SUPREME COURT.

Dominion, Volume 1, Issue 31, 31 October 1907, Page 8

SUPREME COURT.

HEAVY TRAFFIC BY-LAW INVALID. Mr. Justice Cooper delivered judgment yesterday morning in tho case in which Jam.es Hunter, of Wakanui, appealed against his .conviction, by the Stipendiary Magistrate at Eketahuna, on an information, alleging that, he did engage in heavy traffic on the Nowiiian-Stirliiig road. without having , first obtained a license, as provided under the by-laws of the Eketahuna. County Council. Two grounds as an answer to tho information were, Ilis Honour said, taken before tho Magistrate—(l) That tho consent of the Minister for Public 'Works to tho liy-la'w had not been proved. (2) That that part of Clause 4 of the by-law relating to timber was imeortahi. iu that.it .was not clear, precise, nor i'rso" from doubt, and that it vested, certain, discretionary powers in-a person'in tho employment of-the Council. The Magistrate held that neither of these contentions afforded any ground of defence, and he convicted and fined the appellant.

Clause 4 of the by-law in question reads as follows:—"For the purposes of this by-law, 500 superficial feot of any timber shall weigh one ton. A cord of any timber shall 1 vycigh one ton, and : five liundrcdwbjght. 114/cufiic feet of wool shall weigh o'no ton'; 350.bricks shall'.weigh ono ton. The weight of any load of timber shall, for the' purposes of this bylaw, bo computed troni the superficial measurement 'of .such.-load,', unless,,.in tho opinion of tho person measuring the Same, the measurement'of such load can bo more conveniently' or accurately measured by cubical measurement (i.e., at per cord) ; "111 which case'such .weight shall bo ascertained by cubical measurement'. 1 Tho weight of any load of wool shall bo ascertained by cubical measurement.'"'.The 'weight of imy, load of bricks shall bo ascertained by the number of bricks on such load." "' l .

His Honour .said it had been proved that tlie waggoii driven by tho appellant'contained 1368 superficial feet of timber,- tlld' waggon without' the ' timber : weighing, tenVhundrcd.woight: The case did not state'whether tho timber contained in;tho vehicle was sawn, split,, or in logs,'or whether "it was mixed timber. l : . The contents of 'the .waggon pleasured! superficially weighed; 1 according to the standard of superficial measurpment prescribed by tho by-law, with the'weight of the waggon, over three toils. ' If tho weight was calculated according to cubical ; measurement the total weight of the -vehicle and contents .would be under three 'tons!.. lii the one caso, tho_ total weight -wtiuld exceed tlio statutory limit; .in the other caso, it would bo under it. ' ■- ' The first ground of the appeal was,' His Honour said, answered ,Dy the reccnt decision of tho Court of Appeal i'ir Atkinson 1 v. Munt. CottrcJl and Co. (9 Gaz.: L;lt. 624), in which it was held that proof! that a' copy of tho by-law. had beon sent (to'the Minister l waS and thatruio-.approval' of the Miriistor was not ; a'f; condition precedent -to the effective operation of tne by-law. . Discussing, the socondiquestion,' His Honour said 'the ' by-lawl , v/as • made in 1901, and amended in 1903. Clause 43 referred to three classes of timber—viz., sawn timber, split timber, and timberi in logs—but Clause 4 •did ~npt ..differentiate . the . classes. , Acting under 'the. po,wer,confoiTcd .oil' him by Clauses 4 and' 44, tho isounty's. officer,;eould measure the yarious'classes of. timber at. his will either by superficial or by .cubical measurement, and tho hypothetical 'weight'.'!of' .'tlio, load was made tliat person's opinion of' convenience,or accuracy of' measurement. Ho might measure a. load 'of .' tmibor ! ono method ono day and another load of. the, same class' of timber/bj.'tlio .alternative.■method tho next day,''and if that part of the ,by-law was! valid,.' the - computation.' .in each case .was ' final and conclusive in- any proceedings.under fthb' hy-liw.'_ 'lii .the opinion of. the Court,' a local authority, could hot make a valid by-law, giving its 6fficbr';siieli ah ' option: As' the'ißylaw.stood, no..carter''equld ascertain froni it •how" ho should "load his' vehicle, ' and ' what method' of computation .in' respect of tho load. ; would be adopted.''Tho sec,oncl 'objection must, be sustained. ' Hohour' ;! als'o r niehtioned that'Clause'44 of - tho; by-law-'was too in its 'terms. It purported io' givo, power to any officer or other 'person; iii tuo employment'.of tho Cbuii,cil to stop' a' vehicle and to examine and measure a load. Under this clause, any road labourer or ca3U.il employee of tho Qouncil might interfere with the traffic/-The : p6wor to do so svas limited under, the Statuto "to an " authorised!,person,' 1 .. and the by-law did not so "limit! it. If .the Council, proposed .toamend,. the"! by : '.. bringing; Clause; 4 within tho., Council's statutory powers, ought also't!q,.be ; amended by;.limitjng .the.poiyor to, stpp a vohiclo .and .measure its coiitentstp.aii, officer, or, person authorised .by tliij.Council to do so. ! . . !!' , ri ~;.!!. . ■ Tlie : appcjal, would'!be r allowed-, and. the' cdnyictiori set 'aside. The matter! .must.be: re-' .mitted to. the Magistrate with ,tho opinion of fclip. Court that, the! information'must be dismissed, with; such, costs',:in, the 1 Magistrate's! Court.,as,, the Magistrate .may : consider t'easonablo! The. respondent would; have" to 'pay - the costs, .of tlie .appeal,. £7! ,75., and, necessary Court foes! . ,/ .Mi 1 . 'Buddfo'appeared',' on .behalf" of Mr. Page, for tho appellant, arid Mr. Ton Haast, on behalf of Mr. : Robinson, ,for. the respondent. ' ' "' -\ -" - ,