017-NLR-NLR-V-11-KASUPATHY-et-al.-v.-KANDIAH-et-al.pdf
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1908.
February 25.
Ordinance No. 3 of 1896, ss. 9, 20, and 22; Ordinance No. 21 of 1905,s. 2—Conveyingpassengers acrossferry—“ Ferry ”—Boatsduly
licensed.
Wood Benton J.—“ Ferry ” is a franchise to carry personsover water between two termini; and it may be constituted overany description of water.
Wood Benton J.—The term “ Ferry ” in section 9 of Ordinance. No. 3 of 1896, includes the subject-matter—whatever it may be—in regard to which a right of ferry has been created.
A
PPEAL .from convictions under sections 20 and 22 of OrdinanceNo. 3 of 1896.
The facts sufficiently appear in the judgment.
Van Langenberg (with him H. A. Jayewardene), for the accused,appellants.
Sampayo, K. C. (with him Wadsworth), for the respondents.
Cur. adv. vult
Present: Mr. Justice Wood Benton.KASUPATHY et al. v. KANDIAH et al.P. C., Batticaloa, 25,843.
February 25, 1908. Wood Benton J.—
The appellants have been convicted under Ordinance No. 3 of1896, the first, of the offence of conveying, contrary to section 22,passengers for hire, not being a duly appointed toll-keeper, acrossa ferry on Batticaloa lake; the second and third, of the offence ofdemanding or taking in contravention of section 20 toll in respectof such illegal conveyance. On behalf of the respondent, Mr. deSampayo took the preliminary objection that no appeal lay asregards the. first .and second accused, inasmuch as each had been
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sentenced to a fine of Bs. 25 only; but Mr. Van Langenberg, although
he argued the case of the third accused only, who was fined Bs. 50,
invited me to give his other clients the benefit of the points that hemade in favour of the third accused if they proved successful. Ihave come, however, to the conclusion that the conviction is right.
Two contentions were pressed upon me in support of the appeal:
(i) that the Legislative Council had no power under section 9 ofOrdinance No. 3 of 1896 to establish a toll at the place in questionin f.bia case, inasmuch as that section did not extend to lakes, andthe respondent could not get the benefit of the inclusion of “ lakes ”in the definition of “ rivers,” which is added to section 9 of Ordi-nance No. 3 of 1896 by section 2 of the amending Ordinance of1905 (No. 21 of 1905); (ii) that, as the evidence showed that thethird accused did not personally “ demand or take ” the prohibitedtoll, he could not be convicted under section 20 of' Ordinance No. 3of 1896.
I think that the term “ ferry ” in section 9 of Ordinance No. 3of 1896 clearly justifies the establishment of the toll in question.
The strict legal meaning of ‘‘ ferry ” is a franchise to carry personsover water between two termini (see Cowes Urban District Councilv. Southampton, £c., R. M. S. Packet Go.1). It may be consti-tuted over any description of water; and, in my opinion, the term“ ferry ” as used in section 9 of Ordinance No. 3 of 1896 includesthe subject-matter—whatever it may be—in regard to which aright of ferry has been created.
I do not propose to decide the question whether section 20of Ordinance No. 3 of 1896 applies only to cases in which a personcharged under that section has demanded or taken toll in person(iof. Bell v. Senanayaka *), for the evidence in the present caseshows that the third accused abetted a personal demand or takingof toll by the second accused, and that is quite sufficient to supportthe conviction (c/. Cadiravelu v. Suppaiya 3).
Mr. Van Langenberg, in the argument before me, scarcely touchedon the point, taken in the Court below, that the fact—if it be a fact—that the third accused’s boats are duly licensed for the conveyanceof passengers would entitle him to employ them in contraventionof sections 20 and 22 of Ordinance No. 3 of 1896. I entirely agreewith the learned Police Magistrate that this contention is unsound.
If any authority is needed on the question, it will be found in thecases cited in the Encyclopedia of the Laws of England, 2nd edition,tit. “ Ferry."
I affirm the convictions and sentences.
Appeal dismissed.
1 (1905) 2 K. B. 287.* (1904) 7 n.L.R. 126.
* 8 (1904) N. L. B. 75.