BY-LAW DECISION.

Evening Star, Issue 12883, 4 August 1906, Page 11

BY-LAW DECISION.

At the City Police Court on the 20th of last month James Kaler was charged, under a by-law of the Taieri Countv Council, with having refused to stop driving a vehicle (so that the contents might be examined) when directed to do so an official rf the Council. His Worship, Mr W. G. Riddell, S.M., yesterday gavo his decision on the case as follows :

This information charges the defendant with refusing, after request by the inspector of the Taieri County Council, to ston a vehicle driven bv him on the Main road at Burnside, within the Taieri County, contrary to a by-law made in that behalf bv the County Council. The by-law. -which is intended to regulate heavy traffic on the county roads, is made in pursuance of the Public Works Act. 1894. The Public Works Act Amendment Act, 1900, and the Counties Act. 1885, and the particular part of it under which the information is laid, state that if the county clerk or any person authorised in that behalf in writing, under the 6eal of the County Council, is of opinion that any vehicle or machine infringes the by-law he may require the driver thereof to stop the same, and the driver shall stop the same forthwith, until the weirht of such vehicle or machine, or the load thereon, or the weirht or measurement of the contents thereof, can be ascertained : and in default, of the driver so doing he shall be guilty of an offence. The by-law purports to have come into force on the Ist day of March. 1902. hnt it was not published in the Isfew Zealand 'Gazette' until the 18th of March. 1904. At the end of the advertisement in the ' Gazette * there is a notification in the form of a certificate from the county clerk, dated the 9th day of February. 1904, that the foregoing by-law was made and adopted by the Taieri County Council at a special meeting held on the 6th December, 1901, and confirmed at a subsequent special meeting held on the 10th January, 1902. A sealed copy of the by-law and a cony of the ' Gazette' in which it was published were out in evidence bv the informant. Counsel for defendant contends that theri" l is no evidence tnat th? by-law was sent for approval to the Mir-is tc- of Public Works within seven diys after it wns made, reiuired V»v section 2, subsection 1, of the Puhlic Works and Railways Ant Amendment Act. 1895, and that if tliis has not be°n dono the bv-law is invalid ancord ; ng to the decision in Adams v. Brsham (8 Gaz.. L.R., 540). In support of this argument he draws attention to the certificate of the county clerk, dated 9th February, 1904. at the foot of the and points out that the by-law was apparently rot forw-->rdFd nt an eiriier date. For proof of the validity of the by-law the informant relies on section 306 of the Counties Act. 1886, which states ..at a copy of any by-law sea.W with th" common seal of the Corporation shall b? received as evidence of the same havinp be.*n duly made as by that Act provided, unless the contrary is proved. This might have sufficient if the by-law had ba.«n wholly under the authority of the Counties Act, for there is no provision in that Act renmiring the Conntv Cou""il to forward & copy to the Minister within seven days after makine. Butjlh" bv-law i-' m-d ■ Tinker the P"Hic wfMr* Act.. 1894, ard Amerdnvnt, 1900, as well as th-" Cmmt-'es Act, 1886. ard that b»ing s->. I do not thmk the produ'-tio" of the copy of the bv-low and 'Gn.»ett*' tor t inmcr is cotlufjvp ev-'dence that everv reouirement to make it val ! d has been complied with. The ev'rlenre of the - rertificTte of the county clerk, dated 9th February, 1904, 6et out in the ' Gazette,' rales a presumption that sect : on 2, subsect ; on 1, of the Public Works and Government Railways Act, 1895, has not been complied with, and the onus of proving that it has been complied with lie.* on the informant. According to the decision in Adams v. Basham, the duty cast udou the Council to

forward a copy of the by-law to the Minister of Pubic Works is mandatory, and if not complied with the by-law is invalid. There is no proof that this duty has been complied with by the Council, and that being so the information must be dismissed, with cots (£1 Is) Mr Cooke, who appeared on behalf of the County Council, asked for leave to appeal. The application was granted.