COUNSEL: Danckwerts, K.C., and Colam, for the appellants.

Macmorran, K.C., and J. A. Johnston, for the respondents.

 

SOLICITORS: For appellants: Eldridge & Newnham.

For respondents: Alexander Aldred & Moore.

 

JUDGES: Phillimore, Hamilton and Scrutton JJ.

 

DATES: 1911 April 11, 12; May 30.

 

 

By-law – Validity – Preference – Consideration – Metropolitan Common – Scheme – Regulation of Games – Golf Course – Metropolitan Commons Act, 1866 (29 & 30 Vict. c. 122) – Metropolitan Commons (Mitcham) Supplemental Act, 1891 (54 Vict. c. xxvi.).

 

By a scheme made under the Metropolitan Commons Acts, 1866 and 1869, and confirmed by the Metropolitan Commons (Mitcham) Supplemental Act, 1891, conservators were directed to set apart such portions of a common as they should consider expedient for games and to form grounds for cricket and other games, and to frame by-laws and regulations for (among other purposes) the regulation of games to be played and other means of recreation on the common and generally for the prevention of any act tending to interfere with the use thereof by the public for the purposes of exercise and recreation. No by-laws were to have effect unless and until confirmed by the Local Government Board. The scheme saved to the lords of certain manors their rights in the soil of the commons, but the conservators were empowered upon payment of compensation to restrict, diminish, or extinguish those rights if they should interfere with the control, preservation, or improvement of the common.

 

With the consent of the conservators a golf club was formed which acquired the rights of the lords of the manors and laid out and maintained on the common two golf courses, the Prince’s golf course and the Prince’s ladies’ golf course. The golf club conveyed to the conservators all their rights over the soil of the common, in return for which the conservators by deed granted to the golf club a licence to play golf upon both the golf courses. By this deed the conservators covenanted that they would not make any such by-laws or regulations as would unreasonably interfere with the club playing golf on the courses and would not permit persons other than those authorized by the club or residents in the parish of Mitcham to play golf or any other game on the courses.

 

In pursuance of the scheme the conservators made a by-law that no person should play cricket or any other game upon the parts of the common set apart or appropriated for cricket, football, golf, &c., except at such times and under such regulations as the conservators should prescribe, and that no person should obstruct or interfere with or annoy any persons playing at cricket or any other lawful game. They also made the following regulations:– (1.) That golf should not be played upon any part of the common except the Prince’s golf course and the Prince’s ladies’ golf course; (2.) that for the safety of the public and the preservation of the turf, no one should play golf on either of the said courses unless accompanied by a caddie duly authorized and licensed by the conservators or the golf club; (5.) that [*855] no one who was not a member of the golf club should play on the Prince’s golf course on Saturdays, but that persons holding permits might play on the Prince’s ladies’ golf course on Saturdays, but must be accompanied by caddies; (7.) that no person should play golf on either of the courses unless he or she were a member of the golf club or an inhabitant of Mitcham holding a permit from the conservators. The by-law was confirmed by the Local Government Board, but the regulations were not submitted for confirmation:–

 

Held, per curiam (Phillimore, Hamilton, and Scrutton JJ.), that regulation 2 was valid.

 

Per Phillimore and Hamilton JJ., that regulation 7 was unequal and void in excluding all but inhabitants of Mitcham and members of the golf club from playing golf on the courses.

 

Per Phillimore and Hamilton JJ. (Scrutton J. dissenting), that regulation 7 and semble regulation 5 also were ultra vires and void in giving a permanent preference to the members of the golf club; that the conveyance of their rights in the soil was not a good consideration for such a preference; and that, whether or not the making and maintaining of the golf courses were a good consideration, the preference was not authorized by the by-law and could not be given by mere regulation.

 

CASE stated by the justices of the peace for the county of Surrey.

 

The Board of Agriculture, acting under the Metropolitan Commons Act, 1866 (29 & 30 Vict. c. 122), and the Metropolitan Commons Amendment Act, 1869 (32 & 33 Vict. c. 107), duly certified a scheme for the local management of Mitcham Common, Upper Green, Lower Green, Figgs Marsh, and Beddington Corner, therein called collectively the commons. This scheme was duly confirmed by the Metropolitan Commons (Mitcham) Supplemental Act, 1891 (54 & 55 Vict. c. xxvi.).

 

By s. 1 of the scheme the commons were thenceforward to be regulated and managed by a body of conservators. After providing for the constitution, meetings, proceedings, and for the appointment of the conservators and their officers and servants, the scheme proceeded to confer and impose upon the conservators the following powers and duties:–

 

Sect. 16. “The conservators may execute any works of drainage, raising, levelling, or fencing for the protection and improvement of the commons so far only as may be required for the purposes of the Metropolitan Commons Act, 1866, and the Metropolitan Commons Amendment Act, 1869, and may [*856] do any work necessary for the proper cleansing of the ponds on the commons, and shall preserve the turf, shrubs, trees, plants, and grass thereon, and for this purpose may enclose by fences for short periods such portions as may require rest to revive the same, and may plant trees and shrubs for shelter or ornament, but shall do nothing that may otherwise vary or alter the natural features or aspect of the commons, or interfere with free access to every part thereof.”

 

Sect. 18. “The conservators shall set apart such portion or portions of the commons as they may consider expedient for games, and may form any ground or grounds for cricket or other games, and may allow the same to be temporarily enclosed with posts and chains or other open fence, so as to prevent cattle and horses straying thereon.”

 

Sect. 19. “The conservators shall frame by-laws and regulations for the prevention of nuisances and the preservation of order upon the commons. The by-laws may include all or any of the following purposes, viz.:–

 

. . . . .

 

“The regulation of games to be played and other means of recreation on the commons, and of assemblages of persons thereon.

 

. . . . .

 

“Regulations with the view of preserving or restoring the natural surface of the ground, and as to place and mode of digging and taking gravel, sand, or other substances from and of cutting and felling of trees and underwood growing upon the commons, in exercise of any right of common or other right over or upon the commons.

 

“The prevention of unauthorized persons from turning out or knowingly permitting cattle, sheep, or other animals to graze or feed, or remain upon the commons, and generally for the prevention or restraint of any act or thing tending to the injury or disfigurement of the commons, or to interfere with the use thereof by the public for the purposes of exercise and recreation.

 

“Provided that all by-laws made by the conservators shall be in writing under their seal, and the conservators may by such [*857] by-laws impose upon offenders against the same such reasonable penalties, to be recovered on summary conviction, as they shall think fit not exceeding the sum of 5l. for each offence …. Provided always, that no by-laws shall be repugnant to the laws of England or the provisions of this scheme, and no by-laws or any alteration or repeal of any by-laws shall be of any force or effect unless and until the same be confirmed by the Local Government Board ….”

 

Sect. 22. “All by-laws made by the conservators in pursuance of the scheme, shall be printed, and shall be sold to any person who may apply for the same at such price not exceeding one shilling per copy as the conservators may determine, and all by-laws shall be legibly written or printed at length on boards of suitable size and placed on such parts of the commons (not less than three) as to the conservators may appear desirable.”

 

Sect. 32. “Proceedings with a view to the summary conviction of offenders under this scheme, or under any by-laws of the conservators …. shall be taken before a Court of summary jurisdiction according to the provisions of the Summary Jurisdiction Acts ….”

 

Sect. 37. “Saving always to all persons and bodies politic and corporate, and their respective heirs, successors, executors, and administrators, all such estates, interests, or rights of a profitable or beneficial nature in, over, or affecting the commons or any part thereof as they or any of them had before the confirmation of this scheme by Act of Parliament, or could or might have enjoyed if this scheme had not been confirmed by Act of Parliament.”

 

Sect. 38. “The lords of the manors of Biggin and Tamworth, Ravensbury, Mitcham, and Vauxhall, or of some one or more of such manors, claim the soil and freehold of the commons and the minerals thereunder ….”

 

Sect. 40. “This scheme affects the rights in and over the commons so claimed as aforesaid only so far as is absolutely necessary for the purposes of this scheme, that is to say, by conferring on the conservators powers of management, improvement, and control as hereinbefore provided, and for such purposes the power of restricting, diminishing, or extinguishing such [*858]  rights or any of them, whenever it shall appear to the conservators that the continuance of such rights will interfere with the control, preservation, or improvement of the commons by the conservators, or with any of the purposes of this scheme, upon payment by the conservators of compensation to the bodies or persons severally interested in such rights. The amount, if any, to be paid by the conservators to such bodies or persons, as and for compensation in respect of the restriction, diminution, or extinction of such rights shall be settled by agreement, or failing agreement, then under the provisions of the Lands Clauses Consolidation Act, 1845, and the Acts amending the same, so far as the same relate to the purchase and taking of lands otherwise than by agreement, including therein the several provisions relating to the compensation for common or waste lands, and thereupon the several provisions of such portion of the Lands Clauses Consolidation Act, 1845, and the Acts amending the same, shall apply as if in all cases the word ‘lands’ included interests, rights, and easements.”

 

Sect. 41. “Provided always, that before the conservators take any proceedings under the provisions of the Lands Clauses Consolidation Act, 1845, and the Acts amending the same, with respect to any estate, interest, or right of a profitable or beneficial nature, in, over, or affecting the commons, or any part thereof, they shall, if required, give security to the owner or owners of such estate, interest, or right to the satisfaction of the Board of Agriculture for the costs to which he or they would be entitled under the same Acts.”

 

Sect. 42. “The lords of the aforesaid manors have not consented to their rights being affected in the manner and to the extent herein expressed, but having regard to clauses 37, 38, 40, and 41, they do not oppose the scheme ….”

 

The Metropolitan Commons (Mitcham) Supplemental Act, 1891, received the Royal assent on May 11, 1891. On June 6, 1891, at the first meeting of the conservators, a letter was read from one Robert Hippisley Cox offering to make a golf course upon certain conditions. On July 11 the conservators authorized the course upon certain conditions. Upon the faith of this authority R. H. Cox formed the Prince’s Golf Club, [*859]  and he or the club spent considerable sums in making the golf course. Before the scheme came into force golf had never been played on the commons.

 

In or before the year 1892 the Prince’s Golf Club Company Limited, acquired the rights (if any) of R. H. Cox in the golf course. By a deed dated March 27, 1893, the manor of Ravensbury was conveyed to the Prince’s Golf Club Company; and by a deed dated March 29, 1893, the manor of Biggin and Tamworth was conveyed to R. H. Cox as trustee for the same company to the extent therein mentioned.

 

Disputes having arisen between the conservators and the Prince’s Golf Club, an arrangement was come to in pursuance of which, by a deed dated July 5, 1894, and made between the Prince’s Golf Club Company of the first part, the conservators of the second part, and certain trustees of the third part, the company conveyed to the trustees for and on behalf of the conservators all their estate, right, title, and interest in, to, upon and over the soil of the commons, and all their manorial, commonable, and other rights upon the whole of the commons; and by an agreement and licence under seal of the same date, made between the conservators of the one part and the Prince’s Golf Club Company of the other part, a licence was granted for the period of twenty-one years from July 1, 1893, to the company and the Prince’s Golf Club to play golf on the respective golf courses or links laid out for playing golf on the commons on payment of the annual rent and on other terms therein mentioned.

 

By a deed dated April 10, 1897, and made between the conservators of the one part and certain trustees of the other part, in consideration of the drainage and laying out of new golf links the conservators granted a licence to the trustees for and on behalf of the proprietors of the Prince’s Ladies’ Golf Club to play golf from the date thereof until July 1, 1914, at the annual rent therein mentioned.

 

By a deed dated July 20, 1901, and made between the conservators of the one part and the Prince’s Golf Club Company of the other part, all the before-mentioned licences were determined and a new licence was granted by the [*860] conservators to the company, comprising all the courses or links, from December 31, 1900, for a term of thirty years. The material clauses in this deed are the following:–

 

3. “For the period of thirty years from December 31, 1900, or until this licence shall be revoked and determined as hereinafter provided the company and the Ladies’ Golf Club respectively shall be entitled to play the game of golf on the respective golf courses or links now laid out for playing golf on the commons as well for men as for ladies in manner hereinafter mentioned.”

 

7. “The company shall so long as this licence shall be unrevoked and undetermined pay to the conservators the annual sum of 250l. payable by equal quarterly payments on January 1, April 1, July 1, and October 1 in each year. The first of such payments having been made on April 1, 1901, the next thereof shall be made on October 1, 1901.”

 

8. “If the company shall wilfully commit breaches of the by-laws of the conservators, or if and whenever any rent shall be in arrear for the space of twenty-one days after the date fixed for payment thereof, or if there shall be any breach by the company of any of the covenants and agreements on its part herein contained, the conservators may revoke and determine their licence.”

 

10. “Prior to this licence being revoked and determined under the preceding clause hereof the conservators shall pay to the company the sum of 2500l. by way of compensation.”

 

11. “The company covenants that the members of the club and all persons introduced by them shall play golf in a reasonable way and so as not to interfere with the exercise of rights of pasturage and other common rights, and no such members or any such other person as aforesaid shall play golf on the commons on Sundays, and further that such company, members, and persons as aforesaid shall observe all the by-laws of the conservators.”

 

12. “The conservators shall not during the continuance of this licence make any such by-laws or regulations as will unreasonably interfere with the company playing golf on the said courses, provided always that nothing herein contained shall be construed to affect the power of the conservators to [*861] prohibit altogether the playing of golf on the commons on Sundays.”

 

17. “So long as this licence shall remain in force the conservators will not knowingly permit any person or persons other than those authorized by the company or residents in the parish of Mitcham to play golf or any other game on the said courses or links, but in like manner the conservators shall not be bound to institute any proceedings against any such person as aforesaid, except on receiving such indemnification against all costs, charges, and expenses from the company” as therein mentioned.

 

Under section 19 of the scheme the conservators made by-laws and regulations of which the following are material to the present case:–

 

By-law 14. “The conservators being empowered from time to time to set apart or appropriate any part or parts of the common for the protection of the turf, trees, or shrubs thereon, or for walking or for cricket, football, golf, skating, sliding, or other reasonable recreation, no unauthorized person shall drive, ride, or pass over with any vehicle, or upon horseback, the parts of the said common so set apart or appropriated, and no person shall play cricket or any other game, or skate or slide, upon the parts so set apart or appropriated, except at such times and under such regulations as the conservators may from time to time prescribe, and no person shall obstruct or interfere with or annoy any persons who are playing or have made preparations for playing at cricket or any other lawful game, or who are skating and sliding upon the parts so set apart or appropriated.”

 

The regulations made by the conservators which are material are those numbered 1, 2, 5, 7, and 8, and are in the following terms:–

 

1. “Golf shall not be played upon any part of the commons except upon the two golf courses laid out by the Prince’s Golf Club, and known as ‘Prince’s golf course’ and the ‘Prince’s ladies’ golf course.’”

 

2. “For the safety of the public and the preservation of the turf, no one shall play golf on either of the said courses unless accompanied by a caddie duly authorized and licensed by the [*862] conservators or Prince’s Golf Club. The caddie shall be entitled to charge for his services 1s. per round for the carrying of the clubs.”

 

5. “No one who is not a member of Prince’s Golf Club will be allowed to play on the Prince’s golf course on Saturdays, but persons holding permits may play on the Prince’s ladies’ golf course on Saturdays but must be accompanied by caddies.”

 

7. “No person shall play golf on either of the said golf courses unless he or she is a member of Prince’s Golf Club or Prince’s Ladies’ Golf Club, or an inhabitant of Mitcham holding a permit from the conservators signed by the clerk to the conservators.”

 

8. “Application for permits must be made to the clerk, in writing, and will be considered at the next meeting of the board of conservators held not less than fourteen days after receipt of such application. Permits will only be granted to individuals, and cannot be granted to clubs, and will be granted subject to the due observance of the before-mentioned rules and regulations and to the observance of all the by-laws of the conservators.”

 

An information was preferred by the conservators by Peter Lawton, keeper of the common, on their behalf, against the respondent W. E. Cox, of Fair Green, Mitcham, charging that on Saturday, March 26, 1910, he did play golf upon the Prince’s golf course, being a part of the common set apart or appropriated for playing golf, without a caddie, and, not being a member of the Prince’s Golf Club, did play on the Prince’s golf course on a Saturday contrary to by-law 14 made by the conservators of the common under the Metropolitan Commons (Mitcham) Supplemental Act, 1891 (54 Vict. c. xxvi.), and the regulations made under the by-law.

 

Another information was preferred against the respondent George Cole, of London Road, Lower Mitcham, charging that on Friday, March 25, 1910, he did play golf on the same course without a caddie and, not being a member of the Prince’s Golf Club, without a permit from the conservators, contrary to the same by-law.

 

On the hearing before the justices the following facts were admitted or proved:–

 

Neither of the respondents was a member of Prince’s Golf [*863] Club. Both were inhabitants of Mitcham. The respondent Cox played golf on Prince’s golf course on Saturday, March 26, 1910, in contravention of regulation No. 5; he had a permit but no caddie as required by regulation No. 2.

 

The respondent Cole played golf on Prince’s golf course on Friday, March 25, 1910; he had no caddie and had obtained no permit as required by regulations numbered 2 and 7.

 

Both the respondents had frequently before March 25, 1910, played golf on the said course, and particularly in September and October, 1909, before the regulations were adopted and issued by the conservators.

 

The keeper of the common had instructions from the conservators to take the names and addresses of every person not a member of the Prince’s Golf Club who played golf on the Prince’s golf course, and had in fact taken the names of between sixty and seventy persons, including the respondents, who had so played.

 

The Prince’s Golf Club is an exclusive club. No caddies have been in fact licensed by the conservators; all caddies hitherto licensed have been so licensed by the Prince’s Golf Club.

 

By-law 14 was published and the regulations were referred to on notice boards on the common.

 

The regulations for playing golf contained in the minute-book of the conservators had not been submitted to the Local Government Board for confirmation or approval.

 

A certain bridge connecting two portions of the ladies’ golf course is the private property of the Ladies’ Golf Club, and there is a considerable distance from the twelfth green to the thirteenth tee.

 

If a player requires a caddie he is bound to go to the Prince’s Golf Club for the purpose.

 

No evidence was produced, except the deed of July 20, 1901, that the conservators required members of the Prince’s Golf Club to obtain permits for playing on the spaces set apart as the Prince’s golf course, but the solicitor for the conservators in the course of the hearing admitted that “they did not make the regulations 5 and 7 applicable to the members of the Prince’s Golf Club because there was already a regulation as to their [*864] play.” No evidence, other than the said deed, of such other regulation was produced.

 

No evidence was produced that persons other than the inhabitants of Mitcham were under the obligation to obtain permits or caddies as a condition precedent to their playing golf on the places set apart for the purpose.

 

Upon the above evidence and admissions the appellants contended that by-law 14 gave them power to make the regulations put in evidence; that the regulations were not by-laws nor part of the by-laws, and did not therefore require confirmation by the Local Government Board; that the appellants have power under by-law 14 to compel all players to employ caddies and fix their fee or remuneration as incidental to or consequential upon the power conferred by that by-law to make regulations, and it was within the scope of the by-law that a fee should be fixed by the conservators without express power to do so; also that it is incidental to or consequential upon the same power that they should require inhabitants of Mitcham desiring to play golf on the Prince’s golf course or Prince’s ladies’ golf course to first obtain a permit as set forth in regulations numbered 7 and 8. The decision of the Court in De Morgan v. Metropolitan Board of Works (1) was cited as an authority in support of these contentions.

 

The respondents contended –

 

(a) That the regulations were in themselves by-laws requiring confirmation by the Local Government Board.

 

(b) That the regulations were ultra vires on the ground that they were unequal in their operation as between different classes and were repugnant to the scheme sanctioned by and contained in the Act of 1891.

 

(c) That if the regulations were not by-laws then there was no power to inflict a penalty. It was further submitted that the by-laws say nothing as to permits.

 

The decisions of the Court in Moorman v. Tordoff (2) and Kruse v. Johnson (3) were cited in support of these contentions.

 

(1) (1880) 5 Q. B. D. 155.

 

(2) (1908) 72 J. P. 142.

 

(3) [1898] 2 Q. B. 91. [*865]

 

The justices held –

 

(1.) That the regulations did not require confirmation by the Local Government Board.

 

(2.) That the regulations ought on the authority of Moorman v. Tordoff (1) to be regarded as incorporated in the by-laws.

 

(3.) That whether considered as regulations or by-laws Nos. 2 and 5 were partial and unequal in their operation as between different classes of persons in requiring players other than members of the Prince’s Golf Club to engage a licensed caddie (licences being in practice obtainable only from the same club, a body independent of the conservators), this being an unnecessary and unreasonable interference with the liberty of those subject to the by-laws.

 

(4.) That similarly regulations 7 and 8 were partial and unequal in requiring inhabitants of Mitcham who are not members of Prince’s Golf Club to obtain permits as a condition precedent to their playing golf on land set apart for the purpose, no similar regulation having been proved to exist with regard to members of that club.

 

(5.) That there was no power to charge a fixed fee or remuneration for a caddie either expressly conferred by or incidental to or consequential upon by-law 14; that the charge might be arbitrarily increased contrary to the intentions of the scheme and was unreasonable.

 

(6.) That the prohibition against playing golf on Saturdays on the Prince’s golf course except to members of the Prince’s Golf Club was partial and unequal in its operation and favoured those who were members of that club who can play on Saturdays to the exclusion of those who are not members but who wish to play on that day of the week upon the Prince’s golf course.

 

(7.) That the alternative given of using the ladies’ golf course to those desiring to play on Saturdays is partial and unequal in its operation and unreasonable.

 

Upon these grounds and in view of the decisions of the Court in the cases of Parker v. Bournemouth Corporation. (2) and Moorman. v. Tordoff (1) the justices decided that

 

(1) 72 J. P. 142.

 

(2) (1902) 86 L. T. 449. [*866]

 

regulations 2, 5, 7, and 8 were ultra vires and unreasonable, and therefore dismissed the informations.

 

The questions of law for the opinion of the Court were:–

 

(1.) Whether the justices correctly decided that the regulations as such did not require confirmation by the Local Government Board.

 

(2.) Whether the regulations numbered 2, 5, 7, and 8 or any of them were ultra vires or unreasonable.

 

Danckwerts, K.C., and Colam, for the appellants. The magistrates ought to have convicted in both cases. They have approached the consideration of by-law 14 and the regulations made under it from a mistaken standpoint. The conservators, a locally elected body, may be presumed to know what is for the advantage of the locality. By section 2 of the scheme they consist of one member appointed by the lords of the manors within which the commons lie, four members for Mitcham, four for Croydon, two for Beddington, and two for Wallington. The main ground on which the justices attack the by-law and regulations is that, they prefer the members of the golf club to the prejudice of other members of the public. But a body elected as these conservators were are not likely to do that without some reason. The attitude of mind in which the justices ought to have approached the by-law and regulations is that laid down by Lord Russell C.J. in Kruse v. Johnson (1): a by-law made by a public representative body ought to be supported unless it is manifestly partial and unequal in its operation between different classes, or unjust, or made in bad faith, or clearly involving an unjustifiable interference with the liberty of those subject to it.

 

As to the specific regulations, both respondents broke regulation 2; that regulation provides that no one shall play golf without a caddie, who may charge one shilling per round for his services. There is nothing partial or unequal in that; neither is it unjust, nor made in bad faith, nor does it involve any unjustifiable interference with the liberty of those subject to it. If all the public might play golf on Mitcham Common without caddies, the common would be a place of public danger instead of public

 

(1) [1898] 2 Q. B. 91. [*867]

 

recreation. The charge of one shilling per round is a reasonable and very usual charge. This is a perfectly reasonable and therefore valid regulation. Both respondents broke it, and therefore they ought to have been convicted, no matter whether the other regulations were valid or invalid; for if a by-law can be divided, one part may be rejected as bad, while the rest may be held to be good: Strickland v. Hayes. (1)

 

But the other regulations are good. Those numbered 5 and 7 are the ones impugned. No. 5 provides that no one who is not a member of the golf club may play on the men’s course on Saturdays, and No. 7 that no one may play on either of the courses unless he is a member of the golf club or an inhabitant of Mitcham holding a permit. The objections to these are (1.) that they unduly prefer the golf club above all persons, and (2.) that they prefer the golf club and inhabitants of Mitcham above all other members of the public. Now it is not per se conclusive of the invalidity of a by-law that it confers a preference; the question to be answered in each case is whether the agreement whereby the preference is given is reasonable: Parker v. Bournemouth Corporation. (2) In the present case the best judges of that are the conservators, who took into consideration facts which the justices seem to have ignored, namely, that but for the golf club there never would have been any golf; for, first, as assignees of the lords of the manors, the club could have prevented the courses being laid out except on payment of compensation, and, secondly, the club laid out the course at great expense and maintain it at great expense. This expense, and the conveyance of their rights in the soil to the conservators, and the rent they pay for their licence to play golf, constitute ample consideration for some preference. But who is to decide on the adequacy of the consideration? The conservators are beyond doubt the best judges of that. They best know whether on the balance the neighbourhood gains or loses by the existence of the golf club and the preference granted to it.

 

Then as to the restrictions imposed and the exclusion of persons other than members of the golf club and inhabitants of Mitcham, it is plain that all the world cannot play golf on

 

(1) [1896] 1 Q. B. 290.

 

(2) 86 L. T. 449 [*868]

 

Mitcham Common at their own free will. Some restriction must be imposed. Restriction by means of permit is a well-known method recognized by law: De Morgan v. Metropolitan Board of Works (1); Nash v. Manning (2); Williams v. Westonsuper-Mare Urban District Council. (3) A section of the public may be excluded by this means from a limited space: Gray v. Silvester. (4) If the whole common had been dedicated as a public golf course there would be much to support the decision of the justices; but that is not the case. The regulations are amply warranted by section 19 of the scheme, which enabled the conservators to frame by-laws and regulations for the prevention of nuisances and the preservation of order upon the commons.

 

Macmorran, K.C., and J. A. Johnston, for the respondents. The object and intention of the scheme is to dedicate the commons for the purposes of exercise and recreation to and for the use of the public. Any attempt by the conservators to use or apply their powers to any other purpose is ultra vires and of no effect. No bargain or promise so to use or apply them can stand, no matter on what consideration it be based. Therefore the attempt to prefer the golf club in consideration of the conveyance of rights in the soil which they formerly owned, or of their having made and maintained the golf courses, or of the rent which they pay, or for any other consideration, must fail. It follows that regulation 5 in so far as it excludes from the men’s course on Saturdays all who are not members of the golf club is void. The special case shews that the ladies’ course, to which on Saturdays all the rest of the public is relegated, is a very inferior course. Further, to exclude the respondents and other persons in their position on Saturdays is practically to exclude them altogether.

 

For the same reason regulation 7 is void in that it prefers members of the golf club before the public at large. It is also void in that it prefers inhabitants of Mitcham before the public. The commons were dedicated to the public at large as well as to the inhabitants of Mitcham. The granting of permits to this class is merely an indirect way of preferring them, and this

 

(1) 5 Q. B. D. 155.

 

(2) (1894) 58 J. P. 718.

 

(3) (1907) 6 L. G. R. 92.

 

(4) (1897) 61 J. P. 807. [*869]

 

preference has not even the colour of a consideration to justify it. It is true that the playing of golf on Mitcham Common must be ordered and restricted by regulations, but the regulations must apply to all equally. A regulation purporting to set aside part of the common for a particular class is partial and unequal and therefore void. If the circumstances of this case should justify a preference, the preference ought to have been conferred by by-law considered and passed by the Local Government Board. It cannot be conferred by a mere regulation. For these reasons regulations 5 and 7 are void.

 

Regulation 2 is unreasonable and void also in that it involves an unjustifiable interference with the liberty of those subject to it: Kruse v. Johnson. (1) The justices were therefore right in dismissing the informations.

 

Danckwerts, K.C., in reply.

 

Cur. adv. vult.

 

May 30. The judgment of Phillimore and Hamilton JJ. was read by

 

PHILLIMORE J. Informations were laid by the appellants against the respondents for that they severally broke No. 14 of the by-laws for the regulation of Mitcham Common in that each played golf without a caddie and Cox played on a Saturday on the golf club course, he not being a member of the club, and Cole also not being member of the club played without a permit. The facts were proved as laid, but the magistrates declined to convict, and stated a case for the opinion of the Court.

 

Both respondents were inhabitants of Mitcham, but this gives them no other advantage over the rest of the King’s subjects than to qualify them for a permit under the by-law if such a permit can be required.

 

The by-law and the regulations applicable to these cases are as follows: [The judgment set out by-law 14 and regulations 2, 7, and 8, and proceeded.]

 

It is said that these regulations are unreasonable and unequal and ultra vires, that if made at all they should be made as

 

(1) [1898] 2 Q. B. 91. [*870]

 

by-laws with the requisite consent, and that if they are covered by the by-law then the by-law must be bad.

 

It is necessary to give some consideration to the general law as to commons. There are several classes of commons. But such a common as we are dealing with is part of the waste of a manor, or manors, over which the freehold and copyhold tenants of the manor or manors, and possibly others, by custom, have certain rights. Subject to these rights the soil and all rights in it belong to the lord or lords of the manor or manors. The public, that is the King’s subjects generally, have no right over a common even if they be inhabitants of a parish or manor in which the common lies. But so many people have rights over them that such commons are rarely enclosed, and there are both practical and legal difficulties in the way of any steps being taken to restrain the public from walking and taking their pleasure on them, if no physical damage is done thereby.

 

The commons round London had become to such an extent pleasure grounds for the inhabitants of the metropolis, and it was so important to preserve them for this purpose that in 1866 the Metropolitan Commons Act was passed. Mitcham Common is one of these commons, and a scheme was framed for it, which was itself confirmed by statute in 1891 (54 & 55 Vict. c. xxvi.). By the scheme no rights of property are vested in the conservators. The scheme is not altogether well drawn; for instance by an error of human frailty well known to those who have experience in drafting the main object of the scheme is hardly mentioned. If one did not know enough of the history of this legislation to look for it, one might almost miss it. Enough, however, is to be found to indicate that the conservators are to preserve the common by inclusion, exclusion, and regulation, for the recreation of all those of the King’s subjects who desire to walk and divert themselves upon it, in other ways than by organized games. Along with this comes the provision in clause 18 empowering the conservators to set apart portions of the common for organized games and to form and partially enclose ground for these games. It is under this clause and clause 19 that by-law 14 has been made; and it is under these [*871]

 

two clauses and the by-law that the regulations if valid are to be supported.

 

The inequality of these regulations is obvious. They give special advantages to the inhabitants of Mitcham over the rest of the public, and they give further advantages to the members of Prince’s Golf Club over the inhabitants of Mitcham and over the rest of the public: see Kruse v. Johnson. (1) This inequality in preferring members of the golf club is justified first by reason of ownership of the soil, and secondly by reason of the golf ground having been made and being kept up by the club or by some one whose rights have passed to the club.

 

The two reasons must be kept separate, though the narrative is nearly the same for both. [The judgment stated the facts relating to the foundation of the Prince’s Golf Club and Prince’s Ladies’ Golf Club and the devolution of the rights of the lords of the manors to the conservators, and proceeded.]

 

Now the scheme recognizes the proprietary rights of the lords, but postpones them to that enjoyment by the public, both by way of general recreation and in organized games, for which the scheme provides. It goes on to give compensation if injury is caused to the proprietary rights by such postponement. This compensation is to be in money. The conservators now have the manorial rights in the soil, but it is not competent for them to use these rights in derogation of the scheme. Neither could they have let the lords as such have any exclusive or any perpetual rights of recreation, nor can they effect the same object by a circuitous process. The regulations cannot be supported on this ground.

 

The scheme does not contemplate the acquisition by the conservators of the rights in or over the commons claimed by the lords of the manors except so far as the continuance of such rights will interfere with the control, preservation, or improvement of the commons by the conservators or with any of the purposes of this scheme: see clauses 38 and 40. The dispute in pursuance of which the action was brought, which ended in a settlement on the terms, inter alia, of conveying the manorial rights to trustees for the conservators, was one in which the Prince’s Club itself or

 

(1) [1898] 2 Q. B. 91, at p. 99. [*872]

 

its predecessor was setting up against the conservators a right to injure the surface of the common by cutting turf and digging gravel, a dispute happily settled long ago. Apart from such interference the scheme must be deemed to have provided in itself to the satisfaction of the Legislature the requisite powers of management, improvement, and control, without intending that the conservators should get in manorial rights which were by its provisions expressly saved. Doubtless as private persons the conservators are not disabled from being beneficially interested in such rights, but they can only enjoy them, and as conservators are bound to use them as they are to use land forming part of the common, namely, for the purposes of this scheme, that is to say for the good of the public at large, not discriminating between class and class, nor assuring privileges to some nor denying benefits to any. The conservators, however, are not precluded from using their rights as owners of the soil nor from contracting to use these rights for the benefit of the club; and, while they cannot as owners of the soil interfere with persons using the common in accordance with the scheme and with by-laws validly made under it, they can as such owners use any rights they may have to remove trespassers. And it may be that all those who use the common otherwise than in accordance with the scheme and such by-laws are trespassers and could be removed, and that the two respondents, playing as they were at a game which has an element of danger in it and interferes with the free user of the common by others, were trespassers, not being licensed so to do, and could have been removed. This, however, does not give a right to lay an information against them and get them fined.

 

We now come to the other reason which is put forward in support of the regulations. There is no doubt that the club and its predecessor in title, Mr. R. H. Cox, has spent and spends much money in making and preserving the golf ground. Does this expense authorize the preferential treatment for members of the club provided by these regulations? And, if such treatment can be authorized, can the authority be given by mere regulation or must it be by by-law? Clause 19 of the scheme contemplates by-laws and regulations, provides that by-laws shall have no [*873]

 

force unless approved after a certain procedure which gives opportunity for objectors to make their objections heard by the Local Government Board, and enforces their observance by a fine. The scheme says nothing more about regulations. It speaks of the by-laws regulating the playing of games and, in one passage, of the by-laws containing regulations. It is clear that for many purposes subordinate or minor regulations, often temporary, will need to be made, such as regulations enforcing enclosures made under clause 16. There is no reason why, under “the regulation of games to be played,” should not be included regulations fixing the time for play, its beginning and its ending, and forbidding play to all on certain days, deciding where the players are to begin and where to end, the intervals between sets of players, the order in which they are to follow one another, the total number who may play at once, and the means by which those who are in waiting shall take their turn. They might provide also for the arrangement of matches on days fixed beforehand. Regulations may include precautions for the safety of the public and the preservation of the turf. The conservators may even, without written regulation for every case, delegate to their appropriate officers the impartial decision ad hoc of questions and disputes which require immediate adjustment. It may be that they may by regulation classify the players who are to use a particular spot with reference to their proficiency or skill, and assign, for example, a deep pond to swimmers, or a clear piece of ice to adept skaters, one ground to children and one to men, one spot to persons who come together and wish to play together, and another to others. And as regulations can best be enforced by treating those who infringe them as breakers of a by-law, there is no objection to a by-law which provides that games should only be played according to regulations (if the regulations be of the nature indicated) so that persons who play in defiance of the regulations may be proceeded against and fined for breach of the by-law. It was hardly disputed that such a regulation as that, (No. 4), which provides that players at golf shall start from the first tee, or that, (No. 2), which provides that they shall be accompanied by a caddie, were regulations of this class. [*874]

 

Regulation No. 2 is expressed and has been explained as being made for the preservation of the turf, the better order of the game, and the safety of passers by. As such there is no objection to it. Nor is there any objection to requiring caddies to be authorized or licensed. The objection to the small fee of 1s. was abandoned during the argument. Both respondents infringed regulation No. 2 by playing without a caddie. Therefore they broke by-law 14 and ought to have been convicted.

 

This way of looking at the case might dispense the Court from passing upon the more serious question of preferential treatment. But it would be inconvenient to take this course, after the parties have come before us at great expense to argue the point. The question of preferential treatment thus raised is one of greater difficulty. It is one thing to make such regulation of games as we have indicated, but it is another matter if the conservators seek by regulation to reserve any part of their common to private associations or to particular classes so as to exclude or to subordinate as a regular thing persons outside such associations or classes. The “regulation and management” of commons which the Legislature contemplated were for the equal good of all. The object of such schemes is “to secure in perpetuity the common as a place which the public might use as of right for the purpose of recreation.” “The user of the common is necessarily placed under regulations,” but why? “In order that all classes may at all times share in its enjoyment”: De Morgan v. Metropolitan Board of Works. (1) Clearly then the public at large has equal rights with others to play golf on the parts of the common set apart for golf. Much has been made by the appellants’ counsel of the argument that the conservators had come under a legal duty or at least a moral obligation (it matters not which) to secure this priority and privilege to the golf clubs. They have agreed during the currency of their licence “not knowingly to permit any person or persons other than those authorized by the company or residents of the parish of Mitcham to play golf or any other game on the said courses” in consideration of the creation or maintenance of the courses at the clubs’ expense, and of other payments applicable by the

 

(1) 5 Q. B. D. 155, at p. 158. [*875]

 

conservators to general purposes. This preference was further justified in consideration of the conveyance by the Prince’s Club to trustees for the conservators of the soil of the common and the manorial rights therein which have been already mentioned. It was said that for the benefit of the public and the improvement of the common, the conservators might make reasonable bargains with third parties, so as to secure the execution of works which they could not afford to undertake themselves; that to acquire golf courses and get them kept up and obtain the benefit of the rights of the lords of the manors (saving that of appointing a conservator which the club retained) upon the terms of giving to the clubs from whom these benefits were derived the priorities and privileges in question was no more than it was reasonable for conservators to do. But if by-laws tending to grant such priorities and privileges are bad, as being beyond the powers of the conservators under the scheme and “repugnant to the laws of England,” they will not become good because the conservators may feel bound or impelled to make them in order to implement some contract they have entered into or to discharge some supposed obligation. Upon the whole we think that lawful preferential treatment is the exception and is a question of degree. If the conservators have not funds to lay out a golf course or to make, roll, and water proper cricket pitches or bowling greens, and clubs are willing to go to the initial and continuous expense necessary to make and maintain them, there may be circumstances in which conservators may, for the sake of all players, give some preference to those who will make and keep the playgrounds. But the preference must be so temporary or so discontinuous as to leave substantial and ample opportunities to the non-preferred, and not unduly to interfere with the non-playing public. Here the regulations absolutely and at all times exclude all but inhabitants of Mitcham and members of the club. This cannot be justified. Further, the conservators cannot, by requiring licences or permits to be taken out, create a preference indirectly which could not be justified directly. Licences or permits are unobjectionable so far as they are part of the machinery of legitimate regulation. As soon as they become mere means of discrimination or hindrances in the [*876] way of one class from which other classes are free they cease to be justifiable and cannot be required. The Metropolitan Commons Acts were not passed for the inhabitants of Mitcham, but for the public of the metropolis and the country at large, and the dweller in Kensington has as much right to recreate himself there as the dweller in Mitcham.

 

The regulations also give a preference to the members of the club over the inhabitants of Mitcham and all others, which may be so serious as to leave to the latter no substantial opportunities of play. Whether this be so or not, and whether the suggested consideration be adequate or not, we cannot tell. Sufficient facts are not found. We were told at the Bar that Saturday is the only possible day for the respondents and others in like position. It may be so, but the fact is not found. We were told that the ladies’ golf course, which is given as an alternative, is very inconvenient. We make the same answer. Further, we do not know whether the respondent Cole and others in his position would have had any difficulty in getting a permit, or whether he was merely asserting what he conceived to be his rights in playing without asking for one. Neither do we know whether it would have been impossible for the conservators to get money under clause 24 of the scheme or from local authorities under clause 24 of the Act of 1866, nor the exact quantum of benefit which the club has given. But we can see enough to infer that this preferential treatment carried to this extent may be very serious for others. We can see that the argument that private expenditure upon a public common may constitute a claim to special and even exclusive enjoyment of it is one that requires close scrutiny. We think that before conservators resolve upon or are permitted to grant such a preference to a class, in derogation of the equal rights of the public, the real necessity and the general advantage of the arrangement ought to be clearly made out. Hence we think that such matters should be passed upon by the Local Government Board, which can hear objections to a proposed by-law; and we come to the conclusion that the preferential treatment in the present case, permanent as it is, and exclusive as it is, could not at any rate be granted by mere regulation. There must be at least some indication in [*877] the by-law that preferential treatment is to be given, and some authority, however general, to give it must be expressed in the by-law. There being none, regulation 7 is ultra vires, and no one could be punished under the by-law for breach of it.

 

On this larger point the appellants fail. But the case must go back to the justices with a direction to convict each respondent for playing golf without being accompanied with a duly authorized and licensed caddie.

 

SCRUTTON J. read the following judgment:– These were two appeals by special case stated from the refusal of magistrates for the county of Surrey to convict R. H. Cox and George Cole respectively of offences against by-law 14 made by the conservators of Mitcham Common.

 

Cox was charged with playing golf on a part of the common set apart for that purpose by the conservators at a time, namely, Saturday, and in a manner, namely, without a caddie, not allowed by the regulations of the conservators. Cox was an inhabitant of Mitcham and had a permit to play golf on the common in accordance with the conservators’ regulations. Cole, who played on a Friday, was charged with playing golf on a part of the common set apart for that purpose by the conservators in a manner, namely, without a caddie, and without a permit from the conservators, not allowed by their regulations. Cole was also an inhabitant of Mitcham.

 

The case is of general importance. The principles governing it affect not only Prince’s Golf Club at Mitcham and other persons who desire to play golf on the course provided and kept up by that club, but they also may affect all golf played on commons, where clubs keep up a course, such as, to take only two examples, Blackheath and Westward Ho! And the relevance of these principles is not limited to golf, but affects the numerous clubs generally of working men who play cricket or football on fixed portions of metropolitan commons or parks, frequently spending money on the cricket pitches or football grounds they are allowed to occupy, and it may extend further to clubs for bowls, or lawn tennis, making similar uses of prepared grounds. [*878]

 

The facts of these cases are as follows. Before 1891 certain waste lands near Mitcham belonged to five manors. The commoners had certain rights of pasturing cattle, and probably of cutting litter and turf. So long as the lords of the manors did not interfere with these rights they could enclose the commons, dig gravel from them, and otherwise destroy or disfigure them. The proximity of the commons to London was lessening the number of genuine commoners who could restrain the lord from enclosing, while litigation against him was expensive. Only the accident that the Corporation of London had a cemetery which occupied the site and had the rights of a commonable tenement enabled them to preserve the commons and wastes composing Epping Forest from the enclosures of the lords. For the public, not commoners, though they walked about on sufferance, had no legal rights in the common. This had led to the passing of the Metropolitan Commons Acts of 1866 and 1869.

 

These Acts forbade further enclosure of metropolitan commons under the Inclosure Acts, and allowed the preparation of schemes by which such commons might be regulated by commissioners who, while making compensation for any rights extinguished, might maintain the commons for public enjoyment and recreation. The position of such a common was considered by Lush J. in the case of De Morgan v. Metropolitan Board of Works. (1) There by a scheme under the Act of 1866 Clapham Common was dedicated to the use and recreation of the public as an open and unenclosed space for ever, to be regulated and managed by the board. The board made a by-law prohibiting the “delivery of any public speech, lecture, sermon, or address of any kind or description whatever, except with the written permission of the board first obtained, and upon such portions of the common and at such times as may by such written permission be directed and sanctioned by the board.” This by-law was objected to as invalid, and it was argued, that the common having been “dedicated to and for the use and recreation of the public as an open and unenclosed space for ever,” the board could not prevent the public from assembling there whenever they pleased for the purpose of hearing sermons, or lectures, or addresses, on any subject,

 

(1) 5 Q. B. D. 155. [*879]

 

religious, political, or otherwise. In giving judgment Lush J. said (1): “If this argument were sound it would follow that any number of public meetings might be held at the same time in various parts of the common, even to the extent of monopolizing the whole area, to the disturbance of the neighbourhood and the exclusion of that portion of the public who desired to use it for the purpose of recreation. We are satisfied that such was not the intention of the scheme which Parliament has sanctioned. Its object was to secure in perpetuity the common as a place which the public might use as of right for the purpose of recreation, and in order that all classes may at all times share in its enjoyment, the user of the common is necessarily placed under regulations. By-laws are a code of restrictions. Modes of user which, if enjoyed without limitation as to time or place, would unduly interfere with the comfort and enjoyment of others, such as riding, boating, cricketing, bathing, and the like, are put under reasonable restrictions. It is equally necessary that the holding of public meetings on the common should be also put under regulation. And what can be a more reasonable mode of regulating such meetings, than to require information beforehand what the object and character of the meeting are, in order that the board may be able to judge whether it is such as ought to be allowed on the common, and if so to prescribe reasonable limits as to time and place?”

 

Under the Metropolitan Commons Acts a scheme was prepared for the Mitcham commons sanctioned by the Board of Agriculture, and confirmed by a local and personal Act of 1891 (54 & 55 Vict. c. xxvi.). Under it the regulation and management of the commons were vested in a board of conservators, of whom twelve were elected by local authorities, and one by the lords of the manors within whose bounds the commons lay. The scheme did not affect any existing right of lords of manors or commoners, but gave the conservators the power of restricting, diminishing, or extinguishing such rights by the payment of compensation. The lords had therefore the right of themselves digging in the soil so long as they did not affect the rights of the commoners; and could stop other people from digging on the soil. As

 

(1) 5 Q. B. D. at p. 158. [*880]

 

applied to golf the lords could themselves dig bunkers and could stop other people, such as the conservators, from digging them. Subject to this, the conservators were to maintain the natural features of the commons, but were to set apart such portion or portions of the commons as they might consider expedient for games. They might form grounds for cricket or other games. They had power to frame by-laws and regulations for the prevention of nuisances and the preservation of order upon the commons, including the regulation of games to be played on the commons. By-laws were to be confirmed by the Local Government Board. Nothing is said about the necessity for confirming regulations.

 

Pausing for a moment to consider the position, Parliament has placed in the hands of a body of conservators, almost entirely elected by representatives of the locality, the right of regulating by by-law the user of the common for recreation and for games. In the first place, on the authority of Kruse v. Johnson (1), in the words of Lord Russell C.J.(2), “But, when the Court is called upon to consider the by-laws of public representative bodies clothed with the ample authority which I have described, and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think the consideration of such by-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, ‘benevolently’ interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered. …. But, further, looking to the character of the body legislating under the delegated authority of Parliament, to the subject-matter of such legislation, and to the nature and extent of the authority given to deal with matters which concern them, and in the manner which to them shall seem meet, I think Courts of justice ought to be slow to condemn as invalid any by-law, so made under such conditions, on the ground of supposed unreasonableness.” Secondly, as pointed out by Lush J. in De Morgan v. Metropolitan Board of Works (3), user by the public in the case of

 

(1) [1898] 2 Q. B. 91.

 

(2) [1898] 2 Q. B. at p. 99.

 

(3) 5 Q. B. D. 155. [*881]

 

games must be restricted to allow of any effective user at all. All the world, or even all the dwellers in the locality, cannot play cricket or football on Mitcham Common on the same Saturday afternoon; some must be excluded. And any attempt to be rigidly and mathematically just and fair, by taking each applicant in order of priority, will only result in no effective user at all. You can hardly put the first twenty-two applicants in order of time to play cricket together on one pitch, and the first thirty applicants, whether previously unknown to each other or not, to play Rugby football. Such sports can only be pursued by organized clubs who can only efficiently manage them if they are sure of a pitch for the season and so can arrange a fixture list of matches. A club can only arrange matches if it can say to prospective opponents “I am sure of a ground.” If it can only say “By the justice of the conservators, if I can get a ground on June 17 in competition with other applicants I will play you,” it will not get any matches at all. And permanent user by such a club may exclude other players or clubs. Yet it would be impossible, in my opinion, to condemn such an arrangement as “partial and unequal between different classes,” or “manifestly unjust” – to use again Lord Russell’s words in Kruse v. Johnson. (1) It is rather the effective way of regulating the user, the details of application of which must be left to the locally elected authority.

 

Further, some games, such as cricket, bowls, lawn tennis, and golf, cannot be played without prepared grounds. The conservators may have no funds with which to make such grounds, and if they have funds from local authorities or otherwise they cannot make the bunkers or greens necessary for a golf course without the consent of the lord of the manor who owns the soil. They may, in my opinion, procure the co-operation of local clubs who undertake to make and maintain the grounds on the terms that they shall have priority of user at certain times, or of the lord of the manor, who will make the course on his soil, on terms that he has priority of user. The public gain by getting without cost grounds to play on and grounds which are free, subject to certain prior privileges to those at whose expense

 

(1) [1898] 2 Q. B. 91, at p. 99. [*882]

 

or by whose abandonment of legal rights they are provided and maintained. Again, it seems obvious that the conservators cannot put into by-laws all the terms on which each game is to be played, or each part of the common used for recreation. It must be sufficient for them to prohibit by by-law user of parts of the commons except by their permission and on terms granted by them, in other words, to take the course approved in De Morgan v. Metropolitan Board of Works (1) already cited.

 

Lastly it is clear law that “if a by-law can be divided, one part may be rejected as bad, while the rest may be held to be good”: per Lindley L.J. in Strickland v. Hayes. (2)

 

With these general considerations I turn to the facts of the particular case.

 

Up to the time of the scheme no golf had been played on the commons by any one. Golf cannot be played without prepared tees for starting from, and putting greens for holing out on, and a good course requires a suitably mown fairway and suitably placed bunkers for catching bad shots. It is an expensive matter to make such a course and to keep it in order, and, as pointed out, to make a course interferes with the rights of the lords of the manors in the soil. About the time when the scheme was in contemplation, it was also in contemplation to form a golf club on the common to be known as Prince’s Golf Club. To strengthen their legal position the founders or promoters of this club acquired the lordships of two of the manors which included the common, and with them the soil of the common, subject to the commoners’ rights. And from this legal position as owners of the soil they were working on, they proceeded at considerable expense to lay out a golf course. There was some friction between the conservators and commoners and the golf club, of the kind that is usually terminated by the landowners and tradesmen of the locality discovering that the gain to them from the influx of golf players is much greater than the slight interference with their common rights. In this case the friction got as far as a writ by the conservators, but at length an amicable settlement was arrived at in 1893-1894. The club transferred to the conservators the rights of the lords of the two manors they had acquired and

 

(1) 5 Q. B. D. 155.

 

(2) [1896] 1 Q. B. 290, at p. 292. [*883]

 

undertook to pay an annual rent of 60l. In return for this the conservators granted the club a licence to play golf on the course they had laid out for twenty-one years, and undertook not to interfere with the club’s playing golf on the course nor to allow any person other than members of the club or inhabitants of Mitcham to play golf on the course. It will be noticed that neither the conservators nor the inhabitants of Mitcham incurred any expense either in laying out or keeping up the course. The inhabitants of Mitcham, indeed, were particularly favoured. They got their golf for nothing, they obtained the benefit of the transfer of the club’s manorial rights to the conservators; and members of the public if not inhabitants of Mitcham or members of the club, were excluded from the course. A ladies’ golf course was laid out on similar terms, and maintained by the ladies’ club, paying a rent of 40l. a year to the conservators. In 1901 the existing licences were surrendered and a new licence for thirty years from December 31, 1900, granted to the club at a rental of 250l. a year. The conservators were not to interfere with the playing of golf by the members of the club, nor to allow others than members, and inhabitants of the parish of Mitcham, to play golf thereon. The inhabitants of Mitcham still preserved their favoured position beyond other members of the public of getting a good golf course for nothing.

 

The conservators had purported to act under section 18 of their scheme by setting apart the ground occupied by the course for the game of golf. They made by-laws which were sanctioned by the Local Government Board. By-law 14 provided that no person should play at golf upon the parts of the common set apart for it except at such times and under such regulations as the conservators might from time to time prescribe. The conservators accordingly issued regulations. Regulation 7 forbade any person to play on the course unless he was a member of Prince’s Golf Club, or an inhabitant of Mitcham holding a permit from the conservators. Regulation 2 required each player to have a caddie licensed in a particular way at a charge of 1s. per round, I protest against a Court who may know much or nothing about golf or caddies being called upon to decide whether this regulation made by the locally elected authority is good or bad. [*884]

 

But if I am to consider it I remark that a round takes about two hours, and the charge of 1s. per round is a very usual one at London clubs. The object of requiring a caddie is threefold. First, he is there to warn the public present on the common of the risk of being hit, and his employer of the risk of hitting them. On Blackheath no golf is allowed by the London County Council, unless a fore-caddie is employed for this purpose. Secondly, in golf, most good players and all bad players in making their stroke cut out a divot of turf: it is the caddies’ business to replace the turf so removed, and if this is not done, the turf is soon destroyed. Thirdly, the enjoyment of golf to some extent depends on players throughout the green moving at an even pace. Couples without a caddie generally play slower than those with a caddie, so much so that at many clubs a rule prevails that players without a caddie may be passed by players with a caddie. Less time is also spent in looking for lost balls if a caddie is employed. Cole, however, insisted on playing without a permit from the conservators and without a caddie and was accordingly summoned under by-law 14 for playing golf not under the conservators’ regulations.

 

Regulation 5 restricted the play on Saturdays of persons not being members of the golf club to the ladies’ course. Cox claimed to play on the men’s course on Saturdays and to play there without a caddie and was summoned for a similar offence under by-law 14.

 

The magistrates held that the regulations must be treated as incorporated in the by-law. In Cole’s case they held the resultant by-law bad, (1.) because it was partial in requiring a permit to be obtained by others than members of Prince’s, (2.) because it was partial and unreasonable to require such a player to take a caddie, (3.) because there was no authority to make a fixed charge for a caddie and the by-law in this respect was unreasonable.

 

In Cox’s case they repeated the second and third reasons in Cole’s case, and further found that the exclusion of non-members of the club from the men’s course on Saturdays and the allotment of the ladies’ course to them on that day was unreasonable and partial. [*885]

 

It cannot be denied that members of Prince’s Club are place by the regulations in a different position from non-members. They need not get a permit; they have the monopoly of the men’s course on Saturdays, and priority on other days. They appear to be subject to the regulation as to caddies. But they start in a different position from the inhabitants of Mitcham. Their money made the golf course; their money keeps it up; it was made on their soil as lords of the manor, and they have transferred this soil to the conservators in consideration of leave to play on the common, for which they pay a large annual rent. Being members of a club which can expel them, there is a guarantee for their good behaviour. The question appears to me to be, are the conservators authorized to make a distinction between classes, when one class consists of the people who have formed and maintain the golf course, and transferred property to the conservators in exchange for licence to play, and the other of people who pay nothing for the golf course, and are merely asking to use without payment, and for the purpose of a game not previously played on the common, a course which others have established and maintained, and which the inhabitants could not if they had the funds have established for themselves in view of the rights of the lords? For the general reasons already stated, I see no objection to the course taken by the conservators. They had no money of their own, but they have got others to establish and maintain a golf course on which the public can play, and to give them a rent, subject to this, that the people who pay shall have precedence in the use of the course they have established. This question is not confined to golf. Many small cricket clubs have every Saturday a monopoly of a cricket pitch on the metropolitan commons. It is essential to their fixture list that they should have a certainty of a pitch every Saturday, and highly convenient that they should have the same pitch on which they frequently spend money and labour in improvements. The magistrates’ decision, as I follow it, would condemn any preferential allotment to these clubs as partial and unreasonable, and would upset the arrangements of most of the cricket and football clubs playing on commons near London. The case of the golf club which makes the course seems to me [*886] much stronger, and in my opinion the conservators are justified in getting the course made for public use by granting preferential privileges to the makers, especially in view of the manorial rights they surrender and the rent they pay. The reasoning of the magistrates as to permits I do not follow; and it appears contrary to the decision in De Morgan v. Metropolitan Board of Works. (1) The member of the public who attempted to address public meetings on Clapham Common said it was unjust and unequal that he should be required to get a permit from the conservators before doing so. At Mitcham it is clear that some members of the public must be excluded, i.e., that the conservators may regulate the user of the golf course. For instance, if ladies are allowed to play indiscriminately on the men’s course, the play of all the men will be interfered with. For the pace of the green is the pace of the slowest couple, and the series of matches playing at any time are all affected by the slowness or inefficiency of any one of them. The same remark applies to children under fourteen. Subject to the point of the conservators’ excluding members of the public, other than inhabitants of Mitcham dealt with hereafter, I see no objection to the rule about permits. And I do not see why an inhabitant of Mitcham who can get a permit should refuse to get one, because it is not granted to other members of the public not inhabitants of Mitcham, except on the ground that the conservators are not entitled to regulate the persons who play at all, which appears to me contrary to De Morgan v. Metropolitan Board of Works (1) and untenable. I see no reason for interfering with the judgment of the conservators as regards the caddie. It follows that in the case of Cole, who desires to play without a permit and without a caddie, the magistrates should have convicted, the by-law, with the regulations which he infringes incorporated, not being open to any of the objections taken.

 

In the case of Cox I have already dealt with the point as to a caddie. His remaining objection, and no doubt the chief objection in the case, is that he is not allowed to play on the men’s course

 

(1) 5 Q. B. D. 155 [*887]

 

on Saturday. He is not stopped from playing golf on Saturday; the ladies’ course is open to him; but priority amounting to monopoly of the other course is given to those whose money provides and maintains both courses and who granted the rights in the soil which alone allowed them to be made. Mr. Cox and Mr. Cole, in my opinion, get very good and extremely cheap golf, and I am not disposed to view favourably their insistence on equality with the people whose money alone has made this golf possible, and to whom the conservators owe their possession of the soil of the course, and the greater part of their revenue. If Messrs. Cole and Cox attacked the exclusion of the public other than inhabitants of Mitcham there would be more to be said for their contention; but this probably would not suit their views.

 

Holding, as I do, that the regulations which Messrs. Cox and Cole attack are not unreasonable, are severable from the other regulations, and need not be expressly made as by-laws, I do not find it necessary to consider some of the other regulations, which they did not break, but which were attacked in argument. I do not understand the validity of an objection, “I may play without a caddie on Friday because it is unjust to exclude me from the men’s course on Saturday,” or “I, an inhabitant of Mitcham, may start from the ninth tee, because it is unjust that a member of the public not an inhabitant of Mitcham should be excluded altogether.” The regulations infringed and attacked seem clearly sensible. But I may say that an objection made in argument to the regulation requiring obedience to the rules and etiquette of golf seems untenable. The person admitted to the golf course must play golf, not some fancy invention of his own which he thinks is an improvement, such as playing two balls as a single player. And he must not interfere with the other matches playing, which is the object that the “Etiquette of Golf” is chiefly directed to.

 

But I desire to say that serious questions may arise on which I reserve my final judgment, as to the exclusion of golf players other than inhabitants of Mitcham, which at present I find difficult to justify. In my judgment the two cases should be remitted to [*888] the magistrates with directions to convict of all the alleged offences.

 

Appeal allowed.