SUPREME COURT.

Dominion, Volume 2, Issue 528, 8 June 1909, Page 11

SUPREME COURT.

POWERS UNDER A BY-LAW. THE PALMERSTON CASE. . . : 'A'question of considerablo importance to - s - 1 municipal corporations was involved in the , case of Andrew Jack versus tho Corporation - of Palmerston North, in regard to which ./V;; judgmentw&s givou by Mr. JusticoCooper !''?.i'';%-V' v ye^rday;;,;^ !. His Honour said that the. action-was for a ; ' writ of mandamus commanding ..defendants - : "to approve'of Boylo's ventilator .under their ' hy-laws. or show good and.'. sufficient •. reason .. for declining to do. so, and to properly con-: VU; ;;.|VBider , tbe ; various patterns - already: tested by of such of:.them ;as shall ' ■ - . be. sufficient for tho purposes of tho by-law. ■ Tho by-law m-question prescribed vcntilat-,, irig sliafts, and the part which, had to bo !'■*'&*-:(. considered was the' following'A ' cap - or . cowl of an' approved pattern shall be fixed on the top thereof." Thero was a similar provi- ; ;. ' sion in the by-lr.w with reference to the ven-' :-: tilation of private drains.Seven .ventilators, including ISoyle's pattern, were tested on I Vi'/S 'O' three occasions, and Blockloy and Living's " . ton's double draught ventilator was selected for use m coniection-with-the sewerage works . , ' \. . of'tho.town.'lt-was'tho opinion of jiiis Hon- . . -our .that the oommitteo which conducted tho ? ; to ; at-:a ; sound*coii-: ' • : . .. elusion. . In support of tho motion it had ' ;teen:contonded tha(t. ; ! if;the,.'byTlaw purported to'"select,;; the; pattern of one particular maker, and that: ' 1 pattern , was the subject of an existing pat- • - - ent, it was unreasonable and bad, inasmuch tf'i as it created a monopoly; that the true con- : >r;:";;;'Vi-'Btruction'.of was that .the council. . • was bound to . approve every suitable and effifcieiit'vVehtilatorrand that there were many ' : , : ventilators (including; Boylo's' pattern) suit v/.; able 1 and efficient,'and that in connection .with .tho construction of private .drains; the: council was bound to approve the. use.of any efficient ventilator. - •y. As xhe by-law was not, in. his opinion, un- ■■■■■■■■• reasonable, the council was within its powers ;; • in parsing .the .resolution approving of ■ the v: use of only, ono • particular kind of ventilator for the-purposes of the by-law. A very wide ■■■■• ■ ' discretion was given to a borough council as : ' to provisions (and the reasonableness of such provisions) contained in a by-law. Tho coun■:'i,cil- had a discretionary powor to determine • : tha't,a.Uniform'system of ventilation ought to be adopted , To a certain extent no V: douht the' decision ..of ; the. council .did result .insthecreation-of. amonopoly. But' as the council jcould ; determine . that a\ particular ventilator., should'be'used, the selec-. tion necessarily <in a . sense caused ( a mono- :>■ ;>s:v.-.;., poly. Tho ■ Statute of Monopolies ,v was 'directed' against, trading monopolies, granted by. tho Crown,-and did not apply to such a case as tho present. .It was, his opinion that • tho council must bo presumed to.know .what K;J was best in tho interests of the borough, and imust ;bo,credited with haying exercised its ;discretioh, with/.duesregard ;Jo';suoh interests;; ;... .; •: The' r(!S olution of the council did not speak v i .-for all time; it'was within the. powers of tho :■- council, 1 if; it thought: that. a -better • ventila- 1 i ..si-..-. : ;tor existed,to 'revoke-its resolution and reconsider tho matter. Even if he.were wrong: . . • he could, not- direot'.a mandamus as. prayed for, to do so, Trould be to usurp tho func■.l tions-of the council: in a (matter which was ■ " , ; 1 within- the . discretion of ' the council. • • .To ...... v. order the-.council, to consider; : the siutnbley yness. bf < Boylo's would; bo to ■ direct 1t.,t0 reconsider a.matter.upon which:ifc-had .:already exercised. its' discretion. If.the by:;v . law was , construed as. meaning that }■ the ■ . council' must 'consider -, in everV-'.particular I'} ■ . work tho;.suitableness:of a ventilator tendered •

for its approval, then he could not direct a i mandamus in tho present caeo to hear and determine an application which had never j teen made. The motion must be dismissed and <»iven for defendants with costs of the action and notion totalling 'fifteen guineas. ' Mr. Skerrett, K.O (with him Mr. Ostler), appeared for plaintiff, and Mr/ T, 1?., Martin (nith him Mr. Cook, of Palmerston North) for defendants.