Cattle Droving By-Law Upset By Magistrate

Northern Advocate, 18 December 1939, Page 2

Cattle Droving By-Law Upset By Magistrate

“I am of the opinion that in framing litis unduly restrictive by-law in 1923, the borough council neglected to consider the public rights of those who need to drive stock through the borough. “I have come,: to the conclusion that the by-law, in requiring as it doe? not less than two' drovers of any number of cattle, no matter how small, i-egard-less of the size or kind of cattle, and on every road in the borough, is unduly restrictive of the rights of the general public who seek to exercise their undoubted public right of driving cattle through the borough.” In these terms, Mr Ferner concluded a reserved decision delivered in the Whangarei Court this morning. He was giving Judgment and dismissing a charge brought by the borough inspector, Mr. J. H. Ashton (Mr. J. F. S. Briggs) against Ross Sloane (Mr. D. L. Ross) of driving loose cattle in the borough without them -* being in the custody nf two drivers.

“I am of the opinion that in its present form the by-law is unnecessarily wide and therefore unreasonable and cannot be supported,” he said. Defencc Unreasonableness. The magistrate said it had been proved Sloane had driven 98 sheep along Quay Street, when he had no second driver, and had been assisted only by a leading‘dog and a side dog. The only defence raised was that the by-law was unreasonable, Mr Ross contending that it was unreasonable because it applied to, all cattle irrespective of whether they were urban or country, and it applied at all limes irrespective of occasions. Mr Briggs had submitted that in considering the question of reasonableness or otherwise of the by-law, the Court should support it if possible, and had quoted previous case observations.

Whangarei was situated in a district where the principal pursuits were pastoral and dairying, continued the magistrate. There were saleyards to the north, abattoirs to the south, and the railway station, where stock was loaded and unloaded, was within the borough. Through Borough Necessary.'

By reason of the borough geographical position and the hilly configuration and roadless condition of the surrounding lands, stock had, of necessity, to be driven through the borough. Therefore, the by-law affected not only the rights and conduct of the inhabitants of Whangarei, but also those of stock owners, drovers and others who lived elsewhere, but who had c public right to drive cattle through the streets of the borough and who had. of necessity, to use its streets to carry on their usual and normal avocations.

Accordingly, on the ground that the by-law was unreasonable because it applied to all cattle, irespective o( type or number, ho considered it was manifestly unreasonable. The by-law used the words “any loose cattle’' and the interpretation clause made ft clear that the by-law applied to the driving of a single cow or a single sheep, which must be in the custody of' at least two drovers, one in front of the animat and (he other in the rear.

Halter and Truck

“This provision seems quite unreasonable if not ridiculous,'’ commented the magistrate. Mr Briggs had sought to escape from this difficulty by saying that a single animal might be led by a halier and so not be included in the term “loose cattle,” but several £inds included in the definition wore of a kind not led by a halter.

A further suggestion by Mr, Briggs that small, lots of animals could be carrie(T'in a truck did not meet the case of a man desiring to move one or two or a few animals a short clist-

ance as from one paddock to another down a street. It had also been contended that the by-law was not to be considered bad because it did not provide for an exceptional case but the driving of a few' animals was quite common. Dogs Preferred.

Regarding whether it was necessary to have a leading man in addition to the drover all the- evidence had been to the effect that small mobs of sheep were more easily, expeditiously and efficiently handled by one drover and dogs than by a drover and a leading man.

“I am also satisfied that while the by-law came into operation as long ago as 1923, no real attempt has been made to enforce it until quite recently.” continued the magistrate. While he was satisfied that a second or leading man was sometimes necessary or desirable in some of the busier streets or when handling larger bodies of cattle, he must accept evidence, almost uncontradicted, that wdth small mobs of sheep a second or leading man. was not necessary. The provision of sT second man on all occasions was said to greatly increase expense vithie there was also inconvenience in securing one when he was wanted. No< Consideration..

“AH this evidence leads mo to the

conclusion that the by-law shows scant or no consideration to the rights and interests of drovers.”

“It ensure,'-' expense, delay and inconvenience, consequences which drovers and stock owners find oppressive without, at any rate in the case of smaller mobs, conferring any proportionate benefit on the inhabitants of the borough." Regarding the application of the bylaw to all streets without distinction, whether they were urban or rural the j magistrate said that while the Borough Council had signposted certain roads as stock routes, it had not confined the driving of stock to them by by-law or otherwise. “It seems to me that the council might easily take measures to rectify what is seemingly an unsatisfactory position."’ If the council had defined certain routes as stock routes for the driving of stock under reasonable and workable conditions, it might -well have been justified in imposing restrictive and perhaps prohibitory conditions on the driving of cattle on other roads. He considered the Borough Council had neglected to consider the rights of those who needed to drive stock through the borough. Regarding the submission that the by-law was unreasonable because it applied at all times irrespective of occasions, no evidence was led in support. Mr Ferner congratulated Mr Briggs and Mr Ross on the manner in which they had presented their cases to the Court.