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198
[1903
not in the first week of April, 1903, cause every part of the premises to be
cleaned, contrary to the by-laws," when they pleaded that the by-law was
unreasonable and ultra vires, and therefore invalid, having regard to the
number of registered houses in the borough, and in the adjoining boroughs,
in requiring them to be cleansed within so limited a time, as it was practically
impossible that all such houses could be cleansed in the space of one week.
Evidence was given for and against this contention by the Defendants
and the Borough Council, and in the end the Magistrate was of
opinion that although there might be some difficulty in complying with the
by-law, yet, as there was no impossibility in so doing, the by-law was not so
unreasonable as to be invalid; and fined the landlords ten shillings and two
guineas costs.
About the same time the Stepney Borough Council prosecuted a landlord
under their by-law relating to cleansing, which provides—" That the ' landlord
' shall in the first week of the month of April in every year, and at such
other times as the condition thereof may render it necessary, cause every part
of the premises to be cleansed. He shall at the same time, subject to the
proviso of the by-law, cause every area, the interior surface of every watercloset,
and the interior surface of every ceiling and wall of every room,
staircase, and passage in the house to be thoroughly limewashed. The above
(and other) by-laws apply equally whether the lodging-house is or is not
registered."
The magistrate was of opinion that so much of the first clause of the
by-law 14 as requires the annnal cleansing by the landlord, was invalid, on
the following grounds:—(a) Being ultra vires; (b) being repugnant to the
laws of England; (c) being repugnant to the provisions of the Public Health
(London) Act, 1891; (d) being unreasonable. He therefore dismissed the
summons. He considered (a) that Section 94 (d and e) did not empower the
Borough Council to cast an obligation upon a " landlord " which did not
already exist at Common Law, or by Statute, but merely entitled them to
regulate the duties of persons already responsible, by requiring, e.g., periodical
performances ; (b) that the by-law is repugnant to the laws of England because,
in the absence of express covenants, there is no obligation upon a reversioner
even to repair, much less to cleanse, any premises which have been let to a
tenant for any term, at any rate, unless the state of the premises, in consequence
of dirt or non-repair, is a nuisance of which he has notice, and it was
in his power to abate the nuisance by putting an end to the tenancy : none of
these conditions are appended to the by-law; (c) that under the Public Health