BYLAW INVALID

Evening Post, Volume CXV, Issue 139, 15 June 1933, Page 13

BYLAW INVALID

PALMEIISTOX CASE

RIDING ON GRASS PLOTS

FULL COURT DECISION

Holding that tho bylaw was unreasonable and that it was not -within the power of tho council to make- it, tiro Full Court in a majority judgment delivered today upheld tho appeal of Doris Martin, a resident of Palmerston North, against a decision of Mr. J. L. Stout, S.Mi, in favour of Herbert James Smith, a traffic inspector, of Palmerston North. The appellant had been convicted of a breach of a bylaw which prohibited her from riding a horse- upon a prepared and cultivated grass plot in. Church Street, Palracrs,ton North.

In deliveriug thff judgment of the Chief Justice (Sir Michael Myers), Mr. Justice Ostler,- Mr. Justice Smith, and himself, Mr. Justice MacGregor said that a bylaw in order to be valid must bo intra vires of the authority Which made it; not repugnant to the law of | the land; certain in its terms; and positive and reasonable. EIGHTS OP PUBLIC. j I "When the. terms-'of this particular j bylaw are closely scrutinised," he said, "it will, in my opinion, be found not to comply with some, if not all, of these requirements. Under the Municipal Corporations Act' the city council has wide powers relating to their streets, but these powers arc defined by tho Statute, and must not bo exercised in such a way as to interfere unduly with the paramount lights of tho general public to the use of these streets as highways. In the present case it appears to mo that the bylaw in question does interfere with this primary right of the public. '. . Any real or fancied benefit produced by such a bylaw is, in my opinion, outweighed by the manifest inconvenience which it must cause both t#»residonts of and visitors to Palmerston North. If it had been confined to. footpaths only, it might have been held to be reasonable, but as applied to 'any street or footpath,' I think'it is clearly unreasonable, inasmuch as it imposes 'an undueand unnecessary restriction upon persons exercising a public right common to all tho King's subjects, viz., the right to use tho highway for tho primary purpose of traffic' His Honour was also of the opinion that the bylaw was also probably bad for uncertainty in two respects. Firstly, ho could nowhere find any definition of "prepared and cultivated grass plot," and it would seem that if the council wished to protect from traffic, as a plantation, any part of a street it must j first' enclose and plant it.- In the second place the words "cause, suffer, or permit any damage or injury" in the [bylaw appeared to be altogether toovj | wide in .their application to such a| 'context. "A bylaw," he said, "should clearly indicate ■what is required to be idono or not to be done by the persons concerned. In both these-respects I think the element of doubt and uncer- • taijity has been introduced into this j bylaw." ■ , . j DISSENTING JUDGMENT. In a dissenting judgment, Mr. Jus-: tico Reed said that if a local body had the legal right to erect or construct; anything on a street it had the legal right' to make bylaws reasonably necessary for the protection of that erection or construction: In the present caso tho council, he contended, had the right to establish these cultivated grass plots and to take all necessary steps to preserve them. Could it be said^ in those circumstances, that a bylaw' Svhich'prohibited riding''or 4 driving upon'them or otherwise injuring, them was unreasonable? He thought not. Tho appeal was allowed, with costs, and the ease was remitted to the Magistrate' accompanied by a direction to dismiss the information, with: appropriate costs. . . - At the hearing Mr. T. F. Relling, of Palmerston North, appeared for the appellant, andI'Mr.; J. O'She'a for the respondent corporation.