Taxi Driver Online

I thought I had posted this but perhaps not. Maybe its one of those cases that I occasionally dig out of my bottom draw. This case exposed the recovery of non payment as being a civil debt.
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THE QUEEN v. KERSWILL AND ANOTHER, JUSTICES OF TORQUAY.

1894 Oct. 30.

MATHEW and CHARLES, JJ.

Justices - Summary Jurisdiction - Procedure - Complaint - Information - Order to Pay Cab Fare and Costs - Distress - Imprisonment - "Sum of Money claimed to be due" - Summary Jurisdiction Acts, 1879 (42 & 43 Vict. c. 49), ss. 6, 35; 1884 (47 & 48 Vict. c. 43), ss. 4, 5, and Schedule - Towns Police Clauses Act, 1847 (10 & 11 Vict. c. 89), s. 66 - Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), s. 145.

By s. 66 of the Towns Police Clauses Act, 1847, if any person refuse to pay on demand to any driver of a hackney carriage the fare allowed by the Act, or by-laws made thereunder, such fare may, together with costs, be recovered before a justice as a penalty.

Where justices, on an information in writing, made an order that the defendant should pay a fare and costs, and that in case of non-payment he should be imprisoned in default of a sufficient distress:-

Held, that the order was bad, because the fare was "a sum of money claimed to be due and recoverable on complaint to a court of summary jurisdiction" within the meaning of s. 6 of the Summary Jurisdiction Act, 1879, and was therefore recoverable only in the manner in which "civil debts" are recoverable in a court of summary jurisdiction under s. 35 of that Act.

RULE, calling upon two justices of the borough of Torquay and William Bagwell to shew cause why a writ of certiorari

should not issue to bring up and quash an order made by the justices.

Captain De Castro was summoned to appear before the justices to answer the information in writing of William Bagwell, a cabman, charging that he, De Castro, unlawfully refused to pay on demand to Bagwell the fare of 4s. allowed by the by-laws of the Torquay Town Council, contrary to the Towns Police Clauses Act, 1847 (10 & 11 Vict. c. 89), and the same by-laws made thereunder.(1)

(1) By the Towns Police Clauses Act, 1847 (10 & 11 Vict. c. 89), s. 66, "If any person refuse to pay on demand to any .... driver of any hackney carriage the fare allowed by this .... Act, or any by-law made thereunder, such fare may, together with costs, be recovered before one justice as a penalty."

By s. 68 the commissioners may from time to time make by-laws for (inter alia) "fixing the rates or fares, as well for time or distance, to be paid for such hackney carriages within the prescribed distance, and for securing the due publication of such fares."

[In the by-laws made by the town council of the borough of Torquay in pursuance of this Act, scales of cab fares by time and distance were set out; and it was provided that the penalty for breach of any of the by-laws should be a sum not exceeding 5l., at the discretion of the justice or justices of the peace by whom the same should be inflicted, to be recovered as directed by the Act.]

By s. 73 the clauses of the Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), with respect to the recovery of penalties shall be incorporated with this Act.

By s. 145 of the Railways Clauses Consolidation Act, 1845, "Every penalty .... imposed by this Act .... the recovery of which is not otherwise provided for, may be recovered by summary proceeding before two justices; and on complaint being made to any justice he shall issue a summons requiring the party complained against to appear before two justices, and .... it shall be lawful for any two justices to proceed to the hearing of the complaint .... although no information in writing or in print shall have been exhibited before them; and upon proof of the offence .... it shall be lawful for such justices to convict the offender, and upon such conviction to adjudge the offender to pay the penalty .... incurred, as well as such costs attending the conviction as such justices shall think fit."

By ss. 146, 147 it was enacted that if the amount of the penalty and costs were not paid forthwith, such amount should be levied by distress, and in default of sufficient distress the offender might by warrant of a justice be committed to prison for any term not exceeding three months.

Sect. 5 of the Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), specifies the periods of imprisonment which may be imposed by a court of summary jurisdiction under that Act, or under any other Act whether past or future, "in respect of the non-payment of any sum of money adjudged to be paid by a conviction, or in respect of the default of a sufficient distress to satisfy such sum."

After the service of the summons upon De Castro, and before it came on for hearing before the justices, he sent 4s. to the justices' clerk.

De Castro did not appear at the hearing, and the justices

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Sect. 6: "Where under any Act, whether past or future, a sum of money claimed to be due is recoverable on complaint to a court of summary jurisdiction, and not on information, such sum shall be deemed to be a civil debt, and if recovered before a court of summary jurisdiction, shall be recovered in the manner in which a sum declared by this Act to be a civil debt recoverable summarily is recoverable under this Act, and not otherwise; and the payment of any costs ordered to be paid by the complainant or defendant in the case of any such complaint shall be enforced in like manner as such civil debt, and not otherwise."

Sect. 35 provides for the recovery of sums declared by the Act to be civil debts, and enacts that an order made by a court of summary jurisdiction for the payment of any such civil debt or of costs shall not, in default of distress or otherwise, be enforced by imprisonment, unless it be proved that the person making default in payment has, or has had, since the date of the order, the means to pay, and has refused or neglected, or refuses or neglects, to pay the same.

The Summary Jurisdiction Act, 1884 (47 & 48 Vict. c. 43), s. 4, repeals the Acts contained in the schedule thereto to the extent mentioned in the third column thereof. By virtue of that repeal, s. 145 of the Railways Clauses Consolidation Act, 1845, is repealed from the words "and on complaint" to the end of the section, and ss. 146 and 147 are wholly repealed.

By s. 5 of the Summary Jurisdiction Act, 1884, "the repeal enacted by this Act shall not take away any jurisdiction of any justices to act summarily in any matter referred to in an enactment hereby repealed, and the Summary Jurisdiction Acts shall, so far as is consistent with the tenor thereof, apply to every proceeding before justices as to which the procedure is wholly or partly repealed by this Act in substitution for the procedure so repealed.

"And … it is hereby declared that where by virtue of the repeal enacted by this Act or otherwise any statute authorizing the infliction by any justice or justices of a penalty or fine, either as a sole punishment or as an alternative punishment for imprisonment, provides no method for the recovery of such penalty or fine, ss. 19 and 21 of the Summary Jurisdiction Act, 1848, as amended by s. 21 of the Summary Jurisdiction Act, 1879, shall apply to the recovery of such penalty or fine."

By the Summary Jurisdiction Act, 1848 (11 & 12 Vict. c. 43), ss. 19 and 21, where a conviction adjudges a pecuniary penalty or compensation to be paid, or an order requires the payment of a sum of money, it shall be lawful for the justice or justices making such conviction or order to issue a warrant of distress to levy the amount of such penalty, compensation, or sum of money, and in default of a sufficient distress to commit the defendant to prison.

made an order adjudging that he should pay to Bagwell the amount of the fare and 9s. costs, and that in case of non-payment he should be imprisoned for fourteen days in default of a sufficient distress to satisfy the amount he was ordered to pay.

De Castro subsequently paid the further sum of 9s., and this rule was obtained on his behalf to bring up and quash the justices' order.

Sington, for the justices, now shewed cause. The amount of the cab fare is not a sum "deemed to be a civil debt" within s. 6 of the Summary Jurisdiction Act, 1879. It is recoverable not on complaint, but on information, and is a penalty payable under a conviction for the offence dealt with by s. 66 of the Towns Police Clauses Act, 1847, namely, refusing to pay on demand the proper fare. Before the repeal of the provisions of the latter part of s. 145 of the Railways Clauses Consolidation Act, 1845, and of ss. 146 and 147, the refusal to pay was clearly treated as an offence punishable, on conviction, by imprisonment in default of distress, and the repeal, which is effected by the Summary Jurisdiction Act, 1884, brings the case within the 2nd operative clause of s. 5 of that Act; so that ss. 19 and 21 of the Summary Jurisdiction Act, 1848, apply, and give the justices power to act by distress, and by imprisonment in default of a sufficient distress. The authorities shew clearly that where a statute, or a by-law made under statute, imposes a duty and provides a punishment, either by fine or imprisonment, for breach of that duty, a criminal offence is thereby created: Cattell v. Ireson (1); Bancroft v. Mitchell (2); Mellor v. Denham (3); Reg. v. Whitchurch. (4) In Reg. v. Paget (5) the penalty imposed by s. 103 of the Railways Clauses Consolidation Act, 1845, for travelling in a railway carriage without having paid the fare was held not to be "a sum of money claimed to be due and recoverable on complaint to a court of summary jurisdiction" within the meaning of s. 6 of the Summary Jurisdiction Act, 1879. That decision applies here. The justices, therefore, had jurisdiction to make the order of which the defendant complains.

[He also referred to Reg. v. Justices of Tynemouth. (1)]

A. B. Shaw, for the defendant, in support of the rule. This case is brought within s. 6 of the Summary Jurisdiction Act, 1879. The amount which the justices ordered the defendant to pay was "a sum claimed to be due and recoverable on complaint to a court of summary jurisdiction," and was, therefore, recoverable only in the manner provided by s. 35. It might have been recovered on complaint, and s. 145 of the Railways Clauses Consolidation Act, 1845, provided that it should be so recovered. The words "and not on information" are not used in their exact legal sense; they refer to proceedings on information upon which a conviction may result, as distinguished from proceedings which result in a mere order to pay, and this distinction runs through all the Summary Jurisdiction Acts (see observations of Lindley, L.J., in Kennard v. Simmons and Others. (2)) Reg. v. Master (3) is an authority that a sum may be a civil debt though it is recoverable as a penalty. Here the sum claimed is recoverable by the cabman himself: it is not in the category of fines or penalties imposed for criminal offences. The second clause of s. 5 of the Summary Jurisdiction Act, 1884, does not apply to cases which are brought within s. 6 of the Summary Jurisdiction Act, 1879.

MATHEW, J. I am of opinion that this rule should be made absolute. The discussion to-day has been for the most part academical, because the money ordered by the justices to be paid has been paid, and the application to quash their order seems to have been made through mere sensitiveness. The order complained of is in form quasi criminal. The applicant was summoned before the justices for non-payment of a cab fare. He did not appear before the justices, but sent the amount of the fare. The justices ordered him to pay a certain sum for costs, and their order subjected him to imprisonment, in default of distress, in case of non-payment. He paid the costs, and now protests against the form of the order. The matter relates to one of the common transactions of life, which are not ordinarily the subject of criminal proceedings. We have to determine whether the order could properly be made. Sect. 66 of the Towns Police Clauses Act, 1847, provides that "if any person refuse to pay on demand to any proprietor or driver of any hackney carriage the fare allowed by this .... Act, or any by-law made thereunder, such fare may, together with costs, be recovered before one justice." Up to that point the section seems clearly to be dealing with a civil debt, and to provide means to obtain payment of that debt where payment has been refused upon demand, in which case the cabman is entitled to apply to the magistrate to direct payment. The fare which constitutes the debt is ascertained, and nothing is payable beyond it except costs. But it is said that the last words of the section, "as a penalty," stamp the non-payment with a criminal character. The words are, "to be recovered as a penalty" - that is, to be recovered in the same way as a penalty. Those words do not, in my opinion, alter the nature of the obligation itself, which remains a purely civil obligation, to be enforced either by going to the county court or by applying to a magistrate. Then comes the Railways Clauses Consolidation Act, 1845, which by s. 145 treats the amount as a penalty by providing that "every penalty .... may be recovered by summary proceeding before two justices," upon a complaint, although no information in writing or in print shall have been exhibited before them; and ss. 146 and 147 provided that penalties should be levied by distress, and that, in default of distress, any justice might order the offender to be imprisoned. So the matter stood until the passing of the Summary Jurisdiction Act, 1879. Sect. 5 applies to cases of conviction only, and provides imprisonment for the non-payment of sums of money adjudged to be paid by a conviction. It is clearly, I think, not applicable to such a case as the non-payment of a cabman's fare. Sect. 6, however, appears to be clearly applicable. [The learned judge read s. 6.] The words "where a sum of money claimed to be due is recoverable," &c., are a description of the case here: they are clearly applicable to it, and to the debt in question.

The words "and not on information" need not be acted upon because, as has been pointed out, the Railway Clauses Consolidation Act, 1845, did not require an information. I think, although it is not necessary to decide the point, that those words are intended to exclude cases where an information is either required by statute or is the only mode of commencing the proceedings. They seem to me to apply in cases where an information is indispensable. I think that the Summary Jurisdiction Act, 1884 (which repealed the provisions of the Railways Clauses Consolidation Act, 1845, with respect to the procedure for the recovery of penalties), has no bearing on this case. The object of the Act of 1884 was to provide for procedure where the repeal of the Acts mentioned in the schedule would have left no statutory mode of proceeding. It does not apply to the cases contemplated by s. 6 of the Summary Jurisdiction Act, 1879, in respect of which cases that section does provide a mode of proceeding. I am, therefore, of opinion that the order of the justices, which appears to have been made and drawn up under s. 5 of the Act of 1879, was an improper order, and that it must be quashed.

CHARLES, J. I am of the same opinion. I think that on the true construction of s. 66 of the Towns Police Clauses Act, 1847, this is a civil debt, and that, although that section says it may be recovered as a penalty, its essential character is thereby in no way altered. It is clear that the mere statement in an Act of Parliament that a sum is recoverable as a penalty does not turn the non-payment of what is merely a debt into an offence. The authority for that is to be found in Reg. v. Master. (1) One has, then, to ascertain how the sum of money in question here is to be recovered, and we are thrown back to the Railways Clauses Consolidation Act, 1845, which provides that it may be recovered on complaint; that it may be levied by distress, and in default of a sufficient distress that the person from whom it is recoverable may be imprisoned. In that state of things the Summary Jurisdiction Act, 1879, was passed. Sect. 5 has reference to the period of imprisonment which may be inflicted for non-payment of any sum of money adjudged to be paid by a conviction, or on

default of a sufficient distress to satisfy any such sum. Sect. 6 is directed to the remedy in the case of non-payment of a mere sum "claimed to be due." Where such sum "is recoverable on complaint to a court of summary jurisdiction, and not on information," it shall "be deemed to be a civil debt," &c. I am of opinion that the sum of money here is clearly within the words "a sum of money claimed to be due," and therefore I should be clear that s. 6 applied to this case but for the difficulty of the words of exclusion, "and not on information." Here the amount of the fare was claimed on an information, and the justices acted on that information in making their order. It is difficult to affix a satisfactory meaning to those words of exclusion - especially when one considers that, as judges have pointed out, "information" and "complaint" are words which connote each other. But I think it is tolerably clear that the words, "and not on information," were inserted to emphasize the exclusion of criminal matters from the operation of s. 6. It is not necessary to say that those words have no meaning. They are an amplification of the previous part of the clause, and are intended to emphasize the declaration that a sum of money claimed to be due, and recoverable before a court of summary jurisdiction, is really a civil debt which can be recovered only as a civil debt in the manner prescribed by the Act. Another difficulty was suggested as arising under the Summary Jurisdiction Act, 1884. That statute has cleared away, by repealing, so much of the Railways Clauses Consolidation Act, 1845, as authorized a distress, and imprisonment in default of a sufficient distress, leaving unrepealed only the first part of s. 145, which enacts that every penalty may be recovered by summary proceeding before two justices. It was argued that the second clause of s. 5 of the Act of 1884 necessarily throws us back to Jervis' Act, whereby justices are authorized to issue a distress warrant, and to imprison in default of sufficient distress. But that, in my opinion, is not the meaning of the second clause in s. 5 of the Act of 1884. It has no application here, because it only applies where, in consequence of the repeal effected by the Act, no method exists of recovering the sum of money or penalty. Here we have the Act of 1879, which does provide a method.

Therefore, it seems to me that, though the first clause of s. 5 of the Act of 1884 removes a difficulty, the second has no application, because a method for the recovery of the sum in question is provided by the Summary Jurisdiction Act, 1879.

I am, therefore, of opinion that this rule to quash the justices' order should be made absolute.

Rule absolute.

Solicitors for the justices: Brownlow & Howe, for T. C. Lindop, Torquay.

Solicitors for the defendant: Rye & Eyre.
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