Kilopylae
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So, in Huffam v. The North Staffordshire Railway Company (1894.2 Q.B., 821), the railway by-law that established a strict liability offence of travelling without a ticket was found to be "bad". Quoting from a legal journal, "the passenger was found using the return half of a ticket after the date on which it ceased to be available, and was convicted by the magistrates under a by-law which subjected to a penalty any passenger using or attempting to use a ticket on any day for which such ticket is not available. It was expressly found that he was innocent of any attempt to defraud or anything in the nature of dishonesty. The Divisional Court held that the by-law was bad, as it purported to impose a penalty on persons travelling without any intent to avoid payment of their fare."
In Gentel v. Rapps (1902, 1 K.B., 160), a case about the by-laws of a Bristol tram company, Channell J. laid out the general principle of the law as: "A by-law is not repugnant to the general law merely because it creates a new offence, and says that something shall be unlawful which the law does not say is unlawful. It is repugnant if it makes unlawful that which the general law says is lawful. It is repugnant if it expressly or by necessary implication professes to alter the general law of the land. I say 'by necessary implication' because I have in mind the cases with respect to by-laws prohibiting persons from travelling on railways without a ticket. In those cases by-laws which impose the same penalty as the general law without making a fraudulent intention part of the description of the offence have been held to be bad, because the statute creating the offence says that there must be a fraudulent intention on the part of the person charged with travelling without a ticket, and the by-law therefore by implication alters the general law. Again, a by-law is repugnant if it adds something inconsistent with the provisions of a statute creating the same offence; but if it adds something not inconsistent, that is not sufficient to make the by-law bad as repugnant."
A similar principle came up in London Passenger Transport Board v. Sumner (1935, W.N., 196), where the by-law said "Each passenger shall, immediately upon demand or in case no demand shall have been made, before leaving the carriage, pay to the conductor the fare legally demandable for his journey and accept a ticket therefor". I'll quote a legal journal: "Lord Hewart C., Humphreys and Singleton 11. held that the magistrate had rightly decided that, the by-law was ultra vires, as being both repugnant to the law and unreasonable. The offence created by section 51 of the Tramways Act, 1870, consists in knowingly and wilfully proceeding beyond the distance paid for; and inasmuch as the by-law purported to make it an offence to do so inadvertently, it was bad."
I was wondering how this is reconciled with the strict liability offence created by byelaw 18 of the modern Railway Byelaws, which would seem to me to be almost precisely what is described by Channell where he says "in those cases by-laws which impose the same penalty as the general law without making a fraudulent intention part of the description of the offence have been held to be bad, because the statute creating the offence says that there must be a fraudulent intention on the part of the person charged with travelling without a ticket".
I imagine that if the Railway Byelaws were actually "bad by-laws", at least someone would have worked this out and tried it on to get off a fare evasion charge. As I know there are some experts in the field here, I was wondering if anyone might be able to illuminate me on how they are reconciled with the principle at work in these cases.
In Gentel v. Rapps (1902, 1 K.B., 160), a case about the by-laws of a Bristol tram company, Channell J. laid out the general principle of the law as: "A by-law is not repugnant to the general law merely because it creates a new offence, and says that something shall be unlawful which the law does not say is unlawful. It is repugnant if it makes unlawful that which the general law says is lawful. It is repugnant if it expressly or by necessary implication professes to alter the general law of the land. I say 'by necessary implication' because I have in mind the cases with respect to by-laws prohibiting persons from travelling on railways without a ticket. In those cases by-laws which impose the same penalty as the general law without making a fraudulent intention part of the description of the offence have been held to be bad, because the statute creating the offence says that there must be a fraudulent intention on the part of the person charged with travelling without a ticket, and the by-law therefore by implication alters the general law. Again, a by-law is repugnant if it adds something inconsistent with the provisions of a statute creating the same offence; but if it adds something not inconsistent, that is not sufficient to make the by-law bad as repugnant."
A similar principle came up in London Passenger Transport Board v. Sumner (1935, W.N., 196), where the by-law said "Each passenger shall, immediately upon demand or in case no demand shall have been made, before leaving the carriage, pay to the conductor the fare legally demandable for his journey and accept a ticket therefor". I'll quote a legal journal: "Lord Hewart C., Humphreys and Singleton 11. held that the magistrate had rightly decided that, the by-law was ultra vires, as being both repugnant to the law and unreasonable. The offence created by section 51 of the Tramways Act, 1870, consists in knowingly and wilfully proceeding beyond the distance paid for; and inasmuch as the by-law purported to make it an offence to do so inadvertently, it was bad."
I was wondering how this is reconciled with the strict liability offence created by byelaw 18 of the modern Railway Byelaws, which would seem to me to be almost precisely what is described by Channell where he says "in those cases by-laws which impose the same penalty as the general law without making a fraudulent intention part of the description of the offence have been held to be bad, because the statute creating the offence says that there must be a fraudulent intention on the part of the person charged with travelling without a ticket".
I imagine that if the Railway Byelaws were actually "bad by-laws", at least someone would have worked this out and tried it on to get off a fare evasion charge. As I know there are some experts in the field here, I was wondering if anyone might be able to illuminate me on how they are reconciled with the principle at work in these cases.
