1904 ELECTRIC LIGHT AND POWER COMPANY 27. CHEPSTOW GAS AND COKE CONSUMERS' the following notice to the electric light company: "We CHEPSTOW hereby give you notice that we object to the manner in which you have laid your mains and lines in the streets and roads where the same are laid near our mains, on the ground that they have not been laid in accordance with the provisions of the Electric Lighting (Clauses) Act, 1899, and more especially on the ground that in several places you have laid your mains COMPANY. and lines so close to the mains belonging to this company, and in many instances crossing the mains of this company, that free access to such mains is wholly prevented. We hereby give you further notice that we require you to lay your mains and lines at a distance of at least one foot from the mains of this company, and in such a manner that this company can have free access to their mains." The whole of the work of laying the electric lines in the streets mentioned in the complaint was completed by October 31, 1903. On November 2, 1903, the manager of the gas company wrote to the electric light company: "With reference to the several requirements which we have from time to time made to you in writing by letter and by notices and also verbally by our manager to you and your contractors during the course of the laying down of your electric mains and lines, for the protection of our gas mains and pipes and for securing access thereto, which requirements you have failed to comply with, we write you for the purpose of presenting to you in the most formal way the matters which we require you to give your immediate attention to." The letter then set forth various specific requirements made by the gas company for the purpose of protecting their mains from injury and of securing access thereto, and continued: "Although we have from time to time pointed out the above requirements to you none of them have so far been fulfilled. We also give you notice that we require you to give us proper notices of all future operations, so that we can effectually control them. Kindly let us hear that all these requirements will be at once complied with. We desire to add that at the proper time we shall claim from you the penalties we contend are due to us for your breaches 1904 ELECTRIC LIGHT AND of your Acts as well as such damages as we may prove we have sustained, or may hereafter sustain, by your operations." CHEPSTOW Throughout the whole of the correspondence the electric light company disputed the reasonableness of the gas company's requirements. On November 14, 1903, the gas company applied to the Board of Trade to appoint an arbitrator "to investigate and determine the questions and differences which have arisen between this company and the Chepstow Electric Light and Power Company, Limited," and the Board of Trade accordingly appointed an arbitrator, who held the arbitration on February 1 and 2, 1904. On February 12, 1904, the arbitrator made his award, by which he found and awarded as follows: He found that the electric light company did not comply with the conditions of s. 18 of the schedule to the Electric Lighting (Clauses) Act, 1899, in respect of giving to the gas company not less than three days' notice before commencing to dig or sink their trenches for laying down or constructing their new electric lines and other works near to the mains belonging to the gas company in respect of the lines and works laid down and constructed in certain streets (being the same streets as were described in the complaint) between September 7 and November 13, 1903, "and did not conform with such requirements as were made by or on behalf of the gas company for protecting from injury their said mains and for securing access thereto": That the said electric lines and works had been laid down and constructed in certain portions of the before-mentioned streets in undue proximity to the mains or pipes belonging to the gas company, and such mains and pipes were in fact more liable to damage, and the gas company's access thereto was rendered more difficult and inconvenient by reason of such undue proximity : He awarded that the electric light company should pay to the gas company 361. 6s. 6d. as full compensation for the loss and damage suffered by the gas company in respect of the matters aforesaid, and that the electric light company should POWER COMPANY v. CHEPSTOW GAS AND COKE CONSUMERS' COMPANY. 1904 pay to the gas company the expenses of the award, which he CHEPSTOW assessed. ELECTRIC LIGHT AND POWER COMPANY V. CHEPSTOW GAS AND СОКЕ CONSUMERS' On April 29, 1904, the solicitors of the gas company wrote to the solicitors of the electric light company formally applying for payment of the sums awarded by the arbitrator, and stating that their clients were surprised that the electric light company had not made any attempt to comply with the requirements of COMPANY. the gas company, and that unless an undertaking were given that those requirements would be fully and satisfactorily complied with at an early date, the gas company would have no alternative but to make an application for penalties under s. 18 of the schedule to the Act of 1899. The complaint was laid on May 31, 1904, and bore that date. At the hearing of the complaint the facts found by the arbitrator were proved to the satisfaction of the justices, and they convicted the electric light company of the offence charged in the complaint, and fined them 17. and costs, and a daily penalty during default of 17. The conviction was as follows: "The Chepstow Electric Light and Power Company, Limited, hereinafter called the defendants, are this day convicted before this Court for that the said company on and since the second day of October, 1903, at Chepstow in the said county, did make and have made default in complying with certain requirements of s. 18, sub-s. 1, of the Electric Lighting (Clauses) Act, 1899, in that the said defendants have laid down and constructed new electric lines and other works in certain portions of the following streets, namely" [names of the streets stated], "in undue proximity to the mains or pipes belonging to the Chepstow Gas and Coke Consumers' Company, Limited, and did not conform and have not conformed with such requirements as were made by or on behalf of the said gas company for protecting from injury their said mains, pipes, and other works and for securing access thereto, contrary to the form of the statute in such case made and provided: And it is adjudged that the defendants do for their said offence forfeit and pay to the clerk of this Court the sum of one pound and the further sum of one pound for every day during default and the sum of 1904 eleven shillings for costs: And it is ordered that the said sums be paid forthwith: And if default is made in payment according CHEPSTOW to the adjudication and order, it is ordered that the sums due thereunder be levied by distress and sale of the defendants' goods." The question for the opinion of the Court was whether the justices' decision was right in point of law. Shiress Will, K.C., for the appellants. First, the conviction is bad on the face of it because, assuming there was power to convict at all, it inflicts future daily penalties before conviction for the offences in respect of which those penalties are inflicted. A conviction is good or bad as a whole; it cannot be taken to pieces and part held good and part bad: Reg. v. Slade (1), judgment of Wills J. Secondly, the conviction is bad under s. 11 of the Summary Jurisdiction Act, 1848 (2), because the offence was completed more than six months before the summons was issued. The conviction is bad on the face of it because it is for an offence committed "on and since October 2, 1903." The facts stated in the case shew that the acts complained of by the respondents were completed by the end of October, and it is not a continuing offence: Marshall v. Smith (3); Reay v. Gateshead Corporation (4); London County Council v. Cross (5); Reg. v. Struve (6); Welsh & Son v. West Ham Corporation (7); Hull v. London County Council. (8) The last-mentioned case is a strong authority in the appellants' favour. Thirdly, the offence was purged by the arbitrator's award, which is in terms an answer to the conviction, for it awards the respondents full compensation for the loss and damage (1) [1895] 2 Q. B. 247, at p. 248. (2) 11 & 12 Vict. c. 43, s. 11: "In all cases where no time is already or shall hereafter be specially limited for making any such complaint or laying any such information in the Act or Acts of Parliament relating to each particular case, such complaint shall be made and such information shall VOL. I. 1905. be laid within six calendar months (3) (1873) L. R. 8 C. P. 416. ELECTRIC LIGHT AND POWER COMPANY V. CHEPSTOW GAS AND COKE CONSUMERS' COMPANY. 1904 suffered by them in respect of the matters dealt with by the CHEPSTOW Conviction. The whole matter was referred to the arbitrator, ELECTRIC and the compensation must be taken to have included any possible penalties. LIGHT AND POWER COMPANY V. CHEPSTOW CONSUMERS' Macmorran, K.C. (S. G. Lushington with him), for the respondents. As to the first point, it must be admitted that so much of the conviction as inflicts future daily penalties is COMPANY. bad and cannot be enforced; but that part can be separated from the rest of the conviction, as in Mayor of Scarborough v. Rural Sanitary Authority of Scarborough (1), where it was held that an order for the abatement of a nuisance and for a prohibition was bad so far as it ordered the abatement, but good so far as it granted a prohibition. As to the second point, the offence specified in s. 18 of the schedule to the Electric Lighting (Clauses) Act, 1899, is "default in complying with any of the requirements of this section," and one of the requirements of the section is that the operators "shall conform with such reasonable requirements as may be made by the owners." Here the respondents, who were the "owners," complained that the appellants' electric lines were being laid too near the respondents' gas mains, and the conviction is for not complying with the respondents' reasonable requirements in that respect. There was no completed offence until it had been decided by the arbitrator's award that the lines were in fact laid too near the gas mains, and that the respondents' requirements were reasonable. At any rate the time limited by s. 11 of the Summary Jurisdiction Act, 1848, did not begin to run until the respondents' requirements were formally made by the letter of November 2, 1903. Further, the offence is necessarily a continuing offence; it continues so long as the failure to comply continues; it is in the nature of a continued disobedience of an order, and s. 11 therefore does not apply to it: see Mayer v. Harding. (2) In all the cases cited for the appellants, in which the offence was held to be not continuing, the act complained of was completed, as where a projection was permanently placed over the pavement, or a house was built beyond the building line; but (1) (1876) 1 Ex. D. 344. (2) (1867) 17 L. T. 140. |