A BY-LAW CASE.

Hawera & Normanby Star, Volume LI, Issue 9065, 10 April 1906, Page 5

A BY-LAW CASE.

la our report of the Resident Magistrate's Court at Mannia, the other day, a case which led to the over-ruling of a by-la\v was briefly recorded. In view of the public interest furthd details ate printed : —

Defendant was charged : (1) That lie did allow an excreta pit within the Manaia town district, to wit, on the main road, contrary to by-law No. 1, passed on the 7th March, 1904, of the by-laws of the said town district, which by-law at the time of the commission of the said offence was and still is in force in the said town district; (2) that he \va6 the owner of a dwelling house situate on the Main road, Manaia, which was inhabited whilst not provided with a. sufficient privy.

Mr Gardiner, of the Public Health Department, appeared for the Board (appointed in writing according to section 51 of the Town Districts Act, 1881), and Mr Caplen/, of Hawera, for the defence.

Roberts' pleaded not guilty, and Mr Gardiner detailed the facts, namely, that the Manaia Town Board had passed cetain sanitary by-laws, that Roberts was the owner of a section abutting on the main road, that Robert* had been warned of the | by-law and to desist using an joldti fashioned pit privy as being contrary to the by-law, and had nob adopted' the pan I system. Practically all these facts were admitted' after the handing in to the S.M. of a sealed copy of the by-laws with an additional fact ft that Roberts? place was scrupulously clean, but he objected to the system and refused to adopt it. The defence as to the two charges was that they were brought under sections 1 and 4 of the by-laws which by-laws had .not been properly made inasmuch as- they showed' on their face that the Board, in making the by-laws had not icomplied with the requirements of the Act under which: they, purported to have been-maide, namely^ section 407-< of the Municipal Corporatibtiß Act, 1900, the material part which, is as • follows : — (1)1 They shall be- made only i byc'special order; (4) they'ehall coriie into force on a day to be fixed"' all?* tbfe ; meVbing last aforesaid, which, day shall not be earlier than, sewn clear days a£s&r the date, of such meting,' and the by-laws showed their face that they were to cotne into on the Bth day of Maroh, ; 1904, and >tihat. they, had only been confirmed at a 'meeting, held on the previous evening, amd). seeing that the statute wae .mandatory the Town Board could only make by-laws ac-, ..cording to the provisions of t/he statute empowering it, which obviously had 'not been /lone, for the by-laws put in showed on/ the first page they were- to come into force, on the Bth day of March,. 1904, and at the.end of the same by-laws was a paragraph "confirmed as a special order at a meeting of the Manaia Town Board' 'held on the 7th day of March, 1904." In support of this contention counsel quoted the recent cases decided by his Honor Mr Justice Edwards, of Adams v. Bosham, and Jury v. Mehaffy, the first as to the Counties Acb and the latter as to the Impounding Act and also sundry other cases bearing on the point. Mr Gardiner, aftex considerable argument, said he was forced to admit that the bylaws were bad. ' The second case was then dealt with, and again the validity of the by-laws was urged', buti a contention arose, whether the case was one against by-Jaw 4 or section 48 of the Public Health Act, 1900, Mr Gardiner contending that it was under the section' of the Act, and not under the by-!aw6, but Mr Caplen pointed out that in Mr Gardiner's opening he had saridl that the cases were brought under the by-law. However, even if the case was brought under th» statute then it was necessary for Mr Gardiner to show that there were no by-laws dealing with the offence, and that the Public Health Officer had directed how the Board was to proceed, neither of which had been proved. The by-laws hadl been put in and relied upon as bylaws in force. Mr Tumbull, S.M., said he was forced) to hold first that -the by-laws on their face showed their .invalidity and no pjroof having been tendered of amy darectaonß, by the Health Officer, even the letters produced not showing any such, 'he must dismiss the case, with costs one guinea.