CHAPTER VI. Of the Breach of Statutory Duties. troduced for HITHERTO We have only considered rights and duties as they arise at common law: we now come to those which have their foundation in statutes. The general principles governing the subject are of course identical with those governing Penalties inthe common law rights, but they are complicated by the intro- the first time. duction of an entirely new element-the question of penalties. Both rights in rem and rights in personam are created by statute, giving rise to correlative duties: so also duties to the public and duties to individuals are laid upon persons by statute, giving rise in their turn to rights resembling those we have already considered. It is almost a truism to say, but it is none the less important to remember, that these rights and duties, depending as they do for their existence upon statutes, the answers to the fundamental questions, Does the duty which is alleged to have been broken, exist? or, Has the right alleged to have been violated come into existence? can only be found in the statute, and must depend on an accurate interpretation of its words. The cases, some of which depend on private Acts of Parliament, are often difficult to follow without the exact words of the Act to guide the student: moreover in some cases where the Act is very long, a difficulty arises in understanding them, because the Court has not had its attention called to all the sections bearing on the question, and which may be scattered somewhat promiscuously through the Act. The existence of the right or duty depends on accurate interpretation of the statute. of two kinds. The all-important question arises, however, in respect of the Penalties are penalty clauses. The penalties themselves are of two kinds: those which may be recovered by the Crown or a common N penalty clauses. informer, and those which may be recovered by the party Variations in aggrieved. Sometimes the Act imposes a penalty of the first kind, sometimes one of the second kind; sometimes it imposes both; and sometimes the penalty clauses are omitted altogether, the remedy in such a case being left to the common law. For the convenience of a study of the subject, we propose to divide the cases according as the statute on which they depend fall under one or the other of these heads, and to deduce therefrom general propositions applicable to the whole. The form which some of the most important of these propositions must take depends at the present time on the correct interpretation of one case only: Atkinson v. Newcastle and Gateshead Waterworks Co. The Court of Exchequer based its decision on precedent; but this judgment was overruled by the Court of Appeal, and the proposition laid down by Lord Cairns, C., seems to the author to overrule the whole mass of previous cases. In view of the fact, however, that the question has not yet been brought before the House of Lords, and that this proposition may possibly be there held to be too broad, it is proposed to consider the cases independently of this decision of the Court of Appeal, and afterwards to take that case by itself and shew its bearing on what was previously supposed to be the law. [post, p. 200.] General principle, where by statute there is also a remedy under the statute. § 1. CASES UNDER STATUTES PROVIDING NO PENALTIES. The general remedy for violation of statutory duties was, there is a right until the form of the action ceased to be of its essence, an action on the case as specially provided by the Statute of Westminster, c. 24: a remedy by action on the case being given to all who were aggrieved by the neglect of any duty created by statute. And in Comyn's Digest, Title "Action upon Statute, F," it is laid down, that "in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law." 6 Mod: 27. In the Anonymous case, argued before Holt, C.J., the prin ciple is applied to an action by a devisee under the Statute of Wills. "If money," said the learned judge, "be devised out of lands, sure the devisee may have debt against the owner of the land for the money, upon the statute of 32 Hen. 8, c. I, of Wills: for wherever a statute enacts anything, or prohibits anything for the advantage of any person, that person shall have remedy to recover the advantage given him, or to have satisfaction for the injury done him contrary to law by the same statute; for it would be a fine thing to make a law by which one has a right, but no remedy but in equity; and the action must be against the terretenant." And again, in Braithwaite v. Skinner, on a similar state of 5 M. & W. facts, Maule, B., said: "When a statute gives a right, then, although in express terms it has not given a remedy, the remedy which by law is applicable to that right follows as an incident." So in Mitchell v. Knott, the Vice-Chancellor said: 1 Sim: 497. "Whenever an Act gives a right, it means to give a legal remedy, and not to put the party to the extraordinary remedy of a Court of Equity." 313. Damage need not be proved in action under statute where duty is And this being so, it is not necessary, where the duty is relative, to prove damage: "Where the Act is for the benefit of an individual, it is not necessary to go through the circuitous form of proving how much he is injured: he is entitled to what the Legislature has given him" (Bowen, L.J., Mayor 52 L. T. 161. of Devonport v. Plymouth Tramways Co.). relative. First, as to rights in rem. A man who had brought sheep Rights in rem. within forty yards of a market held under statute, and sold them there in order to evade tolls, was held to be liable for disturbance of the market in an action by the proprietor: Bridgland v. Shapter. A right under charter is the same in its nature as a right under statute. It may be useful to refer to the recent important market cases: Great Eastern Ry. Co. v. Goldsmid; A.-G. v. Horner; Horner v. Whitechapel Board of Works. The Act 6 & 7 Vict. c. 83, s. 8, provides for the indorse 5 M. & W. 375. 9 App: Ca: 14Q. B. D. 927. 245. ment of cabmen's licenses by a magistrate. A cabman was dismissed and his master wrote the cause of dismissal on the back of his license. It was held that the cabman had a right that no one but a magistrate should indorse the document, and the master was held liable in the action: Hurrell v. Ellis ; Rogers v. Macnamara. A right in rem may, as we have seen, be vested in a large number of people: each one of them having a right which no other member of the community may interfere with. For example, the right to exercise the franchise: as to which see Ashby v. White. Secondly, as to rights in personam. These rights frequently arise by virtue of local or private Acts of Parliament: for example, a railway is seeking for compulsory powers, a landowner withdraws his opposition in consequence of a clause being inserted providing that certain works shall be erected and maintained to protect his property; or he succeeds in getting such a clause inserted in the enabling Act. These clauses, however, are in the nature of contracts and a disobedience to their provisions are breaches of contracts, rather than torts. This principle was laid down by Lord Watson in the Countess of Rothes v. The Kirkcaldy Water Commissioners: "Such statutory provisions occurring in a local and personal Act, must be regarded as a contract between the parties, whether made by their mutual agreement or forced upon them by the legislature." In Chamberlaine v. Chester and Birkenhead Ry. Co., the Act enabling the railway to be made, prohibited the construction of a certain part of the projected line, which would have interfered with a ferry, until certain other things had been done. It was clear from the wording of the Act that this clause was put in for the protection of the owner of the ferry, and that he had a right against the company to have the terms of this protecting clause carried out. The company, notwithstanding, made the line to the ferry before the other things had been done. The judgment on the demurrer, however, was for the defendant, because, although the private duty was evident, the breach of it was not clearly made out. So it was held in Mayor of Devonport v. Plymouth Tram- 52 L. T. 161. ways Co., that a provision in the Act that part of the tramways were not to be opened until the whole system was completed, without the consent of two Corporations interested, was for the benefit of each of the Corporations, either of which could apply for an injunction to prevent a breach of the statutory duty towards them. Third parties may acquire rights under such a statute, a duty being imposed towards persons not parties thereto; as in Hilcoat v. Archbishops of Canterbury and York, where there was a sale of ecclesiastical lands to a railway. The archbishops were to agree as to the amount of compensation, and to pay thereout to the owner the value of a portion of the lands which was only ecclesiastical temporarily. They constituted themselves the arbitrators and fixed a value, but the plaintiff was held entitled to compensation in the usual way, i.e., by a jury. In public general statutes the element of contract of course entirely disappears. It is very rare that we find public statutes conferring rights either in rem or in personam on certain persons by name; they either confer rights on a certain class of people, authors for example; or else they lay certain duties on persons, specifying distinctly the class of persons towards whom these duties are to be exercised. As the class is specified it is clear these duties are not what are called "public duties," because they are not to be exercised towards the public generally, but only towards a certain class, more or less determined, of the public; they may, therefore, properly be called "private duties," or more accurately "relative duties," the class towards whom they are exercisable obtaining by virtue of the statute correlative rights; as, for example, the duty to fence mill wheels and machinery in places where women and children are likely to be at work. Third party may acquire rights under them. 10 C. B. 327. Nature of ferred by public general rights con statutes. [cf: p. 193 1 |
