UNREASONABLE!

Gisborne Times, Volume LXXX, Issue 12244, 4 May 1934, Page 3

UNREASONABLE!

WAIOEKA HOAD BY-LAW. DEFINITION OF WORD ‘CATTLE- _ ; TOO'WIDE. i INFORMATIONS: DISMISSED. On the ground, that,, the by-law was. uiircaspuablo owing to the wide definition of the word “'-attic” as. •used in the Act. the magistrate. (Mr E. ,li. Walton')- dismissed in ; formations against, six men who had Leon charged with an ,alleged breach, of; tlic Main Highway Board’s by-law! in the driving of stock over the Waioeka road. 'ln the course of It*gal argument it was shown that the word “cattle” under the by-law meant in addition to cattle, horses.; sheep, pigs, goats and nudes. The defendants wore 7T. J. Steed,. W. Thompson. H. Ernest, M. Pettit,, E. E. and W. Williams. Originally, brought he fore the court at Opotiki, 1 the hearing was adjourned to Gisborne wjiero part of the evidence was heard a fortnight ago and the remainder on Monday, legal argument being taken yesterday. Mr. F. W. Nolan appeared on .behalf of the Main Highways Board and Mr. L. T. Barnard for defend-' ants. Mr. Barnard said his first point dealt with the reasonableness of the by-law. and ha quoted'the principles on which by laws are constructed. In England by-laws had to he submitted to the Local Government Board ssnd in the case of. by laws affecting the King’s highway they required I°' he scrutinised with particular care. In the uresent instance the by-law. on account of the definition of “cattle.” excluded horses, singly led. riddyu. or driven, or horses in a vehicle. The caTdeuce for th? bv law did not suggest, it was intended to go as far • as that, as it would V* manifoctly j impossible to prohibit the riding o l ' driving of horses unless it was intended to convert the road into a motor speedway, but the count* engineer deprecated such a, contiu geitcv. The main business of Die district was sheopfarmiug. and. in j the course of their business, farm- j evs rode and drove . through tho road. Counsel. ,<*ont hilling. submitted that the evidence showed that it was j unreasonable that sheep should b-; excluded. A substantial number of j shcop were taken over the road.' ■Thirty thousand to >50,000 could obtain • a- reasonable quantity of food, where-! as them was only food for 10.000 to 12.000 on the Motu road. ' The evidence showed that, even if the Waioeka mad did get to the posi lion of being eaten out, ft would he practicable to obtain paddockingalong tho mute- Thus the superioritv of the Waioeka road wa s established. He contended that, to con fine sheep to the Motu road, constituted cruelty to the animate. F,v°n If the sheep woio left in tho pad-' docks, there was at times n short age of food and water, and that would constitute cruelty. The ca)*-ryimr-out of tho by law would thus involve a breach of the criminal Taw —if -the Waioeka road were- barred. He admitted that a stronger case was made out against cattle, but,even if the by-law wa* necessary, it

did nob affect the present nuesuon, because the by-law as passed covered sheep. Regarding the board’s power to make the by-law. counsel contended that tho. clauses -referring .to the control of llie highway referred

;o actual work to' be clone on a 'road. Tho- magistrate- said that the Main Tig] nr ays Board had alp the powers if local bodies to make by-laws. Counsel continued his argument on

lia powers of the Main Highway Toard and contended that tho consol of stock did not come within

those powers. The Counties Act and the Municipal Corporations Act. boro out that contention, jio submitted, and were given only limited powers, as wag also the Public Works Act.. If power did exist to prohibit traffic, on the roads it was strange that only limited powers wore mentioned

in the three different Acts he had quoted.

Mr. Nolan, in reply, said ho would

first deal with the contention in regard to the by-law not being cm powered by tho Act. ' He submitted that it was empowered, for the following 'reason: That section 9 of tho Alain Highways- Act gave the board sole power in, regard to the construe iion and control of all main highways, and tho powers of the Gov-

ernor General arc vested in tho board. He eon tended that tlio board could make by-laws to apply to any! specified* road or roads. There were quite a number •of cases which showed that the by-laws made by the hoard were quite '.valid., Power was obviously given to the board to ex.* tend its authority* to other things beyond heavy, traffic. A The ; board could ..ifi’bliihitVafiy . class of .traffic,, whether /heavy, traffic ‘ fir not; j

Counsel said bis -. second . argument should be .quide cpuviiifing. -.The Gov-, enior General ; eould_. >prohibit! • any class of trallic. •.heavy traffic, or -not,: or, aity : > -speeiffed of traffic* from proceeding botwefiu any points! in a . l’diid /oi* • street, pto--viding such nqticlf,. \vfis, dihblicJy displayed, and the evidence showed that such notice luifi been* piopeiTy; displayed, being * published ' !iu"‘'V newspaper. '• . '•> The magistrate said that' : 'in tliut ('asof the inlofmatiini 1 jsl/duld' hb ,'lai'd, under section 158 r of;' • thq 1 'Piibiic AVqrks Act. J v’-.v - j’-• - fi. ?**.*.■ •-•■' Air. Nolan conle'pd,ed .t]iat . a .geM;; era] information shofild - be sufficient . The uiagistrate: “But. you tenjiustsay "what., offence lias .been .cpmmit-;. ted, and .under.' what,,section., of tffq,'. Act/*.. t . ...j.,:• • : pMr,' Npla-ii' cpntencj.ed, that.- that was. unnecasfsary-.if. tliq. offence was-*whft. .the .Main ' BoMd called * aj. by-law;. '/)

Tlie : mgoi^traie: “But if .yoiyloclgi ;ui iufuraualiou/ aud Ike .. tlet’emlan

asks under what Act has the offonc'A been- committed, you . would he com polled-to sayfi’ h.-- 1 ■ ■ * Mr. Nolan said ho did nut dispute that - point. - v . j * te-. ' The magistrate said if tile' offoilcA irate committed ‘ finder, section 158 o*< the Rubin.* Works - Act, fihicli i ,r °' rides a penalty of £lO, the wording of the information should be differ-, out, so counsel was not ‘ proceeding ■under Section 158.. lip tjicrefdre diu not think Section 158 was ; any. help to counsel. . . , f . Mr. Nolan ecu tended tin- existence, of Section 1.58 indicated that it was. intended authority should' ho there to don I with something beyond - the,; constructive:; nutliitig. -and control • of' reads. ; '••e' -V - - 1 .: ’ " 1

Tho 1 magid I‘itte said lie tlidughk Je- f cat authorities‘had power of piojiibitioli in certain oases.' Tlid whole'' question was, is the ■ prohibition reasonable?- ' . ‘ '

, Mr. Nolan said, the question, of A'onsonablcness or (otherwise of «. By-layr-■is;a, matter of fact, and'had to I) R f l° , tpnnmed on the. facts of a on so. He agreed ..that the ,maln> difficulty lay in; the ‘definition of the...word ‘‘cattle.” If : the absolute technical construction of the word ‘‘cattle”. was supplied, no animal could lie allowed on, tho road. : .

The magistrate: Do yon think ..it, would be Reasonable . to. proliihit a person driving a- horso ,aud trap through the .Waioeka:road?.

Mr. Nolan: 1 think it would 1 bo unrea.sonahlo. There is .no suggestion that any such- person should he prohibited

The magistrate said it should ho possible to draft a by-law with tuo proper definition and to prohibit cattle. from using Lbp road. The evidence showed that sheep did not <h> much damage. Tlio by-law could have -provided for the, common good—the. driving of loose horses and cattle through the Waioeka. The word ‘cattle’* under the Impounding Act was .as follow“ Cattle” includes any horse mare, gelding, colt, filly or .Inal, any hull. cow. ox, steer, heii’or or calf, any ram, ewe. wether or iambs, and any ass. mule. goaf, boar, sow or other pig.” Ho had to admit that that definition would prohibit the driving of 1 all animals. Mr. Nolan said that in view of that construction it was no u. u e him proceeding further. The magistrate said that in his opinion, the by-law was unreasonable on account of the unnecessarily vide :definition of tin* word “cattle”. The difficulty of protecting the road could have been dealt with by a properly worded by-law. He thought the Board had power to make the by-law and it would be reasonable lo.prohibit cattle— in .their .proper sense —at. alj times of the year, and also mobs of horses. It . would also be reasonable 1 to prohibit sheep nine months' in tho- year when the mobs are small. The by-law could provide for say. prohibition of slieep from April 1 to the end of December, and allow tin* road to be open in the summer months when food and water are scarce and damage to the road i? likely to be least. If a by-law on such 1 lines could, be provided tic thought it would he quite reasonable. Tho information was dismissed, and oach party would hear its own costs.