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Before examining these grounds of decision more closely it will be well to examine the scheme of
legislation on the subject and to endeavour to get a clear conception of its object. It is not necessary to
go further back than the Act of 1851. That Act, chapter 28, is called the Common Lodging Houses
Act 1851 but it gives no definition of what a common lodging-house is. Section 6 authorises the local
authority by notice to require a keeper of a common lodging-house to register such house and section 9
empowers such authority to make regulations respecting common lodging-houses and by section 10 the
same authority may impose penalties upon offenders against the regulations. Sections 11 12 and 13
contain provisions as to notice of infectious diseases for inspection at all times when required by any
officer of the local authority and as to the cleansing of such common lodging-houses and the drains &c.
thereof. Section 14 enacts the penalties for offences against the Act, The Act of 1853 chapter 41
makes further provision with respect to common lodging-houses. It is to be read with the Act of 1851.
Section 3 provides that no person shall keep a common lodging-house until the house has been inspected
and approved on behalf of the local authority and registered under the Act of 1851. By section 4 it is
provided that the local authority may refuse to register any person as keeper of a common lodging-house
who does not produce a certificate of character signed as there mentioned. There are other provisions
which it is not necessary to detail as to reports from the keepers where beggars and vagrants are
received as to powers to remove causes of complaint under the Nuisances Removal Act 1848 in relation
to such common lodging-houses and by the 11th section the provisions of the 14th section of the Act of
1851 as to penalties are made applicable to offences under the Act of 1853.
It appears therefore that the Acts of 1851 and 1853 are sanitary Acts. They deal with houses to
which the very poorest and most wretched class of the population resort and with conditions in which
numbers of that class herd together availing themselves of the sordid accommodation offered for which
a very low price is charged. In such persons uncleanliness to a large extent and unhcalthiness and even
nctual disease infectious or non-infectious will probably be found to exist. If therefore care is not taken
to insure cleanliness and other healthy conditions as to air supply water supply and so forth these
houses may become a source of danger not only to their inmates but to the general public. The legislation
therefore on this subject had for its object by inspection and control to secure for the poor in these
houses conditions safeguarding health and preventing the spread of disease which people better off are
supposed to be able to secure for themselves (see per Lindley J. in Langdon v. Broadbent Justice of the
the Peace January 1878 page 56). The statutes in question are therefore to be regarded simply
as measures of sanitary protection. Applying these considerations to the ground on which
the decision in Booth v. Ferrett was based, it seems impossible to admit the fact that the
house or building in question was carried on for charitable objects and not for gain would take it
out of the measure of sanitary protection if otherwise it would be within it. The question is not
with what object or with what motive the house is carried on hot whether the house is such or is
so carried on as a lodging-house as to be within the provisions of the Act as it is clearly within the
mischief aimed at by the Act. It is to be observed that the learned Judges in Booth v. Ferrett
differentiated the house in that case from a common lodging-house only on the two grounds which I
have mentioned. If large numbers of the most wretched class are sleeping in common rooms insanitary
conditions are in the absence of inspection supervision and control not unlikely to arise and it was the
object of the law to secure that inspection supervision and control. We fail to see the relevance in this
connection of the motive actuating the keeper of such a house whether it be philanthropic or mercenary.
Bat the second ground of the decision is that " The Harbour " is not within the statute on the ground
that a common lodging-house is open to all comers in this sense that the keeper of such a house cannot
refuse admission to any applicant. Is this so? To give to a common lodging-house this character is to
attach to its keeper obligations analogous to that of a carrier or a common innkeeper. We are unaware
of any authority for this position. The language of Mr. Justice Lindley in Langdon Appellant v.
Broadbent Respondent is referred to where he speaks of a common lodging-house as one open to all
comers that is as we understand the language where practically all comers are received without
discrimination but that is a very different thing from saying that the keeper is under an obligation to
receive all comers. We see no reason to doubt that the keeper of a common lodging-house might refuse
to admit drunken or disorderly or uncleanly men or men of known evil reputation thieves and such like
or any person whom he chose to exclude. Therefore it seems to us on the facts before us that the
"Harbour" might be said to be open to all comers. In fact practically all comers are admitted; the very
"outcasts" of Rociety are (see page 179 of the Regulations) objects of the humane solicitude of the
Respondent. Even verminous subjecLs who are willing to submit to cleansing operations are admitted aud
in paragraph 5 of the case before us it is stated that the occupants of the " Harbour " are of the same class
as those who frequent common lodging-houses but that into the " Harbour" are received persons who would
usually be refused admission because of their filthy condition into registered common lodging-houses.
The only restriction on admission which may suggest a difference between the " Harbour" and registered
common lodging-houses are the regulations first that the men who are able to pay for better accommodation
are not allowed to make the " Harbour " their permanent home and second that the " Harbour " is not
to be used to assist idle men to lead an idle life. We cannot assent to the view that this is sufficient to
differentiate the two classes of houses.
We know of no better description of a common lodging-house than that given by the then Law
Officers Sir Alexander Cockburn and Sir W. Page Wood to the effect that a common lodging-house was
that class of lodging-house in which persons of the poorer class are received for short periods and
although strangers to one another are allowed to inhabit one common room. If this be the proper
description of a common lodging-house as we think it is we cannot see in what material respect it differs
from the Respondent's shelter.
We arrive therefore without hesitation to the conclusion that such shelter is a common lodginghouse
within the Act of 1853. It follows that we think that Booth v. Ferrett was wrongly decided and
that the magistrate's decision now given was wrong in point of law. It is to be observed however that
the magistrate in question decided in deference to the authority of Booth v. Ferrett and indeed that he
was the same magistrate who in that very case had decided that in his judgment the shelter was a
common lodging-house. We desire to point out that in delivering his judgment Lord Coleridge was
careful to say that he delivered it without any great degree of confidence.
Differing from the decision of the Court in that case ought we nevertheless to act upon it? We
think not. The case being criminal in its nature could not have been brought under review by appeal.
It was decided only nine years ago and there has been no such acceptance of it and no such action upon
it as should preclude us from expressing the view of the law which we are convinced is right. It was
indeed argued by the learned counsel for the Respondent that since that case was decided there had been
legislation on this subject and that the Legislature has not seen fit to alter it but in effect has recognised
Booth v. Ferrett. Is this so? If indeed it could be shown that the Legislature had subsequently
legislated in a way which demonstrated that it was accepting aud adopting the law as so laid down and
that it proceeded to further legislate on the express or clearly implied acceptance of that declaration of
the law we ought not to disturb the decision in question. But is it so ? We think not. The legislation
referred to is the London Public Health Act of 1891. In the first place it is to be observed that that is
an Act which applies only to London whereas the Act of 1853 upon which the present question arises is
a general Act but further the provisions in the Act of 1891 are not provisions directed to the subject of
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