[DIVISIONAL COURT]

THE KING v. MANCHESTER CORPORATION.

Mandamus - Sufficiency of Interest of Prosecutor.

Where petitioners appear in opposition to a Bill before Parliament, and, with the object of protecting their own interests, procure the insertion in the Bill of a clause imposing a particular duty upon the promoters or other persons, they will have a sufficient interest in the performance of that duty to support an application by them for a mandamus to enforce it, notwithstanding that they are not named in the clause, and that the duty is one imposed for the benefit of the public at large.

So held by Lord Alverstone C.J. and Pickford J., Avory J. doubting.

RULE for a mandamus to the Corporation of Manchester to make by-laws in compliance with the provisions of a local Act.

In the year 1900 the Corporation of Manchester promoted a Bill in Parliament giving them powers to construct additional tramways in and near the city of Manchester. The Bill was opposed by the National Motor Carriage and Horse Owners Accident Insurance Union, Limited, a company which was incorporated with the objects, amongst others, of effecting insurances against damage resulting from accidents sustained by owners of all kinds of vehicles by collision, and also of procuring the amendment or repeal of legislative enactments or by-laws and regulations of local authorities which might prejudicially interfere with the convenient, proper, and free use of carts, carriages, and other vehicles. The said company desired for the protection of their own interests, to have inserted in the Bill provisions as to the distances within which tramcars might lawfully follow one another upon the promoters' tramways. As the result of their opposition s. 44 was inserted in the said Bill, which became the Manchester Corporation Tramways Act, 1900 (63 & 64 Vict. c. ccxci.). By that section it was provided that the corporation should "make by-laws under the provisions of the Tramways Act, 1870, .... prescribing the distances at which carriages using the tramways shall be allowed to follow one after the other." The corporation, purporting to act under that section, made the following by-law:- "The driver of every carriage using any tramway within the city shall so drive the

same that it shall not follow a preceding carriage using the tramway at a less distance than twenty-five yards except as hereinafter mentioned viz.:- (a) In the central area" (which was therein defined to include certain specified streets) "the distance at which a carriage shall follow a preceding carriage shall be such as may be directed by the police." The corporation's by-law as originally drawn prescribed two yards as the minimum distance to be allowed between tramcars, but at the instance of the Board of Trade it was altered into the above form and in that form was approved by the Board. The police gave no directions as to the distance at which tramcars may follow one another in the central area, but the constables on duty in the streets regulated the traffic in the usual way. Owing to the lack of prescription of distances for tramcars the traffic in the central area became very congested, and tramcars followed one another without leaving sufficient space for vehicles to pass between them. The said insurance company were in consequence frequently obliged to pay claims upon them by their insured for damage to their horses and vehicles caused by collision in the central area. The company, having endeavoured without success to induce the corporation to amend their by-law, obtained a rule for a mandamus to the corporation to make a by-law in compliance with the terms of s. 44 of the Act of 1900.

Balfour Browne, K.C., Lewis Coward, K.C., and H. Fletcher Moulton shewed cause. The corporation have complied with the section. The by-law which the Act requires them to make is one which satisfies the Board of Trade, and the by-law in question has been approved by the Board. But even if the by-law is not a compliance with the section this is not a case for a mandamus. A similar application was made by the same prosecutors in the year 1902, and a mandamus was refused, Channell J. pointing out that the proper remedy was either to indict the corporation for breach of their statutory duty or to procure the Attorney-General to file an information. The prosecutors have not sufficient interest to entitle them to a mandamus. In Reg. v. Lewisham Union (1) the guardians had neglected the duty which

(1) [1897] 1 Q. B. 498.

lay upon them of enforcing the provisions of the Vaccination Acts in the district, and the district board of works as being the sanitary authority of the district sought to compel the guardians to discharge their duty. But it was held that they had no specific legal right to enforce the performance by the guardians of their duty and were not entitled to a mandamus. That is a much stronger case than the present.

Forbes Lankester, K.C., and Bertram Jacobs, in support of the rule. The powers of the police to regulate the traffic existed before the Act, and the object of the section was to give the public additional protection. The corporation therefore in leaving the matter to the police to deal with have neglected to perform their statutory duty. Under those circumstances a mandamus will be granted, and the present prosecutors are entitled to apply for it. In Tapping on Mandamus, p. 32, it is said, "Those for whose benefit a statute is made, although not specifically named, should be the parties, applicants for the mandamus." Here s. 44 was inserted for the benefit of the applicants, in the sense that it was inserted as the result of their opposition and was more for their benefit than for that of the rest of the public. Upon the former application before Channell and Jelf JJ. it did not appear that the Court were informed that s. 44 was inserted at the instance of the applicants, and no decision was given upon the question whether that fact would give a right to apply. A very slight special interest is enough to support an application for a mandamus. In Reg. v. Cotham (1), where licensing justices had granted a transfer of a licence in disregard of the statute giving them jurisdiction, it was held that the mere fact of the applicant being the vicar of the parish in which the licensed premises were situate was sufficient to entitle him to apply for a mandamus to the justices to hear and determine the matter of the licence according to law.

LORD ALVERSTONE C.J. A question has been raised as to whether the prosecutors have sufficient interest in the performance by the corporation of their statutory duty to entitle them

(1) [1898] 1 Q. B. 802.

to apply for a mandamus. I have more than once pointed out in this Court that we do not regard what may be called private bargains made in committee rooms; but if in fact a clause is inserted in a Bill on the petition of an opponent, which fact is of course on record, we do not consider that the opponent who has obtained that clause has no special interest in the performance of the duty imposed by the clause merely because his name does not happen to be inserted in the clause. In this case the persons for whom Mr. Lankester appears, having procured the insertion in the Bill of a special clause for the protection of the general public, and through them of their own trade interests also, are in a superior position to that of a common informer. The general question as to the amount of interest which will entitle a person to apply for a mandamus is one which may in a future case require further consideration. The authorities do not seem to be quite consistent upon the point. In Reg. v. Cotham (1) a very slight interest was held to be sufficient to allow of the application. On the other hand, the case of Reg. v. Lewisham Union (2) is an authority that where there is no direct interest and another remedy the rule ought not to be granted. The question as to the circumstances under which persons may apply for a mandamus, even though there be another remedy by indictment or by information of the Attorney-General on the relation of the prosecutor, may require to be considered. But at all events I am satisfied that the prosecutors in this case, who are only seeking to enforce a clause which was obtained on their own petition, have a sufficient interest to enable them to make the application.

PICKFORD J. It is said that these applicants ought not to have this mandamus because they have no greater interest than any other members of the public, and that they could have proceeded either by indictment or by putting in motion the Attorney-General. What happened, as I understand, was this: The corporation promoted this Bill, which afterwards became the Manchester Corporation Tramways Act, 1900. The applicants opposed the Bill. A clause which afterwards became s. 44 was inserted in

(1) [1898] 1 Q. B. 802.

(2) [1897] 1 Q. B. 498.

the Bill, and on the insertion of that clause the opposition to the Bill on the part of the applicants was withdrawn. They thought, rightly or wrongly, that it was desirable that greater protection should be given to themselves and the public than was afforded by the mere regulation of the tramway traffic by the police. Under those circumstances I do not think we can say that they are in the same position as every other member of the public and have no special interest in the matter. It was also said that this matter had on a previous occasion been before a Divisional Court, consisting of Channell and Jelf JJ., and that they had held that these applicants had no special interest. But it does not appear that the fact of the insertion of s. 44 in consequence of the opposition of the applicants was before the Court at all or that they considered it. Therefore I do not think that their decision is an authority which prevents us from saying that these persons have a sufficient special interest.

AVORY J. I entertain considerable doubts whether the insurance company here have that kind of personal interest which would entitle them to come and ask for this writ. I believe the true principle is that which is laid down by Wright and Bruce JJ. in Reg. v. Lewisham Union. (1) Wright J. there quoted with approval a passage from Tapping on Mandamus where it is said that "The prosecutor must be clothed with a clear legal and equitable right to something which is properly the subject of the writ, as a legal right by virtue of an Act of Parliament"; and Bruce J. said the Court "has always required that the applicant for a mandamus should have a legal specific right to enforce the performance of those duties." And Channell J., when an application was made by this very same insurance company for a similar writ in 1902, said, speaking of the present applicants, "The company and their manager, who come forward as prosecutors asking for this mandamus, are obviously, to my mind, people who have no more right than any ordinary member of the public. When a party comes to this Court with some kind of personal right, and asks to have a duty of some one else towards him ordered to be performed by mandamus,

(1) [1897] 1 Q. B. 498.

he stands in a totally different position. When a person who has no such individual right comes to the Court and asks to have a statutory or other duty performed the matter stands in a wholly different position." (1) Although it is true that that is not the ground on which the rule was there refused, that was a statement of the law which I believe to be perfectly accurate, and which seems to me to apply to the present case. In my opinion the Court is not entitled to take notice of what we are told took place in the committee room when this Bill was before the House. It does not appear to me that that confers upon the applicant the kind of legal personal right which is referred to in the judgments which I have cited. For that reason I doubt whether the applicants are persons who can properly apply for this writ.

[All the members of the Court were agreed that the corporation's by-law did not prescribe the distance at which tramcars should be allowed to follow one another, and that the corporation had consequently failed to discharge their statutory duty under s. 44 of the local Act. They accordingly made the rule for a mandamus absolute.]

Solicitors for Corporation of Manchester: Austin & Austin, for the Town Clerk, Manchester.

Solicitors for prosecutors: Beale & Co., for Griffiths Lewis, Manchester.

(1) Unreported.

J. F. C.