CITY MILK SUPPLY

Dominion, Volume 18, Issue 195, 13 May 1924, Page 8

CITY MILK SUPPLY

AND STORAGE IN DEPOTS COUNCIL EXCEEDS ITS POWERS MAGISTRATE HOLDS BY-LAW ULTRA VIRES Whether the City Corporation has power to prevent the sale from a milk shop er depot of milk produced at dairies in the city and within two miles of the city was a question determined by Mr. E. Page, S.M., in the course of a reserved judgment yesterday. In deciding against the council, His Worship said that the real reason for the enactment of the by-law affected appeared to be a desire to protect the corporation’s monopoly, and he held that, in so far as it prevented the milk of near-by farmers being sold from a milk shop v the by-iaw was ultra vires. The case was one in which the corporation proceeded against Charles John Duffy for allegedly using an unlicensed milk shop at Hataitai for storing milk. “I am of the opinion,” said His Worship, “that the information must be dismissed. Defendant is charged under clause 877 (1) of Part XIII. of the city by-laws, that on February 19, 1924, he did use for tho purpose of the reception and storage of milk a milk ehop in Moxham Avenue, Hataitai, which had not been licensed in that behalf by license under the hand of the town clerk By the provisions- of the Wellington City Milk Sunply Act, 1919, tho corporation is, subject to certain limitations, given.a monopoly of the supply of milk in the city. Section 12 of the Act, however, makes p-ovision for tho .sale in the city of milk produced, at dairies in the city or situated within two miles of tho city, and .the substantial question in this case is whether the City Council has power by law to prevent such milk being sold from a milk shop or depot. Conditions Outlined, “The material part of section 12 reads as follows: —‘Notwithstanding anything hereinbefore contained, milk produced at dairies in tho city or situated within two miles of the city may be sold within the city subject to the following conditions: (a) That any person supplying milk under the provisions of this section shall keep an exact record of the milk obtained bv him at his dairy and of the milk sold by him in the city and shall from time to time furnish returns in the prescribed manner and form, verified by a statutory declaration, showing how much milk he has from time ‘to time sold, and shall pay such fee not exceeding two guineas per annum as the council shall prescribe, (b) That any person so supplying milk shall from ..time to time furnish samples of milk to the council (c) That no person shall sell milk in tho city unless he is the holder of a license granted for that purpose by the council. (d) That no person shall under any license granted under paragraph (c). of this section tell more than thirtv gallons of milk in any one day.’ “The by-laws under which this information is laid were passed in 1908 prior to the coming into operation of any statute empowering tho corporation to engage in the trade of milk vendors. These by-laws required ."11 dairies and milk shops to 'oe licensed and made provision for the inspection, lighting, ventilation, and general cleanliness of dairies and milk shops. They were amended in. 1922 by By-law No. 39, which provided for the sale and purchase of milk tokens or coupons, and for the sale of milk in scaled bottles, and were further amended in 1923 by By-law No. 40. Bv virtue of this latter amendment, an applicant for a license for a milk shon must agree in his application that he will not sell milk or cream other than that supplied to him bv the Wellington city corporation, and in the form of license it is made a condition that the licensee shall not sell any milk or cream other than that supplied to him by tho Wellington City Corporation. No distinction is made in the by-laws between licenses granted under section 6 and those granted under section 12 of the Act.

“A milk shop is defined as including any shop, store counter, building, premises, roo:o, yard, or place whatsoever, or any portion thereof which may be used solely or partly for the reception or storage of milk or cream for the of sale, or other business purpose, or of being offered or exposed for sale or other business purpose, or which which may ’oe used solely or partly for tho reception or storage of milk or cream' for supply. Operations Limited. “A nearby farmer is therefore by clause 877 (1) of the by-law, prohibited from selling his milk from a milk shop or depot unless he obtains a license, and the only form of license that ho can obtain is useless for that purpose in that it prohibits him from selling any milk or cream other than that supplied by the corporation. The effect of the by-law is to compel tho nearby farmei to vend his milk and cream solely from a milk cart. Ho could not open or use any milk shop, depot, or place within the city for the reception, storage, or sale of his milk or cream. If his own milking shed and premises are within the city he could not uso his premises for the storage of mi’k; he could not sell nrilk at his premises, nor keep on the pro miscs for delivery in this morning tm, milk obtained at vho evening’s milking. “I can find nothing in tho statute giving tho council power to thus limit the operations of the nearby farmer. “By section 18 of the Act, tho council is empowered to make by-laws (a) for securing tho sanitary construction and cleanliness of dairies, milk shops and milk vessels; (b) prescribing precautions for protecting milk against deterioration, infection or contamination, and regulating or prohibiting the sale of milk in cases where the public health is likely to be endangered by such sale; and (c) regulating tho issue of licenses under this Act and tho fees payable therefor. “Gone Beyond These Powers.' 4 “In my opinion the council has gone beyond these powers. Tho real reason for tho enacting of this by-law appears to be a desire to protect the council’s monopoly. No exception is .taken in the present case either to the nature of tho building sought to be licensed or to the character of the applicant. “It may bo noted that in. the statutes of 1910 and 1914. prior to the commencement of the sale of milk by the corporation, nearby fanners

were exempted firm tho necessity of having their milk tested, but were compelled to sell it within four hours of milking. This limit of four hours was not re-enacted in tho Act of 1919. “I think that the by-law in so far ns it prevents the milk of nearby farmers being sold from a milk shop is ultra vires and that this charge must bo dismissed.” Mr. A. .1. Vazengarb applied for costs on tho ground that the case was in a different position from a by-law proceeding. The piosecution, ho declared. had been taken to protect the cornoral ion’s monopoly. Mr. L. C. Hemery (assistant citv solicitor), urged that an order should not bo made.

The Magistrate allowed £2 2s. solicitor’s fee. Security for appeal was fixed at CIO 10s., phis the amount of the costs.