THE WHEELS OF JUSTICE.

Lake County Press, Issue 2159, 7 March 1907, Page 5

THE WHEELS OF JUSTICE.

Magistrates Court, Queenstown. Thursday, Fibkuary2B. (Before F. J. Burgess, Esq., S.M.) The following decision was given on Thursday in the case 0. C. Ware v. Ahadabox Mullock, heard at the above court on the 31st January last. His Worship held the by-law to be valid but did not consider chat sufficient proof if its coming into force had been given to secure » conviction! . Decision. This is an information charging the defendant with a breach of by-law JN T o 7 of the Lake County by-laws by carrying on the business of a hawker without being licensed so to do. From the evidence bofore me I nave no doubt that the defendant was on the day alleged engaged in hawking, and it is also proved that he was not the holder of a license at the time. Mr Evans for the defendant, however, contends that the information should be dismissed on two grounds... First, because there is no evidence before the Court that the by-law is in force, the prosecution not having adduced proof of its publication or of the day, which must be named therein, of the coming into force of the by-law (subsection 4 of section 304, Counties Act, 1886) : and secondly, because the by-law is invalid for the following reason. It must be made by special order, and it does not appear according to the minutes of the Special Meeting of the Council at which the resolutiou to make the by-law was passed that the by-law formed part of the resolution which reads as follows : "That this Council doth hereby make and ordain for Lake County by-laws numbers 1 to 10 both inclusive as drafted by the county solicitors and submitted to this meeting." Mr Evans contends that the by-law as drafted should have been recited in extenso in the resolution, being the ossential matter thereof, and that a mere reference to a draft copy of such proposed by-law is insufficient for its proper «nactment ; that it does not in fact form part of the resolution making the special order. With reference to the second point raised by Mr Evans, Mr Turton contends that more than six months have elapsed since the special order was made it cannot now be attacked and quotes the cases of Tucker v. the Kaiti Road Board (4 G.L.R. 113) and Moore v. Thomas'(B G.L.R. 346). I would support this contention if the information in this case had been laid more than six months after the making of the special order. Section 127 of "The Counties Act, 1886" provides that no special order shall be quashed in any proceedings in any Court or otherwise unless such proceedings shall have been commenced within six months of the making of such order, and by the cases above cited this.has been held to apply to all attacks in special orders arising during the hearing of informations laid under the bylaws. In the present case, however, proceedings were begun on the 13th October, 1906, less than four months after the making of the order. In this case, therefore, I think the order does not come within the protection of section 127 of the Act. W reference to the objection raised to' the validity of the by-law, I am of opinion that where, as in the present instance, a direct and unmistakable reference is made in the resolution which is passed to certain specific writings then and there submitted to the Councillors and read over to them, and contents and purport of which are present in their minds as the subject matter of their deliberations, and these writings are identified beyond doubt as those deliberated upon and referred to, the resolution amounts in effect to an inclusion of the contents of such written document. The contents of these writings were the actual provisions which the Council determined to enact as by-laws. There can be no doubt as to the particular by-laws proposed and no doubt a* to the purport and intention of the resolution. Under these circumstances I am of opinion that tho draft by-laws then in view of the Councillor and of tho contents of which their minds were seized, were incorporated with the resolution by its reference to them and became part of it. It appears to me, therefore, that tho special order is valid and the by-laws have been effectively enacted. I think, however, I must supoorb Mr Evan's contention that there was no proof that tho by-law is in force. A copy of By-law No. 7 to which (as thereon appeared) the seal of the Corporation was affixed at the meotini; hold on 20th June,

190G, (when the Special Order was confirmed) was ]>ut in evidence and Mr Turton argues that being under section 30G of the Counties Act, sufficient proof of the making of the by-law it is proof also of its publication and its coming into force, because the term •* making" (section 304) includes the publication and the naming of the dato for its commencement, and that date is known since it could only bo the same as that inserted by the Council in the by-law when it was passed. It seems to mo doubtful that the publication is a part of the process of making the by-law. The by-law is, I think, " made" when the special order is confirmed and sealed by the Council. The publication appears to be rather one of the " conditions" mentioned in section 304. It is a condition precedent to the by-law coming into operation. The by-law must be made before it can be published. The production of a sealed copy is made evidence of the making of tho by-law but I think it requires further evidence to show the day named on the publication for the by-law coming into force. I cannot find any decisive ruling on this point. The case of Lane v. Doyle (11 L.R. 385) heard before Mi Chief Justice Prendergast on the 16th July, 1892, does not appear to be in point, because in that case the by-law was made under the "Municipal Corporations Act, 1886," section 416, sub-section 4, of which provides that by-laws shall come into force on a day named in the special order making them. The Chief Justice held, therefore, that if the making of the by-law was proved (and it was proved by a sealed copy of the special order, section 418) and it contained the day fixed for the by-law to come into operation (this was fixed as the Ist April, 1892) then there was sufficient proof of the by-law being in existence. I cannot apply that decision in this case, because there the by-law came automatically into force when the day fixed by the special order arrived. In the present case (under the Counties Act) a by-law doas not come in force until after publication and then only on a day named in such publication. There is no provision that it shall come into force on a day named in the by-law or on a day named in the special order. Unless the Court knows the day named in such publication it cannot say whether the by-law is in operation or not. In all probability where the publication did appear that day would be the day mentioned in the by-law as tho day on which it would come into force, but the fixing of the date by the by-law would not of itself bring into operation on that day for without publication and a day mentioned therein it would not come into operation at all. The Court, therefore, it seems to me, requires something outside of the by-law itself to prove that it came into force. The sealed copy relied on in this case purports to have been sealed at the meeting on the 20th June when tho confirming resolution was passed and consequently before the by-law could possibly have been published. I cannot see, therefore (even if the interpretation sought by Mr Turton to be placed on Bection 306 is correct) that this copy sealed at such a time could be evidence of a date notified and an act performed when in the very nature of things neither could have taken place until afterwards. I do not think proof has been placed before the Court of the date on which tho by-law came into force or that it is in force. Tho information is therefore dismissed without prejudice. ____________