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This case is nothing special but it is part of the catalogue that needs to be archived by those who keep such reference material and that is why I'm archiving it here.
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[1929] 2 K.B. 165

[DIVISIONAL COURT]

KIRKBY v. MINTY.

1929 April 12, 15.

LORD HEWART C.J., AVORY and SWIFT JJ.
Local Government - Stage Carriage - Overloading - Prosecution without Order of Commissioners of Inland Revenue - Competency - Railway Passenger Duty Act, 1842 (5 & 6 Vict. c. 79), ss. 13, 24 - Inland Revenue Regulation Act, 1890 (53 & 54 Vict. c. 21), s. 21.

An information was preferred by a police officer against the conductor of a motor omnibus alleging that he had allowed the omnibus to carry at one time a greater number of passengers than it had been constructed to carry, contrary to s. 13 of the Railway Passenger Duty Act, 1842:-

Held, that the prosecution was not a proceeding for the recovery of a fine or penalty under an Act relating to inland revenue within s. 21, sub-s. 1, of the Inland Revenue Regulation Act, 1890, and that it could, therefore, lawfully be commenced without an order of the Commissioners of Inland Revenue.

Per Lord Hewart C.J. Such a prosecution is a "proceeding on information or complaint of an officer of the peace for recovery of a fine or penalty imposed in relation to an offence against any law of excise" within s. 21, sub-s. 2, of the Inland Revenue Regulation Act, 1890.

Observations on proof of the overloading of a stage carriage.

CASE stated by justices.

The respondent, Alfred John Minty, Superintendent of Police at Doncaster, preferred an information under s. 15 of the Railway Passenger Duty Act, 1842, before the Lower Strafforth and Tickhill (Doncaster) justices, alleging that the appellant, William Joseph Kirkby, an omnibus conductor, had on July 22, 1928, allowed a motor omnibus of which he was in charge on a highway to carry a greater number of passengers than it was constructed to carry contrary to s. 13 of the Railway Passenger Duty Act, 1842. (1)

(1) By the Railway Passenger Duty Act, 1842, s. 13: "And whereas the repealing of the duties in respect of the passengers to be conveyed by stage carriages in Great Britain, and granting a uniform rate of duty on stage carriages in lieu thereof, will render certain regulations necessary for preventing the overloading of such carriages, and the dangers and inconveniences consequent thereon; be it therefore enacted, that no stage carriage shall be allowed to carry at one time a greater number of passengers .... than the same is constructed to carry according to the regulations of this Act; and that no such carriage shall be deemed to be constructed to carry a greater number of passengers than the same will contain at one time, upon fit and proper scats provided therein or thereupon for that purpose, allowing for every passenger, on an average, upon each and every separate scat, a space convenient for sitting thereon of sixteen inches ...."
[1929] 2 K.B. 165 Page 166

At the hearing of the information the following facts were proved:-

The omnibus, of which the appellant was the conductor, had on it the words "licensed to carry 26 passengers." At the time of the commission of the alleged offence thirty-nine adults and ten children were on the omnibus, which was so obviously overcrowded that the justices thought it unnecessary to adjourn the case to have it produced or measured. The respondent had no order from the Commissioners of Inland Revenue to commence the proceedings against the appellant, but he was a duly authorized officer of the West Riding County Council under s. 1, sub-s. 2, of the Roads Act, 1920.

The justices found the offence proved, but they dismissed the information under the Probation of Offenders Act, 1907.

The conductor appealed.


Montgomery K.C. and Sandlands for the appellant. The proceedings taken against the appellant were "for the recovery of a fine .... under an Act relating to inland revenue" within the meaning of s. 21, sub-s. 1, of the Inland Revenue Regulation Act, 1890. As the order of the Commissioners of Inland Revenue for the commencement of the proceedings had not been obtained by the respondent the proceedings were not competent. The Railway Passenger Duty Act, 1842, is an "Act relating to inland revenue" within s. 21, sub-s. 1, of the Act of 1890. By its

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Sect. 19: "In any prosecution for the recovery of any penalty relating to the carrying of passengers by any stage carriage .... if proof be made of the due admeasurement of .... any of the seats in or upon any such carriage .... the same shall be deemed and received as evidence thereof without the production of such carriage."

By the Inland Revenue Regulation Act, 1890, s. 21, sub-s. 1: "It shall not be lawful to commence proceedings against any person for the recovery of any fine, penalty, or forfeiture under any Act relating to inland revenue .... except by order of the Commissioners [of Inland Revenue] and in the name of an officer, or in England in the name of the Attorney-General for England ...."

Sub-s. 2: "Provided that nothing in this section shall extend to .... any proceeding on information or complaint of an officer of the peace for recovery of a fine or penalty imposed in relation to an offence against any law of excise in any case in which such a proceeding is authorised."
[1929] 2 K.B. 165 Page 167

preamble it was declared to be "An Act to repeal the Duties payable on Stage Carriages and on Passengers conveyed upon Railways, and certain other Stamp Duties in Great Britain, and to grant other Duties in lieu thereof; and also to amend the Laws relating to the Stamp Duties" and "inland revenue" in the Act of 1890 is defined in s. 39 of that Act as "the revenue of the United Kingdom collected or imposed as stamp duties ...." Therefore, the proceedings could not lawfully be commenced without the order of the Commissioners: Cameron v. Sweeney. (1) Moreover there was no evidence on which the justices could properly determine how many passengers the omnibus was constructed to carry and, therefore, no proof of the offence alleged.

Singleton K.C. and Paley Scott for the respondent. The Railway Passenger Duty Act, 1842, cannot be regarded as an "Act relating to inland revenue" within s. 21, sub-s. 1, of the Act of 1890. By the Railway Passenger Duty Act, 1847, the collection and management of duties in respect of stage and hackney carriages was transferred from the Commissioners of Stamps and Taxes to the Commissioners of Excise, and in subsequent legislation, e.g., the Revenue Act, 1869, ss. 17, 18, those duties are referred to as "duties of excise." Therefore, s. 21, sub-s. 1, of the Act of 1890 does not apply, but the case falls within s. 21, sub-s. 2, of that Act, which excepts from the operation of sub-s. 1 proceedings "in relation to an offence against any law of excise." Alternatively the Act of 1842 was divisible into two parts, one dealing with stamp duties and the other dealing with the totally different subject of the prevention of overcrowding in stage carriages, the sections under which the present proceedings were taken being in the latter part of the Act: see the recital at the beginning of s. 13. Cameron v. Sweeney (1) is distinguishable on the ground that it depended on the interpretation of s. 454 of the Burgh Police (Scotland) Act, 1892. In any case, it is irreconcilable with Horn v. Duckett (2), while in Dennis v. Miles (3) proceedings under the Act of 1842 were

(1) 1928 S. C. (J.) 34.

(2) [1929] S. N. 25.

(3) [1924] 2 K. B. 399.
[1929] 2 K.B. 165 Page 168

apparently taken by an inspector of police without any order of the Commissioners. Orr v. Strathern (1) was also referred to.

Sandlands replied.

LORD HEWART C.J. The case put forward by the appellant depended on two propositions. The first was that there was no evidence on which the justices were entitled to determine how many passengers the omnibus was constructed to carry, and the second was that the penalties imposed by the Railway Passenger Duty Act, 1842, were penalties under an "Act relating to inland revenue" within s. 21, sub-s. 1, of the Inland Revenue Regulation Act, 1890, and that the respondent had no order of the Commissioners of Inland Revenue to commence the proceedings.

With regard to the first point, undoubtedly the strict way of proving the number of persons whom the vehicle is constructed to carry is that expressly laid down by the statute itself. If the appellant had insisted on strict proof the case would have been adjourned by the justices that strict proof might be given. But the facts were so overwhelming that both the justices and the appellant felt that it would be mere waste of time to have an adjournment for that purpose. There is really nothing in the point. The vehicle was manifestly overcrowded.

The second point is of substance. Doubtless for some time after its passing, the Railway Passenger Duty Act, 1842, considered as a whole, might properly have been described as an "Act relating to inland revenue." Its preamble is: "An Act to repeal the Duties payable on Stage Carriages and on Passengers conveyed upon Railways, and certain other Stamp Duties in Great Britain, and to grant other Duties in lieu thereof; and also to amend the Laws relating to the Stamp Duties." But in later years what was left unrepealed of the Act came to be regarded as having quite a different complexion. In its original entirety the Act was of a twofold character. Partly it was an Act relating to inland revenue; partly it was a code relating to the prevention of over-loading

(1) 1929 Sc. L. T. 32.
[1929] 2 K.B. 165 Page 169

of a particular kind. What is left after the surgical operation of repeal which the Act has suffered is a limb concerned with the overloading of stage carriages which does not constitute an enactment "relating to inland revenue." It has been suggested that that conclusion is rendered improbable or undesirable by the decision in Cameron v. Sweeney. (1) Any judgment of the Court of Justiciary will always be treated with respect in this Court, but it is not binding on this Court and it is difficult to reconcile Cameron v. Sweeney (1) with the judgment of the Inner House in Horn v. Duckett. (2) One decision appears to lean in one direction, and the other in the other direction. Regarding the matter as free from authority, I do not think that when this prosecution was launched the surviving fragment of the Act of 1842 was an enactment "relating to inland revenue." That being so, there was no need for the respondent to bring himself within s. 21, sub-s. 1, of the Act of 1890.

Even, however, if the remaining part of the Act of 1842 did relate to inland revenue, I should be of opinion that the contention of the appellant was wrong on the ground that the present prosecution came within the exception specified in s. 21, sub-s. 2, of the Act of 1890 as being a "proceeding .... of an officer of the peace for recovery of a fine or penalty imposed in relation to an offence against any law of excise." No doubt, when the Act of 1842 was passed, the duties for which it provided were stamp duties, but in subsequent legislation - e.g., ss. 17 and 18 of the Revenue Act, 1869 - duties on stage carriages were described as excise duties. This appeal, therefore, I think, fails.

AVORY J. I am of the same opinion. On the first point there is nothing in the Act of 1842 which makes it a condition precedent to any prosecution for the offence created by s. 13 that the carriage should be measured. The provision of s. 19 that, if evidence be given of the measurement of the seats, it shall be received without the production of the carriage, does not preclude other evidence being adduced to show that the carriage was overcrowded.

(1) 1928 S. C. (J.) 34.

(2) [1929] S. N. 29.
[1929] 2 K.B. 165 Page 170

I rest my judgment on the main point on the fact that s. 18 of the Act of 1842 provides that "nothing in this Act contained shall in any way alter or affect any of the regulations or provisions" contained in the Stage Carriages Act, 1832 (2 & 3 Will. 4, c. 120). Sect. 103 of that Act provides the mode of proceeding before justices for the recovery of penalties for offences against the Act. There is nothing in that statute nor in the Act of 1842 which limits the right to prosecute to an officer of the inland revenue. On the contrary, s. 18 of the Act of 1842 provides that "it shall be lawful for any person to inform and prosecute for any penalty incurred" for the offence of carrying a greater number of passengers than the stage carriage is constructed to carry. Unless there is an obvious implied repeal of those provisions by s. 21 of the Act of 1890 it remains the law and, in my opinion, there is no such implied repeal.

I agree that the offence in this case is not an offence against an "Act relating to inland revenue" within s. 21 of the Act of 1890. For that reason it is unnecessary to consider whether sub-s. 2 of s. 21 would, in any case, afford an answer to the contention of the appellant. The appeal should be dismissed.

SWIFT J. I agree.

Appeal dismissed.

Solicitors for appellant: Joynson-Hicks & Co., for R. A. C. Symes, Scunthorpe.

Solicitors for respondent: Warwick Williams & Marchant, for J. C. McGrath, Wakefield.
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