Cooper v Hawkins
| Jurisdiction | England & Wales |
| Date | 1904 |
| Year | 1904 |
| Court | Divisional Court |
Highways - Locomotives - Crown Prerogative - Exemption - Locomotive driven on Service of Crown -
By the Locomotives Act, 1865, power is given to local authorities to make regulations as to the speed (not in any case to exceed two miles an hour) at which locomotives may pass through the place subject to their jurisdiction; and by s. 4 it is provided that, subject to those regulations, it shall not be lawful to drive any such locomotive along any turnpike road or public highway at a greater speed than four miles an hour, or through any city, town, or village at a greater speed than two miles an hour:—
Held, that, in the absence of any express mention of the Crown in the Act, the section did not apply to a locomotive owned by the Crown and driven by a servant of the Crown on Crown service.
The appellant appeared before the justices on March 12, 1903, on an information laid by the respondent charging that he on February 26, 1903, at Aldershot, did unlawfully drive a certain locomotive propelled by steam along a certain public highway there situated at a greater speed than two miles an hour, to wit, at a speed of above three miles an hour, contrary to s. 4 of the Locomotives Act, 1865.
The following facts were proved or admitted:—
The appellant was a civilian, and had for six and a half years then last past been and then was employed and paid by His Majesty's Principal Secretary of State for the War Department on behalf of His Majesty as leading engine-driver.
The respondent was a superintendent of police in the Hants constabulary stationed at Aldershot.
On February 26, 1903, at about 5.30 P.M., the appellant was driving a locomotive with one truck attached along Wellington Avenue in the town of Aldershot at a speed of over three miles an hour.
The locomotive was the property of His Majesty, and the appellant was driving the locomotive in the course of his duty as such servant as aforesaid, and in accordance with the instructions of his superior officer, the coal in the truck being required for use that night in the balloon factory.
It was contended on behalf of the appellant that s. 4 of the Locomotives Act, 1865, did not apply to the appellant as being a servant of His Majesty, or to the locomotive as being the property of His Majesty and being driven in manner aforesaid in the service of His Majesty.
The justices were of opinion that the section applied to the appellant and to the locomotive, and convicted the appellant, but stated this case for the opinion of the Court.F2
The Solicitor-General (Sir E. Carson) (H. Sutton with him), for the appellant. The statute does not bind the Crown unless it expressly or by direct implication purports to do so. The statute gives local authorities power to make by-laws, and it would be unreasonable to subject the Crown to them. In Willion v. BerkleyF3 it is laid down that it is usual for the Legislature in Acts of Restraint which they intend to bind the King to name him expressly, and if he is not expressly named it has always been taken heretofore that the Legislature intended only to bind the subjects, and to make the Act extend to them and not to the King, for he is favoured in all expositions of Acts. In this statute there is nothing which either expressly or impliedly binds the Crown, and there is no case here either of a public nuisance or of imperilling the safety of the public. The case is really governed by the decision of Day and Wills JJ. in 1887 in Gorton Local Board of Health v. Prison CommissionersF4, where the Court decided that the
C. A. Russell, K.C. (Ricketts with him), for the respondent. If an Act is made for the public good and for the prevention of injury to the public, the Crown is bound by it, although it may not be specially named: Com. Dig. tit. “Parliament,” H. (1.); Bac. Abr. tit. “Prerogative,” E. (5.). The particular regulation contained in this section is for the benefit of and tends to the safety of the public, and therefore it binds the King without special mention. The cases cited are entirely different in their circumstances to the present. [He referred to Reg. v. Justices of Kent.F8]
LORD ALVERSTONE C.J. Upon the general question of when statutes should or should not be held to bind the Crown, I cannot add anything to that which I said in the Hornsey CaseF9, which was a judgment which was concurred in by my brothers Darling and Channell, and in which I tried as far as I could to consider the authorities bearing upon the matter. I do not see any reason to express myself differently to the way in which I expressed myself in that judgment.
If it should be thought necessary to report this case, I think it is very important that the judgments of Day J. and my brother Wills in Gorton Local Board of Health v. Prison CommissionersF10 should be reported, because, if I may be allowed to say so, they are of very great value upon this question. They proceed upon rather different considerations from those which we had before us in the Hornsey CaseF9, and they are a very valuable contribution to the law on this matter, if it be not considered to be sufficiently plain. Therefore, upon the general question as to the statutes which do or do not bind the Crown, I do not wish to add anything. I do not overlook that to which I ventured to refer in the Hornsey CaseF9, that there may be general provisions of a public character which may bind the Crown; and the point of difficulty in this case is that s. 4 of this Act is a section which must be held to be enacted for the public safety, and, therefore, it is contended that the object of the Act being to protect the public, it ought to be held to bind the Crown. I cannot myself regard such a section as this as coming within that category; and, if I compare it with the provision which was the subject of consideration in the Gorton CaseF10, all I can say is, that this seems to be far less of that character than the one then under consideration. The section with which the Court had to deal in that case provided that the building should not be used unless properly inspected by a sanitary authority. To my mind it is quite obvious, when you are dealing with an Act which gives power to a local authority to make by-laws and regulations, and which limits the speed of these locomotives to two miles an hour, that there are many considerations which might make it a proper thing for such a regulation to be made under ordinary circumstances besides the paramount importance of public safety.
Speaking only for myself, I do not think that section, looking at its language and its objects, and at the power given the local authorities to vary it, can be said to be a general enactment of the character to which Mr. Russell has referred.
That being so, what are the facts in this particular case? The magistrates have found “The locomotive so driven by the appellant as aforesaid was the property of His Majesty, and the appellant was so driving the said locomotive in the course of his duty as such servant” — that was, as an authorized driver — “and in accordance with the instructions of his superior officer.”
Now I wish myself to emphasize the fact that no question of nuisance arises here. There...
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