UNCOVERED FRUIT

OPEN-AIR DISPLAY

PROSECUTIONS FAIL

INVALID BYLAW

Holding that the section of the bylaw referred to was invalid on the ground of uncertainty, Mr. E. D. Mosley this afternoon gave judgment in the Magistrate's Court dismissing charges laid against six fruiterers for having unprotected food exposed for sale where it might be' contaminated. The fruiterers concerned were* Wong Chong, Vallabh Daji, Parbhoo Chhiba Makan, Robert Menzies, Claude Joseph Henry Walker, and On Young and' Company. Mr. A. R. Cooper conducted the prosecution for the Wellington City Council, arid Mr. R. Watterson appeared for the defendants. The defendants were charged that "On February 14, 193^, in the city of Wellington, having exposed for sale human food in a position in which the said food may be exposed to contamination, such food not being completely and securely enclosed in an envelope or covering of such material, and in such manner as effectively to protect such food from dust, dirt, dampi and flies, and other unwholesome matter," contrary to' the provisions of the bylaw of the council of the city of Wellington entitled the Wellington City Consolidated Bylaw, No. 1, 1933. By consent all the informations were heard together. Mr. Cooper, on behalf of the City Council, called Mr. J. M. Hale, a health inspector employed by the City Council.. Reviewing the evidence, the Magistrate said in the course of his judgment that Mr. Hale stated that, in company with other inspectors, he visited a number of fruit 'shops in which fruit was exposed for sale outside the shops. He warned the respective shopkeepers about this. He, again visited them in the evening, and at the shop of the defendant Wong Chong found food displayed outside; tomatoes, pears, and plums were exposed in the open doorways, with no covering whatever on the fruit. This was described as bating fruit. He afterwards visited the premises kept'by a Mr. Walker, where he saw tomatoes, plums, nectarines, and peaches exposed for sale in the open doorway of the shop. Then he visited a shop kept by Parbhoo Chhiba Makan, where he saw nectarines for esting exposed in the open doorway of the shop. A further witness,., Mr. E. G. Cooper, also a health inspector employed by the City Council, visited certain fruit shops in which fruit was exposed for sale outside. At a shop belonging to Robert Menzies he saw pears displayed outside uncovered; at another shop kept by R. Young and Co. he saw greengages displayed outside, also uncovered; and at the shop of Vallabh Daji he saw tomatoes exposed uncovered in the open doorway of the shop. Mr. E. C. Alexander, City Health Inspector, gave evidence that he did not prosecute for these offences without giving at least one warning, that he expected reasonable care to be taken to avoid contamination, and that dust and material blown from the street caused possibilities of contamination. The degree of possibility of that contamination would vary in accordance with the position of the articles in or about the shop. Certain classes of foodstuffs were permitted in doorways, such as those which are washed or cooked or peeled before being eaten. "BYLAW CLUMSILY, DRAWN." ' "After carefully considering, the bylaw (clause 16) relating to the sale of food, and the arguments placed before me by the respective counsel, I have come to the conclusion that this clause of the bylaw has been clumsily drawn, and is in my opinion too uncertain in its operation to be readily understood by a layman," stated the Magistrate. He adopted the words of Mr. Justice Matthews in a case in which the latter stated: "A bylaw to be valid must be certain; that is, it must contain adequate information as to the duties of those who are to obey it," and it must be 'reasonable." "In my opinion," went on the Magistrate, "in administering this section of the bylaw too much is left to the discretion of the inspectors, who may or may not act in strict accordance with the bylaw. ... I have very grave doubts as to the particular section of this bylaw is in conformity with the powers given to corporations by either the Municipal Corporations Act, 1920, or the, Health Act, 1920. "I am of the opinion that this particular section of the bylaw as framed is invalid on the ground of uncertainty. The respective informations will be dismissed." I