C. A. 1897 POWELL V. KEMPTON PARK RACECOURSE willing to bet." The appellant Shaw transacted the betting business so carried on at one frontage of this structure for Nicholl. Kelly C.B., Martin B., and Pigott B. held that what Shaw was doing was within the 3rd section of the Act, and quite rightly, for what he was doing was in truth and in fact carrying on the business of a betting house or office, if not in a COMPANY. betting house, office, or room, at any rate in a place akin or A. L. Smith L.J. equivalent thereto, and using it as such, and he was therefore carrying on betting in a prohibited place. If Shaw had not been convicted because he was not in fact using a betting house or office, the Act would clearly have been evaded, for, as I have said, a man may well set up and use a betting house or office, or other place akin or equivalent thereto, upon a racecourse, and carry on the business of a betting-house thereat. The next case is that of Bows v. Fenwick. (1) This case went a step in advance of the last, but was really decided upon similar grounds. In this case a professional bookmaker, upon the Roodee at Chester, during the races stood upon a stool two feet six inches high, over which was a large umbrella, capable of covering several persons, upon which was painted "G. Bows, Victoria Club, Leeds," and which umbrella was fixed into the ground with a spike. There was also a card exhibited, "We pay all bets first past the post." The Court, which consisted of Lord Coleridge C.J., Brett J., and Denman J., held that this business, so carried on by the bookmaker, was within s. 3 of the Act of 1853, because the bookmaker was carrying on his business in a fixed and ascertained place. By Lord Coleridge C.J., the kind of gaming prohibited by the Act was the opening and keeping a place for the purpose of gaming or betting with persons resorting thereto. By Brett J., "it is necessary that it should be a fixed place, whether on a racecourse or elsewhere." By Denman J., the case was within the Act because "there was a piece of ground ascertained and appropriated by the appellant for carrying on his proceedings." The ratio decidendi of these learned judges appears to me to be that the evidence shewed that the appellant was carrying on his business of betting within a prohibited (1) L. R. 9 C. P. 339. C. A. 1897 POWELL v. KEMPTON RACECOURSE place, that is, a place akin or equivalent to a betting house or office, and this was the inference which they drew from the facts proved. I do not dissent from this inference, but I think that it is the limit to which the provisions of the Act can be extended. The last case is that of Gallaway v. Maries. (1) In COMPANY. this case the Court went further, and, with submission, I think A. L. Smith L.J. Went too far. In this case a bookmaker, together with a companion, carried on his business of betting at Four Oaks Park races within the inclosure, the companion standing upon a small wooden box unattached to the ground. The Court (Grove J. and Lopes J.) held this to be within s. 3 of the Act of 1853. Grove J. so held because the box defined a certain spot; and Lopes J., with much doubt, after pointing out that placing down a piece of matting and standing upon it would have been the same thing, but, thinking himself governed by Bows v. Fenwick (2), assented to upholding the conviction. I cannot think that the correct inference in this case was drawn, namely, that the appellant was keeping or using a place akin or equivalent to a betting house or office. But whatever may be said of these three cases, there is this undeniable fact apparent in each, that not one of the eight learned judges who respectively decided them (Kelly C.B., Martin B., Pigott B., Lord Coleridge C.J., Brett J., Denman J., Grove J., and Lopes J.) would have held the convicted bookmaker to have brought himself within the Act of 1853 had it not been for the special user he had made in the particular case of the desk, the stool and umbrella, and the box. It is immaterial whether the right inference was drawn or not from the proved facts of these cases; the point, and a most important point it is, is that not one of these learned judges would have held the point tenable that professional bookmakers by using an inclosure at a racemeeting, as they did in the present case, had brought themselves within the Act of 1853, and had it not been for the special user that had been made of the desk, the umbrella and stool, and the box in these cases, the convictions would obviously have been quashed. There is therefore a formidable consensus of judicial opinion to be set off against the opinion (1) 8 Q. B. D. 275. (2) L. R. 9 C. P. 339. C. A. 1897 POWELL v. KEMPTON PARK RACECOURSE COMPANY. of the five learned judges who decided in the present year the case of Hawke v. Dunn. (1) I do not propose to deal with the numerous cases which have arisen about the user of rooms at public-houses by betting men when carrying on their business of betting with persons resorting thereto, for the words "house" and "room" are specifically mentioned in the Act as two of the prohibited places, when used by a betting-man for the A. L. Smith L.J. carrying on the business of betting therein, and in my judgment these cases have no application to betting in an inclosure at a racecourse in the usual way as in the present case. There are however two cases (decided in 1874) to which I must refer. The first is Eastwood v. Miller. (2) In this case the occupier of inclosed grounds containing nearly four acres was charged that he did "unlawfully use a certain place, to wit, a field, for the purpose of betting on a certain pigeon-shooting match for money contrary to 16 & 17 Vict. c. 119, s. 3." It is true that professional bookmakers were present, but Lush J. apparently took the question to be whether the appellant "used or permitted the place to be used for the purpose of betting"; and Archibald J. said: "There are two questions, first, whether this is a place within the meaning of 16 & 17 Vict. c. 119, and, secondly, whether there is evidence that it was permitted to be used for the purpose of betting." I must point out that, if this was the question, there was no offence committed, for it cannot be contended that owning, occupying, keeping, or using a place for persons betting therein inter se is any offence within the Act. It is, too, remarkable that neither of the cases of Shaw v. Morley (3), in 1868, nor of Bows v. Fenwick (4), of May 4, 1874, were called to the attention of the Court. It may be that the latter case had not, upon June 3, 1874, when Eastwood v. Miller (2) was decided, been published in the Reports, and it should also be noticed that Eastwood v. Miller (2) was only argued on one side. If this decision decided that a professional bookmaker moving about a four-acre field, betting with persons desirous of betting with him, is using a place akin or equivalent to a betting house or (1) [1897] 1 Q. B. 579. (3) L. R. 3 Ex. 137. C. A. 1897 POWELL V. PARK RACECOURSE COMPANY. office, and as such is usually used, I respectfully say that in my judgment the decision is wrong. The other case is that of Haigh v. Sheffield Town Council (1), in which the appellant was KEMPTON charged with keeping and wilfully permitting a cricket-ground of which he was the occupier to be used by certain persons for the purpose of betting with persons resorting thereto. Fifteen or A. L.. Smith L.J. twenty professional bookmakers stood on chairs and stools in different spots, betting with different persons, and had each a man behind him recording the bets. The magistrates convicted the appellant, and the Court of Queen's Bench (Blackburn, Mellor, and Lush JJ.) held they were right. If this conviction had been supported upon the inference drawn in Bows v. Fenwick (2) I should have had nothing to say to it, but it does not appear to have been so. Blackburn J. said (3): "By s. 3 it is made an offence in the owner or occupier to permit the place to be kept or used for the purpose of betting. It must be taken on the statement of the case that the appellant was well aware of what was going on," and that" the magistrate was therefore right in saying the appellant did permit the place to be used for betting." To use or permit a place to be used for the purpose of betting, as before pointed out, is no offence at all; but to use or to permit a betting house, office, room, or other place akin or equivalent thereto to be used for the purpose of carrying on the business of a betting house or office, is the offence created by the Act, and what is rendered illegal. If this case decides that professional bookmakers moving about a field, betting with those of the public who are willing to bet with them, are carrying on the business of a betting-house in a place akin or equivalent to a betting house or office, I do not agree with it, and I think, if this be so, that this decision as well as Eastwood v. Miller (4) is wrong. Lord Coleridge and I in the case of Snow v. Hill (5) held that the appellant, who was charged that," being a person using a certain place" (to wit, a reserved portion of a field), he "unlawfully did use the said place for the purpose of betting with persons resorting thereto," (1) L. R. 10 Q. B. 102. (3) L. R. 10 Q. B. at pp. 105, 107. (4) L. R. 9 Q. B. 440. (5) 14 Q. B. D. 588. C. A. 1897 POWELL V. KEMPTON PARK RACECOURSE COMPANY. was not within the Act of 1853, because he exercised his business of bookmaker upon no ascertained piece of ground, in other words, upon no premises akin or equivalent to a betting house or office as in Shaw v. Morley (1), Bows v. Fenwick (2), and as had been held in Gallaway v. Maries (3), and we followed the more recent cases in preference to Eastwood v. Miller (4) and Haigh v. Sheffield Town Council (5), decided in A. L. Smith L.J. 1874. It is a mistake to say, as Hawkins J. said in Reg. v. Preedy (6), and again in Hawke v. Dunn (7), that we decided Snow v. Hill (8) upon the ground that there was no evidence that the bookmaker was carrying on the business of a bookmaker, but was only carrying on betting as one of the public. The view taken by Lindley L.J. of Snow v. Hill (8) in Liddell v. Lofthouse (9) is correct, and I also entirely agree in his judgment therein, when he drew the inference and held that the hoarding in that case was "a place" within the meaning of the Act. What Lindley L.J. said of the case of Doggett v. Catterns (10) I also agree with, and have nothing to add thereto. For the reasons above, I am of opinion that to use an inclosure at a race-meeting as it was used in the present case in common with the rest of the public is not the user of a place akin or equivalent to a betting-house, or betting-office, which is what is prohibited by the Act. In my judgment the case of Hawke v. Dunn (7) was not correctly decided, and the Court was not justified in extending the meaning of the Act as it has done, which it did by in reality striking out the dominant words "house," "office," "room," and relying upon the words "other place," as if they were the dominant words of the section. If this construction of the Act be correct, the dominant words of the Act are mere surplusage, which is a construction I cannot adopt, and in my judgment this appeal must be allowed. (1) L. R. 3 Ex. 137. (3) 8 Q. B. D. 275. (4) L. R. 9 Q. B. 440. (7) [1897] 1 Q. B. 579. (8) 14 Q. B. D. 588. (10) 17 C. B. (N.S.) 669; 19 C. B. (N.S.) 765. |