Q.B. Div.]

resisting materials, and all passages, staircases, and other means of approach to the part used as a dwelling-house shall be constructed throughout of fire-resisting materials."

Held, that did not apply to a public-house where the licence extended over the whole of the premises, and upon which the licensee and his family resided.

There was a way from the street through the bar to the lobby which communicated with the staircase reaching the upper living rooms. The lobby also opened into an inclosed yard.

Held, that under the circumstances the way through the bar was not a means of approach to the part of the building used as a dwellinghouse.

CASE stated.

The respondents were summoned for that in erecting a certain building, i.e., the Horse and Groom public-house, certain things were done in contravention of the London Building Act 1894, and that they had made default in complying with a notice of irregularity served upon them.

The

The following facts were proved or admitted :The respondents were the builders engaged in erecting the public-house, a building exceeding ten squares in area and to be used as a fullylicensed house, but not as a hotel, the ground floor consisting of a bar, lavatory, and pot-room; the first floor consisting of a public-room, lavatory, spirit storeroom, kitchen, larder, and scullery; the second and third floors consist of bedrooms and living-rooms. The only means of communication between the floors was a staircase terminating in the lobby on the ground floor. licensee and his family would reside in the building, and the whole of the building in question was covered by the justices' and excise licences. The notice of irregularity required the respondents to construct throughout of fire-resisting materials all passages, staircase, and other means of approach to the part of the building to be used as a dwelling-house under sect. 74 of the Act. In order to get from the street to the lobby and staircase it is necessary to enter through the door in the front of the bar and to pass through a corridor at the back of two private bars and through the saloon bar, a distance of 22 yards, and thence to the lobby, which gives access to the staircase. The door separating the lobby from the bar is to be and the staircase itself and lobby are constructed of fire-resisting materials, but the floor and other parts of the bar are not of fireresisting materials. The lobby which gives access to the staircase also opens into a back yard extending from the whole width of the house and to a depth of 100ft. surrounded in part by buildings and in part by a wall 8ft. high at its lowest part. There is no exit from the yard except that which leads into the lobby giving access to the

staircase.

It was contended on behalf of the appellant that the building was one used in part for purpose of trade and in part as a dwelling-house, and was so used within the meaning of sect. 74 (2), and that the way through the bar to the lobby and staircase was under the circumstances a means of approach to the part of the building to be used as a dwelling-house, and that not being ' constructed throughout of fire-resisting materials it was in contravention of the said Act.

[Q.B. DIV.

It was contended on behalf of the respondents that the building in question was not a building used in part for purposes of trade and in part as a dwelling-house, and that it was not so used within sect. 74 (2) of the Act, and that, even if it was, the way through the bar of the public-house to the lobby was not a means of approach to the part of the building to be used as a dwelling-house within the section.

The magistrate was of opinion that the building was not a building intended to be used in part for the purposes of trade and in part as a dwellinghouse within the Act, and he held that, even if it was, the way through the bar to the lobby giving access to the staircase was not under the circumstances a means of approach to the part of the building to be used as a dwelling-house.

He thereupon dismissed the summons.

By the London Building Act 1894 (57 & 58 Vict. c. ccxiii.), s. 74:

(2) In every building exceeding ten squares in area used in part for purposes of trade or manufacture and in part as a dwelling-house, the part used for the purposes of trade or manufacture shall be separated from the part used as a dwelling-house by walls and floors constructed of fire-resisting materials, and all passages, staircases, and other means of approach to the part used as a dwelling-house shall be constructed throughout of fire-resisting materials. The part used for purposes of trade or manufacture shall (if extending to more than two hundred and fifty thousand cubit feet) be subject to the provisions of this Act relating to the cubical extent of buildings of the warehouse class:

Provided that there may be constructed in the walls of such staircases and passages such doorways as are necessary for communicating between the different parts of the building, and there may be formed in any walls of such building openings fitted with fire-resisting doors.

Avory for the appellant.-The case turns upon sect. 74 (2) of the London Building Act 1894. I submit that this public-house was a building used partly for trade and partly as a dwelling-house. The only means of access to the upper rooms was through this saloon bar, and so into the lobby. The other door only led into an inclosed yard, and the sole way out of the building was through this bar.

Wootten for the respondents.-The magistrate was right. This public-house is not within the section of the London Building Act 1894 at all. The 74th section was meant to apply to the cases of shops and upper parts, and to whole houses used for the purposes of trade where the occupier dwells. The licences here cover the whole of the house. The way through the saloon bar is clearly not an approach. The door into the back yard

satisfies the Act.

Avory in reply.

DAY, J.-There seems to me to be very great difficulty in applying this section to a building of this description. In point of area, no doubt it is within the section. That is to say, if you measure it in the way that Mr. Avory has measured it, it seems to be clear that it is a building containing a sufficient number of square feet to come within it. Nevertheless I find considerable difficulty in applying the particular language to the building in question. The words of the section are: “ In every building exceeding ten squares in area, used in part for purposes of trade or manufacture and in part as a dwelling-house, the part used for the

Q.B. Div.]

purposes of trade or manufacture shall be separated from the part used as a dwelling-house by walls and floors constructed of fire-resisting materials." Now, I confess that I do not see how it can be said that this building is used in part "for the purposes of trade and manufacture." Ordinarily speaking, I should understand the expression "for the purposes of trade or manufacture" as pointing to something in the nature of a manufactory or a manufacturing business. But here "trade" is said to apply to any trade, and, therefore, that he carries on the trade of a licensed victualler on these premises, and also uses part of them as a dwelling-house. He carries on the business of a licensed victualler all through the house, and he resides in the house as far as it is necessary for a licensed victualler to reside in it. He simply resides in some portion of the house as any licensed victualler does, and some other portions of it are used for the purposes of entertaining his guests. I am quite unable to say that this comes within the description of a house "used in part for the purposes of trade or manufacture and in part as a dwelling-house." It seems to me to fail in answering that description. I cannot understand how this can be said to fail to carry out the provisions of the Act when there is a means of communication through this open area, or space, into which he undoubtedly has carried a staircase, which staircase complies with all the provisions of the Act. He has provided a staircase leading into the open space, such as it is, and it is made of non-inflaminable material as the statute requires. It is true they might want it in a more convenient or accessible or pleasant way than by walking right through along the basement, where you could come out at the front door, and that is not made of non-inflammable materials, but is made of such materials as would or might take fire; but, at the same time, every provision is made for the safety of the people who may be living on the upper floors of the building, and, if there are any people living there, they could get down the stairs and so on to this open space, which is large and comprehensive enough to hold all the people who may be dwelling in the house; and when they got there they would be, as far as I can understand it, in perfect safety, where flames could not reach them, or, at any rate, for a length of time absolutely sufficient to enable the officers of the fire brigade to extricate them. I do not see myself any danger or mischief. I do not see that Mr. Bros ought to have convicted in this case. He has not gone wrong in not doing so, and I think, therefore, his decision ought to be upheld. I do not profess to under. stand all the language of the section, but I can see very well that Mr. Bros has put a construction upon it which is not at all unreasonable having regard to the nature of the case itself. I therefore think his decision must be upheld.

LAWRANCE, J.-I am of the same opinion. I think sub-sect. 2 of sect. 74 does not apply to a building in the position of this particular publichouse, but that what it was intended to apply to was the ordinary case of a shop, or room or rooms, in which some manufacture was carried on, with a dwelling-house above. What the section provides is that all the passages in the dwelling-house, and the staircases and other means of approach, shall be constructed of fire-resisting materials.

[Q.B. DIV.

There is no difficulty in doing this in an ordinary case. You see in ninety-nine shops out of every hundred an entrance to the shop and an entrance to the house, with a wall between them; and that must be constructed in a particular manner, and the approach must be made of fire-resisting materials. Now, in this case you have got a trade, and it is a trade no doubt, which is carried on and necessarily carried on in a dwelling-house, and you can carry it on anywhere else. The room is a part of the dwelling-house; there is no separate part where you carry on the business of a publichouse, and the part above where the manager or the owner is living by himself or with his family, which is part of the house. They are all mixed up together, and I think the conclusion arrived at by the learned police magistrate was correct on that part of the case. I need not say anything on the second point, because if the magistrate is correct on the first point there is an end of the matter; but, looking at the object of the section, the object clearly was to ensure safety to people who were liable to be burnt. My learned brother has already pointed out that you can get into the back yard, where you might, perhaps, get scorched -not necessarily burnt-and you would get at all events some advantage from that, and the object which it is desired to obtain by the section is partly attained, which is always something to be thankful for. But then what is said here on behalf of the appellants is this: Mr. Avory is driven to say if you have got to come through a shop or whatever it may be-through a roomI do not mind what material you may have in it, you may have it all hung with the lightest muslin, you may burn your head and body as much as you like as you come through, but what the London County Council insist upon is that you must have a fire-resisting floor, so that you may not burn your feet as you come through. That is the total result of the whole thing if it were to be carried out in the manner suggested. Now, I very much object, myself, to being in any way a party to any scheme whatever of enabling people to indirectly carry out something which is not absolutely provided for by the Act of Parliament. There can be no doubt that the object in this particular case is to attempt to get us to decide something which was not contemplated by the statute, which has made no provision for it. I have no doubt that what was intended, and what would have been a very just thing to say, was that no part of a house used for the purpose of a dwelling-house should be constructed which had not a separate access to a public street. There is no doubt what was intended, but the effect of trying to introduce it in this way would be to produce the absurd result which I have pointed out. I think, therefore, the learned magistrate was justified in coming to the decision which he did on both grounds. No doubt one was quite enough; but if not one, there is both of them there. I quite agree that this was not a dwellinghouse in the sense contended for, and I also agree with him that under the circumstances of this case there was an approach which was a proper approach, and which was in accordance with the terms of the 74th section of the statute in question.

:

Appeal dismissed.

Solicitors for the appellant, W. A. Blaxland; for the respondents, Layton, Sons, and Lendon.

Friday, June 9, 1899.

(Before DAY and LAWRANCE, JJ.) WARWICK (app.) v. GRAHAM (resp.). (a) Public health-Person suffering from infectious disease" Without proper lodging or accommodation "-Patient well provided for-Danger of infection to others-Public Health Act 1875 (38 & 39 Vict. c. 55), s. 124.

Sect. 124 of the Public Health Act 1875, providing for the removal to a hospital of persons suffering from any dangerous infectious disorder where such person is without proper lodging or accommodation, is not only for the protection of the sick person, but also for the protection of others from infection.

The court will make an order for removal, if such patient cannot be properly isolated, so as to prevent infection, notwithstanding the fact that the patient is properly cared for. CASE stated.

An application was made by the appellant to the justices for an order for the removal of the son of the respondent, who was suffering from an infectious disease, namely, scarlet fever, and was without proper lodging or accommodation, to a suitable hospital.

The following facts were proved or admitted :The respondent had a son named Walter, aged nine years, living with him at his house within the borough, and the persons living in the house consisted of the respondent and seven of his family, including the boy Walter. The boy was suffering from scarlet fever. The house was a four-roomed house containing a kitchen and a parlour on the ground floor, one leading from the other with a small scullery at the back, and on the upper floor two small bedrooms opening into each other. The boy was kept apart in the parlour on the ground floor; but the family had to pass the door of the patient's room when going into the street from the kitchen where the cooking was done and where the family lived and partook of their meals. The boy was properly cared for so far as concerned nourishment and medical attendance, and no one slept in the same room as the boy.

A certificate was put in by the appellant by the medical officer of health that the patient was suffering from scarlet fever, and that he " without proper lodging or accommodation."

was

It was proved that there would be danger of infection by the other people in the house if the boy continued to occupy the room during the progress of the illness.

It was also proved that the boy was properly cared for.

It was contended by the appellant that the certificate of the medical officer was conclusive and binding upon the justices in regard to the facts. Further, that the expression "without proper lodging or accommodation" in sect. 124 of the Public Health Act 1875 meant such lodging or accommodation as would prevent infection by other persons living in the house.

That although the section in question did not expressly require isolation of persons suffering from a dangerous infectious disease, there could be no proper lodging or accommodation in the house of the respondent under the circumstances (a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law

[Q.B. Div.

of this case as the evidence disclosed insufficient means of isolation of a patient suffering from such a disorder, and that there was danger of infection by other persons residing in the house.

The respondent contended that proper lodging or accommodation meant nothing more than ordinary habitable, clean, comfortable lodging, with proper accommodation for a sick person.

Upon the above facts the justices rejected the appellant's contention and held, as a matter of law, that there was not sufficient evidence to show that the boy Walter was without proper lodging or accommodation at the date of the application, and they accordingly refused to make an order for his removal to a hospital.

By the Public Health Act 1875 (38 & 39 Viet. c. 55), s. 124:

Where any suitable hospital or place for the reception of the sick is provided within the district of a local authority, or within a convenient distance of such district, any person who is suffering from any dangerous infectious disorder, and is without proper lodging or accommodation, or lodged in a room occupied by more than one family, or is on board any ship or vessel, may on a certificate signed by a legally qualified medical practitioner, and with the consent of the superintending body of such hospital or place, be removed, by order of any justice, to such hospital or place at the cost of the local authority. Macmorran, Q.C. and Sylvain Mayer for the appellant.

The respondent did not appear.

DAY, J.-The appeal must be allowed. Sect. 124 was intended to prevent the spread of infection, and not only for the benefit of the sick person. This case must be remitted to the justices. LAWRANCE, J.—I agree.

Solicitors for Procter.

Appeal allowed.

the appellant, Tatham and

Friday, June 9, 1899.

(Before DAY and LAWRANCE, JJ.) WILLIAMS (app) v. LONDON AND NORTHWESTERN RAILWAY COMPANY. (resps.). (a) Rating-Land used as railway for public conveyance- -Exemption-Sidings, platforms, and lines at dock station-Connection with main line. The Liverpool Corporation Act 1893, s. 36, provides that land used as a railway made under the powers of any Act of Parliament for public conveyance shall not be rated to such rates in any greater proportion than one-fourth part of the net annual value.

The respondents were the owners and occupiers of premises known as the B. D. G. Station in the city of L. The premises consist of a substantial erection comprising a covered shed open at one side. Inside the walls there are a number of railway lines comprising sidings and platforms which are used for the purpose of loading or unloading railway waggons with goods. There are also turntables, cranes, a weighbridge, and small offices. The premises are situated a little over half a mile from the main line of the respondents. They are, however, connected with the main line and their several goods stations along the line of docks by permission given by

(a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law.

8,

the M. D. and H. Board to use their, the board's dock railway, and also by the L. Corporation having given permission to the railway company for a tramway to be laid across S.-street connecting the premises with the dock rails there.

The dock company had constructed their rails under their Act of Parliament, and the permission, revocable at a month's notice, given by the corporation was in pursuance of their private Act.

All the lines of rails in the premises in question are used for the conveyance of any goods which the public send by rail to or from the premises in question.

The respondents were rated in respect of the premises above described on the full net annual value.

Held, that they were entitled to the exemption in sect. 36 of the Act of 1893, as the premises in question were land used as a railway made under the powers of an Act of Parliament for public conveyance.

CASE stated.

The respondents were charged on an information laid by the appellant that they being duly rated and assessed and liable to pay in respect of certain premises a rate, had not paid such rate after a period of fourteen days after demand in writing, and that the said sum remained unpaid.

The respondents were the owners and occupiers of premises known as the Brunswick Dock Goods Station, in the city of Liverpool.

The premises in question consist of a substantial erection comprising a covered shed open at one side. Inside the walls there are a number of railway lines comprising sidings and platforms which are used for the purpose of loading or unloading railway waggons with goods. There are also turntables, cranes, a weighbridge, and small offices. There is also in the inclosure some land used for carts and lorries for bringing goods to, and taking them from, the premises.

The premises are situated a little over half a mile from the main line of the respondents. They are, however, connected with the main line at the Wapping Goods Station and their several goods stations along the line of docks by permission having been given to the railway company by the Mersey Docks and Harbour Board to use their, the board's, dock railway, and also by the Liverpool Corporation having given permission to the railway company for a tramway to be laid across Sefton-street connecting the premises with the dock rails there. Goods are taken to the premises and brought from them to the main line of the company in railway waggons drawn by locomotives.

The line of rails along Sefton-street was constructed by the Mersey Docks and Harbour Board under sect. 72 of the Mersey Docks Acts Consolidation Act 1858, and is governed by that Act. The permission to lay the lines across Seftonstreet was granted to the company by the corporation under sect. 100 of the Liverpool Improvement and Waterworks Act 1871, and was revocable on a month's notice.

All the lines of rails in the premises in question are used for the conveyance of any goods which the public send by rail to or from the premises in question.

The premises were constructed by the respondents upon land acquired by them under the powers conferred upon tham by sect. 20 of the London and North-Western Railway Act 1896, which incorporated the Railways Clauses Act 1845, s. 3, which provides (inter alia) that the words in the Act shall have the same meaning as in the Incorporated Acts unless there is something in the subject or context repugnant to such construction.

Sect. 20 provides (inter alia) as follows:

Subject to the provisions of this Act, and in addition to the other lands which the company are by this Act authorised to acquire, the company may from time to time enter upon, take, use, and appropriate for the purpose of extending the stations, sidings, warehouses, coal wharves, depôts, and other accommodation of the company for mineral goods and cattle traffic and for other purposes connected with their undertaking the lands hereinafter described as referred to delineated on the deposited plans and described in the deposited books of reference relating thereto, and may execute the works and exercise the powers hereinafter mentioned and so far as such works are shown upon the deposited plans and sections in accordance with those plans and sections (that is to say, inter alia) in the county of Lan caster, certain lands in the township of Toxteth Park, lying on the north side of and adjoining Warwick-street, and between Sefton-street and Caryl-street, Liverpool.

By sect. 35 of the Liverpool Corporation Act 1893, the corporation of Liverpool were authorised to levy a general rate.

By sect. 36 of the same Act it was provided as follows:

The general rate shall be levied on the net annual value of all property for the time being assessed to the relief of the poor and included in the valuation lists of the different parishes in the city in force at the time of levying the rate with such additions as may be lawfully made under this Act, provided that-(1) No person shall be rated to the general rate in respect of any church, chapel, or other building exclusively used for public worship, or in respect of any rentcharge in lieu of any rectorial or vicarial tithes, or in respect of any building used for the education of the poor exclusively. (2) No person occupying land used as arable, meadow, or pasture ground or orchards or allotments only, or as woodland, market garden, or nursery ground, or any land covered with water and used only 28 a dock or a canal, or the towing path thereof, or as a railway made under the powers of any Act of Parliament for public conveyance shall be rated in respect of the same to the general rate in any greater proportion than one-fourth part of the net annual value thereof.

By sect. 37 of the same Act it was provided that sects. 18 to 22, and 24 to 32, and 51 of thè Liverpool Improvement Act 1858 should (inter alia) extend and apply mutatis mutandis to the general rate, and the sections were accordingly incorporated into that Act.

By sect. 29 of the Liverpool Improvement Act 1858 it was provided as follows:

If any person who shall be liable for the payment of any rate made or levied or of any composition made or entered into by virtue of this Act, shall refuse, omit, or neglect to pay the amount of such rate or composition for the space of fourteen days after demand, it shall be lawful for any justice having jurisdiction where such person shall then reside, or where the property in respect of which the rate or composition shall be payable is situate, to issue his summons to such person, which summons may include all the sums due from any such

person in respect of any of the rates or compositions, requiring him to appear at a time and place named therein and then and there to show cause why the sun or sums so demanded should not be paid, and if on the appearance of such person, or in default of appearance after proof of the service of such summons, either personally or by leaving the same at the last known place of abode of business of such person, or upon the premises in respect of which the rate or composition is due and payable, no sufficient cause shall be shown to the contrary, it shall be lawful for any justice having jurisdiction to issue his warrant of distress for the seizure and sale of the goods and chattels of such person for recovery of the amount which may be proved before such justice to be due from such person in respect of the rates or composition, together with such costs as to such justice shall seem just and reasonable, and in case it shall be returned to such warrant of distress that no sufficient goods of the party against whom such warrant shall have been issued can be found, it shall be lawful for the justice to whom such return is made, or for any other justice of the peace having jurisdiction, if he shall think fit, to commit the person from whom the ra'e or composition shall be due an unpaid, to the house of correction or common gaol for the district in which such person shall then reside for any term not exceeding three calendar months unless the sum or sums for which such warrant of distress shall have been issued, and all costs and charges of the dis. tress and of the commitment and conveying of such person to prison (the amount thereof being ascertained and stated in such commitment) shall be sooner paid. Provided that no imprisonment under this Act shall in anywise operate as a satisfaction or extinguishment of any sum due from any such person in respect of all or any part of the rate or composition or of any sum or sums for which such warrant of distress shall have been issued, or of such costs and charges respectively, or protect such person from being summoned for any such rate or composition or execution being taken out against the goods and chattels of such person in the same manner as if such imprisonment had not taken place.

On the 9th Feb. 1898 the corporation, acting under the powers conferred upon them by the Liverpool Corporation Act 1893 levied a general rate upon the premises.

After the levying of the rate a demand note for the amount of the rate was served on the respondents, and, they having omitted or neglected to pay it, the information was preferred.

At the hearing of the information it was contended on behalf of the respondents that parts of the premises included in the rate, such, for instance, as the lines of rails, turntables, sidings, and platforms, together with the portion of the roof covering the same, were within the partial exemption created by sect. 36 of the Act of 1893, and that the respondents were entitled to be rated at one-fourth of the net annual value thereof, the property being land "used as a railway made under the powers of an Act of Parliament for public conveyance," and that as in the rate no exemption had been allowed the information ought to be dismissed.

It was contended on behalf of the appellants that the premises were not, nor were any parts thereof, within the terms of the partial exemption, and that the rate was duly levied and recoverable.

The magistrate was of opinion that the premises were part of the railway system of the respondents, and that such portion thereof as consisted of railway lines, turntables, siding, and platforms, together with the portion of the roof covering the same, came within the terms of the partial

exemption as land used as a railway made under the powers of an Act of Parliament for public conveyance, and that the respondents should be rated in respect of such portions on one-fourth part of the net annual value thereof, and that, as regards the remainder of the premises, they should be assessed on the full annual value.

He thereupon dismissed the information.

Balfour Browne, QC. (Honoratus Lloyd and R. M. Montgomery with him) for the appellants.— The lines on these premises with the platforms and other adjuncts cannot be said to be part of a railway made under the powers of an Act of Parliament for public conveyance. The right to cross the street could be revoked at a month's notice, and the premises are approached over the private dock lines. A very similar exemption to this exists in sect. 211 of the Public Health Act 1875 (38 & 39 Vict. c. 55). In the case of South Wales Railway Company v. The Swansea Local Board (4 El. & Bl. 189), which was decided under the old Public Health Act 1848 (11 & 12 Vict. c. 66), sect. 88 of which contains a similar clause, it was laid down that railway meant the way on which the carriages actually go, including the line itself and the turntables and sidings, and that land used only for supporting the line, is also within the proviso, and is to be taxed at the lower rate. But the adjuncts, such as the stations and warehouses, though necessary for the working of the line, do not form part of it within the proviso, and so are assessable at its full value. The matter was again discussed in London and NorthWestern Railway Company v. Llandudno Improvement Commissioners (75 L. T. Rep. 659; (1897) 1 Q. B. 287), and the principle is clearly stated in those judgments.

C. A. Russell, Q.C. (W. Graham with him) for the respondents.-The case depends entirely upon the construction to be placed upon the various Acts of Parliament. The case of London and North-Western Railway Company v. Llandudno Improvement Commissioners is an authority that platforms and sidings might be rated as land used as a railway The contention here is that there is a difference in this case as the approach to the station is over lines over which there is merely a licence to go. It does not matter, I submit, whether the access to the station is over a public or a private line, where the premises themselves come within the exemption, as they do here. There is a direct access in this case with the main system of the company.

Lloyd in reply.

DAY, J.—I am of opinion that the judgment arrived at by the magistrate was perfectly correct. It seems to me that this land which was rated is within the exception-that is to say, I find it is land which is used as a railway made under the powers of an Act of Parliament for public conveyance, and that the respondents should be rated in respect of the same on one-fourth part of the net annual value thereof. In fact I come to the same conclusion as the magistrate, because it seems to be clear that this is land which under the powers of an Act of Parliament is occupied for the purpose of public conveyance, and used for the purpose of public conveyance. There is no doubt it is used for the purpose of public conveyance because a railway is made upon it, the rails are laid down upon it, and the trucks are used upon it.