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Scottish Motor Traction Company Limited v Lanarkshire County CouncilHouse of Lords

3 May 1929

1929 S.L.T. 355(Lord Buckmaster, Viscount Dunedin, Lords Warrington of Clyffe, Atkin, and Thankerton.)

3 May 1929

Roads and streets—Omnibus traffic—Licensing—Burgh Police (Scotland) Act, 1892 (55 & 56 Vict. cap. 55), section 270—Magistrates empowered to license omnibuses to ply for hire within five miles of burgh's principal post office—Local Government (Scotland) Act, 1908 (8 Edw. VII. cap. 68, section 13—County Council empowered to make bye-laws for licensing omnibuses within county—Proviso in section 13 that no such bye-law should apply to any omnibus “duly licensed” by a Town Council—County Council issuing bye-law prohibiting omnibuses plying for hire within landward portion of county even though licensed by Local Authority of the owner's place of business—Ultra vires—Held (reversing judgment of Second Division) that the bye-law of the County Council was not ultra vires.

(Reported ante, 1928, S.L.T. 593.)

Appeal from Interlocutor of Second Division(Lords Ormidale and Anderson; Lord Hunter dissenting).

The defenders appealed to the House of Lords.

On 3rd May 1929 their Lordships reversed the judgment of the Second Division, and remitted to them to sustain the second plea in law for the defenders and to assoilzie them from the conclusions of the summons.

Lord Buckmaster.

In this case the pursuers, the present respondents, sought a declaration that part of a bye-law issued by the county of Lanark was ultra vires. The pursuers are a limited company which own and run omnibuses, and it appears from the statement of facts, which I take from Lord Hunter's judgment, that they conduct regular services of motor omnibuses for passengers between and including Edinburgh and Glasgow by routes passing through the counties of Midlothian, West Lothian, and Lanark. These omnibuses have obtained licences either from the Corporation of Glasgow or the Corporation of Edinburgh, or the Town Council of some other burgh. Those licences have been obtained either by virtue of special powers which these corporations or burghs possess, or under the general provisions of the Burgh Police (Scotland) Act, 1892, which provides that “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”. It is to be observed that that power is expressly limited to plying for hire within five miles from the central place—beyond that no licence is conferred and no power to grant such a licence exists. To my mind that is a very important consideration in determining what is meant by the statute, the construction of which is most immediately under notice, namely, the Local Government (Scotland) Act, 1908, for that Act conferred upon the County Councils powers with regard to the regulation, the licensing, and the registering of omnibuses and carriages generally that plied for hire within the county; it enabled such licences to be granted and gave the County Councils complete control with regard thereto over the whole of their area, with this single exception, that “no such bye-law shall apply to any hackney coach, omnibus, or carriage duly licensed by a Town Council”. The statute then provided that in the event of any offence against the bye-law issued for that purpose there should be power, in addition to any other penalty that might be provided, to suspend or revoke the licence. Now the respondents *357 asserted, and have asserted successfully, that the effect of that exception is to take completely away from the jurisdiction of the County Council any vehicle that has in any burgh received a licence to ply for hire within five miles of the principal post office of that burgh. If the Act of Parliament has so provided, it is obvious that we must give effect to its provisions, even though they might appear to be unreasonable.

It would, of course, result in this, that while it is perfectly plain that the object of the Act of 1908 is to secure that the County Council shall regulate this traffic and that regulation shall be based upon the controlling of vehicles that ply for hire within the area of jurisdiction, the entire protection would be absolutely taken away if any vehicle had obtained permission to ply for hire in a burgh that might be entirely outside its area, and no county regulations would attach to the licence of such a vehicle.

To my mind that is not the real purpose of the statute. I think that in order to give full effect to its meaning emphasis must be placed upon the provision that the regulation is expressly confined to omnibuses and other vehicles that ply for hire within the county, and plying for hire suggests something in the nature of a local position which these vehicles are occupying in the county. If that be once regarded, it follows, I think, that the exception means that if the particular vehicle plying for hire in a particular spot is plying for hire in a place that is already covered by a licence granted by a burgh, then the County Council shall not have the power to issue the necessary licence for regulation and control. It is, of course, clear that County Councils may require quite different conditions for the regulation of their vehicles from those that are required for vehicles whose area of operation is confined to five miles from the principal post office of a burgh.

I cannot think that we should be doing justice to the draftsman of this statute if we were so to construe the Local Government Act, 1908, as to leave nothing but a series of vast gaps over which there would be no control, either by the County Councils or by the burghs who licensed the vehicles that were plying for hire. In addition to that, it appears to me that the provision with which the section concludes, enabling the bye-laws to be enforced by suspension or revocation of a licence, strongly points to this, that the control of the licence is regarded as one of the means by which the regulation of the traffic may be best effected; but, if the contention of the respondents were correct, it would be impossible to suspend or revoke or in any way influence the licence of an omnibus that had obtained permission to ply for hire within the five miles' limit of a particular burgh that might be distant any number of miles from the county where breaches of the provisions took place.

For these reasons I am of opinion that this appeal should succeed, and that the judgment appealed from should be reversed.

Viscount Dunedin.

I am of the same opinion. A licence is required, not for a vehicle as a vehicle, but for a vehicle that is plying for hire territorially, and that, I think, is the key to the whole position.

Lord Warrington of Clyffe.

I agree.

Lord Atkin.

I agree, and my reasons for agreeing are really contained in the judgment of Lord Hunter, with whose judgment I entirely concur, in addition to the judgment which has just been pronounced from the woolsack.

Lord Thankerton.

I agree.

RepresentationCounsel for Defenders and Appellants, Robertson, K.C., Patrick; Agents, Ross, Smith & Co., S.S.C.; Grahames & Co., Westminster.
Counsel for Pursuers and Respondents, Taylor; Agents, Hagart & Burn Murdoch, W.S.; Beveridge & Co., Westminster.
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