THE BOROUGH BY-LAWS

Marlborough Express, Volume LIII, Issue LIII, 25 October 1919, Page 3

THE BOROUGH BY-LAWS

■MANY OF THEM BADLY DIIAFTED.

AN INTERESTING COURT JUDG-

MENU

Tbe following judgment was delivered by Mr 1\ L. Hollings, S.M., yesterday in the case of Patchett v. H'ogg:—' In, tlri-i case th© defendant is charged on the information of the borough ranger with a breach of the Bleiihei'ti Borough by-law No. 38 in that ho is the OAvner of two cows found at large in Cubitt Street, Blenheim', withouti anyone in charge theroof.

The by-law under which the charge I is laid'provides: "If any/horse, ass, mule, ox, or oifheii1 cattle shall be found in any street, private street, jor publb place ... without, any person having charge thereof, the the owner thereof shall bo guilty of v.n offence against this , by-law.;' It was pfoj'/ecl that tlio defendant was the owner of the cattle in question and that, they were grazing on Cubitt Stfreet," within the borough, on the 13th October, 1919, without any person being in charge. The facts were not disputed, but the defendant's counsel attacked the 'validity of the by-law, contending that it was ultra vires, as 'it purported to include streets and public face's outside' the v borough, and that the Borough Council had no pow^r to make such a by-law. If thait were the. only possible construf^; lion'of the by-law , then the- defendant could not be convicted under it, although the offence was committed within the borough, because the Council has noi authority to make such & by-hw, but I am notf .satisfied that this by-law must be so jjjnsitrucid. 1b is not, I think, the function of this Court tjo adopt a construction which would invalidate a. by-law made for the good govern ment of the borough if a construction is possible, which will uphold the by-law1, and in this case I think the true construction must be sought by reference to the interpretation clause (on page 4, which provides that "stjVeet" shall have the meaning attached to it by section 152 of "The Municipal .Corporations Act, .i.918," and that' section relates only to land lying witliin , any borough. And in section 38 of-the by-laws (on. page 5) it is provided that words re i: erring to any district, locality, place, etc., shall bo constirued- distributiveily as referring to each district, locality, place, etc; to which the provision is applicable, and I think it is cle-av that the by-law now in question is applicable to every street within the borough notwithstanding that it) may also wrongly extend bej^ond the borough. If tho "by-law had contained tho words "within the borough," its j validity could'not \be questioned, and i/hese words may 1 think bo implied.; without doing violence' to the language svnd meaning of the by-law, i The cajso is analogous to the cas» of ,Rex v. Jackson, N.Z.L.R., "Vol. 1919 p. 607 in wliich it was held that, tjhough. the Court of Appeal decided in Hex v. Lander that section 224 of the Crimes Act. which ctefines the offence of bigamy as the ■act. of a person who, being married, goes through a. form of marriage with any other parson in any part; of the world, is beyond the. power of tho Nexy Zealand Parliament in m fair a.s it| purports to deal with crime beyond the territorial limitp of the Dominion, the invalid part of the -enactment! is severable from the i remainder. The severance may -be | effected' by the omission of the words 5 "in any part of the world," which J will leave a complete definition of t|h® crime of bigamy without the addition off the words "in New Zealand," since these words are necessarily implied1., By tho same reasoning I think the words "in the Borough of Blenheim", arc neces- / sarily implied in this by-law, be-^ cause tho. borough ia the territorial limit over which tihe Borough Oounaii Iras- power to legislate. This I oqnclusion •' is strengthened by section 5 of the Acts Interpretation Act, 1908, which, by providing that, words referring to any country or place shall be distributivel\r as referring to each county qr place tip _ which such provision, is applicable, is an explicit declaration enabling the Court to construe a reference to every street as a. reference to each street, including the streets in the Boirough of Blenheim. For the 'reasons svtatedi I must uphold the by-la\y and .convict/ the defendant, but it is^nct a caise which calls for a heavy penalty. Defendant will bo fined 20s and Court costs.

I am' bound to say that I think this by-law and many others of the borough by-laws ar© so badly draft\:id that considerable litigation and expense may result unless they are revised, and for that reason I' shall not allow the/Council any .further costs.