United Kingdom House of Lords Decisions

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Cite as: [1907] UKHL 366, 44 ScotLR 366

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SCOTTISH_SLR_House_of_Lords

Page: 366↓

House of Lords.

Monday, March 11. 1907.

(Before the Lord Chancellor ( Loreburn), Lord Ashbourne, Lord Macnaghten, Lord James of Hereford, Lord Robertson, Lord Atkinson, and Lord Collins.)

44 SLR 366

Da Prato and Others

v.

Partick Magistrates.

( Ante February 27, 1906, 43 S.L.R. 406, and 8 F. 564.)

Subject_Police — Burgh — Bye-Law — Ultra Vires — Power to Regulate Hours of Opening and Closing Shops — Ice-Cream, and Aerated Water Shops — Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), secs. 316, 317, 318—Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), sec. 82.
Facts:

Where magistrates of a burgh were by statute authorised to make bye-laws in regard to the opening and closing of a certain class of shop, to wit, ice-cream and aerated water shops, “the hours for business not being more restricted than fifteen hours daily,” held that a duly confirmed bye-law whereby keeping open save between 7 a.m. and 10 p.m. was prohibited was not ultra vires or unreasonable, and that an action brought to reduce the bye-law on averments to the effect that little or no business being in practice possible in such shops before 9 a.m., by fixing the opening hour at 7 a.m. fifteen hours “for business” were not given, was irrelevant.

Headnote:

The case is reported ante ut supra.

Da Prato and others, the pursuers and reclaimers, appealed to the House of Lords.

At the conclusion of the argument for the appellants, the respondents not being called upon:—

Judgment:

Lord Chancellor—In this case an Act of Parliament was passed which authorised town councils in Scotland “to make bye-laws in regard to the hours of opening and closing of premises registered under the section” of the Act, “the hours for business not being more restricted than 15 hours daily.” Pursuant to that power the authorities of the Burgh of Partick made a bye-law by which they prescribed that no person so registered in regard to such premises should keep open except during the hours between 7 o'clock in the morning and 10 o'clock at night on any day.

Now it is said first that this was ultra vires. For my part I think that this was the very thing which was intended to be within the powers bestowed upon the town council.

It is next said that it is unreasonable. All I can say is, here is a specific discretion with regard to a matter of power conferred upon this authority named in the section, and when they have exercised their discretion in good faith in regard to it it seems to me that the Court has no power to interfere.

I agree with the opinion of the Lord Justice-Clerk which has been read to us. For these reasons, in my opinion this appeal ought to be dismissed, with costs.

Lord Ashbourne — I entirely concur with the opinion which has been expressed by my noble and learned friend the Lord Chancellor.

The Legislature distinctly and deliberately intended to give some increased power, and to give the increased power in regard to the selection of the period and the hours during which certain houses might be open. They did that. Of course they might have acted in such a way as to expose themselves to the charge of acting ultra vires and unreasonably, and it might be competent for that to be inquired into if they did so, but I am not satisfied that any case has been at all substantiated to that effect in the least, and I am of opinion that it must be assumed, on the judgments and on the facts, that they were proceeding within the discretion which has been deliberately

Page: 367↓

conferred on them. I see no reason at all to question the soundness of the conclusion arrived at by the Courts in Scotland.

Lord Macnaghten—I am of the same opinion.

Lord James of Hereford—I only wish to add one word to what has been said by my noble and learned friends. In concurring in this judgment I think there are some expressions used by the Lord Ordinary to which assent ought probably not to be given in the exact terms used in his judgment. He seems really to shut out the power of review to an extent which I think would be dangerous if it were accepted. There is a power of review in one sense, I will not say of the exercise of their discretion, but where, as Lord Stormonth Darling says, it is clear the bye-law does exceed the powers given, then of course such power to review does exist. For instance, in the case referred to by the learned counsel which Lord Coleridge decided— Heap v. The Rural Sanitary Authority of the Burnley Union, 12 Q.B.D. 617—where a bye-law laid it down that no pig should be kept within fifty feet of a dwelling-house, of course that would prevent any cottager practically from keeping pigs at all, and there the power of review was exercised and the bye-law was set aside. In the same way here, I think we should be careful to say that we do not shut out the power of review where the power of review had been and ought to be properly exercised. That being so, I assent to the judgment as delivered by Lord Stormonth Darling in the terms in which he has given it.

Lord Robertson—Questions of this kind have frequently arisen in the Scotch Courts, and the principles upon which they proceed are identical with those upon which the Courts in this part of the country have proceeded. They are perfectly well ascertained, and I do not think they require declaration.

The question in the present case seems to me not to admit of argument, and I am bound to say after the long speech we have heard from the learned counsel I do not think it has been argued in any proper sense of the term.

Lord Atkinson—I concur. I think it is perfectly clear upon the construction of the sections and the bye-law that the bye-law is not ultra vires, and I see nothing to show that it is unreasonable.

Lord Collins—I concur.

Appeal dismissed with costs.

Counsel:

Counsel for the Pursuers, Reclaimers and Appellants — Crabb Watt, K.C.— T. B. Morrison, K.C. Agents — Borland, King, Shaw, & Company, Writers, Glasgow—Dove, Lockhart, & Smart, S.S.C., Edinburgh— Balfour, Allan, & North, London.

Counsel for the Defenders and Respondents—The Lord Advocate (Shaw, K.C.)— Talbot, K.C. Agents— Donaldson & Alexander, Writers, Glasgow—Simpson & Marwick, W.S., Edinburgh—Grahams, Currey, & Spens, Westminster.
1907