HEAVY TRAFFIC

Greymouth Evening Star, 10 March 1939, Page 4

HEAVY TRAFFIC

DISTRIBUTION OF LOADS S.M. UPHOLDS REGULATION Received judgment, has been given by Mu. Raymond Ferner, S.M., in lhe. case heard al Reefton. in which John William Roworth laid information against Max Clement Hunter, to the cfl'ei t. that he committed a breach ot the Heavy Motor-Vehicle Trallic Regulations. 1932, in the matter of lhe, distribution of the load ol a motel vehicle. The judgment, states:--Defendant is charged with a breach of Regulation 5 <D W) of the Heavy Motor-vehicle Regulations, .1932. The facts adduced in evidence in support, of the charge arc admitted. The only’ defence raised is that the regulation under which the charge is laid is invalid, being ultra vires, and consequently cannot support a conviction. The material parts of the regulation in question are as follow: 5. (!) No person shall operate atty heavy’ motor-vehicle (including a trailer) on a road classified as indicated in Column 1 of the table hereunder; (c) If that portion which is borne' by the steering axle, or, if there are more than two steering axles, any one of them is less than IS pm’ centum of the total weight of tin. vehicle and its 'oad

'Pin preamble- to the Heavy Trallic Regulations. 1932. st is out that the 9 regulations, are made in pursuance ol | and tinder authority of Public Works | Act, 1925, and the motor-vehicles Act. I 1924. Section IGG (2) 111 of the PubI lie Works Act provides that, regulaI lions may be made in respect ol the i matters set out in Section 155 of the Act. Section 155 (2) id) is as follows: "Regulating heavy trallic generally or making special regulations in regard to any one or more special kinds of heavy traffic such as the cartage of limber, stone . . . .” It. was contended for the. defendant that the genera] power conferred by sub-section 2 (d) must be construed subject. Io the remaining clauses in lhe sub-section, none of ' which refer to distribution of load. I have always understood that lhe “ejusdem generis” rule could only he invoked where general words follow particuiar words and not where, as here, the general words precede the special words. "There is a very well known rule of construction' that if a general word follows a particular and specific word of the same nature, as itself it takes its meaning from that word, and is presumed to be restricted to the same genus as that word” —per Williams S. in Cooney’ v. Covell (1901) 21 N.Z.L.R. 106. In any case

before the rule can be invoked there must exist some common category or genus under which -the specified things which precede the general ■words can be placed —see t lie observation of McCardie .1. in S.S. Magnhild v. Mclntyre Bros, and Co. (1920) 3 K.W. 321 at p. 330. In the diversity of matters dealt with in the sub-para-graphs which precede and follow subparagraph (d) it. would indeed be hard to find such a genus. It was further contended that while Section 155 (2) (d) authorises regulations regulating the measurements of heavy traffic of t'he type in question it does not authorise a regulation prohibiting entirely the use of a vehicle when not loaded in a particular way. 1 do not think this is necessarily so. it is said in Craies on Statute Law

(4 th Edition) p. 271 “But a by-law is not held ultra, vires merely because it . . . prohibits where, empowered to regulate as regulation often involves prohibition.” And that I think is the case in the regulation in question. This regulation does not operate as, an absolute prohibition. The effect is to prohibit unless or until a certain] condition is complied with —that not

leSs than 18 per cent of the total of the vehicle and its load must be borne by the steering axle —and when that condition is satisfied the motorvehicle can freely operate on the road. As has been said regulation itself often involves a degree of prohibition and here there is not absolute and unconditional prohibition but limitation and regulation.

The principles to bo applied in determining the validity of regulations are set. out in Carroll v. Attorney-Gen-eral (1933) N.Z.L.R. 1461. At page 1478 Ostler J. said: “If it (the regulation) is within the objects and intention of the Act it is valid.” The long title (o the Public Works Act does not assist and we tire left to deduce the objects and intention of the Act. from rhe sections themselves. Section 166 (2) ta) provides for the classification of motor lorries according to their suitability for use by different classes of motor lorries. There is an obvious connection between the suitability of a road for certain kinds of heavy traffic and the weight, ami load of the vehicles which are to use that road. Moreover the sub-heading to Section 166 is ■'Regulations as to rhe use of Motor-lorries.” In discussing headings in Eastern Counties Railway v. Marriage (1861) 9 11.C.L. 32 11. Channell B. said, “They constitute an important part of the Act itself and may be read as explaining the sections which immediately follow them."

ARGUMENT FOR DEFENCE Counsel for the defendant, in his argument, submits that the spirit of the Act as far as it relates to (he loading of vehicles is to conserve the ’surface of the road. That is clear (except that it is the roads generally I including' the sub-grade foundation and I not. merely the surfaces that are the (concern of the Act. Mr. Patterson Igoes on to contend that this can adequately be done by exercise <>f the I Power limiting the maximum weight of vehicles and their loads and that to limit, the distribution of load on a Particular vehicle is an excessive exercise of the powers conferred. But since what has been done is clearly within the general objects and intention of the Legislature .it would seem that the words “regulating heavy traflic generally" as used in Section 155 i-t ti.it are an insuperable difficulty for tlie defendant. Whether it mieht have been done Ln another way is not material. The point is that what has been done within the object and intention of the Act and is within the ■'■ords delegating the po * er. iy, a I ■.ecctid branch of his argument eotg'-j sei for the. defendant contended that, the regulation : . a= also in excess of

the powers conferred by section 36 (1) to) and section 36 (1) (p) of the Motor-vehicles Act, 1924, and that the general power conferred by the latter sub-paragraph must also be construed subject to the remaining sub-para-graphs in sub-section (1). Here again there is no genus into which the mat ter mentioned in sub-paragraphs (a) to (o) or (a) to (s) can be placed and (he “ejusdem generis” rule has no application. In applying the principles laid down in Carroll v. Attorney General we are entitled to look at the long title to this Act which is as follows "An Act to provide for the Registration, Licensing, and Regulation of the Use of Motor-vehicles.”

The powers conferred by Section 36 on tin. Governor-General in Council indude the. following: —Section 36 (1) (p) Generally regulating the -use of motor-vehicles and prescribing the conditions under which they may be used. I have already held that the ri gelation in question is not an absolute and unconditional jirohibition but that. it. prohibits only unless a certain condition is complies] with. This seems to be precisely within the second pari, of Section 36 (1) (p). For the reasons I have given I am not prepared to hold that Regulation 5 (1.) (c)' of the Heavy Motor-vehicle Regulations. 1932, is in excess of the powers delegated to tjie GovernorGeneral in Council by the' Public Works Act, 1928, and the Motor Vehicles Act. 1924. The defences set up must therefore fail and the defendant must be convicted.