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195
[1903
In the High Court of Justice.
King's Bench Division.
(Divisional Court.)
Royal Courts of Justice,
Wednesday, 5th February, 1904.
Before
The Lord Chief Justice of England,
Mr. Justice Wills and
Mr. Justice Kennedy.
STILES
versus
GALINSKI.
NOKES
versus
MAYOR, Etc., of ISLINGTON.
(Transcript of the shorthand notes of Messrs. Harry Counsel &• Co., The Gateway,
New Court, Carey Street, W.C.
The Lord Chief Justice: Nobody can have listened to this argument without being
struck with the extreme importance of the point that has been raised, and I am very glad
(although we have had two cases) that we have had the advantage of having it
thoroughly argued by two Counsel upon each side. In consequence of some observations
that have been made, holding, as I do hold, that the bye-laws in both of these cases
must be held to be unreasonable, I want expressly to point out that we are not interfering
with the discretion of the local authorities to the extent to which it has been suggested
by those who supported the bye-laws. In the first place, I recognise that on
practical questions, where a power is given to a public authority tc make bye-laws within
the ambitus of the power that is given to them, as, for instance, in this case, for cleansing
and 'limewhiting at stated times the premises, that their discretion ought not to be lightly
interfered with, especially where bye-laws have been sanctioned by a public department
and particular duties and times and periods have been enforced. It is only where we
clearly see that some legal principle is interfered with that we ought to hold that byelaws
are unreasonable, and, therefore, I am not quite sure that we are all agreed as to
all the grounds upon which we think these bye-laws are unreasonable. I also agree, as
the Lord Chief Justice (Lord Russell) pointed out in Crews v. Johnson, that these bye-laws
are not to be set aside or upheld except upon very strong grounds; it is not to be assumed
against them that they would be construed unreasonably. On the other hand, of course, if,
as we pointed out in Nokes' case, they necessarily involved that which is unreasonable, it
is our duty to do so. There can be no difficulty in properly framing bye-laws which
really can get rid of all these objections which have been taken to-day, and I think, although
possibly it may be a difficult task to perform, the matter has not been quite sufficiently
considered by the framers. They may have followed, as was suggested by Mr.
Courthope-Munro, some model bye-laws, and those bye-laws may not sufficiently have
considered the points which have been developed in this case, and the benefit of this kind
of argument is that it does point to objections that may be raised, and enables local
authorities to meet them in the future.