138-NLR-NLR-V-17-MENON-v.-PERERA.pdf
( 440 )
1914.
Present : Lascelles C.J. and Ennis J.
MENON v. PEBEBA.
506—M. C. Colombo, 5,874.
Motor Cor Ordinance, 1907—Rule 48—Soundinghorn—Unnecessary
annoyance—Interpretation -of statute.
Bole 49 of the rules of February 11, 1909, made under the MotorOar Ordinance, 1907, is as follows;—"He (driver) shall, whenevernecessary, by sounding a bell or other instrument give audible andsufficient warning of the approach or position of the motor car,care being taken that snch bell or other instrument is not used soas to cause unnecessary annoyance or alarm to persons and animalson the road.”
Held, that the latter portion of the rule (care being taken, &c.)should be construed as a rule the breach of which is punishable.
T
v HIS case was reserved for argument before two Judges byEnnis J. The facts are set out in the judgment.
J. 8. Jayewardene, for accused, appellant.—Buie 43 makes theomission to sound the horn whenever necessary an offence. Thesounding of the horn is not made punishable. The latter portionof the rule beginning with the words care being taken*' is onlydirectory. The unnecessary blowing of a horn is not an offence.The intention of the law is to get the driver to sound the horn andnothing more.
The evidence in this case shows that annoyance was causedto only one person. The words of the rule are “ unnecessaryannoyance to persons.” In any event, to justify a conviction, thereshould have been evidence that more than one person was annoyedby the sounding of the horn.
Anton Bertram, K.C., A.-G. (with him Makadeva, Acting C.C.),for respondent.:—Buie 43 contains a caution or admonition whichthe driver is bound to comply. Buie 38 enacts that every drivershall comply with the rules thereafter set forth. Buie 43 is one ofthe rules referred to in rule 38.
There is no difference between "care being taken ” and “ careshall be taken. ” Although the rule is not happily expressed, themeaning is clear when the rule is read along with the other rules—see rule 48.
[Ennis J.—The rule does not provide for a case like the present,where the horn was sounded unnecessarily. The rule only says that
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whenever it is necessary to sound the horn, as when overtaking aperson, the horn should be sounded, care being taken not to causeunnecessary alarm, &c. ”]
There was practically one continuous blowing of the horn. Thepresent case therefore comes within the rule.
Cur. aiv. vult.
June 29, 1914. Ennis J.—
This is an appeal from a conviction and sentence for an allegedbreach of rule 45 of the rules of February 11, 1909, made under theMotor Car Ordinance, 1908.
Buie 38 provides that every person driving a motor oar on anypublic thoroughfare, street, or road shall comply with the rulesthereafter set forth.
Buie 43 runs: “He shall, whenever necessary, by sounding abell or other instrument, give audible and sufficient warning of theapproach or position of the motor car, care being taken that suchbell or other instrument is not used so as to cause unnecessaryannoyance or alarm to persons and animals on the road.”
The facts are that accused passed the complainant on theColpetty road about 10 o’clock one Sunday morning. He blew ahorn, a shrill whistle, and continued to blow i.t for several secondsat a time, with short intervals, until the car was out of sight. The' complainant was annoyed by the unnecessary blowing of thehorn. The learned Magistrate held that the horn was being blownunnecessarily, and said, “ It is clearly a breach of the by-laws if thehorn is kept sounding continuously, instead of being sounded onlywhen used to wam people in the way or turning corners. ’’
It was urged on appeal that the unnecessary blowing of the hornwas no offence under the section. As this involved a difficultquestion of law, I referred the case for hearing before two Judges.
It will be observed that rule 43 makes the sounding of a bell orother instrument imperative when necessary to give audible andsufficient warning of the position of the motor car. It contains noexpress prohibition on the sounding of a bell or the like when thereis no necessity to give warning of the position of the car, and thecare enjoined by the concluding words of the rule, on the face ofthem, appears to refer only to the causing of unnecessary annoyancewhen the horn must be used to give warning.
Two questions arise : first, whether the concluding words can beextented to include the causing of annoyance to the public whenit is no.t necessary to give warning of the position of the car; andsecond, whether the concluding words can be construed as animperative prohibition on causing unnecessary annoyance to thepublic by the use of the horn, which would involve a penalty forbreach of the rule, or whether they are merely directory.
It is stated by Maxwell (On the Interpretation of Statutes, Itk ed.,p. 396), in the chapter on the construction of penal laws, that
1M4.
Menon r»Perera
( 442 )
1914.
Ennis J.
Merton v.Perera
44 the rule of strict construction requires that the language beso construed that no oases shall be held to fall within it which donot fall both within the reasonable meaning of its terms and withinthe spirit and scope of the enactment. Where an enactment mayentail penal consequences, no violence must be done to its language inorder to bring people within it, but rather care must be taken thatno one is brought within it who is not within its express language.To determine that a case is within the intention of a statute, itslanguage must authorize the Court to say so; but it is not admissibleto carry the principle that a case which is within the mischief of astatute is within its provisions, so far as to punish a crime notspecified in the statute, because it is of equal atrocity or of a kindredcharacter with those which are enumerated. If the Legislaturehas not used words sufficiently comprehensive to include within itsprohibition all the cases which fall within the mischief intended tobe prevented, it is not competent to a Court to extend them. ”
It would seem that the rule of construction is less strict where apecuniary penalty is imposed than in other cases (Maxwell 307), andthat it comes attended with qualifications and other rules no lessimportant. Among them is the rule that that sense of the words isto be adopted which best harmonizes with the context and promotesin the fullest manner the policy and object of the Legislature(Maxwell 412)*
It is necessary, therefore, to consider the construction of the ruleso as jto give effect to the intention of .the Legislature. Here again,I would quote the words of Maxwell (page 425): “ The tendencyof moderh decisions, upon the whole, is to narrow materially thedifference between what is called a strict1 and a beneficial construc-tion. All statutes are now construed with a more strict regard tothe language, and criminal statutes with a more rational regard tothe aim and intention of the Legislature than formerly. It isunquestionably right that the distinction should not be altogethererased from the judicial mind, for it is required by the spirit of ourfree institutions that the interpretation of all statutes should befavourable to personal liberty; and it is still preserved in a certainreluctance to supply the defects of language, or to eke out themeaning of an obscure passage by strained or doubtful inferences/’
Was it the intention of the rules to regulate the use of motor carsto prevent unnecessary annoyance from noise? Had rule 43 stoodalone it would not have been sufficient to infer such an intention.But I find another rule (48) providing that a driver shall stop hisengines for the prevention of noise when the car is stationary; soI think it can be said the intention was Jo provide against themaking of noise causing unnecessary annoyance. What was theparticular intention in the concluding words of rule 43, in which theimperative found in rule 48 is not used ? It is argued that the. rulewould not have been made, and a compliance have been required
( 443)
by rule 88, unless it was intended to provide a remedy for unnecessarynoise; while, on the other hand, it wbb urged that the first part ofthe rule clearly shows an intention only to protect persons andproperty from danger and damage. I do not know of, and havebeen unable to find, any other law in Ceylon under which theannoyance contemplated in rule 43 could be checked. Had therebeen such a law the presumption would have been against anyintention to provide an additional remedy, and the concludingwords of the rule could properly have been construed as a caution,that the direction to sound a bell or other instrument contained inthe opening words of the rule could not be relied upon as a defenceto an action under such other law. In the absence of any such lawthe concluding words would be nugatory, unless the rule, read withthe rules 38 and 58, is construed as showing an intention to providea remedy for the nuisance contemplated. I therefore conclude,with some diffidence, that the care enjoined in rule 48 is not merelycautionary, and that a failure to observe the necessary care is punish-able as a breach of the rule. Having arrived at this conclusion asto the Legislative intent, the words should, I consider, as a pecuniarypenally only is imposed, be taken in the widest sense they arecapable of to effectuate the intention to suppress the mischief, andthat the concluding words of the rule must be taken as an imperativedirection to take care not to use the warning instrument at any timeso as to cause unnecessary annoyance or alarm to persons andanimals on the road.
As to the other point raised on the appeal, the number of witnesses■ sufficient to prove the offence will vary with the circumstances ofeach case, and in the present case I see no reason to interfere withthe finding, on the evidence of one witness only, that unnecessaryannoyance was caused.
I would dismiss the appeal.
Lascelles O.J.—
1 agree. The question is whether the latter portion of regulationNo. 43 is to be construed as a rule the breach of which is punishable,or whether, as the appellant contends, it merely amounts to anadmonition or direction.
Beading the regulation alone, the phraseology of this portion ofthe regulation gives some colour to the appellant’s contention. Butreading the regulations as a whole, I cannot doubt that it wasthe intention of the Governor in Council to prohibit the causingof unnecessary annoyance or alarm .by sounding bells or otherinstruments.
Regulation No. 48 is one of a group of regulations introduced byregulation No. 34, which requires drivers to comply with “ the ruleshereinafter set forth. ” Most of the following rules are imperative
1914.
EhjobJ.
Menon v.Perera
( 444 )
1914.
0J.
Menon v.Perm
inform, but the clause in question begins with the words carebeing taken that. ” In view of the clearly expressed intention tolay down a code of rules for the conduct of drivers, I am of opinionthat this clause, notwithstanding its grammatical form, must beconstrued as a rule not less imperative than the other rules withwhich it is associated. That it was intended to carry out the objectin view, namely, the prevention of unnecessary noise in the streetsby means of admonitions or exhortations, is a proposition whichI cannot accept'.
Appeal di$mi88ed.