Ferguson v Macmillan
| Jurisdiction | Scotland |
| Judgment Date | 29 January 1954 |
| Date | 29 January 1954 |
| Docket Number | No. 9. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General, Lord Russell, Lord Sorn.
Statutory Offences—Road Traffic Acts—Road service licence—Use of vehicle without licence—"Express carriage"—Exception of vehicles "used on a special occasion for the conveyance of a private party"—Definition of excepted vehicles—"Shall be deemed"—Statute—Construction—Revenue—Road Traffic Act, 1930 (20 and 21 Geo. V, cap. 43), secs. 61 (1) and (2) and 72 (1) and (10)—Road Traffic Act, 1934 (24 and 25 Geo. V, cap. 50), sec. 25 (1).
The Road Traffic Act, 1930, by sec. 72 (1) and (10), makes it an offence to use a vehicle as an express carriage except under a road service licence. Sec. 61, which defines "express carriages," includes in subsec. (2) a proviso that the requirements relating to express carriages shall not apply to "a vehicle used on a special occasion for the conveyance of a private party." The Road Traffic Act, 1934, enacts, by sec. 25 (1), that, for the purposes of that proviso "a vehicle shall be deemed to be used on a special occasion for the conveyance of a private party where it is used on a journey in relation to which the following conditions are satisfied, and not otherwise (that is to say):—" and there follow seven conditions.
An omnibus proprietor was charged with contraventions of sec. 72 (1) and (10) of the 1930 Act, in connexion with the use of omnibuses for carrying supporters of an ice hockey team and of a football team to places where the teams were taking part in cup ties. The Sheriff-substitute held that the seven conditions of sec. 25 (1) of the 1934 Act were satisfied in each instance, but that nevertheless, in view of certain decisions prior to the passing of the 1934 Act, the vehicles had not been used for the conveyance of private parties on special occasions within the meaning of sec. 61 (2) of the 1930 Act; and he accordingly convicted the accused.
Held, on appeal, that the conditions contained in sec. 25 (1) of the 1934 Act were intended to be in substitution for, and not in addition to, the rules to be extracted from the earlier decisions on sec. 61 (2) of the 1930 Act, and that they alone were now the necessary and sufficient conditions for the purposes of the proviso; that accordingly, as the conditions of sec. 25 (1) of the 1934 Act were held to have been satisfied, the Sheriff-substitute was not entitled to convict; and the conviction quashed.
Victoria Motors (Scarborough), Limited v. WurzalELR,[1951] 2 K. B. 520, not followed.
Observations (per the Lord Justice-General) on the effect of the use of the word "deemed" in a statutory definition.
William Mailer Ferguson and others were charged in the Sheriff Court at Perth on a complaint at the instance of William Robert Duncan Macmillan, Procurator-fiscal, which set forth that "(1) you, the said William Mailer Ferguson, being a director in the company of Auchterarder Motors, Limited, … and as such being liable to be dealt with as representing said company, did by your said company … on 1st November 1952 use or cause or permit to be used a motor omnibus No. GTJ 947 as an express carriage on the road between Auchterarder, Dunning and Perth, all in the County or City of Perth, without having in force a road service licence granted by the Traffic Commissioners for the area; contrary to the Road Traffic Act, 1930, section 72 (1) and (10).1"
The complaint contained a second charge relating to similar contraventions of section 72 (1) and (10) on 22nd and 29th November 1952, and a third charge relating to a contravention on 20th December 1952.
On 28th July 1953 the Sheriff-substitute (Prain) convicted all the accused. At the request of Ferguson he stated a case for appeal to the High Court of Justiciary.
The facts stated in the case were to the effect that the journeys in question in the first two charges were for the purpose of conveying members of an ice hockey team's supporters' club to see cup tie matches played by their team, and the journey in question in the third charge was for the purpose of conveying the supporters of a football club for a similar reason. The vehicles used were motor omnibuses licenced as public service vehicles, and road service licences had not been issued in respect of the journeys in question.
The Sheriff-substitute stated the grounds for his decision in the following terms:—[After stating (1) that it was agreed that a road service licence was necessary for the journeys libelled unless at the respective times the vehicles were being used "on a special occasion for the conveyance of a private party" in accordance with the proviso to section 61 (2) of the Road Traffic Act, 1930, and section 25 (1) of the Road Traffic Act, 1934, and (2) that he held that all the conditions of the latter section had been complied with]—"(3) Having regard to the decision in the case ofVictoria Motors (Scarborough), Limited v. WurzalELR,[1951] 2 K. B. 520, I held that the ratio decidendi of cases decided before
the passing of the 1934 Act had not manifestly been superseded by section 25 (1) of the Road Traffic Act, 1934—Beith's Trustees v. BeithSC, 1950 S. C. 66."He further stated in regard to the first and second charges:—"(4) In view of the lack of restriction on membership of the … ice hockey supporters' club, I held that there was no delectus personarum in relation to a party of members of that club and that such a party was not a private party—Macmillan v. Western S. M. T. Co.SC, 1933 J. C. 51. (5) I held that the visits by the members of the club to the ice hockey matches described were not special occasions."
He further stated in regard to the third charge:—"(4) On the facts I considered that the use of the vehicle was open to members of the public and that it was not...
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