IMPORTANT JUDGMENT

Nelson Evening Mail, Volume XLVIII, Issue XLVIII, 17 April 1914, Page 6

IMPORTANT JUDGMENT

exposixg coons for sa u-:

IXFORMATIOX I>IS.MISSF.J)

lleserved decision was to-day t>y Mr Evans. S.M.. in the < ase in whieh Robert Sinclair, pmpnetur of "Xov*liies." was charged under tiie < ity by-' laws with unlaw fully exposing tVr sale certain articles outside hi- premises. In the course of a lengthy judgment, the Magistrate said, -defendant was chained under by-law Xo. 102. 8. in unlawfully expos- * »ig goods for sale in a doorway. 1 he by-laws were made under the Municipal Corporation Act. 1886. lhe defendant raised three objections. (1) That the bylaws were invalid because the Act- was not complied with in accordance with the making ot the same, in that the public notification of the special order making the by-law did not set out the object ancl purport <". i the by-law ; (2) that the bv-law was ultra vires -in that the corporation had no authority tor making the bv-law under the Act of 1886: (3) that the by-law was unreasonable in that it was absolute in its reonirements and is in restraint of trade. Continuing, the Magistrate said the by-law was made by special order. Action of the Act of 1886 sets out how the special order is to be made. It has to be tlj adopted at a special meeting : (2) contiime-d at a subsequent meeting not sooner than foui ■weeks thereafter; (oj public notification of the subsequent meeting, and the resolution must be gveil m each of the four weeks. Section 416, 1, sub-section 1 provides that after publicly notifying a special order making the by-laws it shall not be necessary to publish the bylaw providing tiiat the object and_ purport of the bv-law- is published. »°tiie of this bv-law was published oil March 15th. 1895, and on subsequent days as required by the Act; but the notice only set out the subject natters of the bylaws and not the pur port and object. Continuing, the Magistrate h?ld that the notification did not comply with the requirements of the Act. and that the b \ - laws were therefore not properly made. "This in mv opinion," said the -Magistrate,'"does "not dispose of the question. The by-laws came into force on Ist - Nl a> > 1895. ' The Act of 1886 was repealed by the Municipal Corporation Aft, lijUU ; which adopted the by-laws then m existence in so far as they were not inconsistent with that Act, and declareo then to be as valid and as effectual a-, it made under that Act. The Act ut. 19C0 was repealed by the Act of 1300. which contained a similar provision. Both the Acts of 1900 and 1908 provide that no special order shall be quashed bj any proceedings in any Court or othei wise unless such proceedings shall ham. been commenced within six months the making of such special order. X such provisioU was contained in the Act of 1886, under which the by-laws weic made. The question then is, what is tin effect of this limitation as to tinie on by-laws made under the Act of 1885. •\fter exhaustively reviewing authorities, the Magistrate held that limitation.placed on the right to take action wer. matters of procedure, and werej restrictive unless there was an>thing . p - p»arincr i n the section to the eontiai>. In his opinion, the by-laws were not properlv made, but the limitations for tak_ inn- proceedings to qnasli them containec n"the subsequent Acts applied, and was not ope a to the defendant at thi= lapse of time to question the validity o the bv-law." On the second point, tha. the bv-laws were ultra vires, he h«iO that '"general power"' Avas given under the \ct of IBds to make by-laws foi "anv purpose" in respect of streets, ano particular power was given to a corporaSn to make by-laws to prevent hangino- goods -rojecting over or on a stite - ••xhe primarv and universally ed pmpose/'-said the Magistrate fo which a corporal it'll may make bv-laws in respect of streets is to prevent obstruction to the free right and passage sU . „ii t i le Kin" s liege subjects. The* of goods for sale in a street would Undoubtedly have, the eff«J «1 • a stieet and the geneiai ' n make by-laws forbidding ar power to matve .'- l . r i t }.; c obstruction is sufficient- > forbidding' the ;n th the nK su'eet" tufVor ' goods" thu* ; v hnV or in part, mt-o the projecting in vno.c, i iqoß street-. The Police Offeoces provides for such cases. lhe b> ia therefore!, were not u.ti'a Aires. . & the third, objection, th at tie s susses. s. _ _ .. _ rase tis to til" trate said_i ' = ' 8 and the f nc tf meaning of b\-w The of pust be deajt ; detaa s Ihe^ That, and nothing else. The defendant, ™ th^ £1 oHhe encroachment over thTht dSanl proved that the plaste,di d the Z C :<ls on the plastei-j r d v a* fenTJhc line of the bushes, ooods are not within ~ n exposed V ofu,c°" Ind" v ' outside of the wni ' do%v xhe g0(K l, iB 'T nfa r ste°i Se onlv outside the win on the plaste • .y.-it* thev are not w to tgS,*n. l'' our T d c j£f i* t he°Police Of offences. Act, provided foi , • may be summarand the by- aw , fhincs wholly sus* ised as follow 1" 11: o > °"V th VoT«t&'o"lv ov?« .he fSv li) on the IS- s lii &««"W"'* fot * olc f veet ' If all goods that are suspended oVer ' or do partly overhang or encoach » on'' a street are in the street then there would be more than one section oi the b dealing with the offences ot goods in the street." "It appears to me, concluded the Magistrate, "that in order to give that certainty which penal sections mu-t have was to hold that m the street' means wholly in t-hs street. Cases

!of overhanging or projecting goods nw j (It-all with wider separate sections, and I there fore do not onut- within the by- ! . Or. the evidence before mo the j poods exposed outside the shop-window I were in the street, and defendant is not 'guilty of an offence under the by-law. The defendant was entitled to hang goods for sale or otherwise on any part i.j his shop t,v inside or outside so long a .-i they d.d not overhang <">■" encroach on the street, or otherwise become a. nuisance or danger to peison- lawfully ii-int; the street.' Two guineas costs were allowed against plaintiff. Mr Wise appeared for the City Council and Mr Haver- for defendant.