CONVICTION UPHELD

Evening Star, Issue 19273, 11 June 1926, Page 1

CONVICTION UPHELD

APPEAL TO SUPREME COURT DISMISSED SPEEDING IN BRUCE COUNTY Decision was given by His Honor Mr Justice Sim this morning in an appeal from the conviction by a magistrate at Milton in a case in which the appellant was fined for driving a motor lorry on a road within the control of the Bruce Countv Council at a greater speed than that provided by the Motor Lorry Regulations of 1925. The appellant was Horatio M. Mackay. At the hearing or tho appeal Mr \V. G. Hay appeared for the appellant, and Mr R. Rutherford for the respondent. His Honor pointed out that these regulations were made under the Public Works Amendment Act, 1924, .and came into force on April 1, 1925. Section 19 of that Act authorised the Governor-General, by Order in Council, to make regulations in relation to the use of motor lorries as therein specified. Tho matters to be dealt with included the classification of motor lorries according to their weight and carrying capacity, and the fixing limits of speed ior motor lorries with reference to their weight-carrying capacity and kind of tyres. ... . The regulations divided motor lorries into sixteen classes, indicated respectively by the letters of the alphabet from A "to P. The classification was determined by the weight of the motor lorry with the maximum load it was licensed to carry. His Honor quoted the clause of the Act dealing with speed and said: “There is a reference in this clause to the ‘ controlling authority,’ and, by virtue of clause 1, that means ‘ the Minister of Public Works, board, local authority, or person or persons, as the case may be, having control over any road or street.’ The motor lorry driven by the appellant was licensed to carry passengers, was fitted with pneumatic tyres, and belonged to class D. A written permission had not been obtained under snh-clauso 6 of clause 5, and tho maximum speed allowed for the lorry by the regulations was sixteen miles per hour plus 20 per.cent., or 19 1-5 miles per hour. The speed at which it was travelling was between twentyfive and twenty-seven miles per hour.” His Honor said it had been contended on behalf of appellant before the magistrate that a certain suhchmse was ultra vires, and not severable from the other sub-clauses. The magistrate held that the sub-clause was ultra vires, but was not severable from the other clauses, and quoted a recent decision for holding this view, because it purported to delegate to a controlling authority the power of fixing the maximum speed of certain motor lorries, 'The first question to bo determined on the appeal was whether or not the magistrate was right. If the_ sub-clause did amount to a delegation of the legislative power 'conferred on the Governor-General, then it _ was ultra vires, for there was nothing in the Public Works Amendment Act, 1924, which authorised any delegation of the power conferred'by section ,19. If the sub-clause'had authorised the controlling authority 'to extend without limit the speed of motor lorries, there would have, been, His Honor thought, a delegation of legislative power. But it did not do that. The written permission to be given under the clause must keep within the specified limit of speed, and the rlau.se might ho construed ns not being in substance a delegation of legislative power. Wbat tbe Governor-General said ; in effect, to the drivers of motor lorries was (his: “Yon must not exceed tho limits of speed specified in sub-clause 2, with the extension provided for in sub-clause 3. If, however, you obtain the written permission of the controlling authority through who=o territory yon are (ravelling. yon may exceed these limits to the extent permitted by such authority: but in any event that must not ho more than 50 per cent, of the maximum already fixed.’’ Such an enactment did not involve any delegation of legislative function. It merely fixed the conditions under which the limits of speed fixed by sub-clauses 2 and 3 might be exceeded up to the final limit specified in sub-clause 6. Tho controlling authority, in granting permission to exceed within its territory the primary speed limit, was hot legislating. It merely determined whether, in the case of a particular lorry or particular class of lorries, the permission authorised by the clause should be granted or not. The fact that a, by-law or regulation provided for permission being given by a specified body nr person to do a particular thing, which otherwise was forbidden, did not involve necessarily a delegation of legislative power, and did not prevent the by-law or regulation from being a valid exercise of legislative power, Tho result was that, in his opinion, tho regulation in question was valid. The conviction was affirmed on this ground, and. the appeal dismissed. As (ho appeal had been brought really a,s a test case, the appellant was not ordered to pay any costs.