104MACDONELL C.J.—Vanderstraaten v. Narayanaswamy.
To bring an act under the penal law, such act must be within thewords of the Ordinance and also within the spirit of that Ordinance(Maxwell on Interpretation of Statute 464, ch. 10.) This maxim should beapplied to this case.
The accused may have treated the mail bags as property of his masterwhich had been entrusted to him.
M.W. H. de Silva, Acting D.S-G. (with him Wendt, C.C.), for theCrown.—The law might contemplate other things besides loss of revenue,for instance, the safety of the public.
Section 30 says that no motor car should be used for any purpose otherthan that for which licence has been issued. If a person goes beyondpurpose of licence then he commits an offence. Personal luggage doesnot come into question in this case. This is a case of purely carryinggoods.
Chapter 86, page 17, of English Hackney Carriage Act provides that avehicle may carry a reasonable quantity of luggage. There is no suchprovision in our Ordinance. Counsel cited Pillai v. Moss *.
October 4, 1932. Macdonell C.J.—
This was a case referred by Akbar J. to a bench of two Judges.
Accused, the driver of a motor cab licensed to carry five passengersincluding the driver, carried in it on the day in question 7 mail bags,
5 empty mail bags and 1 letter box, and is said thereby to have committeda breach of section 31 in that he used the car in contravention of theconditions lawfully inserted in his licence. It was not denied that hehad carried’ the mail bags as stated in the charge. His licence was notproduced here or below but it seems to have been agreed that it wasidentical with that given as No. 15 in the Third Schedule of OrdinanceNo. 20 of 1927, which states that the licence is “ To carry ….passengers.” He was convicted, warned and discharged, being alsoconvicted on another charge not material to the present appeal.
It was argued for the appellant that as the carriage of goods by motorcab is not forbidden in a motor cab licence, the accused could not beconvicted.
In reply it was argued that sections 30 and 31 of Ordinance No. 20 of1927 make a comprehensive enactment. Section 30 (1) says “ No person…. shall use a motor car ” (this by definition includes motor
cab) “ for a purpose not authorized by the motor car licence in forcefor the use thereof ”, and section 31 says “ A motor car shall not be usedin contravention of any condition or other provision lawfully insertedin the motor car licence.” It is not contended that the condition in thelicence “ to carry …. passengers ” is one that cannot belawfully inserted in a motor cab licence; clearly it can. The combinedeffect of these sections seems to be this, that by section 31 it is an offenceto infringe any condition or provision inserted in the licence, and that bysection 30 it is an offence to use the motor car for some purpose that is notauthorized. If you use a car for something that is forbidden, that
> 31 N. L. R. 240.
MACDONELL C.J.—Vanderstraaten v. Narayanaswamy.
would be an offence against section 31; if you use it for something notexpressly permitted, that would be an offence also, but against section30 (1). The sections together say that a motor car may not be usedcontrary to what the licence provides, and likewise that it may not beused for something as to which the licence is silent. To do the formerwould be the infringement of a positive provision, to do the latter, ofa negative provision, but the effect of section 31 and 30 (1) is to makeeach an offence.
Now the condition contained in a motor cab licence is that it is to beused for carrying a certain number of passengers—for the carriage of“passengers” be it noted; then it can be argued that in carrying goodssuch as mail bags, this would be to contravene the condition of a licence,section 31, which makes mention only of passengers, and so to commit anoffence against section 31. Suppose it to be argued that the licencedoes not say that you may not carry goods, and that what is not expresslyprohibited must be supposed to be tacitly allowed, then section 30 hasto be considered*, which says that a person must not use a car for a purposenot authorized by his licence, and since confessedly carriage of goods isnot a thing authorized in a motor cab licence, then this section 30 cuts awaythe argument that what is not expressly prohibited is tacitly permitted,and establishes the proposition that, the carriage of goods in a motor cabnot being a purpose authorized by the licence, it is an offence to do so bythe force of this section 30; see Pillai v. Moss1 to a like effect.
If we examine the rest of the law, Ordinance No. 20 of 1927, we find thatit seems intended that a motor cab should carry passengers only. Itsdefinition in section 2 (1) is “ a hiring car having seating accommodationfor not more than 7 passengers”, and hiring car itself is defined in thesame section as “ a motor car used for the conveyance of passengers forfee or reward ”. We may also notice the form 11 in the Third Scheduleof this Ordinance. This is an application for “ motor car ” licence for“ motor cab ”, and in it the applicant asks for “ a motor car licence touse the said motor car as a motor cab to carry … . passengers
in addition to the driver ”. Below this form is given another form,namely, the report of the examiner on the motor cab in question. Inthat report he certifies that the motor car “ is fit to be licensed to carry. … passengers in additionto the driver,and to ply for hire as
a motor cab in ….” In this connectionit is important to con-
trast the form 12 in the same schedule which is that of application fora motor car licence for an omnibus. In this the applicant asks for alicence to use a motor car “ as an omnibus carrying …. passen-gersinaddition to the driver andconductor andgoods up to a weight of
. …”, and the report of theexaminer has-to certify to its fitness
for those purposes, that is to say, passengers and goods.
The English case cited to us—a brief report of which appeared in TheTimes Weekly Edition of April 28, 1932, and a fuller report in a dailyTimes of a just previous date—turns too much on the particular words ofthe English statute infringed to be very helpful. Besides, that statutedealt with a different matter, namely, the class in which the particularvehicle ought to be placed for revenue purposes.
i 31 N. L. R. 240.
The present appeal deals solely with a case of carrying goods in a motorcab; it does not affect the personal luggage of the passengers that themotor cab is licensed to carry. Mail bags are surely goods rather thanpersonal luggage. It would be a great inconvenience to persons usingmotor cabs if they could not take with them their personal luggage, butthe present case does not deal .with that question. If the meaning ofthe law is that a motor cab is not licensed when carrying a passenger tocarry his personal luggage also, and that to do so is an offence—as towhich I express no opinion—then it is for the legislature to apply suchremedy as may be necessary, and in the meantime for the police toexercise discretion as to what prosecutions they institute.
For the above reasons I think this appeal must be dismissed.
Garvin S.P.J.—I agree.
Appeal dismissed.