perform statutory duties.

Liability to indictment.

the statute, or by any persons who bring themselves within the operation of the statute; and questions often arise as to what liability is incurred by neglect to perform statutory duties.

When a statute creates a duty, one of the first questions for judicial consideration is what is the sanction for breach, or the mode for compelling the performance, of the duty. This question usually resolves itself into the inquiry whether the Act is mandatory or directory. If it be directory, the Courts cannot interfere to compel performance or punish breach of the duty, and disobedience to the Act does not entail any invalidity.(a) If the Act be mandatory, disobedience entails legal consequences, which may fall under the heads of public and private remedies in courts of justice, or the avoidance of some contract, instrument, or document without the intervention of any Court.

Where, in a statute creating a duty, no special remedy is prescribed for compelling performance of the duty or punishing its neglect, the Courts will, as a general rule, presume that the appropriate common law remedy by indictment, mandamus, or action was intended to apply.

Even where the statute creating the duty also provides a special remedy for its enforcement, the common law remedies (of indictment, mandamus, or action according to the subject-matter) are in many cases available cumulatively or alternatively to the special remedy contained in the statute. Whether they are so or not is upon each statute a question of construction.

As a general rule, a person who neglects to perform a statutory duty is liable to be proceeded against by indictment if the duty is public. Charles, J., in the recent case of R. v. Hall (1891), 1 Q. B. 747, at p. 743,(b) adopted, as the principle which should govern a case of this description, the rule stated in Hawkins' Pleas of the Crown, book 2, ch. 25, s. 4. The passage is as follows:-"It seems to be a good general ground,

(a) Vide infra, p. 261.

(b) Most of the earlier cases are discussed in that judgment, at pp. 762-69.

that wherever a statute prohibits a matter of public grievance to the liberties and security of a subject, or commands a matter of public convenience, as the repairing of the common streets of a town, an offender against such statute is punishable, not only at the suit of the party aggrieved, but also by way of indictment for his contempt of the statute, unless such method of proceeding do manifestly appear to be excluded by it." "Yet, if the party offending have been fined to the King in the action brought by the party, as it is said that he may in every action for doing things prohibited by statute, it seems questionable whether he may be afterwards indicted, because that would be to make him liable to a second fine for the same offence. Also where a statute makes a new offence which was in no way prohibited by the common law, and appoints a peculiar manner of proceeding against the offender, as by commitment, or action of debt, or information, &c., without mentioning an indictment, it seems to be settled to this day that it would not maintain an indictment, because the mentioning the other methods of proceeding seems impliedly to exclude that of indictment. Yet it hath been adjudged

that if such statute give a recovery by action of debt, bill, plaint, or information, or otherwise, it authorizes a proceeding by way of indictment. Also, where a statute adds a further penalty for an offence prohibited by the common law, there can be no doubt but that the offender may still be indicted, if the prosecutor think fit, at the common law. And if the indictment for such offence conclude contra formam statuti, and cannot be made good as an indictment upon the statute, it seems to be now settled that it may be maintained as an indictment at common law."

The principle laid down in the latter part of this passage has been adopted by Parliament in the Interpretation Act, 1889, s. 33, which provides that where an 52 & 53 Vict. act or omission constitutes an offence under two or more... Acts, or both under an Act and at common law, the offender, unless the contrary intention appears, is liable

c. 63.

Mandamus.

to be prosecuted and punished under either or any of the Acts or at common law, but is not liable to be punished twice for the same offence. This provision applies to all Acts, public, local, personal, and private. By the contrary intention seems to be meant some repugnancy between the two or more laws or express repeal of the prior law. "Where new created offences are only prohibited by the general prohibitory clause of an Act of Parliament, an indictment will lie; but where there is a prohibitory particular clause specifying only particular remedies, then such particular remedy must be pursued, for otherwise the defendant would be liable to a double prosecution: one upon the general prohibition, and the other upon the particular specific remedy." (c)

The fact that the penalty is annexed to the offence in the clause of the Act creating it, as a general rule excludes any remedy other than the special penalty for the mere breach of the duty created by the Act.(d) But it is not essential for the application of this rule that the offence and penalty should be contained in the same clause. "All that the authorities establish is, that where there is a substantive general prohibition (or command) in one clause, and there is a subsequent clause which prescribes a specific remedy, the remedy by indictment is not excluded."(e)

Whenever a person, whether filling an office under the Crown or not, has a statutory duty of a public nature, such as to do an act or to make an order, (ƒ) towards another person, a mandamus will lie to compel him to perform it. This rule does not apply to duties created by charter or royal warrants, (g) and the writ of mandamus is not granted if there is any other legal or equitable remedy equally convenient, beneficial, and effec

(c) Lord Mansfield in R. v. Wright (1758), 1 Burr. 543. The Int. Act, s. 33, does not affect this opinion.

(d) Per Lord Campbell in Couch v. Steel (1854), 3 E. & B. 402. (e) Per Charles, J., in R. v. Hall (1891), 1 Q. B. at p. 770. (f) R. v. Income Tax Commissioners (1888), 21 Q. B. D. 313, 322. See R. v. Commissioners of Woods and Forests (1850), 15 Q. B. 761. (g) R. v. Sec. State for War (1891), 1 Q. B. 326.

c. 131.

tual.(h) Thus, in R. v. Registrar of Joint Stock Companies (1888), 21 Q. B. D. 131, an attempt was made to compel the Registrar to file a contract under s. 25 of the Companies Act, 1867, which he had refused to file on the 30 & 31 Vict. ground that it was insufficiently stamped, but the application was refused, on the ground that another appropriate, convenient, and effectual remedy existed for questioning the legality of the refusal, under the Stamp Act, 1870, ss. 33 & 34 Vict. 18, 19, 20. Consequently, when the statute creating the c. 97. duty, or any other statute contains a specific and adequate remedy for the breach, the remedy by mandamus is not available, it being, not an ordinary alternative, but a last resort to the prerogative. And it is always necessary, on applications for a mandamus, to ascertain whether the Legislature has in a statute given a command to which it is the business of the Courts to enforce obedience, or simply a direction, discretion, or counsel of perfection with which no judicial interference is permissible.(¿)

remedies.

The High Court of Justice, in the exercise of its Equitable equitable jurisdiction, will in some cases interfere, by mandatory or other injunction, to restrain the breach or compel the performance of a statutory duty. The willingness of the Court to intervene depends upon the nature of the duty to be performed,(k) and, as a rule, the Court will prefer to confine the exercise of this jurisdiction to cases where there is a legal wrong done, as distinct from a neglect to perform the statutory duties.(1) But the mere fact that the duty is the creature of a statute, and does not arise from an ordinary contract, will make no difference. "I wholly disclaim," said Bacon, V.C., in Greene v. West Cheshire Railway (1871), L. R. 13 Eq. 49,

(h) See R. v. Lambourn Valley Rail. Co. (1888), 22 Q. B. D. 467, and cases there cited.

(i) In re Nathan (1884), 12 Q. B. D. 461, 478.

(k) "Where, from the nature of the relief asked, specific performance will alone answer the justice of the case, there it is granted": per Wigram, arguendo, in Storer v. Great Western Ry. (1842), 2 Y. & Coll. Ch. 50. On the other hand, it appears, from Powell v. Taff Vale Ry. (1874), 9 Ch. App. 331, that the Court will not order specific performance of a continuous act involving labour and care.

(1) James, L.J., in Glossop v. Heston L. B. (1879), 12 Ch. D. at p. 116.

When action lies for neglect of statutory duty.

"the notion that a railway company is to be dealt with in this court upon any other principles than those which would and ought to be applied to individuals. Their contracts are to be considered as any other contract.

. . It is an imperative duty to take care that the powers with which the Legislature has entrusted them are not so exercised as to protect them in escaping from the fulfilment of their lawful engagements."

The High Court has often granted injunctions against local authorities in respect of their acts and defaults in carrying out drainage works, but, as a rule, the proper remedy is by mandamus or ex-officio information, instead of private remedy by action and injunction.(m) In such a case, as was pointed out by Jessel, M.R., in Att.Gen. v. Cockermouth (1874), 18 Eq. 172, at p. 178, "it is not necessary for the Attorney-General to show any injury at all. If the Legislature is of opinion that certain acts will produce injury, that is enough." In cases where notice of action is necessary to entitle an individual to damages for neglect by a corporation of a statutory duty, he may, by application for an injunction in a proper case, get rid of the necessity of giving the notice, both shaking off the statutory fetter and utilising a remedy not specified in the statute.(n)

Whether an action will lie for the non-performance of a statutory duty "must," as Lord Cairns said in Atkinson v. Newcastle Waterworks (1877), 2 Ex. D. 441, at p. 448, "to a great extent depend on the purview of the Legislature in the particular statute, and upon the language which they have there employed."(o) The Statute of Westminster (13 Edw. 1), c. 50, gives a remedy by action on the case to all who are aggrieved by the neglect of any duty created by statute, and it is laid down in Comyns (Digest, tit. Action upon Statute, F.), "that in

(m) See Glossop v. Heston L. B. (1879), 12 Ch. D. 102, at p. 115, per James, L.J.

(n) Chapman v. Auckland Union (Guardians of) (1889), 23 Q. B. D. 294; Rendall v. Blair (1890), 45 Ch. D. 157.

(0) Approved by the Jud. Comm. in Bathurst (Borough of) v. Macpherson (1879), 4 App. Cas. 268.