Lord Justice was under a misapprehension. The witness was not referring to the subway which was 10 ft. wide. He was not thinking; of the subway. The questions put to him both by the learned counsel and by the Judge were addressed to the entrance and staircase, to which very different considerations apply. It was not suggested that there was any notice, or any intention of putting up a notice, directing the public to this subway as a means of crossing. The entrance, which was of the usual limited dimensions, did not of itself offer any invitation to the public to enter for the purpose of crossing the roadway. Then I come to the question of want of good faith. That is a very serious charge. It is not enough to show that the Corporation contemplated that the public might use the subway as a means of crossing the street. That was an obvious possibility. It cannot be otherwise if you have an entrance on each side, and the communication is not interrupted by a wall or a barrier of some sort. In order to make out a case of bad faith it must be shown that the Corporation constructed this subway as a means of crossing the street under colour and pretence of providing public conveniences which were not really wanted at that particular place. That was the view of their conduct taken by the Court of Appeal. “In my judgment,” says Vaughan Williams, L. J., “it is not true to say that the Corporation have taken this land which they have taken with the object of using it for the purposes authorised by the Legislature. You are acting
mala fide,” he added, “if you are seeking to acquire and acquiring lands for a purpose not authorised by the Act of Parliament.” So you are—there can be no doubt of that. The other learned Lords Justices seem to take the same view of the conduct of the Corporation. Now this, as I said, is a very serious charge. A gross breach of public duty, and all for a mere fad. The learned Judge who tried the case had before him the chairman of the Works Committee. That gentleman declared that his committee considered with very great care for a couple of years or more the question of these conveniences in Parliament Street. He asserted on oath that “the primary object of the committee was to provide these conveniences.” Why is this gentleman not to be believed? The learned Judge who saw and heard him believed his statement. The learned Judges of the Court of Appeal have discredited his testimony mainly, if not entirely, on the ground of two letters about which he was not asked a single question—one written by the surveyor of the parishes of St Margaret's and St John's under the city engineer of Westminster, the other by a person acting for the acting town clerk. The letter of the surveyor was a foolish letter, which the writer seems to have thought clever. The letter of the temporary representative of the acting town clerk, if you compare the two letters, seems to have derived its inspiration from the same source. I cannot conceive why the solemn statement of the chairman of the committee should be discredited on such a ground. I do not think that there is anything in the minutes tending to disprove his testimony. I agree with Joyce, J., that the primary object of the council was the construction of the conveniences with the requisite and proper means of approach thereto and exit therefrom. I have felt more difficulty with regard to the question whether the Corporation have acted altogether reasonably—“with judgment and discretion,” as Turner, L. J., puts it in a well-known case. It seems to me that when a public body is exercising statutory powers conferred upon it for the benefit of the public, it is bound to have some regard to the interest of those who may suffer for the good of the community. I do not think it right—I am sure that it is not wise—for such a body to keep its plans secret and carry them into execution without fair and frank communication with those whose interests may possibly be prejudiced or affected. I cannot help thinking that if the engineer of the Corporation and the engineer of the Railway Company had been put into communication, some modification of plan might have been suggested which would have obviated all this litigation and expense, and all the litigation and expense yet to come if the Court of Appeal is to take upon itself, as it proposes to do, the functions of a sanitary authority and determine the precise dimensions of approaches to such a place as this. The surveyor thought it politic and not unworthy of his position as an officer of a great public body to try to throw dust in the eyes of his correspondent. I do not suppose that the officials of the Railway Company were put off their guard by the answer which he sent. I have no doubt that they knew perfectly well what the Corporation proposed to do. But still the mode in which they were met prevented anything like a free interchange of ideas between these two bodies for their mutual advantage. The result of these considerations to my mind is, that if at the trial the respondents had suggested any practical mode of altering or amending the plans that would have obviated the inconvenience which the works as executed must cause to them, I should, speaking for myself, have been disposed to think that an injunction ought to have been granted to secure that object. Unfortunately the respondents chose to stand aloof, and have given no assistance to the Court. Under these circumstances I think there is no alternative but to allow the appeal and to restore the judgment of Joyce, J. But I think there ought to be no costs either here or in the Court of Appeal.
Lord James of Hereford—In this case the London and North-Western Railway Company seeks by injunction to restrain the defendants, the present appellants, from maintaining a certain tunnel, staircase, and railings, and other works upon land in Parliament Street, Westminster. The facts upon which the questions in issue depend may, I think, be summarised as follows:—[
] Now upon these facts it seems to me to be clear that the intention of the local authority was to construct two distinct objects, a convenience with an approach and a subway. It is true that a portion of the subway would be used as the approach to the convenience, but the subway would also be used by those who did not intend to visit the convenience, but only desired to cross free of danger from one side of Parliament Street to the other. It is also clear that in consequence of this double user the subway was made of 4 feet greater breadth than would have been necessary if only an approach to the convenience had been constructed. Such being a summary of the facts before your Lordships, it is necessary to consider with what legal powers the appellants and their predecessors were invested so as to authorise the construction of the works in question. Inasmuch as the soil of the respondents has been taken without their sanction for the purposes of the works, the appellants must show legal authority for such an act. By section 44 of the Public Health Act (London) 1891, power was conferred upon sanitary authorities to provide and maintain public conveniences, and in order to carry out the exercise of the power the subsoil of any road (required for the purpose) was vested in the sanitary authority. This is the only legislative authority under which a justification for the act done is alleged. It will be noted that there is no legislative power given to local authorities to construct subways. Now, I agree in the view that has been taken that the powers to construct a convenience under the Act of 1891 of necessity include a power to construct an approach thereto. And so the question to be solved seems to be thus formulated. Was the so-called tunnel an approach to the convenience only, or was it something more? (1) Was it a subway distinct from the approach, or (2) was it a subway in combination with the approach used for two distinct purposes? In my judgment the construction in question comes within one or other of the two latter alternatives. Possibly within the first, certainly within the second. If this finding on the facts be correct, the works, so far as they constitute the subway, are constructed without legal authority. The Legislature has not thought it right to confer on local bodies the power to compulsorily take land or impose rates for the purpose of constructing subways. In this case some land has been taken which would not have been required if the approach had not been enlarged into a subway, and an unauthorised burden has been imposed upon the ratepayers in consequence of this enlargement. Thus it is, in my opinion, that the appellants have acted beyond their powers and without justification. I have only to add that the reasons for their judgment given by the Lords Justices in the Court of Appeal appear to me to be unanswerable, and I therefore think that those judgments ought to be affirmed and this appeal dismissed.
Lord Lindley—By the Public Health of London Act 1891, section 44, the appellants were authorised to provide and make and maintain public lavatories and sanitary conveniences in situations where they might deem the same to be required, and they were authorised to defray the expense of providing the same, and of any damage occasioned to any person by the erection and construction thereof, as if such an expense was an expense of sewerage. Further, for the purpose of such provision the subsoil of any road, exclusive of the footway adjoining any building, was vested in the appellants. I cannot doubt that under this authority they could lawfully construct lavatories and sanitary conveniences in, on, or under any road in their district, provided that they did not interfere with any footway adjoining any building or with the soil under any such footway. No particular size or form of convenience, or mode of access to an underground convenience, is prescribed, and I see no reason why a convenience should not be made under a road, with an underground access to it on each side of the road. The size and position of the convenience and of the access are left to the discretion of the appellants, and in the exercise of that discretion the locality, the amount of traffic, and the class of people likely to use the conveniences would naturally have to be considered. The cost is left to the good sense of the appellants, and I am not aware of any authority to show that the High Court can properly grant an injunction to restrain a public body authorised to make a particular work for some public purpose from exercising its authority on the ground that in the opinion of the Court the work being made is larger or handsomer and more costly than it need have been. Still less can a mandatory injunction be properly granted in such a case. Matters of detail, of taste, and of expense in executing works authorised by statute are left to the constructing authority, and their decision on such matters is not open to review in an action for an injunction unless the Court is of opinion that the statutory authority is a mere cloak to screen a really unauthorised work. The case before your Lordships is not of that description. Whether an expense unnecessarily incurred in constructing authorised work could be disallowed by an auditor, or be thrown in some other way on the person who incurred it, is a matter which your Lordships have not to consider on the present occasion, and I say no more about it. But the foregoing observations, favourable as they are to the appellants, do not exhaust the case. Other matters have also to be considered. Where a person is authorised by a statute or by the common law to do what, apart from such authority would be unlawful,
e.g., to commit a trespass, and the authority is conferred for some distinct and definite purpose, and is abused by being used for some other and different purpose, the person abusing it is treated as a wrongdoer from the beginning, and not only as a wrongdoer in respect of what can be proved to have been in excess
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of his authority. It is presumed against him that the abuse of his authority shows an intention from the first to commit an unlawful act under colour of a lawful authority. This general principle was established in the well-known case known as the
Six Carpenters” case (8 Co. Rep. 146
a), on which there is an instructive comment in the first volume of Smith's Leading Cases. Counsel for the respondents urged that this principle was applicable to the present case, and deprived the Corporation of any defence which they might have had if they had not exceeded their authority. In one respect the appellants did clearly exceed their authority, for they interfered with the foot-pavement and the land under it—a thing which they had no right to do. This, however, was put right by the injunction granted by Joyce, J. The argument had the charm of novelty, but no authority was cited for applying the principle of the
Six Carpenters’ case to such a case as this. I never heard of, and I cannot find any instance of, an injunction being granted to restrain the completion of works authorised by statute simply because the authority which authorised them had been exceeded if the excess was abandoned, and satisfaction for the injury caused by it had been made either by payment of money or by restoration in fact. In the absence of any such authority I cannot accede to the argument of the learned counsel. The consequences would be most unjust, and contrary to settled principles of equity. Still less would it, in my opinion, be in accordance with the principles on which mandatory injunctions are granted to compel the Corporation to undo work done which, apart from the excess, can be shown to be within their statutory authority. The respondents naturally rely very strongly on the minutes of the proceedings of the constructing authority, and on the letters written by their officials, and on the evidence given by Mr Weaver at the close of his cross-examination. They contended that the sanitary conveniences were constructed in order to make a subway, which without them could not lawfully be made. But I do not think that the minutes and letters are sufficient to prove thpf the subway as constructed was in fact unauthorised by statute. On this part of the case I do not think it necessary to say more than that I concur in the observations of Lord Macnaghten. Having regard to those minutes and letters, I also am of opinion that the costs should be dealt with as proposed by him. Although the appellants succeed in their appeal they have only themselves to thank for the litigation which they provoked.
Their Lordships sustained the appeal.