SUPREME COURT.

Lyttelton Times, Volume XII, Issue 731, 9 November 1859, Page 3

SUPREME COURT.

Chkistchubch.— Saturday, Nov. 6, 1859. (Before Mb. Justice Gbesson.)

The court sat to-day at eleven o'clock to give judgment on tho appeal case of

MOOBIS V. ADAMS, which was argued before his Honor on Tuesday, Mr. Sewell appearing for the conviction, Mr. Dampier for tho appellant.. The respondent is the Inspector of Sheep for the Northern District of the Province, and had obtained a conviction in the Eesidcnt Magistrate's pourt against Mr. G. H. Moore, of Glenmark, tinder the Sheep Ordinance of this Province, on the charge of having diseased sheep in his possession. His Honor delivered judgment to*day as follows : — '..'"'' MOORE, APPELLANT—ADAMS, RESPONDENT. This case come 3 before the court by way of ap-. pealfromaconvictto^of tho Eesident Magistrate, under the 11th section pf the Sheep Ordinance, Session X., No. 9. There/were three convictions under the same section of the ordinance, and three several notices of appeal; but as: the grounds of appeal are the same in all, it was agreed at the hearing that the decision of the court upon the present case should s&ie the three appeals. In the case before the court, the form of the conviction is as follows ;—

.;** Provinco of Canterbury,X2olony of N«w Zealand to svit —Be it remembered that on the Bth day of March,in the year of our I«ord 1859, at Christchurch, in the said province, George Henry Moore is convicted before the undersigned Resident Magistrate and one of her Majesty*s Justices of the Peace for the said colony, for that he, the said George Henry Moore, had, on the 11th day of February last past, at his sheep station, at Glenmark, in the said pro? vinoe> under felts charge, control, or management, fe»% sheep infected with scab, the said George Henry Moore not having been convicted in respect of such sheep under the 11th section of the Sheep Ordinance, Session X., No. 9, within six months previous to the said llthday of February ; and it not appearing to my satisfaction that fidch sheep had been clean at any time within six anomVhfi (piwiwis to tke said 11th day of February, \ I adjudge if^e said <*eorge Henry Moore, for hissaidoffence,tof©rfetfcandpaythesumoftenpounds, to he paid a&d applied according to law. And if >the said sum he not: paid forthwith, I order that ■the same be levied by-distress and sale of the goods j .and chattels^of: the said Gerge Henry Moore; and i in default of sufficient distress, I adjudge the said j George Henry Moore to be imprisoned in the com-1 mon gaol at LytteSfcon in the said province, for the \ .^pace of three calendar months,unless the said sum, I .and all costs and charges of the said distress and of ■ihe commitment and conveying the said George' Henry M«ore to the said common gaol, shall be ; sooner paid. "Given under my hand and seal the day and year ifirsfc above-mentioned, at Christchurch in the said province. "John Hall, 4 . Resident Magistrate and Justice of the Peace for the said colony."

It was urged on behalf of the appellant, ;that the conviction is defective on the face of it, inasmuch as it omits to set out the information, and to charge the appellant with being ;the "owner.," the term ■used in the 11th section of the Sheep Ordinance. And lastly, in adjudging imprisonment in default .of distress.

And a passage was cited from •'. Dickinson's Guide •to the Quarter Sessions',(6th cd., p. 872), to the ■effect "that the authority to convict, being special and in restraint of the common law, must appear, .on the face of the proceedings to have been strictly ; pursued according to the letter of the act by which ;it was created, so as to Snow the most material point, viz., that the justice has. jurisdiction in the case; for those who act under a jurisdiction given by Act of Parliament, must show that jurisdiction; since in a matter of jurisdiction the :Court will intend nothing."- The 11th and 12th Vie. c. 43, which :Was extended to New Zealand by an Act of •the last; Session i«f the General Assembly—" The Justices of the Peace Act, 1858," —affords ananswer to the first andthirdof the abovementionedobjections to the conviction, inasmuch as the form given by the imperial act is adopted, and that act moreover sanctions the adjudication of imprisonment for the time specified, in default of distress. The second ground of objection, viz., the omission of the word ■•* owner,' the term used ia the Sheep Ordinance, is 'in my opinion satisfactorily answered by^ the interpretation clause of the Ordinance, which defines ''owner' to mean 'the person having the charge, 'ContrbVor management of such sheep.' In this respect therefore the conviction is in strict conformity with >fche language of the ordinance. But. besides ;the objections appearing on the face of the -conviction, two grounds of appeal were relied upon,--viz.;:— 1. That the Sheep Ordinance violates the Constitution Act, and is therefore inoperative. 2. That even supposing the ordinance to be valid in law, yet, according to the true construction of 4he first proviso in the 11th section, :inasmueh as the appellant had been convicted within the six •months previous, of having in his.possession 1000 scabby sheep, he was thereby protected from further penalties until the expiration of six months ■from the previous conviction. The argument for the invalidity of the ordinance is to this effect :—

By the 19th section of the New, Zealand Constitution Act, provincial legislatures are prohibited from makinglaws for" the establishment,or, abolition, of any court of judicature oL civil or criminal jurisdiction, except courts for trying and punishing Buch offences as by the law of New Zealand are or may be made punishable in a summary way, or .altering the Constitution, jurisdiction or of any such court, except as aforesaid:;" and ailso from ■" altering in any way the criminal law of New Zealand, except so far as relates to the trial and punishment of such offences as are now, or mayj by the criminal law. of New .-Zealand, be punishable in a summary way, as aforesaid." It has been-u'rged on behalf of the appellant that -the imposition of penalties in-the manner prescribed by the ordinance is a violatioa of the above prohibition, and that the act,of the General Assembly entitled the 'Provincial Councils' Powers Act, 1856/ fails:to remove the objection, inasmuch as it only provides that'certain acts or omissions' contrary to the provisions of a.provincial ordinance ■shall be' punishable summarily or otherwise, as may thereby be directed-' and that the circumstance ■of having scabby sheep under one's control is neither an ' act' nor ' omission 'within the meaning of the act. It is unnecessary for me at present to decide •upon the effect of the prohibitory clauses in the Constitution Act, inasmuch ag I am of opinion that the language of the 'Provincial Councils' Powers Aofc, 1856/ is sufficiently comprehensive to invest the provincial legislature with the powers which it was clearly the intention of the General Assembly to confer. I agree with the respondent's counsel •that whether or not the offence be an ' apt/ it ss, at all events, an * omission/ within the meaning of the enaetraent. But it is contended on behalf of the appellant that even if the. Sheep Ordinance were valid, he ought not to have been convicted, because he was the owner of the flock in respect of which such conviction took place on the occasion of another conviction under the ordinance within pix months previous, and that, inasmuch as by the interpretation clause it is provided that every sheep belonging to any flock in which, there sh.a.U be one

sheep infected with the scab, shall be deemed to be infected within the meaning of tho ordinance, the appellant was entitled to the protection of tho proviso in the 11th section, that no porson who had been convicted under that section should bo liable to any further penalty under the same, on account of such disease in the same sheep, in respect of which Buch conviction should have been made, until the expiration of six months after tho date of such conviction.

To the foregoing argument it would be sufficient answer that there is no evidence whatever that at the time of the previous conviction the appellant was the owner of the forty sheep in respect of which the latter conviction took place, and that the evidence in the case so far as it goes tends to negative the fact.

Mr, Adams, the inspector, says "those forty (meaning the forty sheep above mentioned) were decidedly not a portion of those inspected by me in November/ and an assertion to the same effect is twice repeated in the course of his examination. It is a mere gratuitous assumption therefore that those forty sheep formed part of appellant's flock when he was convicted in December. But even were it otherwise, I am by no means prepared to adopt a construction of the ordinance which is at variance not merely with its letter but also with its spirit, since according to the construction contended for the ordinance, the 12th section of which imposes on the sheep-owner heavy penalties for omission to communicate to the adjoining sheep-owners and the inspector even grounds of suspicion of disease in the flock, under the 11th section holds out a premium to the i offender to conceal from the observation of the in-; spector all but a few sheep, which may be produced j for the purpose of obtaining, by the payment of a j trifling penalty, exemption in respect of a large; flock for a period of six months.^ It seems to me that the object which the' Provincial legislature had in view was to compel the sheep-owner if he required time to clean his flock to. entitle himself to the privilege by bringing the i whole flock under v tfye inspector's cognizance, even i though his doing so should subject him to the extreme penalty of £100. The rule of the court is, therefore, that the con- j yiction be affirmed with costs, to be paid by the j appellant, who is also to pay all compensation, if any, payable to the witnesses bound over by the convicting justice to attend the hearing of this appeal.