penalty will not be considered as cumulative. In that case it appeared that it was enacted by the Sunday Observance Act, 1679 (29 Chas. 2, c. 7), s. 1, that "no tradesman shall do or exercise any worldly labour upon the Lord's day, and that every person shall for every such offence forfeit the sum of five shillings," and it was held that a person who sold small hot loaves four times on one Sunday had committed but one offence against the statute, and was liable to one penalty only. "On the construction of the Act of Parliament," said Lord Mansfield, "the offence is, exercising his ordinary trade upon the Lord's day, and that without any fractions of a day, hours or minutes. It is but one entire offence, whether longer or shorter in point of duration; so, whether it consist of one or of a number of particular acts. There is no idea conveyed by the Act itself, that, if a tailor sews on the Lord's day, every stitch he takes is a separate offence, or, if a shoemaker work for different customers at different times on the same Sunday, that those are so many separate and distinct offences." Penalties are also said to be cumulative when the Alternative penalties. same act or omission constitutes an offence under two or more Acts. But this use of the term is now inaccurate, as such penalties are always alternative, and not cumulative. S. 33 of the Interpretation Act, 1889, provides that where under any Act (whether general, local and personal, or private, and whether passed before or after January 1, 1890) any forfeiture or penalty is payable to a party aggrieved, it shall be payable to a body corporate in every case where that body is the party aggrieved.(s) This does not alter the rule of common law that a corporation cannot sue as a common informer. porations. 3. The liabilities of corporations under penal statutes Effect of penal are thus stated by Bowen, LJ.(t): "I take it to be Acts on corclear that in the ordinary case of a duty imposed by statute, if the breach of the statute is a disobedience to (s) Interpretation Act, 1889 (52 & 53 Vict. c. 69), s. 2 (2). Contract whi involves in its Terrace the law. punishable in the case of private persons by indictment, the offending corporation cannot escape from the onsequences that would follow in the case of an individual by showing that they are a corporation. That seems to me to be good sense and good law." By the Interpretation Act, 1889, repealing and reenacting 7 & 8 Geo. 4. c. 23, s. 14, "In the construction of every enactment relating to an offence punishable on indictment or on summary conviction, whether contained in an Act passed before or after January 1, 1890, the expression person shall, unless the contrary intention. appears, include a body corporate." The statutory rule is laid down in terms partly wider, partly narrower, than the judicial rule, which was enunciated without reference to the statute. A contrary intention is held to appear in the case of treason, felony, or misdemeanours, involving personal violence, as riots or assaults.(u) But in the case of libel and nuisance corporations may be prosecuted. 4. Any contract which involves in its fulfilment the doing of an act which is prohibited by statute, is void,(x) and, as a general rule, as Lord Hatherley said in Re Cork metal is and Youghal Railway (1869), 4 Ch. App. 758, “everything in respect to which a penalty is imposed by statute must be taken to be a thing forbidden." Consequently, if a contract involves in its performance the doing of anything which is rendered penal by statute, the contract will be void. This rule of law was enunciated by Lord Holt in Bartlett v. Viner (1692), Skinner 323, as follows: "Where a penalty is annexed to the doing of an act, though it be not prohibited, yet, if it appears upon the record to be the consideration, the agreement is void, for it will be ridiculous to give judgment that the plaintiff shall receive such a thing, the which if he takes, he shall be subject to the penalty of a statute; therefore, in every case where a statute inflicts a penalty for doing (u) See Pharmaceutical Society v. London and Provincial Supply Assoeration (1880), 5 App. Cas. 857, 869. (x) Vide ante, p. 263. an act, though the act be not prohibited, yet the thing is unlawful, for it cannot be intended that a statute would inflict a penalty for a lawful act." A contract may be void without being illegal, when the making of the contract is forbidden, but the sole penalty for disobedience to the prohibition is, that the contract cannot be enforced. This is the case with betting contracts within the Wagering Act (8 & 9 Vict. c. 109).(y) this rule if secure to ticular source But this general rule, as enunciated by Lord Holt, is Exception to subject to an important exception, arising from the fact penalty merely that penalties are imposed by statute for two distinct imposed to purposes (1) for the protection of the public against revenue parfraud, or for some other object of public policy; (2) for of income. the purpose of securing certain sources of revenue either to the State or to certain public bodies. The question, therefore, will always arise, with regard to these cases, "whether," as Parke, B., said in Taylor v. Crowland Gas Co. (1854), 10 Ex. 293, "looking at the statute, the object of the Legislature in imposing the penalty was to prohibit the particular act, or merely to secure to the revenue some particular source of income. In Brown v. Duncan (1829), 10 B. & C. 93, the plaintiffs were distillers, and one of them had rendered himself liable to a penalty under 4 Geo. 4, c. 94, s. 131, for carrying on a retail. business in spirits at the same time; it was contended, therefore, that, as a penal statute had been contravened by one of them, they could not recover the price of spirits sold by them. "But we think," said Lord Tenterden, "that the plaintiffs are entitled to recover; there has been no fraud on their parts, although they have not complied with the statutory regulations. . . . The clauses of the Act had not for their object to protect the public, but the revenue only." Similarly, in Wetherall v. Jones (1832), 3 B. & Ad. 221, where the plaintiff, who was a dealer in spirits, had rendered himself liable to a penalty for non-compliance with an excise (y) Haigh v. Sheffield (1874), L. R. 10 Q. B. 109. Contract is avoided if penal Act contravened, al regulation required by 6 Geo. 4, c. 80, s. 115, as to the form of the permit to be sent out along with any spirits sold by him, it was held that this irregularity as to the permit, "though a violation of law by him, did not deprive him of the right of suing upon a contract in itself perfectly legal." "Where," said the Court, "the consideration and the matter to be performed are both legal, we are not aware that a plaintiff has ever been precluded from recovering by an infringement of the law, not contemplated by the contract, in the performance of something to be done on his part." Again, in Smith v. Mawhood (1845), 14 M. & W. 452,(z) it appeared that the Excise Act of 6 Geo. 4, c. 81, ss. 25, 26, subjected to penalties any person who sold tobacco without taking out the licence required for that purpose, but it was held that this Act did not avoid a contract for the sale of tobacco made by a person who had omitted to fulfil the requirements of the Act, because the penalties were imposed merely for the benefit of the revenue. "I think," said Parke, B., " that the object of the Legislature was not to prohibit a contract of sale by dealers who have not taken out a licence pursuant to the statute, but, if such was the object, they certainly could not recover, although the prohibition was merely for the purpose of revenue." And in considering the effect of a statutory prohibition on a contract, it is always necessary to decide whether the penalty imposed for breach of the statute is meant as a compensation to the person aggrieved or a penal sanction. In the former case, the statute in effect permits the contract on payment of the penalty; in the other it forbids it in toto.(a) And if it is clear that a penalty is imposed by statute for the purpose of preventing something from being done on some ground of public policy, the thing prohibited, if be not enforce- done, will be treated as void, even though the penalty though penalty able. (z) Approved in Mellis v. Shirley L. P. (1885), 16 Q. B. D. 446, at p. 452. (a) Cf. Musgrove v. Chung Teeong Toy (1891), A. C. 242. imposed is not enforceable. Thus, in the Sussex Peerage case (1844), 11 Cl. & F. 85, the question was whether the marriage of the Duke of Sussex was void in consequence of the provisions of the Royal Marriages Act, 1772 (12 Geo. 3, c. 11). That Act, by s. 3, imposes the penalties of a pramunire upon any person who solemnises or assists at the celebration of any marriage in contravention of its provisions. It appeared that the marriage of the Duke of Sussex was celebrated without the royal consent which was required by the Act, but as it took place in Rome, and as there is no provision made in s. 3 for the trial of the offender where the offence should be committed out of England, it was argued that the necessary inference was that the statute itself did not extend to prohibit a marriage out of England. This argument, however, did not prevail. "We think," said the judges in delivering their opinion, "that the most just and reasonable inference is, that the penal clause is itself defective in not making provision for the trial of British subjects when they violate the statute out of the realm, and not that we should refuse, on account of the defect in the penal clause, to give the plain words of the statute their necessary force, and hold the enactment itself to be substantially useless and inoperative." |