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no closed pipe at all, but an open trough which can be cleaned out every day
if you like, and to have no possibility of any foul connection between the open
trough and that basin, by simply having a short length of pipe open, but you
must use a closed pipe with the elaborate system suggested as the alternative.
" I repeat I express no opinion as to which is the best, I do not know, but all
I say is, that if the local authority desire to say our sanitary regulation shall
be such that there shall always be a pipe from each basin to a sewer trapped in
this way, they must say so. They are not entitled by describing how such a
pipe is to be constructed and trapped to read into that a prohibition, that nobody
shall do it in any other way.
" I am therefore clearly of opinion that the Magistrate came to a wrong
decision in this case, and that what was done here was not within the words of
this by-law, construing it in the most liberal way in order to carry out the
views of the Sanitary Authority."
Mr. Justice Wills.—" I am of the same opinion, and for the same reasons."
Mr. Justice Kennedy.—"I am of the same opinion, though I confess not
quite with the same confidence, and therefore I will just add that it seems to
me that the view which my Lord, and my brother Wills have adopted, and
have expressed is the right one here, because I do not think that while it is
necessary not to be hypercritical of language in matters that after all conducted
by Officials aud Public Bodies, who must bo presumed to be sensible and just
minded persons, on the other hand it is equally necessary to do justice to those
about them, and my objection to the decision of the Magistrate mainly is this,
that while I confess for myself I cannot regard as a matter of fair construction
and grammatical rendering, the construction that Mr. Avory put upon this as
altogether an impossible one. I think before persons are brought before
Magistrates for the breach of a by-law of this kind it ought to be made not
merely inferentially possible, but absolutely clear as a matter of ordinary construction
of language that they have done something which is forbidden.
Here the most Mr. Avory can put upon the construction of this by-law is
that it ought to be a matter of inference that the only connection from each
of these basins to a sewer should be a pipe, and not a pipe plus trough. I do
not think that you ought to convict a person on inference, and I do not think
that it is desirable to encourage such kind of legislation by by-law as will
make it even arguably possible that the thing which has been done is not the
thing which is forbidden in the by-law. I agree therefore entirely with the
Judgment which has been pronounced."
Mr. MacMorran.—" My Lord, the Appeal will be allowed with costs."
The Lord Chief Justice. —" Yes."
Mr. MacMorran.—" If your Lordship pleases."