ON THEIR MERITS.

Gisborne Times, Volume LXXXII, Issue 12525, 10 April 1935, Page 5

ON THEIR MERITS.

LICENSES tJNDER TRANSPORT ACT. r ' 7 • *' » REVERSALS OF LICENSING AUTHORITY’S DECISIONS. V i,... .MISCONCEPTION OP LEGISLATURE’S INTENTIONS ' "POSITION AS TO STATE RAILWAYS. NOT ENTITLED TO SPECIAL PROTECTION. (Special to the Times.) •WELLINGTON. April 9. The genera); decision of the Transport Co-ordination Board in the matter of appeals lodged by goods service against decisions of the No. 2 district transport licensing authority, opens by stating that it is necessary, before proceeding to the consideration of the individual appeals, to deal .with certain • principles enunciated by No. 2 Licensing Authority on which its decision was founded. The Board, indeed), thought it would fco appropriate, to set out in some detail its conception of the principles of this Act. in so far as they relate ,to the licensing and! control of commercial road' goods scr vibes;, and -it pfobehded as follows: “The governing title of this Act clecfares that it is ah “Act to make better provision for the licensing and control of cemmercial road, transport services other than tramways. It is essctially a, remedial statute and as such, must be given a generous interpretation. It lias long been settled Haw that “the governing title of an Act is part of the Act itself and it is legitimate to use iti for. thepurpose of interpreting the Act a' 3 a whole and ascertaining its scope.’’ Section 5 sub-section (i) of the “Acts Interpretation Act. 1924’’ pro vides that “every Act and every provision or enactment thereof shall bo deemed remedial and shall accordingly receive such fair large and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment according to it* true intent meaning and spirit.” Lord Blackburn had made the following observations: “As long as 1584 Lord Coke said in Heydon’s case that for the sure and true interpretation of all statutes in general (bo they penal or beneficial, restrictive or enlarging of the common law) four things , are to be discerned and considered 1 . First: What was the • common law before the making of the Act? Secondly. What was the mischief and defect for which the common law did. not provide? Third: What remedy the Parliament hath re solved and appointed to cure the disease of the Commonwealth ? and Fourth; The true,reason of the remedy. And then the office of ah the judges is af.ways to make such construction as shall suppress the mischief and advance the remedy. But it. is to be borne in mind that the office of the judges is not to legislate but to declare the expresseod intention of the legislature even if that intention appears to the Court injudicious. “The answers to the propositions suggested in Heydon’s case are not, we think, difficult .to. fintf. in. relation to the present transport legislation No one will deny that the development of unrestricted transportation had created a condition of chaos and that some form of licensing and' control was necessary. What, then, is the broad intention of the Legislature as expressed by an Act entitled “an Act for the licensing and control of commercial roau services?” Doog this Act in its broad sense intend to legislate beyond two, cardinal principles: (a) In respect of existing services to place them under ‘ control and regulation; (h) In respect of new services to prevent their establishment except under license and after proof of necessity otr desirability? “As to the extent to. which regulation may go, wo respectfully adopt the observations of Mr Justice Smith in his judgment in Kcrridgo v Girling Butcher 1933, N.Z L.R. at. page <590. The learned Judge made tho following observation; “No doubt a certain power of prohibition is implied in tho power to regulate and control : that depends upon what is to be regulated.” And lie then proceeded to quote with approval, a. passage from the judgment of Mr Justice Isaacs in President, etc., of the Shire of Tunga.mah v Merritt, "1912,. in iwihich the latter learned Judge observed) that: “Regulation of subject matter the continued existence of that subject, matter, but is not inconsistent with on entire prohibition of some of its occasional incidents”. ‘We think that these principles ore properly applicable to the consideration of the renewal of licenses of established services. There may .be . instances where control and regulation require entire prohibition hut these cases are exceptional.i and must be closely examined before such a decision is arrived at. “With this conception of tho underlying intention, of the Legislature w© pass on to the consideration of Section 26 of the Act, bearing in mind that it is entitled to a “fair large and liberal contraction and! interpretation.” The judgment of No. 2 Licensing; Authority proceeded to deal with.the matter in ,genera] terms as follows: — ‘lt is necessary to refer to the pr° vision of the Act, Section 26,. which requires us to have regard' to: (n) : The extent , to. wliicli.-the proposed service is necessary or desirable in tho public interest; (b) The needs 01 the district as a whole in relation to goods transport. This provision is clear, and it requires the applicant first to satisfy us that the service is necessary or desirable in the public interest. If however, we cannot be satisfied that a proposed service is reasonably necessary in the public interest we must, refuse a license and it is not necessary for us/to give any further consideration to the application.” It is to he observed tha!t, in

t the lat^ r part ° f tllis 'OL 1 livable’ has been omitted. No.l | g Licensing Authority, may have com gideredthat the word ’desirable’ is Dy . jm plication included in' the word necessary’ in that no service can be | desirable jimlcss .it is also necessary | think, however, that the word ti rabid in this section has a mean distinct a.n c i apart from th e iworu Necessary.” ft is a well .settled' cajion of interpretation that ‘when the Legislature in the same sentence uses different, words we must presume tliev wore used in order tc> express different ideas. ‘The reason for the vise of the two Word’s in the same context appears to n s to bo clear. Whore ■ any form of transport exists 1 , proof of the absolute necessity of an alternative service might conceivably he impossible but the desirability of a second service by reason of its speed, time of operation, snitahlity for carriage of particular goods or general convenience;,‘ V or a combination of any- of thosoi fac- / tors, might be of inestimable benefit to the residents -of the district serv od. One test of desirability is surely the extent of public patronage. The facfc that' a service has been in opera tion profitably for - a period of ..years and receiving: a substantial patronage from the. public it- serves is a cogent factor in support, of the desirability of the service. I ‘The decision of tho Licensing "An thority proceeds; ’’All that has been ' shown to us in that certain services f cause convenience and in some cases cheapness.” This Board feels that j those are two vital elements in as I gassing the desirability of any service nn c ] cannot ho lightly dismissed. The words ’necessary’ or ’desirable’ arc used in this section in conjunction with that obscurei term ’public in forest.’ What then is the moaningof the ’public interest’ in relation to transport? This Board Ims .always hold the view that °nc of its most important duties is to ensure that the public arc provided with the cheapest and! most efficient, form of transportation and iwo conceive that we are having dno regard to the pub Jie interest-in keeping . this object paramount: in. onr administration of A the Act. Tin's view necessarily in voices a consideration of the position of the State owned railway system. Wo have stated' in previous decisions that the Government railways are entitled to such consideration and protection ns is comparable, with the services paralleling the rail should be public. Wo reaffirm-this opinion. We can find' nothing in the Act which gives the Government railways any claim to special protection .or. .- con. sidoration. If the present transport legislation had) intended that all road services parallelling the rail, should be eliminated ip would have expressed that' intention in definite terms. ”It was advanced by counsel for the Railways Board that, before the element, of desirability could bo intro ilnced into our consideration, evidence of ‘overwhelming desirahr.it,v’ should be established. We are unable to agree with this contention. It „ ,is apparent, that to some degree, motor transportation ' lias supplanted transport by rail; but this we fed, is tho relentless march of progress in transportation. The history ot transportation -reveals successive replacements of one form of transport by another. We subscribe to the principle that no form of transport can havC: a vested right which win stand 1 in the way of progress towards a more economic and convenient form of transport for the general public It may not be unreasonable to suggest that a supplanting form of traps port should in some measure compen sate tho system it replaces. That, however, is a matter outside our present consideration. ‘Before leaving the subject of public interest, wo feel that it- is in cumbent to mention a factor which *s nob always given the consideration that it deserves. We refer to the creation of unemployment by elimination of services. If there is any circumstance beyond the provision of cheap and efficient transport directly affccting the public interest, it 1S > we thinle the creation of unemployment by elimination of transport services. Tho wholesale-elimination Ot services as suggested.' the decision of No. 2 Authority must necessarily m 7 volve considerable unemployment, and in view of the- present economic conditions in, this Dominion it woutc bring about 'a most undesirable situation. . ‘The decision' under review raises as a, further reason for the elimination of road services tho fact that e> compete with other forms of transport, unfairly in that they do not hear tne proper proportion of loading c°s s. We do net consider that this aspec comes within the purview of licensing authorities. If a- service is nec essary or desirable-', it is noj concern of the licensing authority that it is less heavily taxed than a. competing service. The adjustment of the economic basis of competition from tho point of view of taxation is a ma - ter for the Legislature. We pass |then to a consideration of unnecessary road usage. This is a mattcr which must always be given carefu consideration . by licensing authori/.-

ies and tho position in this connect i°n has, we think, been quite fairly placed hafore us. by the representative of tho local bodies interested. It can largely be adjusted by regulation of road services, and particularly by effective co-operation. ‘A further matter which we feel wo should refer to is the effect on locnf carriers clue to the operation o-f the long distance haulers. That local carriers ore affected by such operations is inevitable. That is a direct result of the new form of transportation. If, however., a combination of rail and local carriage can (as is alleged j, provide a cheaper and more efficient, service, then such combined form of transport has nothing' to fear. Here again we may observe that the regulation of certain long di? tance services can effect some relief We note that. No. 2 Licensing Author ity refers to its lack of power t° compel co-ordination. We agree that this creates a difficulty, and u.n til all transport agencies ran he coordinated it, is almost impossible to arrive at a true basis of economic competition, We conclude by express ino- the opinion that No. ‘2 Licensing Authority has formed a wrong conception of the intention of the Logis latui'e ns expressed by The Transport Licensing. Act. We are of opinion that-, in respect of established services which are receiving a snbstan tia.l public patronage, applications for renewal cannot be disposed of un der sub-section 1 of Section 26 but all the- elements contained in the sub sequent portion of the section must be considered before arriving at a final decision.”