Sect. 187. sequent grant to or for any county of a commission of the peace or other commission.

grants to

counties.

Trial of

offences

counties of

cities and counties of towns.

188.—(1.) Until Her Majesty is pleased to direct a committed in commission of oyer and terminer and gaol delivery to be executed within any borough being a county of a city or county of a town, all bills of indictment for offences committed within that borough shall be preferred, and all proceedings thereon shall be had, in the manner authorized by the Act of the thirty-eighth year of the reign of King George the Third, chapter fifty-two, "to regulate "the trial of causes, indictments, and other proceedings "which arise within the counties of certain cities and "towns corporate within the kingdom."

Jurisdiction

in places separated from borough.

(2.) For the purposes of that Act each borough named in the Sixth Schedule shall be considered as next adjoining the county named in conjunction therewith.

189. Where under any Act a place has ceased or ceases to be part of a borough or the liberties thereof, all matters by virtue of a local Act of Parliament or otherwise cognisable by a justice or by the quarter sessions having jurisdiction within that place shall be cognisable by the justices or the quarter sessions of the county, liberty, or jurisdiction within which the place is situate, in the same manner and subject to the same provisions as they were within the jurisdiction of the justices or the quarter sessions for that place.

Council to appoint

watch com. mittee.

PART IX.
POLICE.

Watch Committee; Constables.

190.-(1.) The council shall from time to time appoint, for such time as they think fit, a sufficient number not exceeding one-third of their own body (a), who, with the mayor, shall be the watch committee.

(2.) The watch committee may act by a majority of Sect. 190. those present at a meeting thereof, but shall not act unless three are so present (b).

(a) “Not exceeding one-third of their own body." These words were inserted in consequence of some alterations which the Government intended to make in the Police Bill of last session. By that Bill it was proposed to give to certain constables a right to appeal from the decision of the watch committee to a Secretary of State. The Government consented to alter the appeal so as to make it lie to the town council, with a proviso that the watch committee should not exceed in number one-third of the town council.

The Police Bill failed to become law on account of pressure of business at the close of the session. The one-third is exclusive of the mayor, who is by the statute an ex officio member of the committee.

(b) The acts of the watch committee need not be submitted to the council for their approval, except as to payments to be made under Part II. of the Fifth Schedule. (See R. v. Thompson, 5 Q. B. 477.)

191.-(1.) The watch committee shall from time to Appointment, duties, time appoint a sufficient number of fit men to be borough and powers constables (a).

(2.) A borough constable shall be sworn in before a justice having jurisdiction in the borough, and when so sworn shall, in the borough, in the county in which the borough or any part thereof is situate, and in every county being within seven miles from any part of the borough, and in all liberties in any such county, have all such powers and privileges, and be liable to all such duties and responsibilities, as any constable has and is liable to for the time being in his constablewick, at common law or by statute, and shall obey all such lawful commands as he receives from any justice having jurisdiction in the borough or in any county in which the constable is called on to act.

(3.) The watch committee may from time to time frame such regulations as they deem expedient for preventing neglect or abuse, and for making the borough constables efficient in the discharge of their duties.

(4.) The watch committee, or any two justices having jurisdiction in the borough, may at any time suspend (b), and the watch committee may at any time dismiss, any borough constable whom they think negligent

of borough constables.

Sect. 191. in the discharge of his duty, or otherwise unfit for the

3 & 4 Vict. c. 88.

Quarterly returns as to

borough constables.

same.

(5.) When a borough constable is so dismissed, or ceases to belong to the constabulary force of the borough, all powers vested in him as a constable by virtue of this Act shall immediately cease.

(6.) Nothing in this section shall interfere with the operations of an Act of the session of the third and fourth years of Her Majesty's reign "to amend the Act for the establishment of county and district constables;" and throughout that Act a reference to this Act shall be deemed to be substituted for a reference to the Municipal Corporations Act, 1835, and any Act amending it (c).

(a) Constables were formerly required to take an oath of office. Now, however, by sub-sect. 4 of sect. 12 of the Promissory Oaths Act, 1868, a declaration is imperatively substituted in lieu of the oath in the case of constables. (See circular from Home Office, 9th July, 1881. See sub-sect. 2 of sect. 239.)

A borough constable cannot vote at an election for any municipal office, or for a member of parliament for the borough or the county in which the borough is situate or adjoins, or for any borough in such county. (See 19 & 20 Vict. c. 69, s. 9.)

No county constable can vote for the election of any person to any municipal office in any borough in his county, or in any other borough in which he has authority. (See 22 & 23 Vict. c. 32, s. 3.)

These statutes also prohibit constables for the borough or county endeavouring to influence voters as to the way they shall give their votes. (See the statutes in Appendix.)

(b) Under the repealed law, a justice of the peace had power not only to suspend but to dismiss, and any constable so dismissed could not be reappointed without the consent of two justices. This is now modified so as to be more consonant with actual practice.

(c) This Act was passed for the purpose of amending the Acts for the establishment of county district constables, and it contains provisions for the government of consolidated county and borough police forces. (See the statute in the Appendix.)

192. The watch committee shall, on the first of January, the first of April, the first of July, and the first of October in every year, send to the Secretary of State a copy of all rules from time to time made by the watch committee or the council for the regulation and guidance of the borough constables.

apprehend

193. A borough constable may, while on duty, Sect. 193. apprehend any idle and disorderly person whom he finds Power for disturbing the public peace, or whom he has just cause to constables to suspect of intention to commit a felony, and deliver him disorderly into the custody of the borough constable in attendance persons, &c. at the nearest watch-house (a), in order that he may be either secured until he can be brought before a justice, or, where the constable in attendance is empowered and thinks fit to take bail, give bail for his appearance before a justice.

(a) "Watch-house." This is the same as lock-up within the 105th section.

constables for

neglect of

194. If a borough constable is guilty of neglect of Penalties on duty, or of disobedience to a lawful order, he shall for every such offence be liable on summary conviction to duty. imprisonment for any time not exceeding ten days, or, in the discretion of the court, to a fine not exceeding forty shillings, or to be dismissed from his office.

assaults on

195.-(1.) If any person assaults or resists a borough Penalty for constable in the execution of his duty, or aids or incites constables. any person so to assault or resist, he shall for every such offence be liable on summary conviction to a fine not exceeding five pounds (a).

(2.) But nothing in this section shall prevent any prosecution by way of indictment against any such offender, except that he shall not be prosecuted both by indictment and in a summary manner for the same offence (b).

(a) Sect. 12 of the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), provides as follows: Where any person is convicted of an assault on any constable when in the execution of his duty, such person shall be guilty of an offence against that Act, and shall, in the discretion of the court, be liable to pay a penalty not exceeding £20, and in default of payment to be imprisoned, with or without hard labour, for a term not exceeding six months, or to be imprisoned for any term not exceeding six, or, in case such person has been convicted of a similar assault within two years, nine months, with or without hard labour.

The question whether the new provision in the Act, imposing a

Note.

Sect. 195.

penalty of £5 for an assault on a borough constable in the execution of his duty, impliedly repeals the old one, imposing a penalty of £20 for the same offence on any constable, is a problem presenting some difficulty.

Where the punishment or penalty is altered in degree but not in kind, the later provision would be considered as superseding the earlier one (per Lord ABINGER in Henderson v. Sherborne, 2 M. & W. 236, and Attorney-General v. Lockwood, 9 M. & W. 391; and per MARTIN, B., in Robinson v. Emerson, 4 H. & C. 355; and see R. v. Cator, 4 Burr. 2026).

Where a later statute again describes an offence created by a former statute, and affixes a different punishment to it, varying the procedure, giving, for instance, an appeal where there was no appeal before; directing something more or different-something more comprehensive-the earlier statute is repealed by it (per cur) in Mitchell v. Brown, 28 L. J. M. C. 55; 2 E. & E. 267; per BRAMWELL, B., in Ex parte Baker, 26 L. J. M. C. 164; 2 H. & N. 219).

Where a local Act imposed on all persons engaged in gas making who suffered impure matter to flow into any stream, a penalty of £200 for every day the nuisance was continued, payable to the informer, or to the party injured, as the justices thought fit; and the Gasworks Clauses Act, 1847, afterwards imposed the same penalty on the undertakers of gasworks; it was held that the earlier Act was repealed as regarded such undertakers (Parry v. Croydon Gas Company, 15 C. B. (N.S.) 568; and see Maxwell on the Interpretation of Statutes, p. 152).

In the case of Hill, appellant, Hall, respondent, L. R. 1 Ex. D. 411, CLEASBY, B., quoted the following from Dwarris on Statutes, 2nd Edit. pp. 530, 531: "Every affirmative statute is a repeal of a precedent affirmative statute where its matter necessarily implies a negative, but only so far as it is clearly and indisputably contradictory and contrary to the former Act in the very matter, and the repugnancy such that the two Acts cannot be reconciled." GROVE, J., said: "It is common learning that one statute may be impliedly repealed by a subsequent statute necessarily inconsistent with it; but then the inconsistency must be so great that they cannot both be to their full extent obeyed."

This is so in the case under discussion. The offence cannot be punished under both statutes. They cannot both be obeyed to their full extent. It seems, therefore, the better opinion that, to the extent of the offence of assaulting a borough constable in the execution of his duty, the 195th section repeals the 12th section of the Prevention of Crimes Act, 1871. This is the safer solution of the problem, and one that will not defeat the ends of justice. For, in cases of serious assaults, the offenders can be indicted for a misdemeanour under the 2nd sub-section. They will then be tried at quarter sessions. There may be many reasons why the legislature should deem it prudent to limit the punishment that can be inflicted by a court of summary jurisdiction.

(b) Sect. 38 of 24 & 25 Vict. c. 100, provides that whosoever shall assault, resist, or wilfully obstruct any peace officer in the due execution of his duty, or any person acting in aid of such officer, or shall assault any person with intent to resist or prevent the lawful apprehension or detention of himself, or any other person for any offence, shall be guilty of a misdemeanour.