Taxi Driver Online

Continuing the Scottish history of hackney carriage case law.
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Blythswood Taxis, Limited, v. Adair

HIGH COURT OF JUSTICIARY

LORD JUSTICE-CLERK. LORD MACKAY. LD. JAMIESON.

Jurisdiction – Sheriff Court or Burgh Magistrates – Licensing of hackney carriages – Keeping, using and letting for hire hackney carriage without certificate or licence from magistrates committee – Glasgow Police Act, 1866 (29 and 30 Vict. cap. cclxxiii), secs. 108 and 184.
Review-Jurisdiction-Question of jurisdiction not raised in inferior Court.
Statutory Offences-Police Acts-Regulation of street traffic-Keeping, using and letting for hire 'hackney carriage' without licence-One hire of car standing by chance at motor hirer's office-Glasgow Police Act, 1866 (29 and 30 Vict. cap. cclxxiii) secs. 184 and 218.

The Glasgow Police Act, 1866, by sec. 108, confers on 'the magistrate' jurisdiction to try offences under the Act. Sec. 184 makes it an offence for any person to keep, use or let for hire a hackney carriage without a certificate or licence. This section falls within Part XIV of the Act, which deals with the granting, refusing or suspending by the magistrates of certificates or licences to carry on certain trades and with the conditions to be attached thereto.

A company was charged in the Sheriff Court at Glasgow with a contravention of sec. 184. No objection was taken to the jurisdiction of the Sheriff, and the company was convicted. On appeal, the company contended that the Sheriff's jurisdiction was impliedly excluded by the context of sec. 184.

Held (1) that the objection to the jurisdiction, although not taken in the inferior Court, might competently be taken in the appeal; but (2) that, although the magistrates had exclusive powers of regulating and licensing the trades specified in Part XIV of the Act, these powers did not exclude the inherent universal jurisdiction of the Sheriff Court.

Wilson v. Hill, 1943 J. C. 124, distinguished.

The Glasgow Police Act, 1866, by sec. 184, makes it an offence for any person to keep, use or let for hire a hackney carriage without a certificate or licence. Sec. 218 in defining 'hackney carriage' provides, inter alia, that it is a carriage 'which shall stand on hire or ply for a passenger for hire within the city.'

A car, not a taxi, belonging to a company which carried on the business of hiring motor vehicles drew up in the street outside an office of the company. The driver left the car and entered the office. Shortly thereafter two police officials entered the office and, on being told that the car was for hire, requested the driver to take them to a railway station, which, on receiving a nod of assent from a director of the company, he agreed to do. He then drove them to their destination and charged a fare, which was paid. The company did not hold the certificate or licence required by sec. 184, and were convicted of a contravention of the section.

The Court (diss. Lord Jamieson) sustained an appeal against the conviction, holding that, to be guilty of a contravention of sec. 184, the person charged must have kept, used and let the vehicle in question as a habitual business, and that, while proof of a single incident might, in the light of attendant circumstances, suffice, in the present case the facts were insufficient, and, further, merely showed that the car had been by chance drawn up at the office and not that it was 'standing' there in order to be hired.

Blythswood Taxis, Limited, were charged in the Sheriff Court at Glasgow on a complaint at the instance of James Adair, Procurator-fiscal, which set forth that 'you did, on 18th January 1944, in Dundas Street, Glasgow, at a part thereof near West George Street, keep, use and let for hire a motor vehicle, viz.: hackney carriage, registered number VD 9080, without a certificate or licence granted to you by the magistrates committee of the Corporation of Glasgow, in respect that you did, by the hands of William Tully, 32 Kent Road, Glasgow, convey for hire in said motor vehicle David M'Culloch Lennie, Constable of Police in Glasgow, and Margaret Macmillan Alexander, Clerkess, Police Headquarters, Glasgow, from Dundas Street to St Enoch Railway Station, both in Glasgow, at a fare of 2s. 6d. for said journey: Contrary to the Glasgow Police Act, 1866, * section 184; whereby you are liable to a penalty not exceeding GBP5.'

* The Glasgow Police Act, 1866 (29 and 30 Vict. cap. cclxxiii), sec. 108, provides:-'The magistrate shall have jurisdiction to try and pronounce sentence in the case of any person brought before him accused or suspected of having committed any crime or offence which under the provisions of this Act... is punishable by imprisonment, or by the imposition of any penalty...'

Sec. 184 (which occurs in Part XIV of the Act, dealing with the granting, refusing and suspending by the magistrates of certificates or licences to carry on certain trades and with the conditions to be attached thereto) provides:-'Every person who keeps, uses, or lets for hire within the city any stage or hackney carriage ... without a certificate or licence ...' shall be liable to a penalty not exceeding five pounds for the first offence ...'

Sec. 218, after defining the expression 'stage carriage,'defines the expression 'hackney carriage' as 'every other wheeled carriage, whatever be its form or construction, which shall stand on hire or ply for a passenger for hire within the city, except a carriage let out to hire as a job carriage by the day, month, or other longer period, or

On 6th March 1944, the Sheriff-substitute (Gillies) convicted the accused and, at their request, stated a case for appeal to the High Court of Justiciary.

The case set forth that the following facts were admitted or proved:-'(1) That the appellants are motor hirers at 16-26 Possil Road, Glasgow, and have an office and a garage there, and an office-but no garage-at 1A Dundas Street, Glasgow. (2) That appellants had opened said office at Dundas Street shortly before 18th January 1944, that it was situated almost opposite a main entrance of Queen Street Railway Station, that on a double window of the office the announcement 'Taxis Day and Night' appears in prominent lettering, that passengers emerging from the station into Dundas Street are immediately confronted with this notice. (3) That, in consequence of certain alleged irregularities in general with regard to street hiring of vehicles whose owners have no authority for such hiring, Superintendent Macleod of Glasgow Police Headquarters instructed Police Constable David M'Culloch Lennie and Miss Margaret Macmillan Alexander, clerkess, both at Glasgow Police Headquarters, to go to the vicinity of the appellants' office at 1A Dundas Street, on 18th January 1944, with a view to keeping observation on the behaviour of drivers of the appellants' hiring cars, and to hire a car from the street, if possible. (4) That about 3 p.m. on 18th January 1944 one of the appellants' cars, V D 9080, drew up at the said office at Dundas Street and remained stationary in the street about four yards from the office entrance. (5) That the driver, William Tully, one of the appellants' employees, immediately left the said car and went into the said office. (6) That the said David Lennie and Miss Alexander went into the said office about 3.5 p.m. and David Lennie enquired from the driver, William Tully, if the car in the street was for hire, to which he replied in the affirmative. The said David Lennie then asked if the driver would take him and Miss Alexander to St Enoch Station, and the driver, on a nod of assent from Mrs Scott, director of the appellants' company, who was also in the said office, agreed to do so. (7) That the driver, William Tully, drove the said David Lennie and Miss Alexander to St Enoch Station, for which journey the driver charged 2s. 6d., which Lennie paid. (8) That said car was not a taxi in the accepted sense although registered for excise purposes under the Roads Acts and relative Finance Acts as a 'hackney carriage' and that such registration would allow the appellants to use said vehicle only as what is termed in the Glasgow Police Act, 1866, a job carriage. (9) That the said car was not a stage carriage, nor a carriage let out to hire as a job carriage by the day, month or other longer period, and that the appellants had neither a certificate nor a licence granted to them by the magistrates committee of the Corporation of Glasgow to keep,

a carriage kept by the proprietor within his own premises, unyoked, for the purpose of being let out to hire as a job carriage for any shorter period.'

use and let said motor vehicle as a hackney carriage for hire within the City, in terms of section 184 of the Glasgow Police Act, 1866.'

The case further set forth:-'In view of the above facts and on the ground that the said car was hired while standing in the street and not on order from its garage, I concluded that the appellants had committed an offence against the Glasgow Police Act, 1866, section 184, and found the appellants guilty, fining them GBP2 with civil diligence.'

The question of law for the opinion of the Court was:-'On the foregoing facts was I entitled to convict the appellants?'

The case was heard before the High Court of Justiciary on 7th. 8th and 9th June 1944, when counsel for the appellants for the first time challenged the jurisdiction of the Sheriff Court. Counsel were accordingly first heard on the question of jurisdiction.


Fred. Robinson, for Harold Dykes & Co., Glasgow-W. R. Milne, W.S., Crown Agent.
09 June 1944

On 9th June 1944,-

LORD JUSTICE-CLERK (Cooper).-This stated case is concerned with a conviction obtained in the Sheriff Court at Glasgow on a complaint at the instance of the Procurator-fiscal of Lanarkshire alleging a contravention of section 184 of the Glasgow Police Act, 1866. 4 The appellants have tabled in limine a challenge of the jurisdiction of the Sheriff and of the title of the Procurator-fiscal to prosecute; and, though the point was not taken in the Court below and is not raised in the stated case, it is right and proper, and in accordance with precedent, that a matter so fundamental should be considered and determined in this court.

It has repeatedly been laid down that this Court and the Sheriff

1 Reference was also made toHenry Bruce & Son v. Muir, supra p. 29, andM'Mullan v. M'Phee, (1882) 9 R. (J.) 36, 5 Coup. 1.

2 Wilson v. Hill, 1943 J. C. 124.

3 M'Millan v. Grant, 1924 J. C. 13, Lord Sands at p. 23; Trotter on Summary Criminal Jurisdiction, p. 127.

4 29 and 30 Vict. cap. cclxxiii.

5 55 and 56 Vict. cap. 55.

Court, within the limits which have been assigned to them respectively, enjoy what Lord Dunedin described as 'an inherent universal jurisdiction' (M'Pherson v. Boyd1 ), which can only be restricted or excluded by the express provision or clear implication of a statute. It is equally plain that the Lord Advocate possesses what Lord Justice-Clerk Macdonald called 'the universal qualification to prosecute by himself or by the officers under him' (Rintoul v. Scottish Insurance Commissioners2 ), and that the title of a Procurator-fiscal to prosecute in the Courts of the Sheriffdom to which he has been appointed is inherent in his appointment as local executive officer of the Lord Advocate, and can only be excluded by the express provision or clear implication of a statute. These propositions are cardinal to the Scottish system of criminal administration, and their importance in the public interest cannot be too strongly stressed.

Accepting these propositions, counsel maintained, however, that the provisions of the Glasgow Police Act, 1866, 3 yielded the requisite clear implication that the jurisdiction of the Sheriff Court and the title to prosecute of the county Procurator-fiscal were alike excluded in prosecutions under section 184 of the Act, and that contraventions of that section were cognisable only in the Police Court at the instance of the burgh Procurator-fiscal. He founded in particular upon the fact that the fasciculus of sections in which section 184 occurs is concerned with the local regulation by means of certificates and licences of certain trading enterprises conducted within the city-hackney carriages, chimney-sweeping, the retailing of gunpowder and fireworks, and the like-which were essentially matters of civic or AEdilic regulation. He further showed that varied and extensive administrative powers in regard to such regulation were conferred by the Act on 'the magistrate' or 'the magistrates committee,' including the power to suspend, revoke, or restore a licence.

I agree that it is plain from the provisions to which we were referred that Parliament has empowered the magistrates to do many things which the Sheriff could not do; but the fact remains that section 184, on which this prosecution is founded, creates an offence and prescribes a penalty in perfectly general and unqualified terms, and is just as capable of being made the subject of proceedings in the local Sheriff Court at the instance of the county Procurator-fiscal as any other statutory prohibition fenced with penal sanctions. I am unable to discover in the other administrative provisions of the statute any sufficient implication of an intention to exclude in a prosecution under section 184 the universal jurisdiction of the Sheriff Court, which it is to be noted was declared by section 11 of the Summary Jurisdiction (Scotland) Act, 1908, 4 to be concurrent with every other Court within the sheriffdom, or to restrict the title to prosecute of the public

1 1907 S. C. (J.) 42, at p. 46, 5 Adam, 247, at p. 254.

2 1913 S. C. (J.) 120, at p. 122, 7 Adam, 210, at p. 216.

3 29 and 30 Vict. cap. cclxxiii.

4 8 Edw. VII, cap. 65.

prosecutor in that Court. The present case is, in my view, distinguish able from Wilson v. Hill, 1 in which the penalty clause, applicable to the case of a third or subsequent conviction, was incapable of being operated by a Sheriff.

For these reasons, I am of opinion that the challenge of jurisdiction and of title to prosecute fails; and I only add these two observations. First, it was very properly stated to the Court by the Solicitor-General that his opposition to this challenge was not inspired by any desire on the part of the Crown authorities to intervene in the domestic affairs of any local authority unless exceptionally and in the public interest, and that his purpose was to vindicate as a matter of principle the universality of the jurisdiction of the Sheriff Court and of the Procurator-fiscal's title to prosecute. It is, of course, obvious that, except in comparatively rare cases, such intervention would be impracticable; but it is well that the point should be made clear. Second, I have noted in Part XVIII of the Act of 1866, which deals with stage and hackney carriages, certain provisions to a which the decision in wilson v. Hill1 might be applicable if a prosecution were to be brought under these later provisions, and I desire to reserve my opinion as to jurisdiction and title to prosecute in any such case.

LORD MACKAY.-Since the year 1866, when Glasgow obtained its local Act 2 - and it is to be noted it is not a public Act-the question of concurrent jurisdiction with the common law Sheriff has been largely developed and regularised. I for my part am willing to believe that, in the minds of the authorities in obtaining their local Act from Parliament, there was a half-intention that the new jurisdiction should be an exclusive or privative one. But the law is now well settled, and it is, as your Lordship has said, that to exclude common law jurisdiction, to escape from concurrent powers, there must either be an express statutory exclusion or clear implication found within the statute. Nothing less will do. That was laid down within a year or so past, and the rule is settled. The single question in this case, therefore, as in Mr Philip's reply it came to be admitted, is the question-Is there clear implication to exclude the Sheriff Courts? No other question lies before us as now argued. With your Lordship I am prepared to concur, and for the reasons given, that those on whom the onus lies to exclude a jurisdiction which they silently submitted to in the Court below, and which they questioned for the first time in the course of the hearing in the Court above, have not proved sufficiently, or even to a tolerably reasonable showing, that there is any clear implication contained in the local Act of 1866 that the Legislature intended to create the magistrate's jurisdiction as an exclusive or privative one.

LORD JAMIESON.-It is well settled that the Sheriff Court has an inherent jurisdiction to try offences either at common law or created

1 1943 J. C. 124.

2 29 and 30 Vict. cap. cclxxiii.

by statute provided the maximum punishment involved does not exceed that which the Sheriff is entitled to impose, and that, as regards statutory offences, the jurisdiction can only be excluded by express enactment or clear implication from the Act of Parliament creating the offence (Cameron v. Macniven1 ). In the present case the appellants maintain that the jurisdiction of the Sheriff Court is excluded by implication, and that the whole proceedings are funditus null. Section 184 of the Glasgow Police Act, 1866, 2 under which the charge is brought, occurs in a fasciculus of sections dealing with certificates and licences to be granted by the Board of Inland Revenue and the magistrates of Glasgow to persons as a requisite to their carrying on certain trades. The section itself makes it an offence to carry on any of these trades without a certificate or licence. Section 108 confers on the magistrates jurisdiction to try offences under the Act. Now, no doubt, any question relating to the granting, suspension or revocation of a certificate or licence is a matter for the magistrate, and in the ordinary course a person who carries on one of the specified trades without such a licence would fall to be tried in the Police Court. But I would be reluctant to hold that the Sheriff's jurisdiction is excluded in a case where, as in the present, we were assured by the Solicitor-General that it was in the public interest that the case should be tried in the Sheriff Court, unless the jurisdiction of that Court is clearly excluded. I do not think it is. It is said to be excluded by implication may section 180. That section provides that 'the magistrate may suspend ... any licence for carrying on any of the aforesaid trades or any certificate granted by the magistrates committee, if in his opinion, after affording to the person to whom such licence or certificate has been granted an opportunity of being heard, his conduct, as appearing from the proceedings in any case tried before such magistrate, merits suspension...' That is a discretion conferred on the magistrate, but it does not apply to a case where the offence is carrying on a trade without the necessary licence or certificate. The case is thus distinguishable from Wilson v. Hill, 3 for there the Act in question provided that, as part of the punishment for a repeated offence, a person might be deprived of the right to carry on his occupation for the period of three years or such shorter period as might be determined by the magistrate. I am accordingly of opinion that the objection to the jurisdiction and title of the Procurator-fiscal in the Sheriff Court to prosecute fails. I desire to add, along with your Lordship, that what I have said must be taken as referring only to the section that we are dealing with, and that different considerations may arise with regard to other parts of the Act.

LORD MACKAY.-It is to the year 1866 and to a local Act of Parliament of that year3 that the city of Glasgow must go for the licensing and other regulations of vehicles plying for hire in their present city. One result of that fact must inevitably be that the expressions used and the definitions of these expressions to describe the different classes of permitted vehicles are now not very illuminative or up to date. In the present complaint, brought in the Sheriff Court of Lanarkshire at Glasgow, the charge against a company, who are found to be 'motor hirers' and who have two offices, one at Possil Road and a second at 1A Dundas Street, and a garage at the first address, is cumulatively of keeping, using and letting for hire a 'motor vehicle videlicet hackney carriage' without a certificate or licence. The Sheriff-substitute on certain findings found the taxi motor hirers 'guilty as libelled.' That is to say, he held himself entitled to say that this company had both kept and used and let for hire the particular and single motor vehicle which figures in the findings. I have come to be of opinion without in the end much hesitation that, upon the bare facts proved in this case, no conviction

1 M'Mullan v. M'Phee, (1882) 9 R. (J.) 36, 5 Coup. 1.

2 Counsel also referred to the Customs and Inland Revenue Act, 1888 (51 and 52 Vict. cap. , and the Finance Act, 1933 (23 and 24 Geo. V, cap. 19), Seventh Sched. Part I.

3 29 and 30 Vict. cap. cclxxiii.

could reasonably be sustained. That is not altogether to say that, on the bare facts put in evidence, there might not be room for some suspicion that, if further and fuller investigation were made, some evasion of the licensing regulations might not transpire; on the other hand, I am equally clear that the bare facts do not by any means inevitably lead to that conclusion. And I suggest to your Lordships that this is typically a case in which the proper benefit of the doubt, even if there be only a doubt, is due to the appellants.

I have used the word 'single.' There is in the nine findings no word of anything but the single vehicle with a number V D 9080. There was no evidence led with regard to any other of the company's vehicles. As I understand it, the police authorities, as narrated at length in finding 3, were desirous of investigating certain methods of what is there called 'street hiring of vehicles,' and two officials named went to the vicinity of the appellants' office near Queen Street Station on a certain day 'with a view to keeping observation on the behaviour of drivers of the appellants' hiring cars, and to hire a car from the street, if possible.' It was suggested to us in favour of the conviction that this car, V D 9080, was standing in the street ex adverso of the appellants' office 'on hire,' and that the other circumstances to which I must advert made it clear that, within the meaning of the definition in Part XVIII and section 218 of 'hackney carriage,' they have successfully proved that this hackney carriage was let to a member of the public on this occasion. Before, accordingly, going to the definition and other relative sections, it is right to express one's view of the remainder of the proof. The two police officials, and one must assume known as such and in uniform, saw the vehicle draw up at the said office; the driver, William Tully, 'immediately left' the said car and went into the said office. No explanation was asked or given as to what the purpose of the driver entering his employers' office might be, and I think the accused are entitled to the benefit of any reasonable doubt. Accordingly, there was no crucial or prolonged moment of time during which the car stood, as it were, on any stance to attract a public customer. The officials of the police within five minutes interval entered the said office after the driver, and the following took place:-They asked the driver if the car was 'for hire,' and their words, it is to be noticed, were not an enquiry as to whether it was 'standing on hire.' He answered in the affirmative, but present in the office was a Mrs Scott, director of the appellants' company, with whom, in point of fact, any bargain which passed that afternoon was made. One of the police next asked if the driver would take him and the other to St Enoch Station. The driver obtained a nod of assent from the director, and then agreed to do so. He did then drive from near Queen Street to St Enoch Station and took a fare of 2s. 6d.

Now, I venture at this point to invite consideration of such matter. It is, of course, now a familiar matter that police agents may, in order to investigate difficult cases or doubtful actings, have to send

agents provocateurs to test the willingness and bona fides of suspected persons. On the other hand, like so many of the English judges of recent date, I think we also are disinclined to sustain convictions so obtained, when at any rate there is ample material and opportunity for those interested in the question to obtain evidence in more regular and fairer fashion. The facts seem to me, to say the least of it, quite open to the construction in this case that Mrs Scott in the appellants' office understood that the police desired a special hiring of this vehicle from her, and that they did not in any true sense apply to her as members of the public who felt themselves invited, either by a vehicle plying in the streets, or by a vehicle standing at a stance on the streets, to take it at a regulation and regulated fare. The fare obviously was not the proper and regulated fare, and the vehicle was not provided with a taximeter and was not a taxi, a fact which I think is very relevant in the circumstances. I shall postpone now what more I have to say on the facts until I refer sufficiently to the sections giving the power to licence and expressing the acts which carry a penalty if in contravention of licence. I shall also necessarily deal with the definition section. By section 170 of the said local Act of 1866, 1 every person desirous of keeping, using or letting for hire,inter alia, any hackney carriage as more particularly defined in the special provisions relating thereto shall make application in writing to the magistrates committee for a licence for a hackney carriage. By section 184, it is provided:-'Every person who keeps, uses, or lets for hire within the city any stage or hackney carriage ... without a certificate or licence or during the time that such certificate or licence is suspended or after it has been revoked ... shall be liable to a penalty not exceeding five pounds for the first offence,' and so on. These sections carry one to the definitions in section 218. The first thing that must be said of these definitions is that, although it is clear that motor-propelled vehicles of many sorts must be held somehow or other to be properly described by the definitions, the words now in use are palpably out of date for description of modern motor vehicles. For instance, there is an exception under the words 'hackney carriage' of a carriage let out for hire as a job carriage or a carriage kept by a proprietor 'within his own premises, unyoked' for the purpose of being let out for a shorter period. It is clear that the word 'unyoked' has no proper significance in relation to a modern motor carriage, though one supposes that-unless the jobbed car for a short run has tacitly disappeared-some meaning may have to be given. But, as admittedly the streets of Glasgow are governed still under the 1866 Act, one must do one's best with the definition. The next remark which seems to me called for is this:-The question was argued to us as if the sole question was, Was this vehicle a hackney carriage? In my opinion, that cannot really be the question in the case, first,

1 29 and 30 Vict. cap. cclxxiii.

because of the words of the complaint which I have read; and, second, because on these connected definitions it is impossible to bring an article before the Court and to ask the question as a question of the physical constitution, 'Is this a job carriage?''Is this a hackney carriage?' 'Is this a stage carriage?' Whatever significance they had at one time, nowadays the whole narrow distinctions between these vehicles and the large class of vehicles not falling within any of them must be one of qualification of use, not of structural capacity.

Now, so treated, the learned Sheriff-substitute has, I shall assume, quite correctly negatived the view that this carriage was a stage carriage, and also that it was a job carriage. As to the latter, I have doubts as to whether he had material before him to make that negative finding, but I pass from that. The main error, if any, of his reasoning seems to me to be that it assumes that, when you have negatived two of these ancient definitions, you necessarily have arrived at the third of them. This is far from being the case just because, in order to justify any conviction, one must attend to this:-'The expression "hackney carriage" shall mean every other wheeled carriage ... which shall stand on hire or ply for a passenger for hire within the city....' Now no vehicle comes within that description unless one of two things is satisfactorily proved; that within the city it plied for hire, or that within the city it stood on hire. It is part of the admissions in this case that the Crown has not succeeded in proving that this car plied for hire in the city. The conviction is defended solely upon the ground that, on the facts which I have stated fully, the Sheriff was entitled to come to the conclusion that it stood on hire. I am not of that opinion. The Solicitor-General put his argument as succinctly and as clearly as this:-He said the vehicle, in the office no doubt and by a director of the office and not by the driver in charge, was subjected to a contract of hiring or letting, and that at the moment it happened to be standing on the street and before the office door. Put the two together, said he, and you have the conviction. I am of opinion that this reasoning is fundamentally fallacious. In the first place, I am content for my part to put my judgment upon this:-The first seventeen words of the penal section 184 seem to me to make it clear that the keeping and the using and the letting of a hackney carriage within the city for hire all involve an habitual or regular business use. Clearly, that must be the construction of 'keeps for hire,' and I recall to your Lordships that the conviction and the complaint are cumulatively of keeping as well as all the other matters. But I go farther, and suggest that what is really made out in each of the words 'keeping,' 'using' or 'letting' is something in the nature of an habitual use of a car. I do not say that, in an appropriate case in which one let may be legitimately taken as typical of the whole use of a fleet of vehicles, one good instance may not suffice. But, then, I am clearly of opinion that the present is not a good instance or a significant instance at all. In the second place, I am content also to put my judgement upon this, that the words 'stand on hire' have, and ought to be given, a reasonable and rather technical significance. What is intended is that the vehicles instead of playing occupy a standing place, a stance, in such a way that they invite the public, and indeed commit themselves to the public to be at the public's disposal whenever they lift a finger or an umbrella. It is standing on hire by way of a public offer that is meant by the words of the definition. In my opinion the grounds given by the Sheriff are in themselves palpably insufficient grounds. He says:-'In view of the above facts and on the ground that the said car was hired while standing in the street,' he concluded as he did. The result of such reasoning is to make it an offence if a contract of hiring for whatever distance is made in an office and if, coincidentally, the car happens to be stationary upon any part of the street. I cannot accept that conclusion or ground as sound.

I indicated that I should return to the actual facts in this case. It really only remains to point out how easy, if there were in the practice of this company any real infringement of the licensing regulations, it would have been to have obtained good and proper evidence. We cannot judge for how many seconds, had the police personages not intervened, the car would have stood there. We are asked to assume that it would have stood to attract the public. I cannot so apprehend. They could have remained by to study its behaviour for three-quarters of an hour. Again, it would have been possible to observe the action of that car after the driver thereof had completed any message or taken any new order he might have waited for within the office and had come out again. Had he then loitered at that point, there might have been some ground for saying that he was using the office as a stance. But none of these things is proved, and I return to the view that, in a question of this sort, an instance of hiring in the office, and by the mouth of the person in charge of the office, to people who seem to require a vehicle for police purposes, is rather remote from a fair test of whether this vehicle was being kept and used as a public hackney carriage in any sense. I think that it will be easy for those who are interested in the question of the purity and propriety of street traffic to ascertain accurately and by good evidence whether there is infringement, and so I suggest we should leave them to act.

I have also pointed out that the charge and the conviction libel 'keeping using and letting' as cumulative, and that the conviction cannot stand unless there has been reasonable and adequate proof of each of these three verbal expressions. For these reasons, I would move your Lordships that we answer the question put to us-which is 'Was I entitled to convict the appellants?'-in the negative.

LORD JAMIESON.-The charge against the appellants is that in Dundas Street, Glasgow, they did keep, use and let for hire a motor vehicle, viz., a hackney carriage, without a certificate or licence granted to them by the magistrates committee, contrary to section 184 of the Glasgow Police Act, 1866. 1 The appellants are motor hirers having an office and garage in Possil Road, some considerable distance from Dundas Street. They also have an office in Dundas Street opposite a main entrance to Queen Street Station, and on a double window of the office a notice 'Taxis Day and Night' appears in prominent lettering, so that passengers emerging from the station are immediately confronted with this notice.

On the day in question, a car belonging to the appellants was seen by a police constable and a clerkess to draw up in Dundas Street. It remained stationary about four yards from the entrance to the office. The driver immediately left the car and went into the office. He was followed by the constable and the clerkess, the former of whom asked the driver if the car in the street was for hire. He received an affirmative answer, and he then asked if the driver would take him and his companion to St Enoch Station. The driver, on a nod of assent from a Mrs Scott, a director of the appellant company, agreed to do so. They were taken to St Enoch Station, and the driver was paid 2s. 6d. for the journey. The appellants did not hold a licence granted by the magistrates to keep, use and let the said car as a hackney carriage for hire within the city.

'Hackney carriage' is defined in the Act as meaning any 'wheeled carriage, whatever be its from or construction, which shall stand on hire or ply for a passenger for hire within the city.' There are, however, two exceptions. The first is that of a carriage let out to hire as a job carriage by the day, month or other longer period. That clearly does not apply. The other is a carriage kept by the proprietor within his own premises, unyoked, for the purpose of being let out to hire as a job carriage for any shorter period. The definition is out of date, but as applicable to the modern motor vehicle its meaning is clear. A vehicle, kept by the proprietor in his premises for the purpose of being let out to a customer, who either calls and asks to hire a car or by telephone or other means orders one to be sent to a given address, is not a hackney carriage within the meaning of the Glasgow Police Act, although it may be one for the purpose of the statutes dealing with excise duty on vehicles. The broad distinction is between a vehicle kept in the owner's premises until a customer asks for it and one which a passenger can obtain on the street.

It was argued that, because the contract for the journey was made and the hiring done not on the street but in the appellants' office, the car was not standing on hire. I am unable to agree with that argument. The car was standing in the street. The question put by the constable was addressed not to the person in charge of the office but to the driver, and it related to the particular car which was standing in the street. He did not simply ask if he could hire a car. He asked whether that car was for hire, and was told it was. Further, it was the driver who agreed to take the constable to St Enoch Station,

1 29 and 30 Vict. cap. cclxxiii.

and the fact that he received a silent assent from the director first is only of importance as showing that that official consented to what I regard as an infringement of the Act. The car was in fact standing in the street; it was, in fact, as the constable was told, for hire, and it appears immaterial that the driver was not sitting at the wheel or standing on the street beside the car, but had gone into the office. The words of the charge are cumulative-'keep, use and let for hire.' I am unable to agree that that makes any difference. The appellants did keep the car and they did use it and let it for hire while standing on the street at the time in question. Had the constable merely gone into the office and asked if he could hire a car, and instead of phoning for one from the garage the director had said he might have one which happened to be outside at the time, the position might have been different. On that I express no opinion. But that was not the fact, and on the facts proved the Sheriff, in my opinion, was entitled to convict.

In addition, I desire to draw attention to the statement at the beginning of finding in fact 3 that the police acted in consequence of alleged irregularities in general with regard to street hiring of vehicles. Evidence regarding that I can only regard as prejudicial to the accused, and in my view it should not have been allowed, but no objection appears to have been taken to it.

LORD JUSTICE-CLERK (Cooper).-The difference of opinion between your Lordships indicated that this case is not a simple one. From the opening part of finding 3, to which Lord Jamieson has just referred, it would appear that inadmissible evidence was led as to alleged irregularities in regard to the street hiring of vehicles committed by third parties unknown, and I am sorry that the prejudicial matter was introduced and should have affected the Sheriff-substitute's mind, as it evidently did. Putting that aside, from the remaining facts found in findings I to 5 inclusive, I am unable to draw any sinister inference whatever, for they are all to my mind perfectly consistent with innocent and legitimate trading. If the material existed for investing the background with suspicion, that could easily have been done, and it has not been done. We are thus left, as Lord Mackay has stated, with the bare facts of findings 6 and 7 as the sole foundation of a conviction on the charge of 'keeping, using and letting for hire a hackney carriage without a licence.' These findings describe a single isolated transaction, free from any suspicion derivable from the surrounding circumstances, under which a car, which happened at the time to be standing near by in a public street, was hired for a single short journey by a contract concluded in the office of the proprietor with a director of the appellant company. I am willing to assume that the police agents who made the contract were in plain clothes and were not known to be police agents; but I am unable to hold that there is enough in these findings either to transform a car into a hackney carriage within the meaning of the Act or to convert the proprietors of that car into persons who 'keep, use or let for hire' that car as a hackney carriage. It is of the essence of a hackney carriage, as defined in section 218 of the Act, that it should 'stand on hire or ply for a passenger for hire.' A car used commercially for jobbing purposes is a car 'for hire,' but it is not necessarily 'standing on hire' every time it stops, or 'plying for hire' every time it starts. When the driver in his employers' office was asked on this occasion whether the car was 'for hire,' and gave an affirmative answer, I think his answer was in a reasonable sense correct, and that it is asking too much of the average chauffeur to expect him to give the examination answer that the car was only on hire 'by the day, month or other longer period, or for a shorter period provided it was kept "unyoked" in the proprietor's premises'-whatever that expression may mean when applied to a vehicle propelled by an internal combustion engine.

In the second place, I have read and re-read the provisions of the Act of 1866 dealing with certificates and licences and the control of hackney carriages in Part XVIII, and I do not think it is possible to study those provisions without being impressed by the many indications which suggest that the words 'keep, use or let for hire' were not intended to be read distributively, but rather as a single description of a course of business. The person who keeps, uses or lets for hire a hackney carriage is bracketed with the broker, the carter, the chimney-sweep and the retailer of fireworks. The system of certificates or licences has all the features of quasi-permanency. The licence is valid for a year at a time it must specify the persons, if any, who carry on business with the applicant; changes of address must be notified; a public register is maintained containing a variety of information with regard to the holder of the licence; and the vehicles which are licensed have to have painted conspicuously upon them various matters, such as the name of the proprietor and the capacity of the vehicle for carrying passenger. Finally, it is to be noted that it is nowhere expressly made an offence under the statute to hire out a jobbing car for less than a day, even if that car is not kept 'unyoked' in the proprietor's premises. Now, I fully agree that a single instance of a hiring similar to what we find in this case might well suffice in the light of attendant facts and circumstances to establish that the car was 'kept, used or let for hire as a hackney carriage,' but it does not necessarily follow that a single instance will suffice, and in this case I am of opinion that it will not. I not in this connection that it has already been held in this Court in the case of M'Mullan v. M'Phee, 1 under this self-same section 184, that a single act of purchase will not suffice to show that a man is carrying on the trade of a broker; and while I fully recognise the difference in phraseology in the description of the broker and the description of what I call for short 'the cab or taxi proprietor,' I am disposed to

1 (1882) 9 R. (J.) 36, 5 Coup. 1.

think that, in referring to a person who 'keeps, uses or lets for hire' a hackney carriage, the dominant conception in the mind of Parliament was the conception of a person who carries on in some reasonable sense the business of cab or taxi-cab proprietor. I do not think that the decision, which, agreeing with Lord Mackay, I suggest we should pronounce, will in any way impair the efficient control of street traffic in regard to hackney carriages in Glasgow or anywhere else, for if any scheme of evasion of the control were to be devised-such as was hinted at in the course of the argument in this case-it seems to me that such a scheme could be detected without any serious difficulty, and on suitable evidence would inevitably lead to a conviction.

Accordingly, the question of law in this case should, in my view, be answered in the negative.
The Court repelled the objection to jurisdiction.Counsel were thereafter heard on the merits.1 (1894) 21 R. (J.) 31, 1 Adam, 346.2 29 and 30 Vict. cap. cclxxiii.3 1943 J. C. 124.The Court answered the question of law in the negative and quashed the conviction.
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