|
Long before Limos came on the scene and long before the concept of hire or reward was firmly established in the case of Albert v MIB there were some who thought they could circumvent the law as is being done today. However, as I have said on previous occasions, it is the courts who will define the type of business you run by the terms, conditions and practice of your business activity.
Here is one such person who thought he was smarter than the law.
Operating a vehicle for hire or reward without a PSV license.
_______________________________
DIVISIONAL COURT]
OSBORNE v. RICHARDS.
1932 July 13.
LORD HEWART C.J., TALBOT and HUMPHREYS JJ.
Road Traffic - Public Service Vehicle - Coach hired by Owner to Football Club and used to convey Persons to Ground - Whether "stage carriage" or "contract carriage" - Necessity for Road Service Licence - Road Traffic Act, 1930 (20 & 21 Geo. 5, c. 43), s. 61, sub-ss. 1, 2; s. 72.
A proprietor of motor coaches in which he carried passengers from a starting place to the ground of a football club, on being notified that it was necessary to obtain a road service licence in respect of the coaches, entered into a contract with the club to let the coaches at a fixed rate to the club, which then drove them over the route and received the passengers' fares, no such licence having been obtained:-
Held, that the coaches were used by the club as "stage carriages" and not as "contract carriages" within the meaning of the Road Traffic Act, 1930, that as they were so used otherwise than under a road service licence they were used in contravention of s. 72 of the Act, and that the proprietor was guilty of an offence in permitting them to be so used.
CASE stated by justices for the city of Truro.
An information was preferred before the justices by William Osborne, a superintendent of police (hereinafter called "the appellant"), on behalf of the Traffic Commissioners for the Western Traffic area, against Alfred Richards, of Truro, motor coach proprietor (hereinafter called "the respondent"), for that he on January 16, 1932, did unlawfully permit a public service vehicle to be used as a stage carriage without a road service licence, contrary to the Road Traffic Act, 1930, s. 72.
At the hearing of the information the majority of the justices found the following facts proved or admitted:
On Wednesday, January 13, 1932, at Truro, police-sergeant Rowland advised the respondent to apply to the Western Traffic Commissioners for a road service licence to enable him to convey passengers between Victoria Square, Truro, and the Truro city football club's ground at Treyew Road on the occasion of football matches.
The respondent's reply was: "I don't think it is necessary; and in any case there is a way to defeat them. I can get somebody to hire the coaches." The sergeant then said: "Very well, I shall be there to see if the coaches are used and to see if you have a licence."
On Saturday, January 16, the sergeant was in Victoria Square and saw three coaches, the property of the respondent. One was reserved for the Truro city team, being hired from the respondent under a half-yearly contract, and the other two were loading with passengers. The respondent was also there and saw what was taking place. The sergeant asked the respondent if he intended carrying passengers to the football field, and he replied, "Yes." The sergeant then asked the respondent if he had a road service licence, and the latter replied:
"The coaches are hired by Truro city football club, and they will collect the fares. I shan't have anything to do with it. The Traffic Commissioners made these laws, but there is always a way of getting round them. I can hire my coaches to any one, and neither the Traffic Commissioners nor any one else can say anything."
The sergeant made a note of the full reply at the time and was not cross-examined upon it, but the respondent in cross-examination denied having made the statement sworn to by the sergeant. The sergeant saw each of the two coaches in question leave Victoria Square once with about sixteen persons in each, and driven by employees of the respondent. Any one who came along could have boarded the coaches in the square and ridden therein to the football field, as was admitted by the respondent, and there was no notice on either of them to show that they had been hired by the football club.
Evidence was given that on the last mentioned date several persons, including the respondent, had travelled to the football ground as ordinary passengers in these coaches and had paid their fares to a representative of the respondent; that at that date neither the respondent nor any one else held a licence or permit to operate a stage carriage service between Victoria Square and the football club ground, and that no application was made to operate that service until the respondent made one on February 15, 1932.
On the above-mentioned Wednesday, January 13, in the course of a conversation between them, the respondent had informed Mr. H. Thomas, the secretary of the football club, of the difficulty he was in, and had suggested that the only way to get over it was for the club committee to hire the coaches direct. On January 14 the respondent received a letter from Mr. Thomas, on behalf of the club, stating: "In addition to our usual coach for conveying the team to the football field will you please reserve two coaches to convey our supporters to the football field?" By arrangement the club was debited by the respondent with 10s. for the hire of each coach. On Monday, January 18, a person who had collected the fares of the passengers on the two coaches handed to Mr. Thomas 1l. 3s. 3d., representing 93 fares at 3d. each. As the result of his conversation with the sergeant the respondent took legal advice, and in suggesting that the club should hire the two coaches he was acting on that advice and had no intention of breaking the law.
The respondent stated that he had made applications to the Traffic Commissioners for road service licences, though not on this particular route, and had received no answer in time.
On behalf of the appellant it was contended that even assuming that the two coaches had been bona fide hired by the club for an agreed sum they were not used as "contract carriages" within the meaning of s. 61, sub-s. 1 (c), of the Act, but were used as and must be deemed to have been "stage carriages" within clause (a) of that sub-section; that as stage carriages they would require road service licences, and it was proved by the appellant, and not disputed by the respondent, that at the material date no such licences had been issued to or even applied for by the respondent; and that the respondent by permitting the coaches to be used as stage carriages without such licences was guilty of an offence under s. 72 of the Act.
On behalf of the respondent it was contended that the said vehicles were not "stage carriages" within the meaning of the Act; that they were "contract carriages" within the meaning of the Act; that the vehicles were used as contract carriages and not as stage carriages; and that the respondent did not permit the vehicles to be used as stage carriages, and that the user of contract carriages by the hirer thereof did not constitute an infringement of s. 72 of the Act by the owner of the vehicles.
The justices by a majority found that the two coaches were "contract carriages" hired under a bona fide contract by the secretary of the football club for the purpose of conveying persons from Victoria Square to the football ground upon the occasion of a match in which the club team was engaged; and that, whether he did so or not, the respondent had no intention of breaking the law; and, having regard to that and to the conflicting contentions of the solicitors who appeared for the parties, and to the fact that the respondent had made application to the Traffic Commissioners for a road service licence upon a subsequent similar occasion, they were of opinion that the best way to deal with the case in the circumstances was to dismiss it, and to express their strong disapproval of the way in which the respondent had acted, and also of his attitude towards the Traffic Commissioners.
Wilfrid Lewis for the appellant.
The justices were wrong in holding that the appellant's vehicles were contract carriages within the meaning of the Road Traffic Act, 1930, for which a road service licence under s. 72 of that Act was not required. Sect. 61, sub-s. 1, provides that public service vehicles are to be divided into the three classes there distinguished.
The first of these classes is described in cl. (a) of the sub-section as "stage carriages," that is to say motor vehicles carrying passengers for hire or reward at specified fares stage by stage and stopping to pick up or set down passengers along the line of route and any other motor vehicles carrying passengers for hire or reward at separate fares and not being express carriages.
The second class is described in cl. (b) as "express carriages" which differ from those of the previous class in that they carry the passengers between specified points and do not stop to take up or set down other persons.
The third class is described in cl. (c) as "contract carriages," that is to say motor vehicles carrying passengers for hire or reward under a contract for the use of the vehicle as a whole at or for a fixed or agreed rate or sum. In order to determine within which of these classes a vehicle comes it is necessary to consider also sub-s. 2, which, apart from the proviso, provides that where persons are carried in a motor vehicle for any journey in consideration of separate payments made by them, whether to the owner or to any other person, the vehicle shall be deemed to be a vehicle carrying passengers for hire or reward at separate fares, whether the payments are solely in respect of the journey or not. It is not here said that the respondent's coaches are express carriages within cl. (b), and the question is whether they are stage carriages within (a) or contract carriages within (c). By virtue of the provisions referred to, these coaches belonged to the former and not to the latter of these classes. It is true that they were motor vehicles carrying passengers for hire or reward under a contract between the respondent as their owner and the football club for the use of the vehicles as a whole by the club at an agreed rate or sum, the hire paid by the passengers being paid not to the respondent but to the club; but it does not follow that the vehicles were therefore contract carriages within cl. (c).
The coaches were motor vehicles in which persons were carried for a journey in consideration of separate payments made by them, and even though these payments were made to a person other than the respondent as their owner, the vehicles by virtue of sub-s. 2 were to be deemed to be vehicles carrying passengers for hire or reward at separate fares, or, in other words, they were to be deemed for the purposes of this case to be stage carriages within sub-s. 1 (a). These coaches were not taken out of the part of sub-s. 2 which has been referred to and prevented from being stage coaches within sub-s. 1 (a) by reason of their coming within the proviso to sub-s. 2, which enacts that a vehicle used on a special occasion for the conveyance of a private party shall not be deemed to be a vehicle carrying passengers for hire or reward at separate fares by reason only that the members of the party have made separate payments which cover their conveyance by that vehicle on that occasion.
These vehicles, employed as they were employed in pursuance of the contract between the respondent and the football club, were not used on a "special occasion" within the meaning of the proviso. Neither were they used for the conveyance of a "private party" within the meaning of the proviso, that expression denoting a party such as a gathering of friends or club members and being inapplicable to a group of passengers paying separate fares and associated together only as being carried in one and the same vehicle. These vehicles were stage carriages within the meaning of s. 61, sub-s. 1 (a), of the Act, and the respondent by using them or permitting them to be used as such without a road service licence was guilty of a contravention of s. 72 of the Act.
H. M. Pratt (J. L. Pratt with him) for the respondent.
The justices rightly dismissed the charge which was brought against the respondent. The offence which formed the subject of the charge was that the respondent, being the proprietor of the vehicles in question, which were public service vehicles, unlawfully used them or permitted them to be used as "stage carriages" within the meaning of s. 61, sub-s. 1 (a), of the Act of 1930 without having obtained a road service licence under s. 72 contrary to the latter section. As these provisions constitute a criminal offence they must be strictly construed in favour of a person charged with having committed the offence, and when so construed they do not apply to the present case.
In the first place the respondent's vehicles were not "stage carriages" within the meaning of s. 61, sub-s. 1 (a). That sub-section provides that public service vehicles shall be "divided" into three classes, namely (a) stage carriages, (b) express carriages, and (c) contract carriages, and these classes are therefore distinct from each other and mutually exclusive. It is not suggested that these vehicles were express carriages within cl. (b). According to the contention of the respondent neither were they stage carriages within cl. (a). That clause is separable into two parts dealing with different kinds of stage carriages - namely, first, vehicles carrying passengers for hire at separate fares stage by stage and stopping to pick up or set down passengers; and, secondly, any other vehicles carrying passengers for hire at separate fares and not being express carriages.
It cannot be the intention of the Act that the second part of that clause should apply without any qualification to all vehicles carrying passengers for hire at separate fares, because if it were so applied the first part of the clause would be rendered wholly unnecessary and superfluous. The second part of the clause must be construed as being restricted by the first part, and as the first part defines stage carriages as motor vehicles carrying passengers stage by stage and stopping to pick up and set down passengers, so, in accordance with the ejusdem generis rule, the second part should be read as applying only to vehicles carrying passengers subject to limitations of a similar kind. The respondent's vehicles were not subject to any such limitations as are contemplated by cl. (a) on its true construction, and they are not, therefore, stage carriages within the meaning of that clause. The vehicles in question, being public service vehicles within s. 61, sub-s. 1, which were neither stage carriages within cl. (a), nor express carriages within cl. (b), it follows that they were contract carriages within cl. (c).
It is plain that they came within the exact terms of that clause, being motor vehicles carrying passengers for hire or reward under a contract for the use of the vehicle as a whole at an agreed rate.
As to s. 61, sub-s. 2, the words at the end of the operative part of that sub-section, "whether the payments are solely in respect of the journey or not," only mean that payments in addition to the fare for the journey shall not rob sub-s. 1 of its effect. Secondly, even if these vehicles were stage carriages, they were not "used" by the respondent, nor did he "permit" them to be used as such contrary to s. 72 of the Act.
A contract was concluded between the respondent and the club by which the vehicles were hired by the former to the latter at a specified rent. The respondent thereupon ceased to have control over the vehicles, and he did not know how the club would use them. He had no longer himself any right to use them or to permit them to be used, or to prevent the club from using them as it pleased. The club acquired the right to use them in any way it chose. After the contract the respondent did not in fact exercise any supervision over the vehicles or receive any of the passengers' fares. There is no finding of fact that the respondent let the vehicles to the club in order that they might be unlawfully used as stage carriages without proper licences or that he thereafter unlawfully used them or permitted them to be used as stage carriages or otherwise. In view of these considerations the justices had no alternative but to dismiss the charge against the respondent.
LORD HEWART C.J. I am clearly of opinion that this appeal should be allowed.
No useful purpose would, I think, be served by minutely criticizing the words of an Act passed in 1930, and it would be idle to criticize the form of this special case. I am satisfied, however, that the contention on behalf of the appellant, which was urged before the justices and has been repeated here to-day, is right, and that, even if we assume that the two coaches referred to were hired from the respondent at an agreed sum, they were not used as "contract carriages" within the meaning of s. 61, sub-s. 1 (c), of the Road Traffic Act, 1930, but were used as and must be deemed to have been "stage carriages" within sub-s. 1 (a) of that section. Mr. Pratt has done all that could have been done to support the case of the respondent, but the matter seems to me to be too clear for argument. In my opinion the appeal should be allowed.
TALBOT J. I am of the same opinion.
The question is whether the respondent permitted a public service vehicle to be used as a stage carriage within the meaning of the Road Traffic Act, 1930, without the licence required for the purpose of enabling it to be so used.
The contention on behalf of the appellant may be succinctly stated as it appears to have been stated before the justices - namely, that this carriage, being a "public service vehicle" within the definition of that expression in s. 121 of the Act, falls within the first of the three classes of public service vehicles described in s. 61 - namely, the class of stage carriages, as being a motor vehicle carrying passengers for hire or reward at separate fares, not carrying passengers stage by stage and stopping to pick up or set down passengers, and not being an express carriage as thereinafter defined.
It is admitted that this vehicle was not carrying passengers stage by stage, and it is clearly found that it was carrying passengers for hire or reward at separate fares.
As to s. 61, sub-s. 2, read according to its exact terms, although it is true it appears to have been to a great extent directed at a possible escape from the Act when a payment is made for something else besides carriage on the journey, yet that sub-section shows that whenever there are separate payments even in respect of a carriage which is the subject of a contract and is therefore a contract carriage according to the description in sub-s. 1, the vehicle becomes a stage carriage within the meaning of the section. Sub-s. 2 brings the vehicle into that class by the express enactment: "shall be deemed to be a vehicle carrying passengers for hire or reward at separate fares."
The sub-section provides in effect that in all cases where persons are carried in a motor vehicle for any journey in consideration of separate payments made by them, whether to the owner of the vehicle or to any other person, and whether or not including payment for anything besides carriage, the motor vehicle is to be deemed to be a stage carriage, unless it can be brought within the proviso to the sub-section as being used on a special occasion for the conveyance of a private party.
Mr. Pratt, on behalf of the respondent, has constructed an ingenious argument based upon a careful scrutiny of the provisions of this somewhat complicated section, but he did not and could not argue that this vehicle was used on a special occasion or for the conveyance of a private party. In my opinion the justices arrived at a wrong decision, inasmuch as they should have convicted the respondent of the offence with which he was charged.
HUMPHREYS J. I agree.
The difficulty I have found has been in determining whether the justices did or did not themselves take the view that the offence charged was committed by the respondent. It is stated under the heading of their opinion that having regard to the fact that the respective contentions, which they call the conflicting contentions, of the solicitors for the parties were put forward, and to the facts that the respondent did not know that he was breaking the law and had no intention of doing so, and that he had applied for a road service licence on a subsequent occasion, they were of the opinion that the best way to deal with the case in the circumstances was to dismiss it and express their strong disapproval of the way in which the respondent had acted. If I were satisfied that that statement meant that they found that the offence was proved, but under the provisions of the Probation of Offenders Act, 1907, they thought that, though the offence was proved, yet having regard to all the circumstances of the case, including the extenuating circumstances in which the offence was committed, it was inexpedient to inflict punishment upon the respondent, then I would agree that the case was one in which they could dismiss the information; but the statement is made in such a way that I cannot say that I am satisfied that that is what it means. I therefore concur in the view expressed by the other members of the Court as to the proper course to take in law on the facts of this case.
Appeal allowed. Case remitted.
Solicitor for appellant: The Treasury Solicitor.
Solicitor for respondent: J. Messer Bennetts, Truro.
|
Login
Register
FAQ
