THE £50 BOND.

Clutha Leader, Volume XLII, Issue 90, 19 May 1916, Page 3

THE £SO BOND.

! HOULISTON v. COUNTY COUNCIL. | JTDGMENT RESERVED. : A special sitting ol' the Baielutha ! Magistrate's (Jourt was held on Wednesj day, before Mr H. A. Young S.M., to i hear the case, John Ramsay (county 'engineer) v. Hubert Houlistou, that dej fendant on May :i, 1916, at Otauomomo, did unlawfully engage a traction engine ! on heavy traflic on a county road under i the control ol' she Clutha County Council | in respect of which traction engine no license was in force, contrary to bv-law j part VII, section 11. The by-law'is as j follows: The clerk may in any case, as a J condition precedent to the issue of a j license, require the person to whom the j same is to be issued to enter into a bond, | or without a surely or sureties to the | council, in such sum as the clerk shall | deem proper, that such person shall pay | to the council reasonable compensation lor any special damage which shall accrue to any road, bridge ferry or ford under the care, control or management of the council by reason of any heavy traflic thereon by the vehicle or machine in respect of which such license may be issued. Provided that if the applicant is dissatisfied with the requirements of 'the bond and refuses to enter into the same, the clerk shall suspend the issue of the said license or refer the application to the first meeting of the council, whose decision thereon shall be final. Mr 1). Stewart (Balclutha) appeared for the County Council, Mr C. G. White (Dunedin) for defendant, and Mr Finch (Diinedin) for the Farmers- Union. Mr Stewart objected to the Farmers' Union being represented, contending that the case had no bearing on the union, and the latter body should therefore have no right to claim costs. Mr Finch agreed not to claim costs, and was allowed to appear. Mr A. McDonald (clerk to the C'lutha County Council) identified the council's original by-law, the terms of which are given above. Witness stated that defendant's license expired on November 17, 191.3. lie had not renewed his license this year. Mr Finch: How was the meeting to form the by-law called? Was it by requisition signed by the chairman or three councillors. 'Mr McDonald: No; it was arranged at a meeting of the council. Mr Finch: Will you show the court at which meeting it was arranged.' Mr McDonald: Speaking from memory it was in 1909, but I could not say if it was minuted, continuing, Mr McDonald said that notice of the meeting was given to the councillors in writing (produced) in August, 1909, signed by witness. A special meeting was held on October 1 to confirm the by-law. The resolution passing the by-law was carried, and the common seal was affixed to the resolution confirming the by-law. The by-law was first advertised on September I!. To Mr White: With regard to the license to Mr Houlistou, witness commenced to ask for bonds on February 14. 1910. He asked for bonds for all traction engines from that date. The council fixed the amount of security (£SO). The amount of the bond was fixed by the council on December 17, 1915. The council hail insisted on a bond in evencase. He believed he had refused a cheque (without bond), but considered there was no actual offer. He did not recollect telling a traction engine-owner that he would not take £3O. To Mr Stewart: Mr -Houlistou did not offer witness money in place of the bond. The question of a bond arose from damage done to the roads. The present bylaw made in 1909 was specially framed to deal with traction engine trallie. Witness produced a copy of the bond. As the licenses expired he sent a copy of the application form to each of the en-gine-owners, and enclosed a copy of the bond required by the council. After receiving the application form and copy of-the bond Mr'Houlistou called at the county office and said he had a contra against the council, and that could go against the license fee (£2O). Houlistou handed the bond back with the application unsigned. When the council passed Mr Houlistou's account he called on the day following, and £l9 was paid to hint. Houlistou did not tender the license fee. He (witness) did not refuse to accept the money from Mr Houlistou for a license. The council had received official information 'that engine-owners had refused to sign the bond. The applications were laid before the council in April, 1916. License fees were tendered to the council anil refused, as the bond had not been signed. . To'Mr White: Mr Houlistou asked him before the meeting to take the license fee out of the money owing 'to him. He was quite sure that Mr Houlistou when he subsequently called for his money did so as he considered that the council would not accept the license fee. To Mr Stewart: He held in suspeuse all license fees paid to him until the council gave its final decision under section VII, of the by-law. Mr J. Ramsay (cuutity engineer) said that defendant was a traction engineowner, iie had been using the roads in Otanomomo lately which were under the control of the council. Owing to the misuse of traction engines considerable damage had been done to the roads. The cost of repairs to the roads owing mainly to traction engines was £1046 during the last six months. The damage was largely owing to the traction engines keeping in one track instead of straddling the ruts. Damage amounting to £lls had been done to 'the l'uerua bridge, and other bridges had also been damaged. The council had been very lenient and had not taken any action. The ratepayers had made many complaints about the state of the roads due to the traffic by traffic engines, and owners had had their attention called frequently to the matter. To Mr White: Some drivers did their beat" to comply with the'by-laws, Th«

| £2O license fee was for the purpose of repairing roads damaged by traction engines. One man had been prosecuted for damaging the road,' but the case was dismissed, the by-law being held to be unreasonable. Mr White: Is it not unfair to charge the men who do not break the by-laws equally with those who break them? Continuing, Mr Ramsay said the damage was pretty general over all the county roads. To Mr Stewart: The reason for the difference in charge on heavy and light engines was to cover the extra damage that would be done by a heavier engine. The license fee was in the nature of a toll to cover ordinary damage done by an engine, but had nothing to do with damage done by careless engine-o,wners. Jas. Begg (ruuholder and member of the Clutha County Council) said he had been over a considerable part of the Clutha county during the last few months, principally between Balclutha and Clinton, and in the Waipahi district. The majority of the roads showed the bad effects of traction engine traffic. In consequence the county council considered the matter at different times, and finally decided on insisting on J owners signing a bond, primarily to pro- ' teet fanners aud owuers from an inevitable rise in rates if the damage was j continued. In witness' opinion the i council hail been scandalously lenient in I the matter. To Mr Finch: Motor cars, drays and other traffic also injured the roads. Traction engines were of great use to farmers. It would not be more equitable to raise the rates aud make everybody . pay than to put a heavy charge on traction engine-owners. The roads were not ' treated fairly by everybody, as one man mightvdo 10 times more damage than another, but its there was no supervision those responsible for the damage were generally undetected. The bond would not cost a careful driver one sixpence, and in the case of a driver who damages the road there would be no cost to the latter unless the magistrate gave a decision against him. To Mr Stewart: A great many ratepayers got no direct benefit from traction engines, and therefore a general rate to cover damage to roads would be inequitable. It was reasonable to impose rates to pay for ordinary wear and tear, but not to pay for special damage. Mr White admitted that the defendant had used his engine in heavy .traffic on the county roads, but submitted that | the by-law under which the information ( was laid was invalid, on the grounds 1 that it was ultra vires, uncertain and I not general in operation. It provided ; for the payment, of a license tax of £2O in one case, and this was a charge for the use of the roads and not a license fee (see Hamiyn v. Ferrier); Ilarkness v. Orbell. Clause XII'. of the by-law was bad in that it required a bond to be given with sureties that the applicant ] for a license would pay to the council >■ reasonable compensation for any special j damage to any roads. This provision was not authorised by the Public Works ! Act. An attempt had been made to com- I bine clauses e and f of section I,'ifl of the I Public Works Act, and neither clause had been strictly complied with. Power was given to the clerk to fix the amount of the bond and to say whether sureties should be demanded. This should be fixed by the law, and not left to the clerk. There was also no provision as ro how reasonable compensation should be arrived at. This made the by-law uncertain. 'Counsel also raised other objections to show that the by-law was inequitable and its operation not general. In clause 19 of the by-law the council endeavoured to reserve to itself what was practically a dispensation power, and counsel submitted that it had no power to reserve to itself such right, and the by-law was therefore ultra vires and the information should be dismissed. Mr Finch stated that a local body being created by Statute could only do what it was specifically empowered to do by the Statute, and in the manner laid down by the Statute. The courts in New Zealand scanned by-laws more particularly than in England, because in the latter place there were certain checks and safeguards, such as having to be passed by the Board of Trade and I consented to by the Secretary for State, j The by-law now under question effected j not merely the conduct of the inhabi- j tants of the county, but everyone of his ' Majesty's subjects in New Zealand, be- \ cause it sought to restrict traffic on the 1 King's highway, By-laws must bo '■ passed by Special Order at a special i meeting which had been called either by I a resolution of the council or by a requisition in writing delivered to the j clerk, signed by the chairman or three I councillors and specifying the day of the J meeting. This the evidence of'the clerk j showed had not been done. Further, j public notice of the time and place of \ the subsequent meeting which was neces- ) sary to confirm the by-laws had to be j published in a local newspaper at least I once in each of the four weeks immediately preceding the meeting, and had ; to specify the by-law and state that a j copy of the by-law was open for inspection at the office of the council for -".0 j days immediately preceding the eonfir- ; matory meeting. This had not been j. done, for the first advertisement ap- • peared in the 'Clutha Leader of Septem- ; ber 3, 1909, and the confirmatory meet- ! iug was held on October ]. Anyone de- j siring to obtain a license ought to be : able by reading the by-law without re- I f'erence to anyone else to know exactly j what he ought to do and what, he ought to pay to obtain it. Even if the fixing j of the bond had not beeu left to the discretion of the clerk the by-law would be ; ; utterly bad, because the council could , not fix by resolution what ought to have ' been done by by-law, and the terms of the bond ought to have been fixed by the.. council at the time of making the bylaw. With regard to sureties, it was a . serious matter for some owners to be asked to find bondsmen, even when the ! limit was fixed at £SO. The owner might be forced to give a bill of sale over his engiue which, would prejudicially effect

his business, if the council had power : to enforce sureties it should be definite, aud if the council had power to enforce | a bond and sureties it had no power to i leave the matter in the hands of the j clerk. 'Counsel stated that the by-law I in itself was bad, but when the'clerk was given discretionary power it was infinitely worse. In conclusion, he submitted that the utmost care should be taken in framing by-laws dealing with traflic on the King's highway. Mr Stewart stated that traction engine owners had been treated with extreme leniency, and now the council found it necessary to take steps to prevent excessive damage being done to the roads by fraction engine-owners. The latter were liable at common law for damage done to the roads, and if the council did not decide what the damage should be assessed at then 'the ordinary inference was that it should"be assessed in a magistrate's court. Every wrong had its remedy, and the person wronged , had the right to have the damages asI sessed in a proper court of jurisdiction. The" by-law was open for inspection for the full :i0 days required by the Art. The by-law was made by a special order, and the question was if it could be 'quashed. Counsel contended that section j 100 of the Act rectified any technical j omission. It seemed to be inferred that | the clerk, with the council's approval, in fixing the bond at £SO was fixing the amount of the damages. This was incorrect. The sureties were only responsible for actual damages, and' £SO was the ..mit of the liability. For example, if a traction engine caused damage to a . road amounting to £5, 'then the owner was only responsible for £5. Considering the amount of damage done of late to the roads the by-law could not be considered unreasonable. If a man could not find sureties, then this showed the necessity for a bond. A bond as far as an honest man was concerned was a mere dead letter. Why should the whole of the ratepayers be compelled to pav a ! share of the damage caused by a few careless traction engine-drivers? Such a course would be inequitable, but it was what had been happening for a number of years. Counsel quoted the case of Cruze v. Johnston, showing that a court of justice should be very careful in dealing with the invalidity or otherwise of public bodies' by-law cases. It was a perfectly innocent and equitable course to ask the engine-owners to find security for damage done to the roads. The bylaw was purely and solely under subsection E. That section by itself could not be strictly applied, as it would be impossible that no damage would accrue. Counsel submitted that flic council had power to take security for special damage, and why should the men who damaged the roads not be asked to find security for the correct conduct of'their business? This by-law complied with the four requisites of good by-laws: (I) That'it was within the power of the local authority to make the by-law.— In the present case the council'had the direct authority under sub-section E of section 111!) of the Public Works Act, JDO.S. (2) That the by-law must not be repugnant to the laws of New Zealand. —lt was not pretended that it conflicted with any of our laws. (;'.) That, the bvlaw must be certain in its terms and positive, i.e., that it must make clear to the person effected what, its terms are There was no room for doubt, as the by-law was perfectly clear. (4) The question of reasonableness.—The evidence had shown clearly that the by-law was reasonable, as the council's remedy for damage done was perfectly simple. Mr White, in reply, said that Mr Stewart had raised the point that it was only ■a natural inference that reasonable damages must be assessed by a court, of justice. Unfortunately for Mr Stewart bylaws were not matters of inference, but must be clear and certain. The provision relative to the objection in the making of by-laws had not (counsel contended) been answered by Mr Stewart. It was not a question of attacking or quashing a special order, but applied to the by-law. Sonie'clefects could be cured by the By-laws Act, but this defect could not be cured, as various matters were left to the clerk, including the fixing of a bond. If was futile to suggest that this could be left to the clerk. Counsel submitted that there was nothing in sub-section E that would enable security to be taken to enforce reasonable compensation. The magistrate reserved his judgment,