Q.B. Div.]

within the meaning of this Act, and dismiss the complaint if it is satisfied that such fireplace or furnace is constructed in such manner as to consume as far as practicable, having regard to the nature of the manufacture or trade, all smoke arising therefrom, and that such fireplace or furnace has been carefully attended to by the person having the charge thereof.

An information was laid against the proprietor of a brewery, for that black smoke was from time to time sent forth from the chimney of his brewery in such quantities as to be a nuisance, and he was convicted and fined thereon. Held, on case stated, that the proviso applied only to the first part of the sub-section, and not to the latter part making it an offence to send forth black smoke in such a quantity as to be a nuisance, and that the defendant was not entitled to call evidence as to the construction of the furnace. THIS was a case stated for the opinion of the court by the justices for the borough of Brighton, upon certain questions of law arising upon the hearing of an information preferred against the appellant, as proprietor of the Brighton Brewery, by the respondent, as chief sanitary inspector of the said borough, under the latter part of the 7th sub-section of the 91st section of the Public Health Act 1875 (38 & 39 Vict. c. 55), for that black smoke was from time to time sent forth from the chimney of the said brewery in such quantities as to be a nuisance, on the hearing of which the justices gave their decision against the appellant, and, subject to a case to be stated, convicted him of the offence charged, and imposed a fine in respect thereof.

The following were the material facts, as stated in the case, proved at the hearing :

That the appellant was the occupier of the premises known as the Brighton Brewery in Osborne-street, Hove.

That prior to the 30th Sept. 1884 black smoke was seen issuing from the chimney of the said brewery in such quantities as to be a nuisance, whereupon the said respondent, as such chief sanitary inspector as aforesaid, caused notice as required by the statute to be served on the appellant, requiring him to abate such nuisance.

That, notwithstanding such notice, on the 30th Sept. 1884 black smoke issued from the chimney of the said brewery at certain intervals during the day, and in such quantities as to be a

nuisance.

It was further proved that the said chimney belonged to the said brewery, and was not the chimney of a private dwelling-house.

It was contended by the appellant that he was protected by the 2nd proviso at the end of the 91st section of the Public Health Act 1875 (38 & 39 Vict. c. 55), and the appellant's stoker proved that in his opinion the appellant used the best coal for furnaces, but that when he made up the fire black smoke was necessarily sent forth for five or ten minutes.

Evidence was also tendered on behalf of the appellant to prove the construction of the furnace. The justices being of opinion that the 2nd proviso at the end of the 91st section of the Public Health Act 1875 applied only to the first nuisance defined by the 7th sub-section of the 91st section, while the summons before them was in respect of the nuisance defined by the second

[Q.B. DIV. paragraph of such section, refused to receive evidence as to the construction of the furnace, and gave their decision against the appellant.

The questions of law upon which the case was stated for the opinion of the court were therefore:

1. Whether the 2nd proviso at the end of the 91st section of the Public Health Act 1875 applied to the offence charged against the appellant?

2. Whether the justices should have received evidence to show the construction of the fireplace or furnace?

If the court should be of opinion that the construction placed by the justices on the 2nd proviso was correct, then the said order was to stand; but if the court should be of opinion otherwise, then it was desired that the case should be remitted to them to hear the appellant's witnesses.

The 91st section of the Public Health Act 1875 (36 & 39 Vict. c. 55) is, so far as material, as follows:

91. For the purposes of this Act

7. Any fireplace or furnace which does not as far as practicable consume the smoke arising from the combustible used therein, and which is used for working engines by steam, or in any mill, factory, dyehouse, brewery, bakehouse, or gaswork, or in any manufac turing or trade process whatsoever, and any chimney (not being the chimney of a private dwelling-house) sending forth black smoke in such quantity as to be a nuisance, shall be deemed nuisances liable to be dea't with summarily in manner provided by this Act. Provided

Secondly. That where a person is summoned before any court in respect of a nuisance arising from a fireplace or furnace which does not consume the smoke arising from the combustible used in such fireplace or furnace, the court shall hold that no nuisance is created within the meaning of this Act, and dismiss the complaint if it is satisfied that such fireplace or furnace is constructed in such manner as to consume as far as practicable, having regard to the nature of the manufacture or trade, all smoke arising therefrom, and that such fireplace or furnace has been carefully attended to by the person having the charge thereof.

Poland for the appellant. The second proviso at the end of the section applies to the whole of the 7th sub-section, and the justices ought to have heard the appellant's evidence as to the construction of the furnace, and, if satisfied therewith, to have dismissed the information. If the justices are right in the construction placed by them on the section, then any chimney of a manufactory sending forth black smoke comes within the section, and it is no defence that it is being used in carrying on a trade or manufacture. The anomaly would therefore arise that, if a furnace is constructed to consume as far as possible, having regard to the nature of the manufacture, the smoke arising therefrom, it may send forth any amount of sulphurous smoke, so long as it is not black, but however scientifically it is constructed it must not be allowed to send forth even the small quantity of the less injurious black smoke necessary to start the fires. [POLLOCK, B. — Are there not two things mentioned in the section: first, the sending forth of black smoke in such quantity as to be a nuisance; and secondly, the sending forth of any kind of smoke to a greater extent than necessary ?] The section was intended, while protecting the public on the one hand, to give manufacturers the amount of licence necessary to enable them to carry on their business, and it was not the intention of the Legislature, according to the proper construction of this proviso,

H. OF L.]

to make the sending forth of any kind of smoke an offence against the Act if the best precautions are taken in the construction and management of the furnace to prevent it from being a nuisance. [POLLOCK, B.-In that case, would not the paragraph dealing with the sending forth of black smoke be surplusage?] No. It would apply in cases other than those of trades or manufactures; e.g., greenhouses, stables, or bathhouses, where inferior fuel is frequently used.

Hollams, for the respondent, was not called

upon.

POLLOCK, B.-I am of opinion that this appeal must be dismissed. I entertain no doubt that the order of the justices is right, and ought to stand. By the 7th sub-section of the 91st section of the Public Health Act 1875 two distinct offences are, in my opinion, contemplated and legislated upon. I will deal with the last in order first, and I find that it is provided that any chimney (not being the chimney of a private dwelling-house) sending forth black smoke in such quantity as to be a nuisance is to be the subject of a penalty. That, to my mind, is a clear and distinct offence. Then the other offence is the having any fireplace or furnace which does not as far as practicable consume the smoke arising from the combustible used therein, and which is used for working engines by steam, or in any mill, factory, dyehouse, brewery, bakehouse, or gaswork, or in any manufacturing or trade process whatsoever. The smoke mentioned in this paragraph may be more or less injurious than the black smoke mentioned in the following paragraph, but however that may be, the Legislature provides with respect to it that it is to be reduced to a minimum. When the sub-section is once read in this manner it is clear that the second proviso at the end of the section refers to the first paragraph of the sub-section and not to the second. The appellant, therefore, cannot, I think, avail himself of this proviso to protect himself against the charge which is brought against him, and the justices were, in my opinion, quite right in refusing to receive evidence of the construction of the furnace.

DAY, J.-I also entertain no doubt in this case, and I think that the order of the justices must stand.

Solicitors for the appellant, Clarke and Calkin, for Clarke and Howlett, Brighton.

Solicitor for the respondent, Harwood, for Fitzhugh, Woolley, and Barnes, Brighton.

HOUSE OF LORDS.

Feb. 24 and 26, 1885. (Before the LORD CHANCELLOR (Selborne), Lords WATSON, BRAMWELL, and FITZGERALD.) SPACKMAN V. PLUMSTEAD BOARD OF WORKS. (a)

ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND.

Metropolis Management Amendment Act 1862 (25 & 26 Vict. c. 102), s. 75—" General line of buildings "—Effect of certificate of superintending architect.

On the hearing of a summons before a magistrate

(a) Reported by C. E. MALDEN, Esq., Barrister-at-Law.

[H. OF L.

under the Metropolis Management Amendment Act 1862, s. 75, for an offence alleged to have been committed by erecting a building, without the consent of the Metropolitan Board of Works, beyond the general line of buildings in the street, the certificate of the superintending architect of the board, fixing such general line of buildings, is conclusive, and the magistrate is not entitled to judge for himself whether such line is in fact the true one.

Judgment of the Court of Appeal affirmed.
Simpson v. Smith (L. Rep. 6 C. P. 87; 24 L. T.
Rep. N. S. 100) overruled.

THIS was an appeal from a judgment of the Court of Appeal (Bowen and Fry, L.JJ., Brett, M.R. dissenting), reported in 51 L. T. Rep. N. S. 757, and 13 Q. B. Div. 878) affirming a judgment of the Queen's Bench Division (Lord Coleridge, C.J., Stephen and Mathew, JJ.), reported in 50 L. T. Rep. N. S. 690, upon a case stated by a metropolitan police magistrate.

The facts, which are set out fully in the reports in the courts below, were, shortly, as follows:

66

:

Spackman was the owner of a house at Lee which stood back from the road, and he began to build, without the consent of the Metropolitan Board of Works, on the forecourt of the house, thus bringing it up to the road. The matter was brought before the superintending architect of the board, and he " decided," under sect. 75 of the Metropolis Management Amendment Act 1862 (25 & 26 Vict. c. 102), what was " the general line of buildings" at the place, and that the appellant's building came beyond it, and made a certificate accordingly. A summons was then taken out before a justice of the peace, as required by the section, alleging an offence on the part of Spackman, but the magistrate (Mr. Marsham), after hearing evidence and viewing the place. decided that the line certified by the architect was not the true line, and dismissed the

summons.

A case was stated for the opinion of the Queen's Bench Division, on the point as to whether the magistrate was bound by the architect's certificate as conclusive, and the court held that he ought to have convicted, and that decision was affirmed, as above-mentioned.

The section of the Act is set out in full in the

report in the court below.

A. Charles, Q.C., Channell, and McCall appeared for the appellant, and contended that the question turned entirely on the construction of sect. 75 of the Act 25 & 26 Vict. c. 102, which repealed sect. 143 of the Act of 1855 (18 & 19 Vict. c. 120). Under that section, which was intended to protect the builder's interest by requiring the certificate of the architect and the order of a magistrate before buildings could be demolished, proceedings were to be taken by the vestry; but by 45 Vict. c. 14, sect. 10, the power is extended to the board itself. There is nothing in the section to oblige the architect to go and see the place before giving his certificate, which, we contend, was only intended to guide the board as to whether they rities on the point are conflicting. In 1864 there should institute proceedings or not. The autho

was a decision of the Court of Common Pleas in favour of the appellant's contention (St. George's. Hanover-square, v. Sparrow, 16 C. B. N. S. 209; 10 L. T. Rep. N. S. 504); in 1867 the Court of

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Queen's Bench took the opposite view (Bowman v. St. Pancras, L. Rep. 2 Q. B. 528). In Wandsworth Board of Works v. Hall (L. Rep. 4 C. P. 85; 19 L. T. Rep. N. S. 641) it was not necessary to decide the point, but the dicta of the judges are in the appellant's favour; and in 1871 the Court of Common Pleas adhered to their former opinion in the case of Simpson v. Smith (L. Rep. 6 C. P. 87; 24 L. T. Rep. N. S. 100). See also Paddington v. Snow (45 L. T. Rep. N. S. 475). The contention on the other side is that the builder is absolutely bound, whatever the decision of the architect or the board may be, and that the certificate cannot be reconsidered, even if, as we say was the case here, the line was drawn upon imperfect data; but it cannot be supposed that the Legislature intended to give judicial functions in such a matter to a person who is, in fact, the servant of one of the parties to the litigation. The language of sect. 9 of the Act of 1882 (45 Vict. c. 14) shows that they intended to adopt the law as laid down in Simpson v. Smith (ubi sup.).

Willis, Q.C. and Lawson Walton (the SolicitorGeneral, Sir F. Herschell, Q.C., with them), for the respondents, argued that if the appellant's argument was correct, it led to the absurd result that, if the architect and the magistrate differed, the latter could only order the demolition of the building as far as the architect's line, which, in the case supposed, he would have decided was not the true line. The architect must decide after a public hearing of the parties, or his finding might be quashed:

Cooper v. Wandsworth Board of Works, 14 C. B. N. S. 180; 8 L. T. Rep. N. S. 278.

This provision secures uniformity and fairness for all parties, and the argument on the ground of hardship fails. The architect has only to determine a technical question of fact. They also referred to Tear v. Freebody (4 C. B. N. S. 228).

Charles, Q.C. was heard in reply.

At the conclusion of the arguments their Lordships gave judgment as follows:

:

The LORD CHANCELLOR (Selborne).-My Lords: Your Lordships have thought it desirable to hear this case through all the arguments, having regard to the state of authority upon the matter. Very eminent judges have differed in opinion upon this question. I do not count them upon one side or upon the other, because of the maxim Ponderantur et non numerantur. But it was thrown out in the course of the argument for the appellant that your Lordships ought to reverse the judgment of the Court of Appeal and of the Queen's Bench Division, merely because the state of the authorities was as the learned counsel for the appellant have represented. A more hopeless suggestion I never remember to have heard. The state of authority is this, that the Court of Common Pleas on more than one occasion expressed an opinion favourable to the view now submitted by the appellant, and adhered to that opinion though a contrary opinion was expressed unanimously by three judges in the Court of Queen's Bench. They adhered to that opinion not without the intimation of an opposite view by one of their most distinguished members. In that state of authority the matter came before the courts in this case, and there were two judgments, both in favour of the respondents, one of

[H. OF L. them the judgment of the Divisional Court, which was unanimous, and the other of them a judgment of two judges to one in the Court of Appeal. For the appellant, in that state of authority, to say that your Lordships have any other duty to perform than to decide as well as you can the question of law upon the merits, which really turns altogether upon the construction of the statute of 1862, is, as I said before, a very hopeless contention. I will now look, as I think your Lordships must, to the words of that statute, and see what, according to the ordinary principles of construction, is their reasonable and natural meaning. I will not, in the first instance, refer to the earlier Act of 1855, though when I come to consider some of the reasons which have been given on the appellant's part I may have occasion to do so. Clause 75 of the Act of 1862 may be divided into what I may call four parts. The first contains the words of prohibition, which constitute an offence; the second contains the words providing for a complaint founded on that offence, which is to be made to a justice of the peace; the third relates to the manner in which the justice of the peace is to proceed; and the fourth to the order which he is to make. Now, the words which constitute the offence are, as I conceive, those which begin thus: "That no building, structure, or erection shall, without the consent in writing of the Metropolitan Board of Works, be erected beyond the general line of buildings in any street, place, or row of houses in which the same is situate," and which end with the words," such general line of buildings to be decided by the superintending architect to the Metropolitan Board of Works for the time being." Those words which your Lordships have to construe enter into the constitution, I will not say of the offence, because the offence is, of course, the act done by the offender, but the constitution of the prohibition on which the offence is to be founded; and if the prohibited thing is done, the offence, primâ facie, is committed. The word " decided " has a very plain, intelligible, and natural meaning unless displaced. In the first place, it goes to the definition of the circumstances which are to exist before an offence can be committed; secondly, " decided " implies that there is matter which may admit of difference which may require determination. Primá facie, that would mean determination to bind those who are to be affected by it. And if the Legislature says that a certain authority is to decide, and makes no provision for a repetition of the inquiry into the same matter, or for a review of the decision by another tribunal, prima facieespecially when it goes, as here, to the constitution of the case provided for-that would be binding. What I have said upon that subject may, I think, be usefully illustrated by a class of cases different in this respect, that they depend upon contract and not upon statute, but which may very well be applied to illustrate the operation of such words in a statute, bearing in mind that a statute of this kind made in the public interest, and not without a fair and equitable view of the right of all parties, is something higher than contract, and, primâ facie, there is no reason whatever why we may not proceed upon and adopt the same principles which the law will apply to contracts. In Scott v. Avery (5 H. of L. C. 811) the question had to be considered upon the

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general rule of law that people could not by contract oust the jurisdiction of courts of justice, on which had been founded a series of decisions, independent, of course, of recent statutes, as to the extent to which the courts would or would not enforce agreements to refer questions capable of litigation in the courts to arbitration. The court had to determine whether that principle was applicable to a case in which it was part of the contract itself that the right of action, so to say, before it could arise was to be ascertained by the decision of arbitrators; that is to say, the right itself, the constitution of the right, was not to be perfect and absolute under the contract until arbitrators had decided something. The court held that that was perfectly good, and that, until in that case such a decision had been made, no right upon which an action could be founded arose. And Lord Campbell, in the course of his judg ment in this House, referred to a case specifically of a different kind, which, however, he thought to be identical in principle, namely, the case of Brown v. Overbury (11 Èx. 715), which "was an action on a horse race. The winner, who had contributed to the sweepstakes, said that his horse had won, and brought an action against the stakeholder to recover the stakes. But it was a condition of the race that if any dispute arose the stewards should decide. He first attempted to say that the stewards had decided; but it turned out that the stewards had not decided, for they differed in opinion. Then he attempted to show that his horse had won. But the judge held that he could not go into that; that even if the horse could clearly be shown to have won, the action had not accrued till the arbitrators, the stewards, had determined; and so the plaintiff was nonsuited. The case was brought before the Court of Exchequer, and the judges of that court unanimously concurred in the ruling of the judge at Nisi Prius." It seems to me that it is plainly to be inferred from the language of the statute that before the offence can be made the subject of any controversy, and in order to determine whether an offence has been committed or not, this material question, "What is the general line of buildings? decided by the superintending architect. There must be a general line of buildings, otherwise there can be no transgression of the prohibition against building at more than a certain distance from that line. As that general line of buildings may, under certain circumstances, admit of controversy, the Legislature thought it necessary to say how it should be settled and decided, and it accordingly has said so; and if there were no more than that, I should say that the general line of buildings mentioned in this section is, and is nothing else than, a general line decided in case of controversy or difference between the person who wants to build and the Metropolitan Board, by the architect of the Metropolitan Board. Then the section proceeds to enact that "in case any building, structure, or erection be erected, or be begun to be erected or raised without such consent, or contrary to the terms and conditions on which the same may have been granted, it shall be lawful for the vestry of the parish or the board of works for the district" (a later Act has added the Metropolitan Board), "to cause to be made complaint thereof before a justice of the peace." What is the subject of the

is to be

[H. OF L.

complaint? In the case in which the consent previously mentioned is necessary (for that, although not expressed with the fullness with which it might have been expressed, is unavoidably to be inferred from the words of reference) the complaint is made not as to there being or not being a certain line, but of building without the requisite consent. Of course, if no line of buildings has been laid down, the complaint will fail, because the words requiring consent cannot be applied to the case; but if the line has been laid down then with reference to that line a certain consent is necessary, and the whole complaint is of building without the requisite consent. Then the justice is to issue a summons requiring the party to appear and answer the complaint; and then "if at the time and place appointed in such summons the said complaint shall be proved to the satisfaction of the justice before whom the same shall be heard, he shall make an order." Now on those words and on those alone, "if the said complaint shall be proved to the satisfaction of the justice," the argument is founded that the justice is to consider for himself what line ought to be laid down as the general line of buildings in the place, street, or row, and if he does not agree with the line laid down by the architect he is to act upon his own view. The thing which he is to consider is that here has been a building without consent or in violation of the terms on which consent may have been given. No doubt, in order to make that out, a good many things must be proved before him; and one thing to be proved before him is, as Fry, L.J. points out, that the architect of the Metropolitan Board of Works has decided the general line of buildings. If that has not been done, no doubt the complaint will be dismissed, but if it has been done, then that part of the circumstances which under the prohibitory portion of the clause are necessary to make out the case of the complainant is proved, and there is not a single word to say that the justice is to go into the question. That being proved, and it being also proved that the prescribed distance from that line has been exceeded, and that there has been no consent, or that the terms of the consent have not been adhered to, it is not to be inferred that, everything which is necessary to show a prohibition of the act being proved, he is to go into something more for which no authority or jurisdiction is expressly given. But if it were necessary we have more, because the fourth part of the clause, which relates to the order to be made by the justice is this: Upon this proof he "shall make an order in writing on such owner or occupier, builder, or person directing the demolition of any such building or erection, or so much thereof as may be beyond the said general line so fixed as aforesaid." The only words which fix the line at all are those words "such general line of buildings to be decided by the superintending architect to the Metropolitan Board of Works for the time being." So that it is plain upon the face of it that the justice is to proceed on that line "so fixed as aforesaid," fixed by the architect; and, as I understand the reasoning of the learned judges who have taken the view that the magistrate may himself go into the question of what line ought to be fixed, it appears to me to result in something very strange, in what I may describe as the theory of two lines,