019-NLR-NLR-V-05-ELLIS-v.-STEPHENS.pdf
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ELLIS v. STEPHENS.P.C., Colombo, 66,576.
Carrier's Ordinance No. 14 of 1865—" Coach “—Tram car—Permitting tramcar to he used for conveying passengers for hire without obtaining alicence—Liability of the Manager of the Company to be punished unders. 16 of the Carriers' Ordinance and s. 108 of the Penal Code.
The tram cars running on the streets. of Colombo are public convey-ances by land for the conveyance of passengers, and as such are“ coaches ” within the meaning of " The Carriers' Ordinance, 1865." .
The Manager of the Company which permitted such coaches to plyfor hire without obtaining a license is punishable under section 102 ofthe Penal Code for abetting the offence created by section 16 of theCarrier's Ordinance.
rpHE complaint in this prosecution was as follows: —
“1. The Colombo Electric Tramways and all the cars, machi-nery, and plant appertaining thereto are the property of the UnitedPlanters’ Company of Ceylon, Limited, being a Company incor-porated in England and having its registered office in England.
“ 2. The agents and attorneys in Ceylon of the said Companyare the firm of Boustead Brothers, which consists of two partners,viz., John Melvill Boustead and Edgar Money, neither of whom <■is now resident in this Island.
“ 3. The business of the said firm of Boustead Brothers assuch agents, including the entire control and management of thesaid‘tramways, is in the hands of the first defendant, who is thegeneral manager thereof employed and paid by the said firm ofBoustead Brothers.
" 4. On the 21st day of August, 1900, at Colombo, the said UnitedPlanters’ Company ofCeylon, Limited,diduseand sufferand
permit to be used a coach, to wit, the car No. 4 belonging to them,for the conveyance of passengers by land on hire, without obtain-ing a license for the same as required by the Ordinance No. 14 of1865, and thereby committeed an offence punishable under section16 of the said Ordinance.
"5.' The defendantabove-named, atthe timeand placelast-
mentioned, abetted the commission of the said offence, and therebycomjnitteed an offencepunishable underthesaidsection 16and
section 102 of the Ceylon Penal Code.
The Police Magistrate, after .hearing evidence, found asfollows: —
“It is proved thata tram car on21stAugust last carried
passengers for hire; it is also proved that it belonged to the United
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Planters’ Company, and that Boustead Brothers were their agents,and that accused was the manager of that firm. An objection israised that as power H requires two of the attorneys to act, theycannot be singly prosecuted. This I do not think will hold, aseach of them is criminally responsible for his own acts. Nor doI think that for the purposes of section 12 of Ordinance anyreference need be made to power H, it being sufficient thataccused is managing the affairs of the proprietor Company forall practical purposes.
“ On the question of whether a tram car is u coach the SupremeCourt has intimated (in the appeal taken in this case againsta former order made herein) that it is a coach, aud I am bound tofollow that ruling. ”
Accused appears to me to have abetted the offence committedby the Company of using the tram car for hire, by failing to makethe necessary declaration, and at the same time taking no stepto prevent the tram cars running until license had been obtained.
I convict accused of abetting on 21st August, 1900, the offencecommitted by the United Planters’ Company of Ceylon, Limited,of using, suffering, and permitting to be used a coach, to wit, atram car, for conveyance of passengers for hire, without obtaininga license as required by Ordinance No. 14 of 1805, and punishableunder section 102 of the Ceylon Penal Code and section 16 olOrdinance No. 14 of 1805. I fine accused five rupees.
The accused appealed.
Elliott, for appellant.—The Ordinance No. 14 of- 1865. uponwhich the conviction rests, does not apply, because there isanother Ordinance No. 5 of 1873 specially relating to tramways.In 1865 electric tramways were not heard of. A tram car is nota coach within the meaning of Ordinance No. 14 of 1865. The16th section, which provides for the punishment of offencescreated by the Ordinance, plainly limits the meaning of “ coach ”to vehicles drawn by animal power, and the 37th section expresslyexempts railways from the operation of the. Ordinance. A tramcar is one that runs on rails, and a tramway is a railway. Hencethe present case is not one which can be. disposed of under theOrdinance No. 14 of 1865. It is governed by the special Ordi-nance No. 5 of 1873, the 17th section of which refers to tramway" carnages ”, and the 7th section provides for the issue of licensesby the Municipal Council, but the Council has exempted theCompany from taking out its license. [Bonser, C.J.—By section-132 of the Ordinance No. 7 of 1887 the Council has no power toexempt any one from the incidence of taxation.] That point doesnot arise here. If the tram car is a coach ”, the Government
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Agent must issue a license. If a “ carriage ” under the 7th sectionof the Ordinance, No. 17 of 1873, the Municipal Council must issuea license. Such a dual control could not have been contemplatedby the legislature. The tram car is not a coach. It is a carriagerunning on rails, and railways do not come within the scope of the•Ordinance No. 14 of 1865, and the present prosecution is illegal.
Assuming that the Roman-Dutch Law is in force in the Kandyantramway appears in section 14 of Ordinance No. 5 of 1873, and isin accord with the English Law on the subject. If a road isowned by a private person or public company and carnages runon it over rails, it is a “ railway ”. If the road is a public highway{os in the present case), that part of it on which the rails arelaid is called a “ tramway. ” The Colombo Electric Tramwayis thus not a railway, and cannot escape the provision of theOrdinance No. 14 of 1865. The cars running on it are “ coachesThe Ordinance No. 5 of 1873 refers only to the constitution andregistration of Tramway Companies. Under section 7 of theOrdinance No. 17 of 1873 the Government Agent can revoke alicense, and under section 15 furious driving is punishable.
Cut. adv. vult.
28th March, 1901. Boxser,'C.J.—
.The object of this appeal is to obtain a decision of this Court, asto whether or not coaches which run on the tramway linesthrough the streets of this town of Colombo are coaches withinthe meaning of the Carriers’ Ordinance of 1865. The definitionclause gives an interpretation of the word coach, and says that“ it shall include all mail coaches or other public conveyancesby land for the conveyance of passengers or goods Now, it is. perfectly clear, and it cannot be disputed, that these coaches arepublic conveyances by land for the conveyance of passengers,and further that they come prima facie within the words of thedefinition; but it .was argued that although they come within thewords of the definition, yet by the necessity of the case they wereto be excluded, because, as I understand the argument, it was .argued that the Legislature had dealt with these vehicles underanother Ordinance—the Tramways Ordinance. The TramwaysOrdinance, it was argued, dealt with them in such a way as toShow that the Legislature did not regard them as coming underJhe Carriers’ Ordinance. I have carefully gone through theTramways Ordinance, and I can see nothing in that Ordinanceinconsistent with the provisions of Ordinance No. 14 of1865.
Then there was a further argument that section 87 expressly^xcluded the Carriers’ Ordinance from having any operation
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on these vehicles. That section provides " that nothing In 1901.
“ this Ordinance contained shall be held to apply to the convey- Monk 20
“ ance of goods or passengers by railway and it was contended '
that this tramway was a railway, and that therefore these coacheB Bonseb,C.Jwere within the exception. No doubt in a sense a tramway maybe described as a railway, because these vehicles run upon rails.
But in construing an Ordinance the first rule of construction is-that words are to be taken in their ordinary and popular meaning,,unless it is shown that they are used in some technical sense.
Now, I cannot conceive that any person speaking of these tram-ways, running through the streets of Colombo, would ever dreamof speaking of them as a railway; no one would do that. Everybodywould call them tramways.
The distinction between a railway and a tramway in popularmeaning is very clear. A tramway runs along the public thorough-fares, while a railway runs along private properties and on a bedof its own, which is not used by the general public. So that 1am of the opinion that the case does not come within section 37 ofthe Carriers’ Ordinance, and that therefore the appeal must bedismissed.
I do not think that there can be any practical hardship uponthe appellant such as was attempted to be made out on the part,of the appellants, for it seems to me the fact that the Government-Agent has to register these coaches and license them, does notinvest him with any authority over them, or enable him to imposeany conditions upon their users or owners. So soon as he. issatisfied that the. ownership is truly stated he is bound to issuehis license.
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