Powell v. The Kempton Park Racecourse Co., [1899] A.C. 143
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House of Lords *143
Powell Appellant; v The Kempton Park Racecourse Company, Limited
Respondents.
[1899] A.C. 143
14 March 1899
Earl of Halsbury L.C. , Lord Watson ., Lord Hobhouse ., Lord
Macnaghten ., Lord Morris ., Lord Shand ., Lord Davey ., Lord James of
Hereford .
1899 March 14.
Gaming—Place used for Betting—Inclosure on Racecourse—Betting Act 1853
(16 & 17 Vict. c. 119)ss. 1, 3 .
Adjacent to a racecourse there was an uncovered inclosure of about a
quarter of an acre, fenced in by iron rails, to which when race-
meetings were held the public were admitted by the owners of the
racecourse on payment of an entrance fee. Among the five hundred to
two thousand persons so admitted were always one or two hundred
professional bookmakers, and most of the persons admitted, other than
the bookmakers, went for the purpose of backing horses with the
bookmakers, but some did not bet at all. The bookmakers, who were
accompanied by their clerks, did not use any apparatus such as a desk,
stool, umbrella, or tent, but any particular bookmaker was usually to
be found in or near the same part of the inclosure, calling out the
odds to attract backers. In some cases the backers were required by
the bookmakers to deposit their stakes; in others credit was allowed.
This use of the inclosure was known to and permitted by the owners
thereof:—
Held, affirming the decision of the Court of Appeal, [1897] 2 Q. B.
242 (Lords Hobhouse and Davey dissenting), that the inclosure so used
was not “a place opened, kept or used” for the purposes prohibited by
the Betting Act 1853 .
Held, contra, (by Lords Hobhouse and Davey), that the inclosure was a
“place kept and used” by the owners for the purpose of the bookmakers
who used it betting with persons resorting thereto, and (by Lord
Davey) for the purpose also of the bookmakers receiving deposits of
money on bets, and that the case fell within the Act.
Hawke v. Dunn, [1897] 1 Q. B. 579, overruled .
IN an action brought by the appellant against the respondents the
statement of claim alleged as follows:—
1. The plaintiff is a shareholder of the defendant company. The
defendant company is a company incorporated under the Companies Acts
1862 to 1879 for the purposes (inter alia) of carrying on and does
carry on the business of a racecourse company, and from time to time
holds and conducts race-meetings under the rules of the Jockey Club
and the rules of *144 the National Hunt Committee in accordance with
the provisions of its memorandum of association.
2. The defendant company has for the purpose of its said business
acquired and is the owner and occupier of the lands and premises known
as the Kempton Park Racecourse, containing a considerable number of
acres which is inclosed by means of a substantial fence. Adjoining
such course and forming part of the said land and premises the
defendant company has fenced off and inclosed by means of iron rails a
certain piece of ground or inclosure about one acre in extent and
known as Tattersall's Inclosure. Any member of the general public,
including the persons mentioned in the next paragraph hereof, is
admitted by the defendant company to the racecourse on payment of an
entrance fee of 1s. on ordinary occasions and 2s. 6d. on special
occasions, and to the inclosure on payment of a further fee of the
difference between the entrance fee paid and 1l.
3. At every such race-meeting as aforesaid and particularly on the
12th and 13th days of March 1897 the inclosure was opened and kept by
the defendant company for the purpose of (1.) certain persons using
the same, that is to say professional bookmakers, betting with persons
resorting thereto, and (2.) money being received by or on behalf of
such persons using the same as deposits on bets made on certain horse-
races that were then being held on the said lands and premises under
the direction and control of the defendant company.
4. At all such race-meetings the inclosure is and was extensively used
by such professional bookmakers for the purposes mentioned in the last
paragraph hereof, and the defendant company knowingly and wilfully
permit and permitted the inclosure to be so used.
5. By reason of the matters aforesaid the defendant company in
addition to its business as keeper of a racecourse is carrying on a
business that is illegal under the Betting Houses Act 1853 (16 & 17
Vict. c. 119) , and outside the scope of its memorandum of
association, and is liable to be indicted and fined and to have its
property sequestrated.
6. The defendant company is also spending money out of its *145 assets
in and about the upkeep of the inclosure for the purpose of enabling
such illegal business and transactions to be carried on. The defendant
company has advertised and intends to hold numerous race-meetings
during the present year during which it will, unless restrained by
this Court, continue to repeat the said illegal acts and to carry on
its business contrary to the provisions of the said Act and of its
memorandum of association, and to expend further moneys in and about
the conduct of the said illegal business.
The plaintiff claims: An injunction to restrain the defendant company,
its agents and servants, from opening or keeping the inclosure known
as Tattersall's Inclosure for the purpose of persons using the said
inclosure using the same for the purposes of (1.) betting with persons
resorting thereto, or (2.) money being received by or on behalf of
such persons using the same as deposits made on horse-races: And from
knowingly and wilfully permitting the inclosure to be used by such
persons for the said purposes or either of them: And from otherwise
carrying on its business in a manner contrary to the provisions of the
Betting Houses Act 1853 and of its memorandum of association and from
expending moneys the assets of the defendant company in and about the
maintenance and conduct of such illegal business.
The statement of defence alleged as follows:—
1. The defendant company admits that it is the owner of the inclosure
referred to in paragraph 2 of the statement of defence, which is known
as the Reserved Inclosure and not as Tattersall's; it does not exceed
a quarter of an acre in extent. It is an uncovered inclosure except
that on the far side of it from the racecourse there are raised tiers
of seats covered over with a roof; this erection forms part of a
building known as the Grand Stand, which adjoins this and other
inclosures adjacent to the racecourse. The defendant company submits
that the inclosure is not a “place” within the meaning of the Act 16 &
17 Vict. c. 119 .
2. The defendant company denies that it opens or keeps the inclosure
for the purposes alleged in paragraph 3 of the statement of claim or
either of them; or that it knowingly and *146 wilfully permits the
same to be used for such purposes or either of them, as alleged in
paragraph 4 of the statement of claim, or that it ever has carried on
or intends to carry on any business wholly or partly illegal under the
said Act.
3. The bookmakers referred to in the statement of claim frequent the
said inclosure on such terms and conditions and under such
circumstances that they are not “persons using the same” within the
meaning of the Act, but are “persons resorting thereto” in the Act
mentioned.
4. It is a fact that a considerable amount of betting is carried on by
the bookmakers in the inclosure during the race-meetings, but in such
a manner and under such circumstances that the bookmakers do not use
the inclosure for either of the said illegal purposes, that is to say,
either for the purpose of betting with persons resorting thereto, or
for the purpose of money being received by themselves as the
consideration for their promise to pay thereafter any sums of money on
the event of horse-races within the meaning of the said Act. At the
time of the passing of the Act betting of the same character and
description had for many years previously been habitually and
notoriously carried on in racecourse inclosures, and has since been so
carried on until recently without the intervention of the authorities.
Under a master's order the following particulars were delivered of the
terms, conditions, and circumstances in and under which the bookmakers
frequent the inclosure, as stated in paragraph 3 of the statement of
defence, and of the manner and circumstances in and under which
betting is carried on by the bookmakers in the said inclosure as
alleged in paragraph 4.
1. The inclosure is kept by the defendant company for the purpose of
the public being admitted thereto to see the races at meetings held
under the management of the defendant company on their premises, and
the public are on such occasions admitted thereto subject to the
payments specified in the statement of claim. Each person on making
the required payment receives a ticket with the words “Reserved
Inclosure” printed thereon. Such ticket entitles the person receiving
the same to resort to and frequent the inclosure till the close of the
*147 racing on the day of issue, and not further or otherwise; but any
such person is liable to be ejected from the inclosure by the
defendant company's servants for improper or illegal conduct. Any
person passing out of the inclosure may be readmitted on the same day
provided that he before leaving obtains a readmission ticket and
presents the same on readmission, but not otherwise.
2. The number of persons admitted to the inclosure on race days varies
from 500 to 2000, and among such persons there are always a certain
number, varying from 100 to 200, who are professional bookmakers,
carrying on their business in manner hereinafter described. The
bookmakers are admitted to the inclosure as members of the general
public and not otherwise, and on the same terms as to payment,
readmission, and in all other respects, nor do they in fact frequent
or claim to frequent the inclosure except on such terms. They are not
persons having any rights, interest, or control in or over the
inclosure or other premises the property of the defendant company, nor
have they any special rights or privileges therein. Of the other
members of the public frequenting the inclosure the greater number go
there for the purpose of “backing” horses with the bookmakers, but a
certain number do not bet at all.
3. The bookmaker in the inclosure invariably carries on the practice
of betting as hereinafter described. He is accompanied by a clerk who
sometimes is in partnership with him, and who assists him in his
transactions. He does not confine himself to any fixed spot in the
inclosure, nor does he use any such apparatus as a desk, stool,
umbrella, or tent, though any particular bookmaker is usually to be
found in or near the same part of the inclosure. No betting lists are
exhibited. On the other hand, the backers are persons who back
particular horses with the bookmakers, as hereinafter more
particularly mentioned.
4. With a few exceptions when betting takes place on future events,
betting in the inclosure is confined to betting on the races of the
day, and no betting commences on any individual race before the names
of the horses which are going to run in that race are announced on the
telegraph board - usually about a quarter of an hour before the time
appointed for that race to *148 be run. Such betting is known as “post
betting,” and continues in most cases till the fall of the flag, when
the horses start, and bets are frequently made while the race is being
run.“Post betting” is always done at stated prices or odds, that is to
say it may be at stated odds on “the field” (as hereinafter explained)
against the horse backed, or at odds on the horse against “the field,”
or at evens. These prices vary from time to time, as a greater or less
extent of money may be forthcoming to back a particular horse or
horses. “Post betting,” as would appear from the above statement, is
not carried on in respect of more than one race at a time. It is
confined to the particular race next about to be run or then being
run; consequently, as hereinbefore stated, no betting lists are ever
exhibited or are required for the purposes of the business.
5. The difference in the method of betting adopted by the bookmaker
from that adopted by the other members of the general public who are
generally the backers is as follows: The backer for each bet selects
as a rule one horse which he desires to back against the other horses
engaged in the race, which horses in each case as regards the
particular horse backed are then called “the field,” and he applies to
the bookmaker to name the price or odds at which he will back “the
field” against such horse. A backer will also at times, where any
horse is at the opening of the betting quoted at long odds, back that
horse with a view of laying against such horse, should it subsequently
be quoted at shorter odds as hereinafter mentioned. On the other hand,
the practice of the bookmaker is to back “the field” against each and
every horse in the race as far as possible; and to such an extent and
amount that in the result, whichever horse wins, the total amount he
will according to his book be entitled to receive from the backers of
the horses that are beaten will be in excess of what he may have to
pay the backers of the horse that wins, the difference being the
profit on his book. While, therefore, it is the object of the
bookmaker to back “the field” against as many horses as possible, he
must to avoid loss abstain from backing “the field” against any one
horse to more than a certain amount - the limit being that his
liability in respect of any one horse *149 must be less than what he
will be entitled to receive in respect of the other horses.
6. On application by an intending backer of any particular horse, the
bookmaker states the price or odds at which he is willing to back “the
field” against such horse. If the bet is made, it is entered by the
bookmaker's clerk in a book; and in some cases the backer is called
upon to deposit his stake with the bookmaker, as is hereinafter more
particularly explained. When a bookmaker is anxious or willing to back
“the field” against a particular horse, he calls out the odds which he
will give or take in respect of such horse, and frequently the odds
are so called out many times without a response being received. By so
offering to give or take such odds the bookmaker does not offer to
make any bet an indefinite or any number of times, nor does he bind
himself to bet with any person who may wish to bet with him and accept
the odds so offered. In all cases where there are several horses
engaged in the race there are some against which the bookmaker is
anxious to back “the field”; consequently this practice of calling out
odds is largely adopted by every bookmaker betting in the inclosure
for the purpose of attracting the attention of backers.
7. Backing horses against “the field” is not confined to the backer,
nor is backing “the field” against particular horses confined to the
bookmaker. When a bookmaker has backed “the field” against a
particular horse up to his limit (as hereinbefore stated and
explained) he will usually refuse to back “the field” against that
horse further. A bookmaker will frequently back horses under the
following circumstances: (1.) if he has exceeded his limit; (2.) if he
has laid short odds on “the field” against a horse which subsequently
goes to a longer price; (3.) if he has special information that a
horse is likely to win. Conversely, if a backer has backed a horse at
long odds, whether before the meeting or in the inclosure, and the
horse goes to a shorter price, he frequently endeavours to back “the
field” against the horse at such shorter price, and if necessary calls
out the odds at which he will so back “the field” in the same manner
as is hereinbefore described in the case of the bookmaker.
*150
8. The number of bets made by a bookmaker on each race under the
circumstances hereinbefore described is greatly in excess of that made
by a backer even though the latter may be systematically backing
horses, and one bookmaker makes bets on each race with numerous
backers. The businesses of the various bookmakers are rival and
competing; and the business of each bookmaker is independent both of
that of every other bookmaker and also of the defendant company as
owner of the inclosure. No one bookmaker does or could bet in the
manner and under the circumstances hereinbefore described with all
persons who resort to the said inclosure, or with more than a small
fraction of such persons. The defendant company have no knowledge of
what persons do and what persons do not act as bookmakers in the
inclosure. No person in the inclosure is admitted with or has any
greater or any less right to act as a bookmaker than any other person,
although in fact and practice the limited number of persons who do act
in that capacity collectively form the market for such bets as the
rest of the public or the backers wish to make.
9. Some bookmakers carry on a ready-money business in the inclosure -
that is, they usually require the backer to deposit his stake in
respect of the bet at the time the bet is made. The bet is then
entered in the book and the backer receives a ticket corresponding
with the entry so made. Others do the greater part of their business
on credit - that is to say, no money is deposited on either side; but
they only do business in this way with persons whom they know to be of
good credit. Should any person who was unknown to them offer to bet
with them they would either decline to bet or require such person to
deposit his stake. Saving as aforesaid, no money is deposited in
respect of bets made or to be made in the inclosure.
10. The foregoing particulars contain a full and accurate account and
description of the betting which is carried on not only in the
inclosure forming part of the defendant company's premises, but in all
racecourse inclosures in which betting takes place. At the time of the
passing of the Betting House Act such inclosures were in like manner
frequented by bookmakers, *151 and betting transactions of precisely
the same character were therein openly and habitually carried on by
them, and had been so carried on since the beginning of the present
century. Ever since the passing of the Act up to the present time
bookmakers have openly and habitually continued to carry on a similar
kind of betting in such inclosures, and until recently without any
suggestion of its being illegal.
The action was tried before Lord Russell of Killowen C.J., without a
jury, upon the pleadings and particulars. It was admitted by the
defendants that they knew and permitted the use which was made of the
inclosure at race-meetings. Upon the authority of Hawke v. Dunn 1 his
Lordship gave judgment for the plaintiff and granted an injunction.
This judgment was set aside and judgment entered for the defendants by
the Court of Appeal (Lord Esher M.R., and Lindley, Lopes, A. L. Smith
and Chitty L.JJ., Rigby L.J. dissenting). 2
During the course of the argument in this House Asquith Q.C. said that
in the interpretation of the appellant's admission of the 10th
particular the character and extent of the inclosures and of the
betting therein carried on should be limited in the following
respects, as set forth in the appellant's case:—
The material facts so far as they are known are that - (1.) Inclosed
spaces have been in existence at race-meetings for a long time prior
to the passing of the Betting Act of 1853 , and in some cases from the
beginning of the century, in which betting took place, and for the
purpose of betting. Such inclosed spaces were sometimes (a) railed
inclosures called “betting rings” or “posts” in parts of the
racecourse or grounds remote from, or not belonging to the Grand
Stand; (b) railed inclosures adjacent to the Grand Stand; (c) separate
and detached buildings on the racecourse or grounds. (2.) In other
cases the Grand Stand itself or some part thereof was used for the
same purpose. Prior to the passing of the Betting Act of 1853, the
betting in these inclosed spaces was for the most part credit betting.
Ready-money betting did occasionally take place therein, but only to a
small extent. (3.) The *152 practice of giving tickets was not adopted
by bookmakers until recent years.
1898. May 5, 6, 17. Asquith Q.C. and Cautley for the appellant. This
is a friendly action brought by a shareholder in the defendant company
against the company to determine important questions of law. If the
plaintiff is successful it will prevent the company carrying on their
business as heretofore. It is not, what it has been called, a
collusive action, if by that is meant that the statement of facts is
perverted, or misleading by reason of the suppression of material
facts. The preamble of the “Act for the Suppression of Betting
Houses” (whose title is by the Short Titles Act 1892 (c. 10) declared
to be “The Betting Act 1853 ”) recites that “a kind of gaming has of
late sprung up tending to the injury and demoralisation of improvident
persons by the opening of places called betting houses or offices, and
the receiving of money in advance by the owners or occupiers of such
houses or offices, or by other persons acting on their behalf, on
their promises to pay money on events of horse-races and the like
contingencies.” The practice of requiring money to be paid in advance
sprang up after the Gaming Act 1845 (c. 109) , which made wagers void
and irrecoverable. The preamble of the Betting Act 1853 is enlarged by
the enacting part in three respects. “Houses or offices” are expanded
into “house, office, room or place”: “owners or occupiers” into
“owner, occupier, keeper, or any person using the same …”; and “the
receiving of money in advance” into “betting” generally. The question
is whether the reserved inclosure is a “place used for the purpose of
the persons using the same betting with persons resorting thereto”
within the meaning of s. 1 . If it is not, the Act is indeed easy to
evade. The bookmakers use it habitually for the purpose of betting
with the persons who resort to the inclosure, and the company
“knowingly and wilfully permit” the inclosure to be so used, within
the meaning of s. 3 . Sect. 1 prohibits such a user of such a place,
and declares every place so used to be a common nuisance and contrary
to law, and s. 3 makes every *153 person so using it liable on
conviction to a penalty. What then is a “place”? The authorities are
conflicting. It need not be a building or covered area, but it must be
an ascertained place capable of having an owner or occupier: Doggett
v. Cattarns 3 , where the Exchequer Chamber reversing the decision of
the Common Pleas held that the space under a tree in Hyde Park was not
a “place” within the Act, though some of the judges thought it was.
The place here is ascertained: the area of one quarter of an acre is
inclosed and the bookmakers can be found there by any one desiring to
bet with them. The Act may have been primarily directed against houses
or places in streets, betting “hells,” public-houses where lists were
exposed, and the like, but it is not confined to such places: it
includes temporary wooden structures, unroofed, put up on racecourses:
Shaw v. Morley 4 ; a stool on which the betting man stood covered by a
large, tall umbrella, on an uninclosed racecourse: Bows v. Fenwick 5 ;
an inclosed area uncovered where bookmakers without any room, office,
stool or umbrella betted on pigeon-shooting: Eastwood v. Miller 6 ; an
uncovered inclosed place where though the tenant does not himself use
the place for betting he “permits” it to be so used because he knows
it is in fact so used: Haigh v. Town Council of Sheffield 7 , shewing
that betting need not be the only purpose for which the place is used,
but may be ancillary to the other and principal purpose. The last two
cases must clearly be overruled if the decision below in the present
case is right. It is beside the mark to point to Goodwood and ask if
the Duke of Richmond is to be convicted under the Act. If it is really
desired to stop professional bookmakers from carrying on their
besiness in inclosed places the owner or occupier can do it: if he
does not choose he must take the consequences. It is said that the Act
cannot have contemplated such places because s. 11 gives power to
justices to grant warrants to search suspected *154 places. That is
only where the betting is clandestine: no justice would grant a
warrant where the betting is open. It is of course a question of fact
in each case whether the owner or occupier does “permit” the place to
be used for the purposes of betting: Reg. v. Cook 8 ; and whether any
person “uses” a place for that purpose: Snow v. Hill . 9 To support a
conviction it is not necessary that the place should have been
previously used for illegal betting; it is immaterial that the
principal user of the place is legitimate; and the “place” does not
necessarily mean one particular spot, but may include a large area, in
which the professional betting man does not remain stationary: Reg. v.
Preedy 10 , where a public-house legitimately open for the ordinary
customers was used by professional betting men; and see Hornsby v.
Raggett 11 , and Liddell v. Lofthouse . 12 In Hawke v. Dunn 13 five
judges held that an inclosure used precisely in the same way as the
present was a place used for the purpose of betting with persons
resorting thereto within the meaning of the Act. If the inclosure were
demised, so as to give exclusive occupation to one or more bookmakers
who carried on their business as it is done here, it would be clearly
within the Act. What difference can it make that the bookmakers are
admitted with the public and as part of the public? The large majority
of persons who use the inclosure go for the purpose of betting, and
there is ample evidence that the place is devoted to that purpose. The
bookmaker uses no stool or umbrella, but he takes into the inclosure
his clerk, his book and his reverberating voice, all his stock-in-
trade.
Joseph Walton Q.C. and Stutfield (C. W. Mathews with them) for the
respondents. The cases referred to may be classified thus: (1.) those
where as in Shaw v. Morley 14 the inclosure is let to some one who
carries on the prohibited betting and is clearly within the Act; (2.)
public-houses used as betting offices; *155 (3.) the umbrella and
stool cases where the bookmaker occupies a fixed spot and makes it his
“place,” none of which cases touch the present; (4.) cases like the
present, like Eastwood v. Miller 15 , Haigh v. Town Council of
Sheffield 16 , Hawke v. Dunn 17 , and Henretty v. Hart 18 , where an
inclosed racecourse was held not to be a “place” within the Act, and
upon facts similar to the present it was held that the owner did not
permit the racecourse to be used for the purpose of betting. The Act
did not intend to make all betting illegal, or it would have been so
expressed, nor even betting by bookmakers. It is not every kind of
user of a place that comes within the Act: the place must be
appropriated or devoted by the person who uses it to the purpose of
his betting house or office; the business must be the business of the
place, and not merely of the person. The object of the Act was to
prevent betting offices being set up: somebody must appropriate the
place so as to make it his betting office; if that is done it is
enough to bring the case with the Act. The inclosure in question is
not so appropriated: it contains part of the Grand Stand; it admits to
the Grand Stand, the paddock and other privileges, and a large part of
those who pay the 1l. for admission to the inclosure do so in order to
enjoy those privileges and do not bet at all. There is no difference
in principle between the 1l. inclosure and the whole inclosed
racecourse for admittance to which people must pay. The public-house
cases come within the very mischief aimed at by the Act. Men shut up
their offices when the Act was passed and transferred their business
to the public-houses, using them as their offices. If such cases were
not held to be within the Act it would be useless. The “person using
the same” must be ejusdem generis with the preceding persons named in
the statute, namely “owner, occupier or keeper” of the place: he must
have some relation to the premises such as they have. If making a book
on the races is enough to bring a case within the Act then one man so
using the place turns it into a common gaming-house: s. 2 . If the
*156 bookmaker, the principal, is a “person using the same” within the
Act, so must his assistant be: but the assistant certainly does not
assist in carrying on the business of the place, either at Goodwood or
on racecourses such as the one now in question. The Act is not aimed
at betting: the Legislature wished it to flourish as conducted at
these racecourses.
Asquith Q.C. in reply. No doubt the “place” must be capable of being
and must in fact be the centre and the seat of a betting business: and
that is what this inclosure is. The substantial purpose of this
inclosure is to carry on the business of betting: at least in the case
of the majority of the people who use it. How does this case differ
from cases admitted to be within the Act except that the bookmaker
moves about within the inclosure? The tent or umbrella might occupy
100 different spots in one afternoon: they are not the less “places”
within the Act. The bookmaker can be easily found in the inclosure by
his customers, and each of his customers goes there for the purpose of
finding him and betting with him. Admit (for the sake of argument
only) that a “person using the place” must be ejusdem generis with
“owner or occupier.” What then? Is not a bookmaker - permitted by the
owners of the inclosure to occupy and use it for the very purpose of
betting with the persons who come there - of the same genus as an
“occupier”? He is an occupier. If this be not so any owner can evade
the Act by allowing an occupier to occupy for the prohibited purposes.
No doubt many of the legislators who passed this Act intended betting
and bookmaking to continue. But that is not the test. The question is,
what is the ordinary natural meaning of the words used?
The House took time for consideration. 1899. March 4. EARL OF HALSBURY
L.C.
My Lords, the statement of claim in this case sets forth that the
plaintiff is a shareholder in a company incorporated to carry on the
business of a racecourse company, and it asks that an injunction may
issue to restrain the use of part of the company's premises for what
is alleged to be an illegal purpose.
*157
If the purpose for which the part of the premises in question is to be
used is illegal, the injunction ought to be granted; if not, the
action ought to be dismissed.
Before dealing with the substance of the question which comes up on
appeal from the Court of Appeal to your Lordships, I think it right to
say that in my view it is absolutely immaterial what motive has
induced the plaintiff to bring this action. Once it is brought, the
Court before whom it comes must decide according to law, and the
construction of the Act of Parliament is a pure question of law, and
must be decided according to its legal construction, whatever may be
the motives and wishes of the respective litigants. The form in which
the question arises and the facts proved or admitted may affect the
determination of the particular case and its consequent authority as
governing other transactions, but the construction of the Act of
Parliament must be the same upon whatever facts the question of its
construction arises.
It has, indeed, been argued that the history of the legislation and of
the facts which gave rise to the enactment may in view of the preamble
affect the construction of the Act itself; but though I do not deny
that such topics may usefully be employed to interpret the meaning of
a statute, they do not, in my view, afford conclusive argument here.
Two propositions are quite clear - one that a preamble may afford
useful light as to what a statute intends to reach, and another that,
if an enactment is itself clear and unambiguous, no preamble can
qualify or cut down the enactment; and in this case it appears to me
that the question must be decided upon the words of the statute, and
upon the facts which are not and never have been contested. Indeed,
apart from the historical question which, for the reasons I have
given, I dismiss from my consideration for the present, it would be
idle indeed for any one to contest what I suppose is true of every
race-meeting in the country, and not only applicable to this
particular case.
In saying this, however, I think it is right to add that I do not see
the least foundation for the suggestion that any fact or argument has
been kept back or misrepresented. The argument has certainly been
conducted with great ability and *158 earnestness, as indeed, was to
be expected, considering who were the learned counsel who argued it.
Now, the words which it appears to me your Lordships have to construe
are these:—
I will discuss presently the rest of the section, and in discussing
this part of it I will postpone for the moment all the words except
“owner” or “occupier” in order to make clear what, in my view, is the
substantial sense of the enactment. I will, of course, deal with the
other words in detail, and particularly *159 with the words “person
using the same”; but let us first see what is the substance of the
enactment. It prohibits opening a house, &c., for the purpose of the
owner or occupier betting with persons resorting to the house so
opened. It does not prohibit betting. It does not affect to deal with
the betting of people unconnected with the house betting inter se; and
it is obvious that unless some of the words which I have omitted can
be held to enlarge the nature of the offence created by the words I
have quoted, none of the facts proved shew the owner or occupier of
the place in question to be betting or ready to bet with the persons
resorting thereto. The owner or occupier has no interest in any bet,
and is in no way concerned with any bet, and whatever may be the
nature of the place, which to my mind is another question, the
transactions described in the case are in no sense bets with the owner
or occupier of the place in question. They are bets inter se by a
great many people who resort to the place, but have, as I have said,
no relation at all to the owner or occupier thereof.
This appears to me so plain that I think, but for the words “or person
using the same,” no question would ever have arisen, and it is
material to see what these words import. It will be observed that
these words occur as an alternative to the owner of the place - I
supply the words “of the place” by necessary construction - the
occupier of the place, the keeper of the place, or any person using
the place: these are all put in one category. Then comes another
enumeration of persons employed, and again language is exhausted to
fix responsibility upon caretakers, managers, or other persons in any
manner conducting the business thereof.
I think it is clear that what the statute is dealing with here is the
case of persons who are in control and occupation of the place which
is assumed to be the betting establishment. The conducting of the
business, whether as master or servant, is the thing made unlawful,
and the business is that of a betting house or place to which people
can resort for the purpose of betting, not with each other, but with
the betting establishment.
It is the employment of the words “using the same” which to my mind
has led to the difference of opinion. Those words, *160 unless
explained by the context, are necessarily ambiguous. In one sense
every person who enters the inclosure uses it; but he does not use it
in the character of owner, keeper, manager, or conductor of the
business thereof. The betting man in his use of the place differs in
this respect in no way from any other member of the public who enters
it, and who neither does nor intends to bet. It is the personality of
the betting man and not his being in any particular place which
affords the opportunity of betting, and a man who walked along a
public road shouting the odds in the way here described would be doing
exactly the same thing.
It is nothing to the purpose that there are a great many of them who
may be found in this inclosure; there is no business being conducted
by a keeper, owner, &c., in the inclosure. Each betting man is himself
conducting his own business of a betting man, and, as I have said, his
betting is in no way connected with the place, except that he as well
as other people not betting men are there.
It is here that I am unable to follow the reasoning of my noble and
learned friends Lord Hobhouse and Lord Davey. They both, if they will
forgive me for saying so, employ the word “use” in a double sense. My
noble friend Lord Hobhouse admits the word “use” is ambiguous, and
limits it by such words as “deliberate, designed, and repeated”; but
to my mind these words miss the point. It is not the repeated and
designed, as distinguished from the casual or infrequent, use which
the employment of that word imports here, but the character of the use
as a use by some person having the dominion and control over the
place, and conducting the business of a betting establishment with the
persons resorting thereto.
My noble and learned friend Lord Davey gives as the prohibited
purpose, “using,” without any such qualification as I have been
endeavouring to explain - using a house for the purpose of betting
with persons who resort thereto. It is upon this point that I think
the whole question turns, and I think here there is no such betting
establishment at all as is aimed at by the Legislature, and no keeper,
owner, &c., who bets with *161 any one. As I have said, I can
understand no one of these bettors to be different from any other
class of bettors. They do not in any sense own or keep the inclosure
differently from the persons resorting thereto. In truth they are all
persons resorting to this place, and the other class aimed at by the
statute do not exist at all in these transactions. The man who takes
the admission fee neither knows nor cares whether the man who pays for
his admission bets or no.
I am not certain that I appreciate the distinction which I observe is
sought to be drawn between what are called professional betting men
and other men who bet. In respect of games which people play for
amusement or pay, the distinction is intelligible enough; but all
people who bet for money mean to win money, and whether it is for the
sake of a living or for the sake of adding to money which the bettor
already possesses seems to me an altogether illusory distinction.
The second part of the section is in strict accordance with what I
have suggested as the meaning of the statute. It assumes a place or
establishment for receiving money or some valuable thing being
received by or on behalf of an owner, occupier, keeper, or person;
here the statute uses the words “as aforesaid,” that is “person using
the same,” for the consideration for any assurance, undertaking,
promise, or agreement, express or implied, to pay or give thereafter
any money or valuable thing on any event or contingency of or relating
to any horse-race or other race, fight, game, sport, or exercise. Then
every house, office, room, or other place opened, kept, or used for
the purposes aforesaid, or any of them, is hereby declared to be a
common nuisance and contrary to law.
It seems to me clear that the thing against which the enactment is
levelled is any place used in the sense I have explained. There must
be a business conducted, and there must be an owner, occupier,
manager, keeper, or some person who, if these designations do not
apply to him, must nevertheless be some other person who is analogous
to and is of the same genus as the owner, keeper, or occupier, who
bets or is willing to bet with the persons who resort to his house,
room, or other place. In this view it is not an offence under this Act
of Parliament *162 to allow persons to assemble for the purpose of
betting with each other; there is, upon this hypothesis, no business
being conducted at all. The different betting people, or each
individual bettor, is conducting his own business, and doing it in a
house used indeed, but only used, just as he might do it on the
racecourse or on the high road. There is no betting establishment at
all, and there is no keeper of one.
I do not think, therefore, that the important question is, what is a
“place”? I think in this respect with Rigby L.J. that any place which
is sufficiently definite, and in which a betting establishment might
be conducted, would satisfy the words of the statute. But I think not
only that this is the construction of the words to which, of course,
we must apply the meaning which the Legislature has intended, if we
can find it out, but I think it is reasonable and in accordance with
good sense that the words should be so construed and so limited. Every
game, sport, or exercise is included in the section, and I suppose
there is hardly any uncertain event which is of great public interest
on which bets are not frequently made.
Take a boat-race. Every one who has a field, or garden, or house, or
room and lets it for the day of the race may be perfectly certain that
some of the people who go there, if they go in any considerable
numbers, will bet, not indeed with the owner or occupier, &c., but
with some one or more of the people who are there. Is each of such
places a common gaming house, and subject to the provisions of the law
recited in s. 2 , and a common nuisance under s. 1 ? It seems to me
that such a construction would subject a great many perfectly innocent
people to great inconvenience and danger when they neither had nor
intended to have any connection with betting houses or anything
analogous to betting houses.
I have used the phrase “innocent people,” by which I mean people who
neither bet nor wish to bet; but it is obvious that the Legislature
has not prohibited betting at all, but prohibited keeping a house for
betting. I do not again go through the list of words which follow
“house,” because I have already sufficiently explained the
construction I place upon them all.
It is not very obscure why the Legislature has used so many *163 words
to express its meaning, and I have divided the words into five
paragraphs to shew what has been the cause of this multitude of
alternatives. Suppose the thing intended to be prohibited is what in
my construction of the section it is, and suppose the Legislature had
not provided for all the alternatives, and the section had run thus,
“No house shall be kept for the purpose of the owner betting with
persons resorting thereto”: the Legislature of course had to provide
for the place not fulfilling the legal meaning of a house; so follow
the words,“office, room, or other place.” It had to provide for any
evasion of the word “kept”; so we have the words “opened, kept, or
used.”
Then, in like manner, the person betting is to be got at, whatever
form he assumes, betting on behalf of the betting establishment; so we
then get “owner,” “occupier,” “keeper,” “person using.” Then another
evasion occurred to the mind of the draftsman, and he proceeds to deal
with any person employed by or acting on behalf of the classes
previously described, or any person having the care or management or
in any manner conducting the business thereof; so that all through
there must be a business conducted and a place so connected with that
business that the person owning it is betting with the persons
resorting thereto.
I do not think it is important to go through all the cases which have
been brought before the Courts upon this subject, partly because so
many of them have been decided on the special facts, which have not
rendered it necessary to decide the exact question now before your
Lordships, and partly because I think A. L. Smith L.J. has succeeded,
in his luminous judgment, in shewing that no less than eight very
learned judges have construed the statute in the way that it appears
to me it should be construed, and the case now comes before your
Lordships in a form that undoubtedly demands the decision in favour of
one view or the other; but as the case of Hawke v. Dunn 19 is said to
have given rise to this litigation, I wish to examine the grounds of
that decision.
My Lords, I am unable to accept the reasoning in that case *164 (Hawke
v. Dunn 20 ), nor do I think it is consistent with the previous
authorities or with itself.
In the first place, I find that reliance is placed upon the fact that
the bookmakers who bet are professional bookmakers.
My Lords, I know of no canon of construction which can introduce such
words into an Act of Parliament, and certainly there are no such words
here. I cannot doubt that if the prohibited thing is done, whatever
that prohibited thing is, by a person who does it for the first time
in his life, he is just as amenable to the law as though he had been
for many years in the practice of it. Let a man open a house for such
a purpose, and though he never in fact made a bet or received a
deposit, though the proof might be difficult, yet the offence, if
proved, would be consummated.
At the end of the judgment I find these words: “The law does not
forbid betting itself, nor is the business or avocation of a bookmaker
necessarily illegal, but what the Legislature has forbidden, and what
it has pronounced to be illegal, is the use, by those who make a trade
and business of betting , of any place for the purpose of betting with
persons resorting thereto.” My Lords, I will not again refer to the
fallacious employment of the word “use”; what I at present insist upon
is the selecting of such persons indicated by the words as if the Act
of Parliament had made any difference between different classes of
persons, and as if professional bettors were in any different position
from any other members of the public.
In another part of the judgment I find the learned judge saying: “In
my opinion to limit the meaning of the words ‘other place' to some
other place ejusdem generis with a house or office, would have the
effect of defeating, not of forwarding, the object of the Legislature,
and I cannot imagine that, with the desire to suppress that kind of
betting mentioned in the preamble, it was in contemplation to afford
it a kind of sanctuary in a betting ring or in any other place not
ejusdem generis with a house or office.” The mischief recited in the
preamble is the opening of places called betting houses or offices,
and the receiving money in advance by the owners or *165 occupiers of
such houses or offices, or by other persons acting on their behalf.
The learned judge makes his meaning clear when he begins by saying
that “one of the practices deemed to be objectionable and injurious
was that of what is known as ready-money betting, viz., that the
person making the bet deposited with the bookmaker the money which he
was disposed to adventure.” My Lords, this is again inserting by
construction words which are not there; the words of the statute are
“owners or occupiers of such houses or offices.”
My Lords, I certainly should have thought that if this case were to be
argued upon the preamble alone there was not much room for doubt; with
the actual enacting words, however, I have myself endeavoured to deal.
The commentary on Doggett v. Cattarns 21 seems to suggest that a
different thing is aimed at by s. 4 than that which is included in s.
2. I entirely agree with what Blackburn J. said on that case, but his
question is, I think, applicable to the case now under discussion. I
cannot suppose that the very same thing was not intended to be aimed
at by all the sections, and the reasoning of the learned judge seems
to assume that a different class of transactions was aimed at so that
the decision of Doggett v. Cattarns 22 might be reconciled with the
view that he himself entertains, upon the ground that the question did
not arise upon s. 1 but upon s. 4. I am unable to concur with any such
view. The offence, whatever it is, is created by ss. 1 and 2 . The
other sections in the Act apply as corollaries from the commission of
the offence, and I think it would be impossible to reconcile Doggett
v. Cattarns 23 with the view of the learned judge, by supposing that
s. 4 is not ancillary to and forms but a new remedy in respect of the
same class of transactions which are made the subject of penal
enactment by ss. 1 and 2.
The analogy which the learned judge suggests between the statutes 42
Geo. 3, c. 119 , 4 Geo. 4, c. 60 , and the statute now under
construction, is, I think, erroneous, and a careful consideration of
those statutes would lead to an opposite conclusion. The words of the
Act Geo. 3, c. 119 , so far as they *166 are relevant to the matter in
hand, prohibited any person from keeping any “office or place” for
lotteries, and an Act, which the learned judge does not seem to have
noticed, namely, 59 Geo. 3, c. 65 , actually recites that doubts had
arisen in respect of the use of these words. The section in that Act
(s. 57 ) is as follows:
“And whereas doubts have arisen whether, under and by former Acts
passed from time to time for granting to His Majesty a sum of money to
be raised by lotteries, and the Acts commonly called ‘Little Goe Acts'
of the 27th year of His present Majesty, intituled ‘An Act to render
more effectual the Laws now in being for suppressing unlawful
Lotteries,' and of the 42nd year of His present Majesty, intituled ‘An
Act to suppress certain games and Lotteries not authorized by Law,'
the word ‘place' mentioned in the said Acts respectively was meant to
describe any place used for the purpose of drawing the illegal lottery
called ‘Little Goe' or for purposes of insurance in the lottery or
‘Little Goe' or in anywise relating thereto, be the same an inclosed
building or not; it is therefore hereby declared and enacted, that the
word ‘place,' when and where the same is mentioned and used in this
and the said several above recited Acts relating to the drawing of the
said illegal lottery called ‘Little Goe,' or the assembling of persons
for any of the illegal purposes mentioned therein, or for the purpose
of ‘Little Goe' or Lottery Insurance, shall be taken to extend to and
mean any place in or out of an inclosed building or premises, whether
upon land or water, where such illegal practices, or anything relating
thereto, shall be carried on or attempted to be carried on.”
So that, notwithstanding the width of the words, the Legislature found
it necessary to explain, enact, and declare the meaning of the word
“place.” These form part of a collection of statutes establishing a
monopoly by the Government for raising money by lotteries, and
prohibiting every kind of lottery and every “place” for establishing
any kind of lottery in words which are intended to be exhaustive. To
apply such an analogy to such an Act as your Lordships are now
considering, wherein it is admitted that neither betting nor
professional *167 betting - if there be a difference - is prohibited
at all, seems to me to be erroneous.
My Lords, if I have passed over the arguments relied upon by some of
your Lordships in respect of the history of the legislation and the
argument derived from the mischief which the preamble expressly
recites to be the mischief against which the Act is directed, it is
not that I differ from or undervalue the cogency of those arguments. I
only desire to emphasise the proposition that I should come to the
same conclusion as that to which I have arrived upon the language of
the statute itself, if those arguments were not available to aid its
construction.
For these reasons I think the appeal should be dismissed with costs,
and I move your Lordships accordingly.
My Lords, I ought to add that my much lamented and distinguished
friend Lord Herschell, who saw my judgment, concurred in the views
which I have expressed. And, my Lords, I have a letter from my noble
and learned friend the Lord Chancellor of Ireland saying that he also
agrees with the judgment I have proposed to your Lordships.
LORD WATSON.
My Lords, I am of the same opinion, and for substantially the same
reasons which have already been expressed by my noble and learned
friend the Lord Chancellor.
LORD HOBHOUSE.
My Lords, in stating to the House the conclusions to which I have been
drawn in this difficult case, I will endeavour as far as possible to
avoid repetition of matters which have been frequently stated, though
some repetition is necessary to make my remarks intelligible. I think
that, often as disputes have arisen under the Betting Act of 1853 ,
none has arisen exactly in the present form. In other cases there has
either been a criminal charge or an action to recover money as the
foundation of them. In the present case, a member of the company which
owns the racecourse seeks to prevent the company from using its
property in a way which in his view is forbidden by statute. Those
sections, therefore, which are specially aimed at occupiers, managers,
or persons filling other special characters, are not now directly
called into action. *168 They must be carefully considered as throwing
light on the principal section which contains the prohibition to which
they all refer and on which they all rest. But the part of the Act
relied on for the injunction is the first and principal section, which
declares in impersonal terms that no place shall be used for the
purpose therein described.
The section is somewhat involved, and I am disposed to think that its
involutions have caused some inaccuracy of language, or even of
thought, in some passages of the many judgments cited to us. I will
first pick out and arrange the material words applicable to the
present discussion. After the preamble, s. 1 enacts: “(a) No house,
office, room or other place (b) shall be opened, kept or used (c) for
the purpose of the owner … (d) or any person using the same … (e)
betting with persons resorting thereto.” Taking the words of widest
meaning, I read this as a declaration that no place shall be used for
the purpose of the owner or (of) any person using the same (for)
betting with persons resorting thereto. There is no question here
about the owner using the place for betting with anybody. I have only
inserted him into my skeleton sentence for the purpose of shewing how
I read into it the prepositions “of” and “for” in heads (c), (d), and
(e) - a reading which makes the grammar rather clearer, and, I think,
will hardly be disputed. If then the company's reserved inclosure is a
place used for the purpose of any person using it for betting with
persons who resort to it, it is the thing prohibited; it is declared
to be a common nuisance and contrary to law.
The precise nature and use of this inclosure is to be learned from the
company's defence and from particulars of description put in by them.
I will state what seem to me the material points. It is about a
quarter of an acre in extent. It is uncovered, except that on the side
furthest from the racecourse is the Grand Stand - namely, tiers of
seats with a roof over them. All people are admitted to the racecourse
on payment of 1s. or 2s. 6d., according to the occasion. All people
are admitted to the inclosure on such further payment as will make up
1l. The number of persons admitted on race-days varies from 500 to
2000. Among them are professional bookmakers, *169 varying from 100 to
200, having no special right there, and admitted only as other people
are. Of the general public the greater number go there for the purpose
of backing horses with bookmakers. A certain number do not bet at all.
The bookmaker is accompanied by a clerk, who assists him in his
transactions. He does not confine himself to any fixed spot, nor does
he use any such apparatus as a desk, stool, umbrella, or tent, though
any particular bookmaker is usually to be found in or near the same
part of the inclosure. Some minor points are mentioned, and various
modes of betting explained; but I do not think that much more light is
thrown on the nature of the place than by the main incidents which I
have mentioned.
We have it then that in this small space of a quarter of an acre there
collect habitually on race-days a number of persons whose calling is
to make bets with anybody who comes to them; that they may number 200,
each with his clerk making 400 persons out of at most 2000, whose
business is betting with the public; that they never fall short of
100, making, with clerks, 200 such persons; that the greater number of
the other persons using the inclosure, who may be 500 or may be 2000
in the course of the day, go there for the purpose of doing business
with these bookmakers; and that though they walk about, each of the
bookmakers is usually to be found in the same part of the inclosure.
Your Lordships are the judges of fact in this case. What inference can
you draw, except that the inclosure is known to persons desirous of
making bets as a place where they can at once find those who will
gratify their desire; and that the business is regular and methodical,
carried on in a defined area, which is small compared with the numbers
who use it for betting, and in which each professional betting man can
be at once found by anybody who wants him within a few yards of the
spot on which he is accustomed to stand?
Applying the expressions of the statute to the facts, and taking the
words in their ordinary and reasonable sense, it seems to me
impossible to deny that the inclosure is a “place kept” (by the
company) and “used” (by them) “for the purpose of
persons” (bookmakers) “using the same for the purpose *170 of betting
with persons resorting thereto” (i.e. with that larger number of the
public who go for the sake of betting with them), or, conversely, that
it is kept and used by the company for the purpose of that greater
number of the public using it for betting with the bookmakers who
resort to it. The words appear to me to describe the case of this
inclosure so readily and fitly, that it is incumbent on the company,
who deny that the use is illegal, to adduce very strong reasons for
holding that the words are used in some sense much more restricted
than the sense which they are calculated to bear according to the
ordinary use of language. That they undertake to do by an examination
of the rest of the statute.
It is said that some limitation must be placed on the generality of
the words, for otherwise, seeing that betting, like every other human
action, must be in some place or other, which for the moment would be
used for that purpose, it would result that all betting would be
prohibited. That is a thing which the Legislature has never attempted.
In the year 1845 it was enacted that a bet should not be the basis of
a contract as it used formerly to be; but it remains a perfectly legal
act. That argument is repeated many times in various forms of
language, and to shew precisely what it is I cannot do better than
read a passage from the weighty judgment of the present Master of the
Rolls:
“No person can bet except in some place or other, and, whenever he
bets in any place, he uses that place for betting. To construe ‘other
place' or ‘place' in its ordinary sense of any and every place where
persons can or do bet, would involve an absolute prohibition of
betting, and would have rendered it quite unnecessary to specify
‘betting houses, rooms or offices.' But the Legislature clearly did
not intend to prohibit, and has not prohibited, all betting, nor even
all betting by persons who deposit their stakes. Some limitation must
therefore be put on the expression ‘other place' or ‘place.'”
Now, speaking with great deference to so clear an intellect, I cannot
help thinking that the argument would not have been put in this way if
it had not been for the involved structure of s. 1, or if the sentence
had been kept, as it were, displayed *171 before the eyes of the
commentator. The ordinary sense of“place” is not to mean any and every
place where persons can bet. The ordinary sense is a portion of space,
and as applied to the earth we live on, a portion of that earth. But
the moment the idea of betting is introduced, other words of s. 1 come
into play. The Legislature has not left us to deal with“place” in
vacuo or in the abstract. It has joined other words, and so, as I
think, carefully described and confined the meaning of “place.” If the
practice complained of is that of the owner, occupier, manager, or
persons in like position, the meaning is confined within a very narrow
compass. In the case before us we have a wider range given by the
word“persons.” Still there is a qualification of the word “place,” and
it is one which seems to my understanding to be reasonable,
intelligible, and definite enough to ascertain and to apply to the
facts of each case. To fall within s. 1 the place must be one used for
the purpose of any one using the same for betting with persons
resorting thereto. That is true of only a very limited number of
places. We have not to construe the word “place” but the compound term
“place-used-for-the-purpose.” I agree that we must consider the
meaning of the word “used” and the meaning of the word “purpose,” but
if we find that when those words are interpreted in senses germane to
the subject-matter, and in accordance with common usage they give a
reasonable limitation of the word “place,” why should we quit the safe
ground of the statutory words and go about seeking for limitations of
our own, which must be conjectural?
The most common limitation imposed on the generality of the word
“place” by those who think it needs more limitation than is supplied
by the words immediately connected with it is, that it must be akin,
ejusdem generis, with its companions, “house, office, room.” If the
genus selected is wide enough in range, I agree; but that does not go
far to solve the problem. That it must mean something other than a
house, office, or room the words compel us to admit, and I think
nobody denies it. To find out what it means that is not a house,
office, or room, and is yet in the view of the law-makers of the same
*172 nature, the statute itself is our guide; not in sidelong,
indirect lights thrown by other sections addressed to other parts of
the subject, but in the express words of this section, which are
directly addressed to the very root of the subject. If another place
is definite enough in area for identification, if it enables its users
to carry on their business as a house, office, or room would do, and
if the use of it produces the same results to betting people as a
house, office, or room would do, it is of the same genus or nature as
a house, office, or room, and it is struck at by the Act. And I think
that is the kind of place which is designated by the expression
indissolubly linked with it, “place-used-for-the-purpose”; and that
the other limitations which have been suggested to exclude such places
as this inclosure are not warranted by the terms of s. 1, and are not
called for by any fear of unreasonable consequences. With these
remarks on the insufficiency, as I think it, of the criticisms on the
word “place” separated from the context from which the statute never
separates it, I pass on to examine the words of qualification used in
the statute.
The place must be used for a purpose before it can fall within the
prohibition. The word “used” is almost as wide in range as the word
“place.” It may be applied to most human actions. But to use a thing
for a purpose is an expression with a much more limited range, and the
nature of the purpose will confine it within narrower limits still. If
I walk along Whitehall I may be said to use Whitehall, but if I blow
my nose there, and thereupon any one were to say that I was using
Whitehall for the purpose of blowing my nose that would be a misuse of
language to which either casual hearers or students of language would
object. The phrase “use-for-a-purpose” necessarily implies a
deliberate use, a designed choice of the thing used for the purpose in
hand. Again, if a snarling dog approaches me, and I take up one of the
stones on the road to fling at him, it is not incorrect, though the
user be momentary, to say that I have used the stone for the purpose
of flinging it at a dog. But it would be very incorrect to say that
the stones on the road are kept or used for the purpose of persons
using them for flinging at dogs. The expressions, I *173 think,
necessarily, or at least very strongly, import an habitual or repeated
use of the thing for the purpose.
If then we read the statute as striking at places the use of which for
the purpose of betting is deliberate, designed, and repeated, either
on the part of the owner or person having the control, or on the part
of other persons using the same, we shall, as I conceive, give to its
words their plain and ordinary meaning, and we shall not give to it
any extravagant latitude such as has been suggested.
I do not propose to take up the time of the House by a minute
examination of cases which have been examined often and minutely by
others. I think that very little, if any, authority can be produced
against the reading which I have tried to expound, and that many
judicial opinions may be cited which favour it. But I should like to
illustrate it by reference to cases which seem to me to mark neatly
the boundaries between legal and illegal use of a place for betting.
There are two cases, in each of which the bar or tap-room of a public-
house was used for betting. In each case betting took place in the
bar. In Whitehurst v. Fincher 24 the defendant was the betting man. He
went into the bar on three consecutive days and made some bets. He was
not a bookmaker. It was held that the room was not used for the
purpose. In fact, the defendant came in, and being there made bets,
but there was no designed or systematic use of that place. In Hornsby
v. Raggett 25 the defendant was the occupier, whose room was used by a
bookmaker systematically for his business, and the defendant was
convicted. The judges who decided the former case were Mathew J. and
Fry L.J., and those who decided the latter were Mathew J. and Mr.
Justice, now Lord Justice, A. L. Smith. And with Hornsby v. Raggett 26
agrees Reg. v. Preedy 27 , decided by Hawkins J., where the place was
the bar of a public-house, to which the defendants resorted on several
days for making bets. In none of these cases did the Court allow the
objection that the betting men had no right to use the place; or that
it was used at the same time by other *174 persons for its legitimate
purpose of a tap- or bar-room; or that no particular part of the room
was allotted for betting. The decisions turned on the essential
question whether or no the evidence shewed that the room was used for
the purpose of a person using the same for betting with persons
resorting thereto. And for ascertaining the purpose the leading
consideration was whether the use of the room was casual or
systematic.
For the same purpose I compare the cases of Reg. v. Cook 28 and Snow
v. Hill 29 , on the one hand, with Hawke v. Dunn 30 on the other hand.
In the first of those three cases the place was a bicycle-ground, ten
acres in extent. There were 20,000 spectators. Though no betting was
allowed, some actually took place. The manager of the ground was
convicted by the magistrates, but the conviction was quashed by the
Court, consisting of Hawkins J. and Smith L.J. The facts shewed, said
Hawkins J., that betting was not the business of the place. So in Snow
v. Hill 31 the place was an inclosed field, five acres in extent, used
for dog-races. The defendant, who was convicted by the magistrates,
moved about this field making bets. Lord Coleridge and Smith L.J. were
the judges. They quashed the conviction. It appears from the judgment
which the latter learned judge delivered in the present suit, that the
precise ground of the decision was that the defendant walked about and
did not use any definite spot; not, as had been supposed, that he was
not shewn to have been a professional bookmaker. But in that case
there was no other spot capable of definition except the whole field,
and it was not shewn that the field was crowded with betting men, or
could reasonably be said to be used for the purpose of betting, or for
any purpose other than its ostensible one of dog-racing. In both these
cases the question really tried was whether a defined place was used
for the purpose forbidden by the statute. In Hawke v. Dunn 32 the same
question was tried. The defendant was a bookmaker, the place was an
inclosure, within a racecourse, called “Tattersall's Ring.” On the day
in question about 1000 persons were *175 admitted to the inclosure,
including the defendant and fourteen other bookmakers, with their
clerks. That is a much smaller proportion of bookmakers than exist in
the present case; but as regards the size of the place and the
habitual use of it, that case strongly resembled the present one. The
magistrates refused to convict the defendant of using the inclosure
for the forbidden purpose, but on appeal a conviction was obtained.
Hawkins J. delivered the opinion of the Court of five judges, who were
unanimous. He laid it down that the user forbidden is the user by
those who make a trade or business of betting. And what the judges
found is that the facts proved, namely, the definite area, the large
number of betting men resorting to it for betting, the habitual use of
it, and the calling of the defendant, combined to shew that the
inclosure was a place used for the forbidden purpose.
Here let me make a remark on a point which has entered into the
discussion of the six cases I have quoted, namely, whether or no the
persons betting were professional bookmakers. It was pointed out more
than once at the bar, and has been again pointed out by the Lord
Chancellor, that the statute does not single out bookmakers as objects
to strike at. That is quite true, and yet it remains that the
character of the persons who commonly use the place is a relevant and
important fact. The crucial question being whether the particular
place in dispute is a “place-used-for-the-purpose,” surely the fact
that it is habitually used by persons who make betting the business of
their lives is an important ingredient of evidence for ascertaining
the purpose. I have not mentioned it with any other object, and I
think it is with the same object that other judges have dwelt upon it.
I think that the six cases which I have mentioned are all well
decided, though of course I am aware that the suit before your
Lordships is intended to be and is in effect a rehearing of Hawke v.
Dunn . 33 Different judges used different terms in expressing their
opinions; but in each of these six cases the real controversy has been
whether there is a reasonably defined area designedly and repeatedly
used for the purpose of betting *176 with persons resorting thereto.
If so, that is a forbidden place within s. 1, and the question who is
liable to penalties depends on other sections of the Act.
Of course there will be difficult cases in which it is doubtful
whether they fall on one side or the other of the dividing line
between legality and illegality, whatever line may be drawn. In
deciding whether a place is used for a purpose, the size of the place,
its more or less marked division from other places, the proportions
between those who come for the purpose in question and those who come
for other purposes, the regularity or frequency of the use, all such
things must enter into the consideration, and may cause much
difficulty. For myself, I cannot feel substantial difficulty in the
six decisions I have quoted. And yet I know there is difficulty, such
difficulty as to produce dissent from Hawke v. Dunn 34 in the Court of
Appeal, and among most of your Lordships. How far that difficulty will
affect other decisions I hardly know, but unless it is rested on some
grounds peculiar to inclosures on racecourses it will shake many other
decisions. I think that some of the other decided cases are on the
face of them open to question. In Eastwood v. Miller 35 I should have
doubted whether the ground could properly be said to be a place used
for the purpose of any person using the same for betting with persons
resorting thereto, seeing that the only place was a large field used
for other purposes by largely preponderating numbers of persons. In
Haigh v. Sheffield 36 the same doubts occur. But in the case of Hawke
v. Dunn 37 , as in the present case, the statutory expressions are
fitted exactly to the facts, and we can hardly say that there is
difficulty, if these expressions are to receive their obvious and
ordinary sense, and are not to be cut down on account of expressions
in other sections, or because it is thought that such places as
inclosures on racecourses are wholly beyond the scope of the
enactment.
The latter of these suggestions is founded mainly on the preamble,
which recites as the motive for the new law that a kind of gaming has
“of late” sprung up. It goes on to *177 mention specifically the
opening of places called betting houses or offices, and the receiving
of money in advance for bets, which I believe is called ready-money
betting. “For the suppression thereof” it is enacted; and then
commences s. 1. There is nothing to explain what period of time is
comprised in the vague words “of late,” nor whether the later
phenomena are the opening of betting houses and offices simply, or, as
the grammar would indicate, that opening combined with ready-money
betting; nor why ready-money betting, which requires possession and
payment of cash by the offerer of the bet, is more demoralising than
ordinary betting, in which he may go to any extent beyond his means on
the chance of winning and never having to put down any money at all.
Looking at the preamble alone, I say for myself that it does not give
me any idea of the precise mischief which the Legislature is resolving
to suppress, except that it has something to do with betting, and that
I have to look at the enacting part to find out what it is. That is
not the sort of preamble which can be used with any confidence to
control expressions in the enacting part, even were they less clear
than those of s. 1. At any rate, that s. 1 is more precise than the
preamble, and does go beyond it in several particulars, is allowed by
everybody who has commented on it; and I need not dwell more upon that
point.
But it is stated that the practice of betting in racecourse inclosures
prevailed long before the year 1853, and that in some cases it is
traceable as far back as the beginning of this century. My Lords, some
very pertinent remarks on this statement were made in the Court of
Appeal by Rigby L.J., which I will not repeat (they begin at p. 73 of
the Appendix 38 but will beg to adopt, as shewing that statements of
this kind, though unquestionably made in perfect good faith, must be
received with great caution. They relate to matters of history beyond
the personal knowledge of the parties who make them; they have not
been subjected to close investigation; and in order to have any
important bearing on this discussion the facts stated must not only be
a full account of the whole case, but must have been present to the
minds of the *178 framers of this statute. The ground is a very unsafe
one to build upon.
But let us see exactly what the argument is. It is, I understand, that
if the Legislature had intended to prohibit such well-known practices,
it would have used more express words pointed to that end. The
argument was very well and forcibly put, and I confess that for some
time I came under its influence. But after all its force depends on
the extent to which it is thought that the terms of s. 1 require
judicial limitation narrower than the limitation which they themselves
import when read in their ordinary sense. By repeated study of those
terms I have persuaded myself, and have been at pains to shew, that
this ordinary sense of the terms leads to a reasonable and clear
comprehension of the mischief at which the Legislature has struck. To
any mind which has arrived at that conclusion the force of the
argument founded on notorious existing practice is turned in the
opposite direction. Why, if racecourse inclosures were not struck at,
should the Legislature have chosen terms which fit this inclosure,
and, therefore, ex-hypothesi the older inclosures with close
exactitude, and yet make no exception in their favour? Suppose it were
shewn that systematic betting went on in public-houses long before
1853. It would be very surprising if it did not, and probably it could
be shewn if anybody were interested enough in the matter to make
inquiry. Public-houses are not mentioned in the Act any more than
racecourse inclosures. Their bar-rooms are subject to precisely the
same inquiries as regards defined area, user, and purpose as are
racecourse inclosures. It has been found in several cases that the
terms of s. 1 aptly describe parts of bar-rooms frequented by ordinary
customers, but also frequented by betting men. It is difficult to
think that those decisions should be overturned if reasons were
assigned for believing that the practices condemned by them were too
old to fall within the very vague terms “of late sprung up,” and that
the Legislature could not have intended to prohibit practices then
long known.
It is true that many years have elapsed before applying the Betting
Act to places of the kind now in question. If the *179 meaning of the
descriptive terms were so ambiguous as to hold the mind in equilibrio
between two rival constructions, one might resort to this
consideration for aid. But I cannot admit it to import an ambiguity
into terms which I find substantially clear. It is of no great weight.
In this country we are in the habit of leaving many kinds of
prosecutions to be set agoing by private persons, and the result is an
irregular application of the law. Whether private persons shall invoke
a law to suppress practices which they dislike depends on many
circumstances affecting their minds; perhaps the most powerful
incitement would be an extension of the practices themselves, and of
the feelings roused against them.
This irregularity is most marked when the law has placed in the
category of crime practices which large numbers of persons think to be
vicious, and large numbers again think to be harmless, and carry on
without any loss of self-respect or of the respect of their
neighbours; and such I take to be the case with betting. I could
mention other statutes, e.g., those relating to the observance of
Sunday, and those relating to lotteries, which have been applied in
unexpected ways after a long time. But I will avoid these
speculations. It is sufficient to say that if this statute is invoked
it must be rightly construed, whether its long sleep has been due to
lack of interest, or of courage, or to ignorance, or to any other
cause.
There are, it is true, expressions and provisions in the statute on
which arguments may be built for restriction of the terms of s. 1. I
will refer to a sentence or two in the judgment of the present Master
of the Rolls, because, by collecting those passages of the statute
together, he presents a condensed and forcible statement of the
argument founded on them. They occupy the first half of p. 45 of the
Appendix. He first refers to the preamble which I have dealt with at
length. The place aimed at by the Legislature, he says, is a place
where the business of betting is carried on (ss. 1, 3, 4). Well, that
is the main object of this inclosure. It is a place used as a betting
house or office, which can be forcibly entered under the warrant of a
magistrate (ss. 11, 12 ). This inclosure is used by the great majority
of persons who use it at all, both in form and *180 substance, just as
a betting house or office is used, and it can be forcibly entered by
the officers of the law. It is a place which can be advertised as a
betting place (s. 7 ); so can this inclosure, though in fact it is
not. It is a place which can be reasonably regarded as a common
nuisance (s. 1 ); so can this inclosure. If the practice objected to
were an orgie, offensive to the moral sense, nobody would think that
it was not a nuisance, or that there was any absurdity or practical
difficulty in treating it as a nuisance, and the Legislature has
chosen to place the specified mischief on the footing of a nuisance.
So far, I see no difficulty in applying the provisions of the statute
to the inclosure. But then stress is laid on this: that it must be a
place which it is not absurd to treat as a gaming-house within 8 & 9
Vict. c. 109(ss. 2, 11, 12) . That provision, I admit, causes
difficulty; and it is the only one of the subordinate provisions which
does. It would be somewhat astonishing if persons entering the
inclosure for curiosity only, or amusement, found themselves arrested
for being in a gaming-house. I cannot find, however, that this
consideration has prevented the Courts from holding places under like
conditions to be within s. 1. It would be absurd, in some respects, to
treat the spots occupied by a desk, an umbrella, or a box as gaming-
houses; but that did not prevent decisions that they were within s. 1,
and I have not heard any objection taken to those decisions. It would
be very hard if a man going to enjoy a pot of beer in Preedy's bar 39
had been arrested for being in a gaming-house, yet Preedy's case and
the other public-house cases involved such a consequence as much as
Hawke v. Dunn 40 , or as this case. I do not know that they are to be
overruled, and I certainly do not think that they ought to be.
In the recent case of Liddell v. Lofthouse 41 all the consequences
apprehended in this case might have followed. The place was a
billsticker's hoarding, supported at two points by stays of timber,
and quite open in front. This formed between the supports a convenient
protected bay for a betting man, who posted himself there for three
consecutive days to bet with all *181 comers. He was convicted by
Lindley and Kay L.JJ. of using the place for the forbidden purpose.
Yet not only was the place uninclosed, but in front it was undefined
by any boundary, and any innocent passer-by who stopped for a while to
look on might, according to the argument now under examination, be
arrested for being in a gaming-house. Lindley L.J. says:“The place is
sufficiently defined for all purposes. As to its being partly
undefined, I think there are many places, which though in some sense
undefined, can yet be described with sufficient clearness for the
purpose of identification.” I entirely agree; but I add that in all
such places there may be, and in many there are sure to be, persons
not engaged in the betting. I do not remember that this decision was
objected to in the argument here, and in the Court of Appeal it was
referred to by several judges with apparent approval.
I think this difficulty shrinks in magnitude under examination. It
really arises from carelessness in importing the provisions of another
statute into a new range of subjects; and that the words “other place”
bring in a larger range is not denied by anybody; the only dispute is,
how much larger. Then the draftsman does not observe that some of the
subordinate provisions of the imported statute may not be applicable
to everything which falls within the larger range. The arrest of
persons not actually engaged in the betting is a thing most unlikely
to happen; and it does not appear ever to have happened in fact. I
cannot think it right to cut down clear words of enactment in the
leading section because one of the subordinate provisions may involve
a remote possibility of this kind. It is hardly legitimate to allow so
small a part of the Act to influence its essential scope so largely.
To sum up briefly what I fear has been a tedious argument, I find a
place definitely demarcated, of small size compared with its
occupants, regularly frequented by large numbers of professional
bookmakers carrying on their business of betting in the most
methodical manner with persons who come there for that purpose. A
“certain number,” it is said, do not bet at all; but the greater
number of the public go for the purpose of betting with the
bookmakers. I agree that the Act is directed *182 not against betting,
but against bookmakers and those who make a business of betting:
Liddell v. Lofthouse . 42 But I say that the mode of warfare adopted
against such persons is to strike at places where betting is
concentrated into a focus, so that persons wishing to bet may know
exactly where to find those who will indulge them. Wisely or unwisely,
the Legislature has decided that such practices are vicious, “tending
to the injury and demoralisation of improvident persons.” Wisely or
unwisely, the Legislature has thought it possible and desirable to
repress these vicious practices by branding them as crimes. It has
declared that places used for such practices are common nuisances and
contrary to law. If we are to rely on admitted facts, this inclosure
is a concentrated focus of betting as regular as the races themselves,
and it is thronged by betting men, professional and other, with only a
moderate sprinkling of men not engaged in betting. If there is any
meaning in words, that is a place kept and used for the purpose of
persons using the same betting with persons resorting thereto. Those
are the guiding terms of the Act, and I do not think that their
meaning can rightly be cut down by anything in the vague preamble or
in the subordinate provisions.
In my judgment, therefore, the decision in Hawke v. Dunn 43 is right,
and so is the decision which the Lord Chief Justice delivered in this
case in deference to Hawke v. Dunn . 44 Knowing that the majority of
your Lordships are of a different opinion, I make no motion. But
having myself arrived from a state of great doubt to a clear
conclusion, I have thought it right to state the reasons why I differ
from so great a weight of authority.
LORD MACNAGHTEN. My Lords, I concur in the motion proposed by the Lord
Chancellor.
LORD MORRIS. My Lords, I also agree.
LORD SHAND.
My Lords, I also am of the same opinion, and in addition I only desire
to express my view that if the *183 language of the words of enactment
in the statute were open to the observation that they are ambiguous
and so are open to two different views or constructions, which I do
not think they are, yet I am strongly of opinion that the terms of the
preamble are so clear as to the object and intended scope of the
statute that the judgment, even in that view, must be given in favour
of the respondents.
LORD DAVEY.
My Lords, this case is chiefly remarkable for the great divergence of
judicial opinion on the question involved in it. On the one hand we
have the opinions of Hawkins, Cave, Wills, Wright, and Kennedy JJ. in
Hawke v. Dunn 45 , and those of Rigby L.J. in the present case, in
favour of the appellant's view; while on the other hand Lord Esher,
the present Master of the Rolls, and Lopes L.J. (now Lord Ludlow), and
Smith and Chitty L.JJ., support the respondents' contention, and it is
tolerably clear that the opinion of the Lord Chief Justice was in the
same direction. If we turn to the older decisions it is admitted that
Eastwood v. Miller 46 , and (I think) Haigh v. Town Council of
Sheffield 47 and Liddell v. Lofthouse 48 , cannot stand with the
decision of the Court of Appeal. We have also the valuable opinion of
Erle C.J. and Keating J. on the construction of the Act in Doggett v.
Cattarns 49 , and it is somewhat difficult to make out the exact
grounds on which their decision was overruled in the Exchequer
Chamber. 50 For reasons which will presently appear, I think that the
distinction sought to be made in Bows v. Fenwick 51 and Gallaway v.
Maries 52 , that the betting man or bookmaker (as he is called) in one
case stood on a stool under an umbrella and in the other case on a
box, is too thin to be a ground for decision.
In this divergence of judicial opinion I find it the better and safer
course to examine the words of the Act itself and endeavour to form my
own opinion on the construction of the *184 Act as applied to the
admitted facts of the present case, as if the matter were res integra
and there were no previous decision upon it.
Turning, therefore, to the Act, the first thing to be noted is the
preamble, to which great and, as I think, undue importance has been
attached by some of the learned judges in the Court of Appeal. Your
Lordships must forgive me if I read the words of it: “Whereas a kind
of gaming has of late sprung up leading to the injury and
demoralisation of improvident persons by the opening of places called
betting houses or offices, and the receiving of money in advance by
the owners or occupiers of such houses or offices, or by other persons
acting on their behalf, on their promises to pay money on events of
horse-races, and the like contingencies; For the suppression
thereof” (i.e., of the kind of gaming described) “Be it enacted,” &c.
It has been said that inasmuch as betting transactions of the same
character as those which take place in this inclosure have been
carried on in similar inclosures throughout the country from the
beginning of the century, it is inconceivable that these practices
should have been unknown to the Legislature when it passed the Act of
1853, and if it had been intended to suppress them direct or
unmistakable words would have been found in the Act. Your Lordships
have before you in the appellant's case (the accuracy of which was
admitted by the learned counsel for the respondents in the course of
the argument) a more detailed statement of the facts on this point
than was unfortunately before the Court of Appeal. That statement is
to the effect that although inclosed spaces had been in existence at
race-meetings prior to the passing of the Act for the purpose of
betting, yet prior to that time the betting was for the most part
credit betting, and ready-money betting only occasionally took place,
and to a small extent. I think, therefore, that the argument I have
referred to is founded on an exaggeration of the facts as now
disclosed; but, further, I am of opinion that the argument itself is
illegitimate if it is sought thereby to cut down the language of the
enactment according to its plain and natural meaning, or to restrict
*185 the enactment to the particular matter set forth in the
preamble.“Undoubtedly” - I quote from Chitty L.J.'s judgment words
with which I cordially agree — “it is a settled rule that the preamble
cannot be made use of to control the enactments themselves where they
are expressed in clear and unambiguous terms.” But the preamble is a
key to the statute, and affords a clue to the scope of the statute
when the words construed by themselves without the aid of the preamble
are fairly capable of more than one meaning. There is, however,
another rule or warning which cannot be too often repeated, that you
must not create or imagine an ambiguity in order to bring in the aid
of the preamble or recital. To do so would in many cases frustrate the
enactment and defeat the general intention of the Legislature. It may
well be in this and in other cases that the Legislature, taking the
recited facts as the occasion of the enactment, has deliberately used
larger words to prevent the same kind of mischief in other forms. In
the present case I am bound to express my opinion, with unfeigned
respect for those who think otherwise, that there is not any such
ambiguity in the present Act as entitles a court to cut down or
restrict the words of the enactment by the recital in the preamble.
I have said thus much about the preamble because I dissent from many
of the arguments which have been used, and the question is one of
general interest But in truth it is not essential to my opinion in
this case, because I am prepared to accept the construction put upon
the word “place” by the learned counsel for the respondents.
To turn now to the enactments themselves, and reading only what is
material to explain my construction, s. 1 provides that no house,
office, room, or other place shall be opened, kept, or used for the
purpose of any person using the same or conducting the business
thereof betting with persons resorting thereto, or for the purpose of
receiving deposits in the manner which has been shortly described as
ready-money betting. Sect. 3 enacts that any person who, being the
owner or occupier of any house, room, office, or other place, shall
knowingly and wilfully permit the same to be opened, kept, or used
*186 by any other person for the purposes aforesaid or either of them,
or any person conducting the business of any house, &c., used for the
purposes aforesaid, shall be liable to penalties. The present case
falls within s. 3 , and the important words are “opened, kept, or
used.” I think that the word “used” must mean something different from
“opened” or “kept,” and be intended to enlarge the scope of the
enactment; and the person who uses is clearly of a different genus
from the occupier who permits the user. I cannot find any sufficient
reason for not attaching its ordinary meaning to the word“used,” which
is not a difficult word to construe. Indeed, I have had some
difficulty in understanding in what other sense the word is said to be
employed, or grasping the meaning sought to be attached to it.
It will be seen that the prohibited purposes are twofold: (1.) using a
house, &c., for the purpose of betting with persons resorting thereto,
and (2.) receiving deposits on bets. I have already said that for the
purposes of this case I accept Mr. Walton's contention that the word
“place” should be construed as ejusdem generis with house, room, or
office. I will take it to mean any inclosed space capable of being
used and in fact used by persons carrying on the business of betting
with others as their office or place of business for the time being.
The questions therefore are: Was this inclosure a place capable of
being so used; was it, in fact, used for the purposes mentioned in the
first section of the Act, and did the respondents wilfully permit it
to be so used?
The inclosure in the present case is a piece of ground of not more
than a quarter of an acre in extent, fenced off and inclosed by iron
railings. We have not, therefore, to consider any questions such as
those raised in Doggett v. Cattarns 53 , whether a tree in Hyde Park
could be a place within the meaning of the Act, or those suggested in
the course of the argument whether a racecourse could be a place. It
is an inclosed, segregated space of comparatively moderate dimensions,
and it was scarcely denied that it is capable of being a “place”
within any construction of that word.
*187
The number of persons admitted to this inclosure varies from 500 to
2000, and among such persons there are always a certain number,
varying from 100 to 200, who are professional bookmakers “carrying on
their business” (I use the language of the amended particulars) in the
manner described. Of the other members of the public frequenting the
inclosure the greater number go there for the purpose of “backing”
horses with the bookmakers, but a certain number do not bet at all.
They go there, I suppose, from curiosity or in company with their
friends, or perhaps even (though the situation does not seem very
eligible for obtaining a quiet view) to see the race. The bookmaker in
the inclosure is accompanied by his clerk or partner with the
necessary book for recording his transactions. He does not confine
himself to any fixed spot in the inclosure, nor does he use any such
apparatus as a desk, stool, or umbrella, though any particular
bookmaker is usually to be found in or near the same part of the
inclosure. The amended particulars then describe the mode of betting
adopted by the bookmakers. To put it shortly, the practice is for the
members of the public who bet with them to back a particular horse
against the “field,” whilst the bookmaker backs the “field” against
the particular horse selected. A bookmaker anxious to back the field
against a particular horse calls out the odds which he will give or
take in respect of those horses, and this practice of calling out the
odds is largely adopted by every bookmaker betting in the inclosure
for the purpose of attracting the attention of backers. Some
bookmakers carry on a ready-money business, (that is) usually require
the backer to deposit his stake when the bet is made. Others do the
greater part of their business on credit (that is) without requiring a
deposit. But, as might be expected, a deposit is required when a bet
is made with a person unknown to them.
On this statement of facts, my Lords, I cannot bring myself to doubt
that the reserved inclosure is a place in the nature of a room which
is in fact used by professional betting men as their place of business
for the time being, or, if you will, temporary office, for both the
purposes mentioned in the 1st section of the Act, namely, for the
purpose of betting with persons *188 resorting thereto, and for the
purpose of money being received by them in consideration of a promise
to pay money on the contingency of a horse-race. In my opinion the
provisions of the Act are infringed if a person carries on his
business in the manner prohibited by the Act in some known room or
place to which people who come to bet with him can resort, knowing
that they will find him there. There is nothing whatever in the Act
which requires that the occupation or user of the place for the
prohibited purposes shall be exclusive, or that the person using the
place shall have a right of occupation of any defined portion of it.
And I regard it as altogether immaterial that the bookmakers do not
stand on a stool or box, or use a gaudy umbrella for the purpose of
rendering themselves more conspicuous or attracting the attention of
their customers. Those are accessories which may afford useful
evidence when the nature of the business is in doubt, but are not
essential to the carrying on of the business. Then it is said that the
bookmakers pay the same fee for admission as the other members of the
public, and have no more right there than others who have paid the
same fee. I am unable to see the relevance of this. The question is,
not how they get there, but what they are permitted to do when they
have got there. In short, it seems to me, on the admitted facts of
this case, that this inclosure is a species of betting-room or
exchange to which professional betting men go for the purpose of
pursuing their calling, and which their customers resort to, knowing
they will find them there and be able to deal with them. I adopt the
judgment of the present Master of the Rolls in the Stockton case
(Liddell v. Lofthouse 54 ), which seems to me a more difficult one
than the one before your Lordships.
It is not in controversy that the respondents knowingly permit the
inclosure to be used by betting men in the manner described, and,
inasmuch as it does not appear that any other part of the land under
their control is used for the same purpose, I should have little
difficulty in inferring, if it were necessary, that the reserved
inclosure is appropriated by them for that purpose. I have a strong
suspicion that they would not *189 permit the betting men to carry on
their business on the Grand Stand or any other part of their adjoining
land or buildings. But it is not so found in the present case, and I
have no right to assume it, nor is it necessary for the purpose of
this case. It is sufficient to say that the bookmakers are licensed or
permitted by the respondents to use this particular place for the
purposes of their business.
Some of the learned judges have thought it inconceivable that the
Legislature can have intended to prohibit the use of an inclosure like
the one in question for the purposes detailed in the amended
particulars. I have a greater difficulty in understanding why, under
the provisions of an Act directed to the suppression of a particular
kind of gaming, a person should be allowed to transfer his business
for the day or more to an inclosure in Kempton Park and carry it on
there in precisely the same manner which he could not do in his own
office in London or elsewhere. I do not think that any serious
difficulty is created by the inclosure being liable to be treated as a
common gaming-house, with the consequences thereof. Persons who resort
to this inclosure must know what they are about. And it is admitted
that the majority of people who go there do so for the purpose of
betting.
For these reasons I agree with the judgment of Rigby L.J. and with my
noble and learned friend Lord Hobhouse that the judgment of the Court
of Appeal should be reversed. But as the majority of your Lordships
are of a different opinion, the appeal will, of course, be dismissed
with costs.
LORD JAMES OF HEREFORD.
My Lords, I desire to say that it appears to me that this action was
duly brought in the Court below.
The leading counsel for the appellant, in the commencement of his
argument, very properly called your Lordships' attention to the fact
that the action was in one sense a friendly action - a fact of which
the Courts below had also been informed. It appears that by a decision
in the case of Hawke v. Dunn 55 the proceedings permitted by the
defendants at Kempton Park *190 would be regarded as illegal. From
that decision there could be no appeal. Shareholders in the
defendants' company were therefore interested in obtaining the
decision of the Court of Appeal and of this House upon the matters
involved. To effect this object the plaintiff, one of the shareholders
in the defendants' company, brought this action in a form which would
secure a judgment upon the legality or illegality of the defendants'
proceedings. It seems clear that the action was brought in good faith
for the purpose of obtaining an authoritative and final judgment.
Probably the plaintiff will regard with satisfaction his want of
success in the action. But the judgment, whatever it may be, will and
must be acted upon. This, therefore, is not a case where the judgment
of a judicial tribunal is sought for the purpose of determining a
right for mere abstract purposes.
It also seems quite clear that there is no ground for saying that any
collusion has existed between the plaintiff and defendants or their
legal advisers. The statements made by Mr. Asquith and the late Sir
Frank Lockwood are conclusive upon that point. In the course of his
reply at the Bar of the House Mr. Asquith stated that he had acted as
leading counsel for the plaintiff in the case of Hawke v. Dunn 56 ,
and had argued successfully in that case that facts similar to those
existing in the present suit constituted illegality. Not the slightest
trace can be found throughout the whole of these proceedings of any
want of good faith or zeal on the part of plaintiff or his advisers in
the conduct of the suit.
It was stated by the leading counsel for the appellant that a somewhat
too broad admission was alleged to have been made in the 10th
“particular,” wherein it was stated that at the time of the passing of
the Betting House Act, 1853 , betting was carried on, and had been
carried on since the commencement of the century, in certain
inclosures in precisely the same manner as now existing. In my
judgment this allegation is immaterial, and cannot in any degree
affect the decision that should be arrived at on this appeal. But even
if it were material the alleged inaccuracy has now been plainly
corrected *191 by the statements made in the 10th paragraph of the
appellant's case. Such statements, admittedly correct, are now
accepted without reference to the allegations in the 10th
“particular.” The decision of your Lordships will, therefore, proceed
upon the statement of fact that some ready-money betting had existed
on racecourses prior to 1853, but in less degree than that which has
occurred since.
Inasmuch therefore, as it seems that this action has not been brought
to try any abstract question, that the judgment of this House is
sought for the purpose of being enforced and acted upon, and that the
action which has been conducted in perfect good faith is in no sense
collusive, I can see no ground for the suggestion that there is any
impediment in the way of the due determination of this appeal.
I do not refer in detail to the facts of the case which have been
already stated, but I regard them as establishing that within an
inclosure at Kempton Park certain “bookmakers” are in the habit of
betting, that such persons make betting their trade or business, and
that the fact of such betting taking place within the inclosure is
known to the defendants, and the betting not being interfered with
must be taken to be sanctioned by them.
The action is based on the allegation that the respondents have
infringed the provisions of the Betting House Act, 1853 , by opening
and keeping open the inclosure for the purpose of being used by
professional “bookmakers” for betting with persons resorting thereto.
In order to determine the question submitted for the decision of your
Lordships' House, it is necessary carefully to consider both the
history and the provisions of the Betting House Act of 1853 .
In relation to the origin of the Act, I concur in the statement made
by Hawkins J. in the case of Reg. v. Cook . 57 It appears that shortly
before the passing of the Act of 1853 a system of ready-money betting
had sprung up in the metropolis and the larger provincial towns.
Houses, offices, and rooms were opened for the sole purpose of
carrying on this betting business. Public-houses also were utilized
for effecting the *192 same object. In these places lists giving the
names of horses entered for different races were exposed to view.
Against the names of the horses on these lists figures were placed
shewing the odds the betting man or bookmaker carrying on the betting
business was willing to lay against each horse. These betting places
were open to the public in the same way that a shop is kept open. Any
one wishing to back a horse would have to deposit the sum of money he
desired to risk with the person in attendance, receiving a card
recording the transaction. Such a mode of betting of course represents
what is termed ready-money betting. These list houses became so
numerous, and the betting carried on in them became so extensive, that
the Government of the period determined to deal rigidly with the evils
resulting therefrom, and to suppress by rendering illegal those list
houses. With this object, as declared by Sir Alexander Cockburn, the
then Attorney-General, the Act of 1853 was passed. The object of that
Act can be discovered from its contents. It is intituled, “An Act for
the Suppression of Betting Houses,” and the preamble recites “that a
kind of gaming has of late sprung up tending to the demoralisation and
injury of improvident persons by the opening of places called betting
houses or offices, and the receiving of money in advance by the owners
or occupiers of such houses or offices, or by other persons acting on
their behalf, on their promises to pay money on events of horse-races
and the like contingencies. For their suppression be it enacted,” &c.
It will be seen that, so far as the preamble discloses the intention
of the Legislature, the evil intended to be dealt with is not the act
of betting either by depositing money or on credit, which was and is
legal. The evil recited is the carrying on of a betting business under
certain conditions in a house or office; and for suppression of these
houses and offices the provisions of the Act were framed.
Doubtless the contents of a preamble of an Act of Parliament cannot
for any purpose control the actual clear provision of the statute; but
if the wording of the statute gives rise to doubts as to its proper
construction, the preamble can be and ought to be referred to in order
to arrive at the proper *193 construction to be put upon the enacting
portion of the statute.
Upon this subject I fully accept the dictum of Lord Tenterden in
Halton v. Cove 58 , who thus summarises the matter:
“It is very true, as was argued for the plaintiff, that the
enacting words of an Act of Parliament are not always to be limited by
the words of the preamble, but must in many instances go beyond it.
Yet on a sound construction of every Act of Parliament I take it the
words in the enacting part must be confined to that which is the plain
object and general intention of the Legislature in passing the Act,
and that the preamble affords a good clue to discover what that object
was.”
With the intention apparently of dealing and dealing only with the
evils recited in the preamble, the Legislature proceeded in the 1st
section of the Act to enact: “No house, office, room or other place
shall be opened, kept or used for the purpose of the owner, occupier
or keeper thereof, or any person using the same, or any person
procured or employed by or acting for or on behalf of such owner,
occupier or keeper or person using the same, or of any person having
the care or management or in any manner conducting the business
thereof, betting with persons resorting thereto; … and every house,
office, room or other place opened, kept or used for the purposes
aforesaid, or any of them, is hereby declared to be a common nuisance
and contrary to law.” And by s. 2:
“Every house, room, office or place opened, kept or used for the
purposes aforesaid or any of them, shall be taken and deemed to be a
common gaming-house.”
The provisions of this second clause are very important when
construing and applying the first. In order to bring the first clause
into operation something must exist that can at least constructively
be regarded as a common gaming-house. As the betting at Kempton Park
was not carried on in a house, room, or office, it becomes necessary
to determine what effect is to be given to the words “other place,”
and how far they can be held to apply to the inclosure wherein the
alleged illegal betting took place.
*194
Speaking in general terms, whilst the place mentioned in the Act must
be to some extent ejusdem generis with house, room, or office, I do
not think that it need possess the same characteristics; for instance,
it need not be covered in or roofed. It may be, to some extent, an
open space. But certain conditions must exist in order to bring such
space within the word “place.”
There must be a defined area so marked out that it can be found and
recognised as “the place” where the business is carried on and wherein
the bettor can be found. Thus, if a person betted on Salisbury Plain,
there would be no “place” within the Act. The whole of Epsom Downs or
any other racecourse where betting takes place would not constitute a
place; but directly a definite localization of the business of betting
is effected, be it under a tent or even movable umbrella, it may be
well held that a “place” exists for the purposes of a conviction under
the Act. If this view be correct, I think that the inclosure existing
at Kempton Park might, physically speaking, under certain conditions
constitute “a place” within the meaning of the 1st and 2nd sections of
the Act of 1853. It is a defined space limited by metes and bounds,
and of such an area that a person therein carrying on the business of
betting can be found. I also think, as I have previously stated, that
it is established that within this inclosure betting took place, that
the bets were made by men whose business is that of a bookmaker or
betting man, and that such betting took place with the cognizance, and
therefore it must be held with the sanction, of the defendants. But
the main question involved in this case has still to be solved,
namely, Was the inclosure opened, kept, or used for the purpose of the
owner, occupier, or any person using the same, or of any person
conducting the business thereof, betting with persons resorting
thereto? In my opinion this question must be answered in the negative.
For I think that the certain conditions I have just referred to do not
exist, and that in consequence of the absence of those conditions this
inclosure cannot be held to be “a place” wherein an offence has been
committed.
In this case the only alleged “place” where the business of *195
betting is said to be carried on is the particular inclosure referred
to. But it must be remembered that the whole of Kempton Park
racecourse is inclosed; within that inclosure there are certain stands
and other inclosures. Unfortunately it is known to all that as a
general rule wherever racing takes place betting upon the races exists
also. Some portion of those who witness horse-races invariably bet. It
may be taken, therefore, that of the spectators who enter the Kempton
Park racecourse a certain number intend to bet on the races and do so.
Those who back horses are for the most part members of the general
public; those with whom the horses are backed, that is, those who lay
the odds against the different horses, are known as “bookmakers,” and
no doubt attend at all race-meetings with the primary object of
carrying on their business of betting.
It is probable that throughout the whole of the inclosed racecourse
betting on the different races takes place in greater or less degree.
Certainly there is nothing to prevent such betting everywhere within
such inclosed course. But by a sort of gravitation, resulting
apparently from convenience, the majority of those who bet at Kempton
Park congregate within a special inclosure - the one in question - for
the purpose of betting. The spot appears to attract the “bookmakers”
in consequence of its being central and adjacent to different stands,
and within sight of the winning post, and of the board on which the
names of the horses about to start and their jockeys are made public.
But I do not find that the defendants have opened, kept, or used this
inclosure for the purposes of betting more than any other portion of
the racecourse. Any member of the public can enter it for the purpose
of seeing the race. No facilities for betting are provided by the
defendants, and the fact that bets are made therein results from the
personal action of the persons entering it. I certainly can find no
direct evidence that the inclosure was opened, kept, or used for the
purpose mentioned in s. 1 of the Act, that is, for conducting the
business of betting. Doubtless it is proved that betting as alleged
systematically took place within the inclosure to the knowledge of the
defendants. Is that evidence sufficient to *196 establish an
infringement of the Act? In my opinion it is not. As was often
remarked during the argument of the case at the bar, betting is not
illegal in itself, and the statute never intended to make it so. It is
only the opening, keeping, or using of a place for the carrying on of
a betting business that is illegal. This is shewn by the consequences
created by s. 2 of the Act. The place wherein illegality exists is
declared to be a common gaming-house, and the right to arrest and
search all persons found therein follows. A man who bets or allows
betting in his private house, or the man who, associating with his
fellows in a club, even a sporting club, there bets upon races, is
guilty of no illegal act. In such cases the ingredient of dedication
or appropriation of the place to the purposes of a betting business is
absent. And as I think that in this case such ingredient is equally
absent, it appears to me that this inclosure has not, by the
proceedings which occur within it, been constituted a place within the
meaning of s. 1 of the Act of 1853.
In thus dealing with the case, I have treated the whole inclosure as
being the alleged “place.” There is another view that may be
presented, namely, that each peripatetic bookmaker using the inclosure
occupies “a place,” that is, the ground upon which his two feet rest,
and that having permission so to stand upon any particular spot he may
from time to time select, there is a shifting appropriation of each of
such spots for the purpose of carrying on his business. But in such
case, what can be said to constitute the “place” requisite to
constitute the offence? There is nothing in any way resembling a
house, office, or room. No defined area exists; nothing to indicate
where the bookmaker can be found is to be seen; and, as was admitted
by Mr. Asquith during his argument at the bar, every piece of earth on
which a betting man's feet rest, say on Salisbury Plain, cannot
constitute a place ejusdem generis with house, office, or room. I
think the statement of the same learned counsel that “a place must be
a place where a man according to the ordinary usages would be found”
is correct.
I do not purpose referring to the cases which were quoted at *197 the
bar in detail, but I would say that I think it must be taken that the
judgment of the Court of Appeal in the present case overruled the
decisions in Eastwood v. Miller 59 , Haigh v. Town Council of
Sheffield 60 , and Hawke v. Dunn . 61 Whilst with several cases, such
as Shaw v. Morley 62 , Bows v. Fenwick 63 , in which convictions took
place, no conflict arises. On the other hand, the judgment appealed
from seems to be supported by the Scottish case of Henretty v. Hart 64
and Snow v. Hill . 65
For these reasons I am of opinion that the judgment of the Court of
Appeal should be affirmed, and the appeal therefore dismissed with
costs.
Representation
Solicitors for appellant: Le Brasseur & Oakley . Solicitors for
respondents: Peachey & Son , for Arthur Cheese.
Order appealed from affirmed and appeal dismissed with costs. Lords'
Journals, March 14, 1899.
1. [1897] 1 Q. B. 579 .
2. [1897] 2 Q. B. 242 .
3. (1864) 17 C. B. (N.S.) 669; (1865) 19 C. B. (N.S.) 765; 34 L. J.
(C.P.) 46 , 159.
4. (1868) L. R. 3 Ex. 137 .
5. (1874) L. R. 9 C. P. 339 .
6. (1874) L. R. 9 Q. B. 440 .
7. (1874) L. R. 10 Q. B. 102 .
8. (1884) 13 Q. B. D. 377 .
9. (1885) 14 Q. B. D. 588 .
10. (1888) 17 Cox , C. C. 433.
11. [1892] 1 Q. B. 20 .
12. [1896] 1 Q. B. 295 .
13. [1897] 1 Q. B. 579 .
14. L. R. 3 Ex. 137 .
15. L. R. 9 Q. B. 440 .
16. L. R. 10 Q. B. 102 .
17. [1897] 1 Q. B. 579 .
18. (1885) 13 R. 9 .
19. [1897] 1 Q. B. 579 .
20. [1897] 1 Q. B. 579 .
21. 19 C. B. (N.S.) 765 ; 34 L. J. (N.S.) C. P. 159.
22. 19 C. B. (N.S.) 765 ; 34 L. J. (N.S.) C. P. 159.
23. 19 C. B. (N.S.) 765 ; 34 L. J. (N.S.) C. P. 159.
24. (1890) 17 Cox , C. C. 70.
25. [1892] 1 Q. B. 20 .
26. [1892] 1 Q. B. 20 .
27. 17 Cox , C. C. 433.
28. 13 Q. B. D. 377 .
29. 14 Q. B. D. 588 .
30. [1897] 1 Q. B. 579 .
31. 14 Q. B. D. 588 .
32. [1897] 1 Q. B. 579 .
33. [1897] 1 Q. B. 579 .
34. [1897] 1 Q. B. 579 .
35. L. R. 9 Q. B. 440 .
36. L. R. 10 Q. B. 102 .
37. [1897] 1 Q. B. 579 .
38. See [1897] 2 Q. B. 291 .
39. 17 Cox , C. C. 433.
40. [1897] 1 Q. B. 579 .
41. [1896] 1 Q. B. 295 .
42. [1896] 1 Q. B. 295 .
43. [1897] 1 Q. B. 579 .
44. [1897] 1 Q. B. 579 .
45. [1897] 1 Q. B. 579 .
46. L. R. 9 Q. B. 440 .
47. L. R. 10 Q. B. 102 .
48. [1896] 1 Q. B. 295 .
49. 17 C. B. (N.S.) 669 .
50. 19 C. B. (N.S.) 765 .
51. L. R. 9 C. P. 339 .
52. (1881) 8 Q. B. D. 275 .
53. 17 C. B. (N.S.) 669 .
54. [1896] 1 Q. B. 295 .
55. [1897] 1 Q. B. 579 .
56. [1897] 1 Q. B. 579 .
57. 13 Q. B. D. 377 .
58. (1830) 1 B. & A. 538 , 558.
59. L. R. 9 Q. B. 440 .
60. L. R. 10 Q. B. 102 .
61. [1897] 1 Q. B. 579 .
62. L. R. 3 Ex. 137 .
63. L. R. 9 C. P. 339 .
64. 13 R. 9 .
65. 14 Q. B. D. 588 .