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the management of the common lands which will bind all commoners. railway company may make by-laws for the regulation of its traffic which will bind all its passengers and servants. The town council of a borough may make by-laws for the government of the borough which will bind all who come into it. But such by-laws will not affect the outside public or derogate from their vested rights.1

In determining the validity of by-laws made by public representative bodies, such as county councils, the Court ought to be slow to hold that a by-law is void for unreasonableness. A by-law so made 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 involves an unjustifiable interference with the liberty of those subject

to it.2

Disobedience to a by-law is generally punished by imposing a fine; a by-law cannot be made to inflict imprisonment on an offender or to forfeit his goods, unless such a power be expressly given by statute. But a chartered trading corporation may make a by-law, forfeiting the stock or shares of any member of the corporation who does not pay his calls.*

The power to make by-laws may be given (i.) by charter, either expressly or impliedly, (ii.) by custom, or (iii.) by

statute.

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(i.) By Charter.—A charter is a document under the seal of the Crown granting certain privileges to individuals or corporations, or forming individuals into a corporation. Power to make by-laws is usually given in express terms by the charter creating the corporation. When not so expressed, still the power is deemed to have been granted by implication; for it is essential to the very existence of a corporation." When there is an express grant of such a power, it can only be exercised by the persons on whom the power is expressly conferred, and in the manner and for the purposes, if any, specified. But if the charter be silent, the power rests in the members of the corporation at large for all purposes within the charter."

1 Mace v. Philcox (1864), 15 C. B. N. S. 600.

2 Kruse v. Johnson, [1898] 2 Q. B. 91

Clark's Case (1596), 5 Rep. 64 a; Kirk v. Nowill (1786), 1 T. R. 118.

Child v. Hudson's Bay Co. (1723), 2 P. Wms. 207.

A privilege conferred by a charter is called a franchise.

Selwyn's Nisi Prius, 13th ed., p. 1129.

Child v. Hudson's Bay Co., supra.

(ii.) By Custom.-Where any body, corporate or otherwise, has no charter and no statutory power to make a by-law, the existence of a custom entitling it so to do must be established by those who assert the validity of the by-law.

"A custom in a manor to make by-laws for the regulation of a common or great waste, parcel of the manor, is good," so long as it does not wholly exclude any commoner from the common. But a by-law would be bad if it wholly debarred any one of his right, instead of merely regulating his exercise of it. So, too, a court leet may by prescription make by-laws to regulate their own common, and a court baron may appoint a fieldreeve to look after the good order of the common. A guild or trade fraternity may by custom make by-laws for the regulation of their own trade; and so may a borough. But any guild or fraternity, which makes or enforces a by-law which is in diminution of the King's prerogative or against the common profit of the people, without first submitting the same to be examined and approved by the Chancellor, Treasurer and Chief Justices, or the Justices of Assize, will incur a fine of £40.5

(iii.) By Statute.—The power of making by-laws has been very freely bestowed by Parliament on local authorities and public companies. But in most cases such by-laws must be confirmed by some central authority.

(a) The council of every borough has power under section 23 of the Municipal Corporations Act, 1882,6" to make such bylaws as to them seem meet for the good rule and government of the borough, and for the prevention and suppression of nuisances not already punishable in a summary manner by virtue of any Act in force throughout the borough." Such by-laws may be enforced by fine not exceeding £5; and they must be published in the borough at least forty days before they come into force. All by-laws made under this section for good rule and government, and not as to the prevention or suppression of nuisances, must be submitted to a Secretary of State forty days before they come into force; and if within those forty days the King, by the

1 James v. Tutney (1639), Cro. Jac. 497; De Morgan v. Metropolitan Board of Works (1880), 5 Q. B. D. 155, 158.

2 Lord Crumwell's Case (1573), Dyer, 322; Earl of Excester v. Smith (1669), 2 Keble, 367.

3 Lambert v. Thornton (1697), 1 Lord Raym. 91.

4 See the Chamberlain of London's Case (1590), 5 Rep. 62 b.

5 19 Hen. VII. c. 7, s. 1.

6 45 & 46 Vict. c. 50.

advice of his Privy Council, disallows any by-law, it will not come into force. All by-laws made by a local authority, under the Weights and Measures Act, 1889,1 must be approved by the Board of Trade.2

This power of a borough council to make by-laws is not restricted to offences which are already punishable in some method other than by summary conviction. Thus, a by-law made by a borough council, imposing a penalty on any person who shall frequent or use any street or other public place for the purpose of bookmaking and betting, is not ultra vires (although it creates a new offence), so long as it is aimed at persons standing on the pavement with books in their hands lying in wait for customers, and does not include a person who happens to be in the street and casually makes a bet there. And a by-law made with the object of preventing any annoyance or disturbance from shooting-galleries, swing-boats, roundabouts, &c., is not bad, although it extends to land adjoining or near to a street or public place. But any by-law prohibiting persons other than freemen from opening a shop or carrying on any lawful trade within a borough. would now be bad, though such a custom was held good in 1610.6

(b) A borough council has additional powers of making by-laws in its capacity as an urban district council. Urban district councils can make by-laws under several sections of the Public Health Act, 1875,7 and the Public Health Acts Amendment Act, 1890. Such by-laws do not come into force until they have been confirmed by the Local Government Board, which has power to disallow, alter or amend any of them; and an opportunity must be given to the ratepayers of inspecting the proposed by-laws before they are confirmed. A penalty not exceeding £5 may be imposed for breach of any such by-law.

The Local Government Board freely exercises its power of supervising bylaws made by any local authority under the Public Health Act, 1875.10 For

152 & 53 Vict. c. 21.

2 1b., s. 28.

Burnett v. Berry, [1896] 1 Q. B. 611; Mantle v. Jordan, [1897] 1 Q. B. 248 ; White v. Morley, [1899] 2 Q. B. 34; Thomas v. Sutters, [1900] 1 Ch. 10.

Teale v. Harris (1896), 60 J. P. 744; see Shillito v. Thompson (1875), 1 Q. B. D. 12; and Strickland v. Hayes, [1896] 1 Q. B. 290.

Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), s. 247.

68 Rep. 124 b, 128 a; see Chamberlain v. Conway (1889), 53 J. P. 214; Byrne v. Brown (1893), 57 J. P. 741; Nash v. Manning (1894), 58 J. P. 718; and Toronto Municipal Corporation v. Virgo, [1896] A. C. 88.

38 & 39 Vict. c. 55; see especially ss. 44, 80, 90, 113, 141, 157, 164, 167, ì69, 171, and 172.

53 & 54 Vict. c. 59, ss. 20, 23, 44.

38 & 39 Vict. c. 55, ss. 182-188. The Local Government Board has issued a series of model by-laws relating to these matters for the guidance of local authorities.

10 38 & 39 Vict. c. 55; and see 47 Vict. c. 12.

B.C.L.

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instance, it has disallowed a by-law prohibiting all boys from throwing stones in the town, a by-law prohibiting persons from singing hymns in the street, a by-law forbidding strangers to bring dogs into the town, and a by-law forbidding "lounging" on Sunday afternoons!

(c) A rural district council has some of the powers mentioned in paragraph (b) above, and may acquire others.'

(d) A county council has the same power as the council of a borough to make by-laws for the good rule and government of its county, and for the suppression of nuisances not otherwise summarily punishable. By-laws made under this power must be passed by a meeting consisting of at least three-fourths of the members of the council; they may be enforced on summary conviction by a fine not exceeding £5; they must be published for at least forty days before coming into operation; but no by-law may impose a penalty exceeding £5 for any one offence. No county by-law has any force within a municipal borough. Any by-law made by a county council for the good rule and government of any district in the county must be confirmed by a Secretary of State as in the case of any such by-law made by a borough council. It will be construed so as to give all reasonable effect to the object which the council had in view.3

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A county council has also power to make regulations for bicycles; and as to the sale of coal under the Weights and Measures Act, 1889;5 as to land leased for military purposes under the Military Lands Act, 1892;6 as to light locomotives on bridges under the Locomotives on Highways Act, 1896;7 as to sea fisheries under the Sea Fisheries Regulation Act, 1888, and the Fisheries Act, 1891; as to the employment of children under the Employment of Children Act, 1903, &c.

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The London County Council has power to make by-laws as to very many matters affecting the metropolis under the Metropolis Management Acts, 1855 and 1862,10 the Public Health (London) Act, 1891,11 the London

1 See sections 3 and 23 of the Public Health Acts Amendment Act, 1890 (53 & 54 Vict. c. 59).

2 Local Government Act, 1888 (51 & 52 Vict. c. 41), s. 16.

8 Booth v. ilowell (1889), 53 J. P. 678; Walker v. Stretton (1896), 60 J, P. 313.

4 51 & 52 Vict. c. 41, s. 85.

5 52 & 53 Vict. c. 21, s. 28.

6 55 & 56 Vict. c. 43.

7 59 & 60 Vict. c. 36.

8 51 & 52 Vict. c. 51; 54 & 55 Vict. c. 37.

9 3 Edw. VII. c. 45.

10 18 & 19 Vict. c. 120; 25 & 26 Vict. c. 102, as amended by the 48 & 49 Vict. c. 33. 11 54 & 55 Vict. c. 76.

Building Act, 1894, and amending Acts, the Metropolis Management Acts ment (By-laws) Act, 1899,2 and other statutes.

(e) A parish council may make by-laws for regulating parks, recreation grounds, village greens, &c., and as to pleasure-boats on any water in such parks or recreation grounds.3

(f) Metropolitan borough councils derive power from the London Government Act, 1899, to make by-laws under section 23 of the Municipal Corporations Act, 1882,5 as to the good rule and government of the borough, and for the prevention and suppression of nuisances. These by-laws are to be in force only within the borough and must not be inconsistent with any by-laws made by the county council. Bylaws may also be made-as to many matters affecting the metropolis-under the Metropolis Management Acts, 1855 and 1862, the Public Health (London) Act, 1891,7 and other statutes. Such by-laws, if made for the good rule and government of the borough, must be confirmed by a Secretary of State; if for the suppression of nuisances, by the Local Government Board.

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(g) Since 1902 the local education authority for a county is the county council, for a county borough the county borough council, for a borough-other than a county borough -where the population is over ten thousand, the borough council, and for an urban district where the population is over twenty thousand, the urban district council. Such a local education authority may make by-laws for various purposes under the Education Acts, 1870 to 1902,8 with the sanction of the Board of Education.

(h) Parliament has also conferred power to make by-laws on all railway companies and on many dock companies, canal companies, &c.

c. 33.

18 & 19 Vict. c. 120; 25 & 26 Vict. c. 102, as amended by the 48 & 49 Vict.

754 & 55 Vict. c. 76.

See 2 Edw. VII. c. 42, s. 17.