words as meaning what they say rather than making a speculative choice and inserting, with judicial (or unjudicial) wisdom, words based largely on one or more spins of a coin. Ex facie of the regulations a vehicle kept in a garage in Edinburgh or London for the purpose of being let out for hire with a driver comes within the definition of a private hackney carriage for the purpose of the regulations. Finally, before passing to the charge itself and the arguments which were addressed to us, it is right to note that by section 270 'the magistrates may from time to time license to ply for hire within five miles from the principal post office of the burgh such number of hackney coaches, omnibuses, or carriages of any kind or description, adapted to the carriage of persons, as they shall think fit, and they shall also license all other carriages let for hire within the burgh.'

The gravamen of the charge against the appellant is that in certain streets in Dunoon (all within the 'prescribed distance') he did 'operate or ply for hire' his vehicle, which is alleged to be a hackney carriage within the meaning of regulations 1 (g) and 2 (a), without there being in force in relation thereto a licence issued under the regulations. The vehicle is not licensed and it is kept by the appellant in a lock-up garage in Dunoon for the purpose of letting it out for hire. It is not suggested, however, that on the occasion in question the appellant was 'operating or plying for hire' at his garage or at Ardnadam pier when he picked up his passengers. The charge is limited to the time when, having picked up his passengers at Ardnadam (which is outside the burgh but within the 'prescribed distance'), he was driving them in certain specified streets within the burgh.

It is clear and not disputed that, although the verdict was one of guilty as libelled, the appellant was not 'plying for hire' while driving in the streets and at the time in question (cf. Cogley v. Sherwood1 ). It was contended,

1 1959 2 Q.B. 311. however, that at the time and place libelled the appellant was 'operating' for hire. The argument was that operating for hire includes driving a vehicle which has already been hired, so long as the contract of hire subsists.

As counsel for the appellant pointed out, however, this argument raises a substantial question as to the powers of the magistrates to make 'operating' an offence. The licensing powers of the magistrates in regard to hackney carriages derive solely from section 270 of the 1892 Act1 and that power is specifically limited to licensing to ply for hire within the prescribed distance. If 'operate' has the meaning ascribed to it by the respondent, then it admittedly means something substantially different from, and going far beyond, 'ply for hire': and it follows that, in that event, the magistrates, in their purported alteration of Schedule V, have gone equally beyond their statutory powers. It is true, of course, that the magistrates have power under section 271 to alter, with the approval of the Sheriff, the regulations in Schedule V. I am unable to see, however, how that affects the appellant's argument. The basic statutory power of the magistrates in regard to licensing hackney carriages is subject to at least two statutory limitations (there is a third with which I shall deal later). These are that the licence shall be (a) to ply for hire and (b) to do so within the prescribed distance. The regulations set out in Schedule V, which the magistrates may alter under section 271, are ancillary to the fundamental powers given by section 270, and in my opinion it is perfectly plain that the magistrates are not entitled to extend their basic statutory powers under section 270 by an ingenious use of their rule-making powers under section 271. If they are entitled to extend 'plying' to include 'operating' (in the extended sense for which the respondent contended), then they would be equally entitled to extend the prescribed distance from five to fifty or even five hundred miles. The simple answer, in my opinion, is that they are not so entitled.

The second line of attack by the appellant was that it was ultra vires of the magistrates to alter Schedule V to the effect of amending the definition therein of hackney carriages so as to include in that definition vehicles which are not in any reasonable sense of the word hackney carriages. In other words, they have, it is said, used (or misused) their ancillary powers of amendment under section 271 to extend their basic powers under section 270 so as to cover a different class of vehicles. There is, in my opinion, no doubt that the definition of 'hackney carriage' in regulation 1 (g) goes far beyond, not merely the original Schedule V definition, but also the ordinary normal meaning of that phrase. It includes private hire vehicles which are as different from hackney carriages as is the difference between the advocate on the cab-rank and the selective solicitor. The difference, so far as vehicles are concerned, goes back far beyond the 1892 Act1 to the days when horsepower was measured in horses. In my opinion the magistrates, having been given power to alter the 'Regulations for Hackney Carriages,' did not thereby obtain power (subject though it is to the approval of the Sheriff) to extend substantially the types of vehicles to which their statutory powers were limited. 'When I use a word,' Humpty Dumpty said in a rather scornful tone, 'it means just what I choose it to mean,-neither more nor less.' 'The question is,' said Alice, 'whether you can make words mean

1 55 and 56 Vict. cap. 55. different things.' On this occasion I support Alice. If powers are given by Parliament to a subordinate body or bodies to amend legislation carrying penal consequences and dealing with specified matters, I do not think that those powers include the right to make a substantial and extended definition of the subject-matter of that legislation. This is what the magistrates have purported to do here. I give only one example of the consequences which could ensue. A private hire car kept by the owner in a garage in Edinburgh or London, or indeed in Paris, for the purpose of being let out for hire would, if passing through the burgh of Dunoon on a private contract (with a driver), come within the penal provisions of the amended Schedule V, even if the hire had started many miles away. And such a vehicle is very remote from the definition of hackney carriage laid down by Parliament in Schedule V. It may well be that private hire cars should, for the public good, come within the magisterial licensing network. Hence, no doubt, such provisions as those in sections 388, 389 and 390 of the Edinburgh Corporation Order Confirmation Act, 1967. 1 These provisions, however, have direct parliamentary authority, and it may be noted that, for example, nothing in section 390 'shall make it an offence to carry passengers for hire in a motor vehicle within the city on any journey which originated outwith the city.' I note too that section 390 makes specifically the distinction, which is in my opinion well recognised, between standing or plying for hire and (as the appellant was doing here) carrying passengers for hire or reward.

It was suggested during the debate that the concluding words of section 270-'and they shall also license all other carriages let for hire within the burgh' (my italics)-had some substantial bearing on the present appeal. I confess that I am unable to follow this line of thought. The appellant is charged with operating a hackney carriage, not some other carriage; Schedule V, as purportedly amended by the regulations, deals solely with 'hackney carriages' and not with 'other carriages'; there is no finding that the appellant's vehicle on the occasion libelled was let for hire within the burgh; and, as far as we are aware, the magistrates have, in any event, taken no steps to license 'other carriages.' We are concerned here with the complaint upon which the appellant was charged, and not with some other hypothetical complaint upon which he was not charged.

The conclusions which I have reached may, in the light of what I have said, be summarised thus: (1) I take the view that the word 'operate' in the allegedly amended Schedule V includes being driven while on hire as well as being driven with a view to hire. (2) If that be so, the penal provisions in regard to operating without a licence are plainly ultra vires. (3) If I am wrong on the meaning which I have placed on the word 'operating,' then the appellant was not 'operating' at the time and place libelled. (4) In any event, the purported alteration of Schedule V so as to include within its ambit vehicles such as that owned and driven by the appellant in the circumstances disclosed and at the time and place libelled was ultra vires.

I would accordingly answer the question in the negative and allow the appeal.

1 1967, cap. v.

LORD WHEATLEY.-The appellant was charged with a contravention of regulations enacted by the magistrates of Dunoon by virtue of the powers conferred upon them by the Burgh Police (Scotland) Act, 1892, 1 in that in certain streets in Dunoon he did operate or ply for hire a hackney carriage, namely a motor car, which was kept by him at lock-up premises within the burgh, without there being in force in relation to that hackney carriage a licence issued in accordance with said regulations.

Since the arguments advanced to the Court turned principally on the interpretation of the relevant sections of the 1892 Act1 and the regulations made thereunder, it is necessary to examine these in some detail. Section 270 of the Act enacts: 'The magistrates may from time to time license to ply for hire within five miles from the principal post office of the burgh such number of hackney coaches, omnibuses, or carriages of any kind or description, adapted to the carriage of persons, as they shall think fit, and they shall also license all other carriages let for hire within the burgh.' Section 271 provides: 'With respect to hackney carriages the regulations contained in Schedule V. of this Act shall be observed, but such regulations may be altered by the magistrates, with the approval of the sheriff.'

Paragraph 1 of Schedule V of the Act, 1 which embodies the original regulations, defines what are to be hackney carriages within the meaning of the Act. 1 For the purpose of the present case it is sufficient to note that the definition covers every wheeled vehicle, of whatever form or construction, used in standing or plying for hire within the prescribed distance.

The magistrates exercised their powers under section 271 of the Act1 to alter the regulations, and this they did on 12th November 1963, after the appropriate statutory procedure had been carried out. Regulation 1 (g) of the new regulations widened the definition of 'hackney carriage.' It repeated the earlier definition of Schedule V, but also extended it to include any carriage kept by the owner in any building, garage, yard or other premises for the purpose of being let out for hire. In this case the prosecution alleges that the appellant's car came within this latter definition. The new regulations further distinguish between private hackney carriages (regulation 2 (a)) and general hackney carriages (regulation 2 (b)). No such distinction was made in Schedule V.

The facts in the case can be shortly stated. On the date in question the appellant uplifted a fare at Ardnadam Pier by hiring his car to two passengers, whom he drove to Dunoon through the streets libelled in the complaint, being paid 50 pence on arrival at the destination in Dunoon. The appellant kept the said car, which was not licensed as a general or a private hackney carriage, in a lock-up garage in Dunoon for the purpose of letting it out for hire. Regulation 3 (h) of the new regulations states that any person operating or plying within the prescribed distance any hackney carriage for hire without a licence shall be guilty of an offence. Here again there is an extension of the original regulation 2 (h) in Schedule V, which related only to any person plying within the prescribed distance any hackney carriage for hire without a licence.

The police judge held that the appellant's car was a private hackney carriage within the meaning of the new regulations, that it was operating as a

1 55 and 56 Vict. cap. 55. hackney carriage in the streets of Dunoon within the prescribed distance for hire without a licence, and that accordingly an offence under regulation 3 (h) had been committed as libelled. He thereupon convicted the appellant and fined him GBP10.

Counsel for the appellant challenged the vires of two of the amendments introduced by the magistrates in the new regulations, namely (a) the extended definition of 'hackney carriage' in regulation 1 (g) and (b) the incorporation of 'operating' in regulation 3 (h). If his challenge is well founded, then the conviction on the charge libelled is obviously bad and should be quashed. As this challenge to the vires of the new regulations, if successful, might, as we were informed, apply equally to regulations made under section 271 by magistrates of other burghs, I would have been happier to have heard a much fuller debate on the issues, which are by no means easy of determination. Before turning to examine them, however, I deem it desirable to get them properly focussed. The charge in the complaint relates to the use of the appellant's vehicle as a hackney carriage. While section 270 of the Act, 1 in addition to giving the magistrates power to license hackney coaches, omnibuses or carriages to ply for hire within the prescribed area, gives power to them also to license all other carriages let for hire within the burgh, it is not contended, nor could it be contended in view of the wording of the complaint, that the appellant's vehicle fell within the latter and not the former category. And section 271, which gives the magistrates power to alter the regulations, relates only to hackney carriages.

So far as the Court's approach to these questions is concerned, it seems to me that what was said by Lord Justice-Clerk Alness in Aldred v. Miller2 in relation to the validity of bye-laws is in point here. His Lordship said (at pp. 26-7): 'It has been definitely held that, in determining the validity of a bye-law made by public representative bodies, the Court will be slow to hold that it is void for unreasonableness-Kruse, 1898 2 Q.B. 91. Such a bye-law, the Court has said, ought to be "benevolently" interpreted, and if possible supported. The reason is obvious. Where bye-laws are passed by the elected representatives of the people, chosen because of their fitness to serve in that capacity, such persons may be trusted to understand the requirements of the public even better than Judges. They are presumed to have an adequate knowledge of the wishes and wants of the locality which they govern. The second observation is this: A bye-law is not repugnant to law "merely because it forbids the doing of something which might lawfully have been done before, or requires something to be done which there was no previous obligation to do"-Edmonds, (1855) 1 Jur. N.S. 727, Lord Campbell, C.J., at p. 729. If it were otherwise, a nominal power to make bye-laws would be nugatory. "A bye-law ... must necessarily super-add something to the common law, otherwise it would be idle"-Reg. v. Saddlers' Co., (1861) 3 E. & E. 72, Martin, B., at p. 80.'

I regard the philosophy underlying this benevolent approach appropriate to the consideration of the challenge to the vires of the present regulations, while bearing in mind that something which is basically ultra vires cannot be overlooked or supported. In turning to consider the regulations I note

1 Burgh Police (Scotland) Act, 1892 (55 and 56 Vict. cap. 55).

2 1925 J.C. 21. that in the first instance the legislature refrained from including in the Act, but left to Schedule V and accordingly to possible amendment by the magistrates, two important things. The first is the definition of 'hackney carriage.' The second is the prescription of a penalty for the breach of the relevant regulation. Since power is given to the magistrates to alter the initial definition of 'hackney carriage,' then, adopting the benevolent approach, I do not see how the new definition can be said to be ultra vires simply because it departs from the traditional concept of the term. Of course, if the new definition were wholly inappropriate to the context of the legislation, then different considerations would arise. But if, as here, it merely extends the definition to include a carriage kept in a garage for the purpose of being let out for hire, then (subject to certain other considerations with which I shall deal later) it seems to me that it is simply bringing into the net another class of vehicle which is basically being used for the purpose which the regulations are seeking to control.

It is said, however, that section 270 is the regulating section, and it confines the licensing powers of the magistrates in this context to hackney carriages which ply for hire within the prescribed area. Accordingly the powers do not extend to hackney carriages which do not ply for hire, and any definition which does not restrict hackney carriages to those which ply for hire is ultra vires. I regard this as too rigid a construction, although I freely admit that the question is a narrow and difficult one. In this connection it is perhaps not irrelevant to note that paragraph 7 of Schedule V of the Act provides: 'No hackney carriage shall be used or employed, or let for hire, or shall stand or ply for hire, within such prescribed distance, unless...' It would thus seem that the legislature itself conceived that a licensed hackney carriage could be operating within the prescribed area in the variety of ways referred to in paragraph 7. When, therefore, it is argued that, however wide the definition of hackney carriage is extended, the power to license is restricted to those hackney carriages which ply for hire within the narrow and traditional meaning of the word 'ply,' I feel that the argument runs contrary to the general purport and intendment of the legislation. In my opinion 'ply' in section 270 has the wider connotation which is reflected in paragraph 7. If that be so, then this attack on the vires of the new regulations must fail. And if that be the correct view, then the appellant's vehicle was being used or employed or let for hire within the prescribed area, namely in the named streets in Dunoon, and, being an unlicensed vehicle which should have been licensed within the provisions of the statute, was accordingly committing the offence libelled.

There are, however, two other points with which I must deal. In the new definition of 'hackney carriage' in regulation 1 (g) no geographical limit is attached to the building, garage, yard or other premises where the carriage is kept. It was accordingly argued that this could constitute a nonsense, since it could apply to a vehicle normally garaged many miles away which was passing through Dunoon in the course of a hired engagement. While appreciating the force of this arguments, I have come to the conclusion that it is not an effective one. In my opinion the definition has to be looked at in its context. The magistrates are the magistrates of the burgh of Dunoon. They were making regulations in relation to the licensing of hackney carriages in the burgh of Dunoon. While the area in which such vehicles can be licensed to ply for hire (or operate) is a prescribed distance which goes beyond the boundaries of the burgh, this extension of power beyond the boundaries was specifically granted by section 270. But basically the power is a power to license vehicles within the burgh, and accordingly regulation 1 (g) must be construed as referring to buildings, garages, yards or other premises within the burgh. If that be a correct interpretation of the regulation, it is not necessary to consider in this case the position of a vehicle normally garaged outside the burgh which is passing through the burgh in the course of a hired engagement. In the present case the appellant's vehicle was one which was normally garaged within the burgh and which on my reading of the regulations ought to have been licensed if it was being let out for hire.

Finally it was argued that, since the appellant's vehicle was manifestly not plying for hire, it could only be operating for hire, and it was ultra vires of the magistrates to extend the penal provisions beyond plying for hire to operating for hire. The answer to that argument has already been foreshadowed in the wider interpretation which I feel must be given to the word 'ply.' The original power to prescribe and define the penalty was contained not in the Act but in the regulations (Schedule V, paragraph 2 (h)). Incidentally, this applied only to a person plying for hire and not ex facie to a person standing for hire, so the very narrow interpretation of 'ply' could not even apply there. If the magistrates validly extended the power to license to vehicles normally garaged in the burgh which were let out to hire, 'ply' was not an appropriate verb to cover that situation. If what was in contemplation of the legislature was the licensing of vehicles used, employed or let for hire, or standing or plying for hire, I do not consider that the incorporation of the word 'operate' to cover more appropriately the wider definition of hackney carriage, which ex hypothesi was properly made, can be said to have been beyond the powers of the magistrates.

In my opinion the arguments adduced by the appellant's counsel fail, and I would answer the question of law in the affirmative.

LORD WALKER.-On the facts stated in this case the appellant was found guilty as libelled and fined GBP10 on a somewhat awkwardly framed complaint at the instance of the burgh prosecutor of Dunoon. The gist of the complaint, as I read it, was that on Sunday, 31st January 1971, in certain streets in the burgh of Dunoon the appellant did operate or ply for hire a hackney carriage, without a licence issued by the magistrates, contrary to regulation 3 (h) made by the magistrates under powers contained in the Burgh Police (Scotland) Act, 1892. 1 The ground upon which the magistrate convicted appears to have been that the motor car which the appellant kept in a lock-up at Johnston Terrace, Dunoon, for the purpose of letting it out for hire, was a hackney carriage in the sense of the statute, and that, when he drove it with fare-paying passengers on board through the streets of Dunoon between two points, each of which was within five miles of the post office, he was operating a hackney carriage contrary to regulation 3 (h). The magistrate said that he did not need to consider the meaning of the expression

1 55 and 56 Vict. cap. 55. 'ply for hire.' On the other hand, the appellant contends that this motor car was not a hackney carriage in the sense of the statute, and that the magistrates had no power to make it an offence for him to drive his motor car as he did. Any decision on the matters thus put in issue may well affect the situation in burghs other than Dunoon, and it is matter for regret that the arguments which we heard were less elaborate than they might have been.

The questions in issue appear to me to turn primarily on the proper construction of section 270 of the Burgh Police (Scotland) Act, 1892. 1 That Act repealed the Police and Improvement (Scotland) Act, 1862, 2 but by section 270 it re-enacted, with some additional words, what had been section 278 of the repealed Act. 2 It is, I think, on the added words that the issue mainly centres. I therefore set out section 270 so as to show the added words. Section 270 reads: 'The magistrates may from time to time license to ply for hire within five miles from the principal post office of the burgh such number of hackney coaches, omnibuses, or carriages of any kind or description, adapted to the carriage of persons, as they shall think fit.' Then follow the added words, namely: 'and they shall also license all other carriages let for hire within the burgh.'

I think it necessary to endeavour to find some meaning for the added words and for that purpose to look at the position as it existed before they were added. In 1888 it had been held that a hackney carriage driver licensed by the magistrates of Edinburgh was not, when driving through Leith, subject to the bye-laws passed by the magistrates of Leith: Gairns v. Main. 3 These bye-laws required that the driver should proceed at a walking pace when passing a place where public worship was in progress. Viewed through the spectacles of 1892 it may well have appeared to be a public mischief that the bye-laws of a burgh should not be applicable to a driver passing through that burgh by reason of the fact that he had not been licensed by that burgh. I think it probable that it was that kind of mischief that the added words were intended to remedy. And Parliament has, I think, sought to achieve that end by extending the licensing jurisdiction of the magistrates. Prior to 1892 their jurisdiction had been limited to the licensing to ply for hire within five miles of the principal post office of such number of hackney carriages as they should think fit. But in 1892 their jurisdiction was extended to the licensing of 'all other carriages let for hire within the burgh.' I think these words are wide enough to apply to all other carriages-whether hackney or not-which enter the burgh when let for hire. That being so, the bye-laws of the burgh would apply to any carriage licensed by the magistrates under their extended powers, with the consequence that the mischief revealed by Gairns v. Main3 would be remedied.

The next matter for consideration relates to the applicability of the regulations contained in Schedule V of the Burgh Police Act of 1892, 1 , and in particular regulation 2 (h). This regulation states: '(2.) The following provisions shall apply to a licence for hackney carriages:-(h.) Any person plying within the prescribed distance any hackney carriage for hire without a licence' shall be liable to a penalty. Apart from the logical difficulty of saying that a provision shall apply to a licence which ex hypothesi does not exist,

I think that regulation 2 (h) was intended to enable the magistrates to enforce, by a penalty, their original jurisdiction to license hackney carriages to ply for hire within the five-mile radius. What the magistrates have done, however, is to alter clause (h) as it stands in the statutory regulations by adding in the words 'operate or' before the word 'plying.' This is said to have been ultra vires of the magistrates. On this matter I think there is nothing in the words of the statutory regulations which could warrant the magistrates in inserting the words 'operate or.'

But then there is the question of necessary implication arising from what I have called the added words in section 270 of the Act. 1 Maxwell on the Interpretation of Statutes, (11th ed.) p. 350, says: 'When an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.' Now what I have called the added words in section 270 conferred on the magistrates a new or enlarged jurisdiction to license all other carriages let for hire within the burgh. And I think the magistrates had an implied statutory power to impose a penalty on persons who without a licence drove their carriages let for hire within the burgh. I think, further, that that is just what the magistrates have done by adding in the words 'operate or.'

It follows in my opinion that the magistrates acted intra vires and that the appellant was properly convicted. I would refuse the appeal and answer the question in the affirmative.

The Court answered the question in the affirmative.
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