AN OFFENSIVE TRADE.

New Zealand Herald, Volume XXVI, Issue 9263, 17 January 1889, Page 6

AN OFFENSIVE TRADE.

MOUNT WELLINGTON ROAD BOARD

VERSUS JOHN VARE. At the Supremo Court in banco jurisdiction on Wednesday forenoon, before Mr. Justice Gillies, the above case was argued. The case was a motion for argument of a special case. Mr. Theo. Cooper appeared for the plaintiffs, and Mr. Baume for the defendant.

Mr. Cooper, in opening the case, said it was a special case, brought under rule of the cpde on the question of law for the opinion of the Court. Tho statement of claim sot forth that the plaintiffe were the Local Board of Health of the Mount Wellington district, and that the defendant had erected works in which to establish a boiling-down business for dealing with bones without obtaining permission in writing, and the plaintifls therefore prayed for an injunction to restrain the defendant from carrying on this business in the district. The statement of defence admitted all the facts, bub a denial that plaintiff was entitled to judgment. The special case was this. It was admitted that John Vare had erected an establishment for boiling bones, tallow, etc., without the Written consont of tho plaintiffs. Ib was also admitted that Mount Wellington was a health district, within the meaning of the Act, and that tho plaintiffs were the local Board of Health for that district, and ib was agreed that if the Court ruled against the defendants on the question of law, the injunction should issue. The defendant contended that under the Act of 1876 ho could legally establish such works without the written consent of the plaintiffs. The question at issue was on the construction of section 76 of the Act of 1876, and of the Amendment Act of 188-1. Section 76 of the Act of 1876 was only applicable to cities or boroughs, but under trie Amendment Act of 1884, the Legislature seeing that the restriction provided by the Act of 1876 was not sufficient, and in order that the suburbs should be brought under its provisions, section 2 of the Amendment Act, 1884, gave to the Local Boards of Health of snrburban districts the powers possessed by cities and boroughs. The simple question for His Honor was whether the provisions of the Act were by clause 2 of the Amendment Act extended to the plaintiffs district, and the real question was whether the Legislature had, by sufficient words, brought the local Boards of every district under its provisions. They had tho facts admitted that Mount Wellington was a health district, and that plaintiffs were the local Board of Health, and he contended that the Act of 18S4 brought them under the provisions of tho Act of 1876. The argument for the defence no doubt would be that this was a ponal statute, and must bo strictly construed, and that it did not apply to others than cities or boroughs. He contended that they did, and although the wording of the clause was inapt, there could be no doubt of the intention of the Legislature. He quoted authorities in support of his contention that it was for the Court to give a fair interpretation of the intention of the Legislature, and claimed that the injunction sTiould issue. Mr. Baume replied, contending that section 76 did not give any powor to give consent in writing, and therefore they were not liable to any penalty, and no mention was made in the Amendment Act with regard to such establishments as offensive trades; merely that they shall have the powers conferred by tho Act of 1876. He proceeded to argue that the words of a remedial statute must be strictly construed, and even, if utter nonsense, must be given effect to regardless of consequences. He quoted several other authorities in support of his contention that it was quite wrong to alter the language of a statute for the purposo of getting at its meaning. He contended that defendant had not come within the scope of either of the Acts, and that plaintiffs were not entitled to a writ of injunction. Mr. Cooper replied to Mr. Baume's arguments and the cases which hfl had quoted, and asked the Court, under the Interpretation Act, 18SS, to interpret the Act according to its true intent and meaning ; and it was plain the intention of the Act was to conserve the interests of public health by giving to the local Board of Health tho powers of the Act of 187(3. Hβ contended that section 76 of the parent Act gave the power to grant, and tho power to refuse consent.

His Honor said that this was ono of those cases in which the draughtsman raised doubts which would have been avoided by the use of simpler phraseology, but looking at section 2 of tho Act of 1884, ho had no doubt of the intention, and that it expressed that intention, and tho question was, what powers to restrain offensive trades were given by section 78 of the Act of 1876. They can withhold their consent in writing to tho establishment of any offensive trade, and tho Acb of ISB-A save that every Local Board of Health had the same power conferred by the Act of 1376 on tho Local Boards of Health of cities and boroughs, and they might exercise that power. It might be moro clearly expressed, bub he could find no other reasonable meaning. Although it clumsily expressed the intention of the Legislature, that it did express such meaning waa evident. That was a reasonable meaning, and nono of thoso HUTsrosted by the defendant was. He must hold in terms of the special case that the defondant cannot establish such a trade or works without the written consent of the plaintiffs, and if he did so, he was liable to the penalties under the Act. The writ of injunction was ordered to issue, with costs £15 15s, and costs out of pocket.