THE COURTS-TO-DAY.

Evening Star, Issue 8569, 16 July 1891, Page 2

THE COURTS-TO-DAY.

SUPREME OOURT-IN BAHCO. (Before His Honor Mr Justice Williams.) MABTIN V. OTAGO HABBOB BOABD. Appeal from a decision of the resident magistrate. Mr Hosking for the appellant, and Mr Sim for the respondent. This was an appeal by Edward Martin, trading as Tnrnbull, Martin, and Co., owner of the steamship Elderslie, from a decision of Mr Carew, R.M., in a case heard before him on the 20tb May last, in which he held that the by-law made by the Harbor Board imposing a port charge of 6d per ton half-yearly, dating from the Ist January and the Ist July respectively, Was within the powers of the Board, and, therefore valid. Holding that the by-law was valid, His Honor gave judgment in favor of the Board for the amount claimed—viz., L 45 0s 6d, sued for as a port charge, payable in respect to the Elderslie for the half-year from the Ist January, 1891. Mr Hosking said that the facts were not in dispute. The right of the Board to recover the charge was founded by them on by-law 56 His Honor interrupted to remark that he had read the case, and would ask Mr Sim before going any further whether he agreed that the by-law was informal. Mr Sim answered in the negative. What he admitted was that, supposing the by-law had imposed the maximum rate, then possibly it might have been. As he understood the judgment, that was all the magistrate meant to say. His Honor: You admit that if the maximum rate had been imposed the by-law would have been bad ? Mr Sim: I believe it would be; but it is not necessary for me to contend that, your Honor.

Mr Hosking, continuing, said that from the wording of the Act of 1878, upon which the charge was based, it would be seen that the words of the by-law followed the souedule, this schedule being provided for by section 215, sub-seotion 4, which authorised the Board by by-law to fix the charges. His contention was that the meaning of the harbors Act schedule was that the half-year should date from the first accruing charge when a ship first enters the port, and that the payment then made was good for one half-year. Learned counsel also oontended that, as the by-law did not give the benefit of the charge for the half-year in all cases, its operation was unequal, and therefore unreasonable. His Honor's attention was also directed to authorities in support of the contention that "a half-year" and "six calendar months" were not synonymous terms, it having been held that a half-year must not be less than 182 days. This was a fine point, but one that he (Mr Hosking) was justified in raising. Cases were cited bearing on the questions of inequality and unreasonableness.

Mr Sim said that on the question of ultra vires the contention of the Board was that, conceding to appellant that a half-year meant in this connection 182 days, and that a half-year must be calculated from the date on which a ship enters the port, and not from any fixed day, the by-law was still intro vires, because under no circumstances could the owner of a ship be called upon to pay more than 12d for any 182 days. The only limitation imposed by the Act was a limitation as to amount. There was nothing in subsection 4 of section 215, or in the schedule as amended, which required the Board to impose rates by the half-year. So long as the Board did not exoeed that limitation, or oblige owners to pay more than 15d for any half-year, then the by-law was perfectly good. His Honor: Under this by-law, if a ship came in on say the 31st Deoember, and used the harbor on that date for coming in, and used it again on say the 3rd January for going out, she would have to pay double, would she not ?

Mr Sim: Not for going out, your Honor. That is not the way it is construed in practice.

His Honor said that certainly if the bylaw was valid, a ship coming in was chargeable and a ship going out was chargeable. Mr Sim said that, granting that was so, the Board did not collect from the owner more than Is during the period of 182 days; and so long as they did not exceed that limit the by-law was perfectly valid. The Board were not bound to impose their charge in any particular manner. They had power to fix port charges subject to a limitation as to amount only. As to unreasonableness, he submitted that, by the Privy Counoil decision in Slattery v. Naylor, excepting in very extreme cases it was not for a court to say that a bylaw made by a local body was invalid because of unreasonableness. The only question in this and such cases was whether the by-law was within the statutory power. If it was, it was, he submitted, valid.

Mr Hosking having replied, Hia Honor gave judgment as follows:—The by-law prescribes that a port charge should be levied of 6d per ton half-yearly, dating from the Ist January and the Ist July respectively. The magistrate has decided, and Mr Sim has oonoeded, that the halfyear mentioned in the schedule to the Harbors Act of 1878 mußt be calculated from the date the ship enters the port, and not from a fixed day. I agree with that, but, if that be so, I think it is clear that the by-law is ultra virea as not being within the statutory power. It was contended that the bylaw was valid because the Harbor Board had a right to levy for the half-year a charge not exceeding 15d per ton, and that under the operation of the by-law no vessel could be called upon to pay more than Is per ton for any half year. Ido not think that this contention is a sound one. If the by-law has been framed upon a misconception, as it must have been, the intention of the framers was to fix 6d a ton for the half-year as the port oharge, and they have not succeeded in doing so. Apart from that, however, 1 think it is quite clear and I base my I decision mainly upon this ground—that the by-law is ultra virea because the operation I of it is unequal, and is in direct contravention of the 110 th section of the Harbors Act. That section provides that "all dues shall be chargeable equally to all persons in respect of the same description of shipß, the same description of voyage, and the same description of goods." If a vessel comes into port on the 31st December and uses the port after the Ist January she has to pay Is per ton, though she has not made use of the port for six months. A similar vessel arriving on the Ist January, and using the port for the same length of time as the vessel which arrived on the 31st December, would have to pay only 6d per ton. If section 110 bad not been inserted in the Act, this inequality would, in my opinion, have been sufficient to enable the Court to declare the by-law unreasonable as unequal in its operation. But the provisions of section 110 are express, and the effect of the by-law manifestly iB to make the charges for the same class of ships on the same description of voyage unequal. For these reasons the appeal should, I think, be allowed. Appeal allowed, with costs as per scale, RESIDENT MAGISTRATE'S COURT, j (Before Messrs 6. F. Farquhar and D. Baxter, J.P.s.)

Judgment by default was given in the following cases: 'Otago Daily Times' Company v. William Hall (Kak&nui); 20s. —(Mr Baxter here left the Bench, and his place was taken by Mr G. Fenwick.)— Kempthorne, Prosser, and Co. v. H, A. Temperton (Oamaru); LlO 7b 10d, on a dishonored promissory note (Mr James for plaintiffs).—Official Assignee (in the estate of Proctor, Jones) v. J. Christian; LIS 2s 7d, for goods supplied (Dr Fitchett for plaintiffs).—(Mr Farquhar here left the Bench, and was replaced by Mr J. Green.)— D.1.0. v. Christina Moffat (Pembroke); L 5 2s for goods supplied (Mr James for plaintiffs).—(Mr Farquhar again took his seat, Mr Green retiring.)—Kempthorne, Prosser, and Co. v. John M'lntoah (Milton); LI9 16b, on a dishonored promissory note. [Left sitting.]

CITY. POLICE COURT, (Before E. H. Carew, Esq., R.M.) Übunkknnkss,—A first offender was convicted and discharged, and another, on whom e, considerable sum of money was found, was fined ss.

Wife - Besebtion.— John Thomas Williams was charged with deserting bis wife Mid fundy, and leaving them without mean* ei support.—Sergeant-major Bevin aaid that accused was- arretted last night, and asked fiia Worship to remand the man to brer' oargill.—Accused was remanded to Inrescargill. The Industrial Schools Acs.—Reginald Edward Edwards was charged with being a child within the meaning of the Industrial Sohoola Act, having no means of subsistence. —Sergeant O'Neill stated that the boy was aboat fourteen years of age. He detailed the facta of the case.—His Worship committed the boy to the Industrial School, tobe brought up in the Church of England form of religion. Alleged False Pbetbnoes.— Archibald M'Nish, a young man, was charged with, on the Ist May, obtaining L 5 by means of a valueless cheque from John Hood, of , Leith Valley. Mr Hanlon appeared for I accused.—Chief-detective Henderson asked for a remand till to-morrow. The accused was only airested last night, and as theprosecutor lived some distance out of town there had been no time to get up the ease.— His Worship granted the remand.—Bail was allowed, accused in LIOO and two sureties of LSO each. The Branding Acs.—Alexander Dov&lass, defended by Mr Bathgate, pleaded not guilty to a charge of failing to brand certain, sheep which were his property with hj» registered brand. —The defence was that defendant had no registered brand. If, therefore, defendant was guilty of any offence at all it was of not having such a brand, and not of failing to have his sheep branded witb a registered brand.—His Worship said that as defendant had taken steps to obtain a registered brand he would be given the benefit of the doubt The case would he dismissed. Infected Sheep.— William Lvwrey, who did not appear, was charged with, on the 27th May, being the owner of certain sheep which were found to be infected with lice. — Inspector Scaife gave evidence.—Defendant was fined 20s and coats (7s). Alexander Thomson and Donald Borrie were each similarly charged, neither of them appearing.—After evidence had been given by Inspector Scaife, Thomson was fined 20a and costs, and Borrie 40j and Coßtfl.

Tbespass.— Theodore Wright and Bertie Wright, two small boys, were charged with, on the 2nd July, unlawfully damaging the pasture land of William H. Todd, Cumberland street, by walking over the land, thereby doing damage to the extent of sa» Mr Finoh appeared for the complainant, and Mr A. S. Adams for the accused.—Mr Finch said the object- of the case was to prevent boys from playing on the land, the gnu on which Mr Todd required for his horses. — After evidence, His Worship dismissed the case, without costs. Maintenance.— William 2Tcve applied to have the ordets recently made against him for the maintenance of his wife and family varied. —Mr Fraser appeared for the complainant Neve, and Mr Hanlon for Mrs Neve.—Mr Fraser said that under the orders his client was compelled to pay 14s a week. He was a hard-working man, bnt could make not more than L2 a week, which waa insufficient to keep himself, pay his expenses, and also pay the orders. He had a home now, to which he was willing to take his wife and family, and thereby do away with the liability in respect to the orders.— Evidence was given in support of complainant's case, after which Mr Hanlon addressed the Court and also called evidence. —Case dismissed. Pollution of the Kaikobai Stbeam. — James lAUieo was charged with polluting the Kaikorai Stream by discharging into it certain matter. —Mr F. R. Chapman appeared for the prosecution, but defendant did not appear, nor was there any appearance on his behalf. Charles [ Wedge, borough clerk, Roslyn, said he knew that Lillico was manager of the mills, which were in the borough.—Robert Bain, inspector of nuisances for Roslyn, said he visited the factory on the 22nd April, when Lillico admitted that he was the manager. On a subsequent occasion he examined the premises, as he had on the first visit, and found the filter - beds overflowing into the Kaikorai, making the stream almost black, or, rather, dirty black. Later in the day the filter-bed waa still overflowing—the stream from it very dirty and black for a distance of nearly twomiles. Witness produced a sample of what was going into the stream. It was spent dye. Witness described the position of the drain, and said that liquid matter from water closets and from wool washing flowed into the filter, which he considered a sham. They never denied that this liquid matter flowed into the stream. Both Mr Robs and Mr Glendining were in England, and Lillico had charge of the factory.—Defendant was convicted, and fined 50s and costs. Thomas Martin was similarly charged, Mr Chapman appearing for the prosecution and Mr A. S. Adams for defendant.—Mr Adams asked his learned friend to consent to the matter standing over for a time to permit Mr Martin to do something to meet the objections that had been made. He bad put up a filter, and thought that this would be sufficient to meet the case.—Mr Chapman could not consent. In any case they would not forego the conviction, and the other convictions must have been known to everybody in the valley.—Charles Wedge and Robert Bain gave evidence; the latter as to the objectionable matter coming from Mr Martin's fellmongery into the stream.—Mr Adatrs said the defence was that the stream was practically polluted all along its course. From the evidence of Mr Bain, the stream was a nuisance before it came into Mr Martin's premises, and it could not therefore be said that Mr Martin caused the nuisance.—His Worship: Don't you think it is possible to pollute pollution? —Mr Adams: Well, it is possible; bat you cannot make two nuisances of one volume of water. Counsel contended that anything defendant might do to increase the quantum of the nuisance could not be held to be a nuisance under the by-law. He called defendant—His Worship considered a breach of the by-laws had been committed. Defendant seemed to have done a good deal towards preventing pollutions, but admitted himself he had not fully succeeded. Fined 30s and costs.

Silas Abbey was also charged with polluting the stream, and was defended by Mr Thornton, Mr Chapman again appearing to proseoute.—After evidence and counsel had been heard, His Worship considered this a very bad case indeed, and could not imagine a greater pollution than occurred in this case. Defendant would be fined 50s and corts. [Left sitting.]