The King (at the prosecution of Andrew King) v The Chairman and Justices of Antrim

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 15 January 1906
• Court: King's Bench Division (Ireland)
• Date: 15 January 1906

The King (at the Prosecution of Andrew King)

and

The Chairman and Justices of Antrim (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1906.

Fisheries — Deleterious matter — Dilation in river — Point at which deleterious character of matter placed in river is to be ascertained — 5 & 6 Vict. c. 106, s. 80 — Quarter Sessions — Acquittal, subject to case stated — Speaking order — Certiorari — Common Law — Power to remit to Quarter Sessions — “Person” as applied to corporations.

Held, by Lord O'Brien, L.C.J., Palles, C.B., and Gibson, J. (Madden and Wright, JJ., diss.), that the time at which the deleterious character of the matter was to be ascertained was the moment it entered the river; that the effect of the action of the river upon it was immaterial, and that, accordingly, the grounds set out in the case stated as a justification for the acquittal were bad in law.

Held, per Curiam, that when a Court of Quarter Sessions acquits a defendant, and makes the acquittal subject to a case stated, wherein the reasons on which the Quarter Sessions acted are set forth, and such acquittal is brought up into the King's Bench Division by writ of certiorari, there is jurisdiction, under the Common Law, in the King's Bench Division to inquire into the sufficiency of the reasons so set forth, and if such reasons be found insufficient, the King's Bench Division will quash the order of Quarter Sessions.

But the jurisdiction of the King's Bench Division in Ireland is confined to affirming or quashing the order of Quarter Sessions. There is no jurisdiction analogous to that which prevails in England under the Supreme Court of Judicature Act, 1894, section 2, to remit the order with the opinion and direction of the Court for rehearing and determination of the Court of Quarter Sessions.

Held, also, that a corporation is a “person” within the meaning of 5 & 6 Vict. c. 106, s. 80.

Frazer & Haughton, Limited, millowners, were summoned to appear at the Petty Sessions of Ballymena, county Antrim, at the instance of Andrew King, fisheries inspector, Toombridge, to answer a complaint under 5 & 6 Vict. c. 106, s. 80 (1), that they did cause a certain deleterious or poisonous liquid to flow from their works at Hillmount into the River Maine. The case having been heard before the Justices on October 7th, 1904, an order was made dismissing the charge on the merits. The complainant appealed to the Court of Quarter Sessions at Ballymena. The appeal came before Judge Orr, sitting alone as Chairman of Quarter Sessions, on January 30th, 1905, whereupon it was contended that the acts charged against the defendants (the particulars of which are set out in the case stated, infra) did not amount to an offence within the section. Judge Orr yielded to the contentions put forward on behalf of the defendants, but agreed to state a case for the opinion of the King's Bench Division as to whether he was right or wrong in his view of the section. Accordingly, he made an order that the Justices' order be affirmed, with £2 for costs, to be paid by the complainant to the defendants, subject to a case stated for the opinion of the Court.

(1) 5 & 6 Vict. c. 106, s. 80: “And be it enacted, that no person shall throw, empty, or cause to run or flow, into any river or lake, any dye stuff or other deleterious or poisonous liquid, or shall throw into such river or lake any lime, spurge, or other deleterious or poisonous matter, or shall steep in such river or lake any flax or hemp; and if any person shall so offend, he shall forfeit and pay for every such offence any sum not exceeding ten pounds; provided always, that nothing in this Act contained shall extend or be construed to render any person liable to the penalties hereby imposed, for casting into any river or stream any dye-stuffs or other materials which are not of a deleterious nature, or which are not in a state poisonous to fish or other animals using the waters thereof.”

The case stated was filed in the office of the King's Bench Division, and came before the Court (Palles, C.B., Johnson and Kenny, JJ.) on June 6th, 1905, Mr. Hanna appearing for the complainant, and Mr. Conner, K.C., and Mr. Thompson for the defendants. It was objected on the part of the defendants—(1) that the case stated was irregular, inasmuch as it purported to have been stated by Judge Orr, as County Court Judge, whereas in fact he was exercising the jurisdiction of Chairman of Quarter Sessions; and (2) that there was no jurisdiction in the Chairman and Justices at Quarter Sessions to state a case.

Palles, C.B., dealt with the two objections raised in the following judgment.

F. & H., Ltd., a firm of millowners at H., were prosecuted for having caused deleterious or poisonous liquid to flow from their works into the river M., in breach of 5 & 6 Vict. c. 106, section 80. The case was dismissed by the magistrates before whom it was originally heard, and, on appeal to Quarter Sessions, it was heard by the Chairman alone, who came to the conclusion on the facts that the matter, although highly deleterious to fish when discharged into the river, became, at the instant of its getting into the river, so largely diluted as to cease to be deleterious. Holding that the point at which it was to be determined whether the discharge was deleterious or not, under the section, was immediately after it entered the waters of the river, he dismissed the summons, but subject to a case stated for the opinion of the King's Bench Division.

The order of the Chairman of Quarter Sessions, incorporating the case stated, was brought up by writ of certiorari, and the sufficiency of the reasons set out in the case stated as justification for the order of acquittal was discussed:—

Palles, C.B.:—

We are all of opinion that one of the objections taken by Mr. Conner to the special case, in its present form, must prevail. The adjudication sought to be reviewed is one of the Court of Quarter Sessions, whilst the case is stated by the County Court Judge. Although he is ex-officio Chairman of Quarter Sessions, and, if sitting alone in that capacity, would constitute the Court, still, not even as Chairman, and much less as County Court Judge, is he the Court of Quarter Sessions.

The statutes referred to, and the Justices' Commission, do not touch the matter. Our jurisdiction to hear the case is not derived from any statute, nor from the power reserved in the Justices' Commission. It is, as explained in detail by Earl Cairns, L.C., Lord Penzance, and Lord O'Hagan in Walsall v. London & NorthWestern Railway Company (1), our Common Law jurisdiction of bringing before us by certiorari the decision of an inferior Court, and determining whether that decision was, or was not, made within jurisdiction.

As, however, there is no doubt that it was the Quarter Sessions who intended to state the case, the objection is one of the merest form. We shall, therefore, direct the case to be handed back to the solicitor, so that the intention of the Quarter Sessions shall be carried out, if it still desires to state the case.

Upon being informed that the case has been stated in proper form, we will grant an absolute order for a writ of a certiorari on a motion without notice, and the case will be brought up by the return to that writ.

The case stated was accordingly taken off the file and handed back to the complainant's solicitor. The following is the case stated, as amended in pursuance of the leave given:—

Case stated by me, James Orr, acting Chairman of Quarter Sessions for the County of Antrim, Division of Ballymena, and the only Justice sitting at Quarter Sessions held for the said Division on the hearing of the above criminal appeal, for the opinion of the King's Bench Division of the High Court of Justice in Ireland, on certain questions of law hereinafter set out, at the instance of Andrew King, the complainant and appellant; defendants reserving their right to object to my jurisdiction to state a case.

The subject-matter of this case stated is a summons issued by the complainant, who is a fishery inspector, against the defendants, who are a limited company, carrying on the business of bleachers and finishers of linen, for that they, on the 11th August, 1904, at Craigs, in the county of Antrim, did cause certain deleterious or poisonous liquid to flow from their works at Hillmount into the river Maine. This summons was brought under section 80 of 5 & 6 Vict., chapter 106. The Justices at Petty Sessions dismissed it on the merits, and it came before the Justices sitting at Quarter Sessions, on appeal by the complainant. I was the only Justice who heard and adjudicated on the said appeal.

On the evidence, as given before me, I found the following facts:—

The construction of the defendants' works is correctly delineated in the maps prepared by Mr. Boyd and Mr. Ferguson, which accompany this case, and are to be taken as incorporated therewith. From these maps it appears that the mill, so far as water-power is concerned, is worked by two turbines and one breast-wheel. Turbine No. 2 and the breast-wheel are served by one and the same tail-race, called No. 2; but turbine No. 1 is served by a separate tail-race, called No. 1, which enters the Maine at a different point from No. 2. There is an overflow from No. 1 to No. 2, over which the surplus water from No. 1 is discharged into No. 2 when the sluice is closed down, and by-passes from No. 2 to No. 1, at points indicated on map, which are brought into use when required. The defendants, in the course of their business as bleachers of linen, first boil the cloth in a lime solution. The cloth, is then steeped in a chloride of lime solution, the lime being merely a vehicle to contain the chlorine, which is the only poisonous ingredient in the substances used. This solution is put into a...