SANITARY CONTRACT CASE.

New Zealand Herald, Volume XLII, Issue 12817, 17 March 1905, Page 7

SANITARY CONTRACT CASE.

PROSECUTION -FOR ILLEGAL DEPOSITING. DECISION FOR THE CONTRACTOR. At the Police Court yesterday Mr. S. E. McCarthy, S.M., gave his reserved judgment ii the caso of the Mount Eoskill Road Board v. William Stokes, in which two informations had been laid under bylaws made by the Mount lvoskill Road Board pursuant to the Road Boards Act, 18S2, and the Public Health Act, 1300, and the amendments thereof. One of tho informations charged the defendant with depositing offensive matter upon certain land in the Mount RoskilL Road district, occupied by William Hunter, not being a depot approved of by that Board for tho deposit ot offensive matter. The other charge was that of owning a cart without the name being thereon. The first information was laid under clause 3, and the second tnder sub-clause (b) of clause 4 of the by-laws made by the Road Board. The magistrate said it was quite clear from the terms of section. 85 of the Public Health Act that any by-laws made by local authorities in respect of offensive trades could only relate to trades lawfully established within the particular district, that was, trades in respect to which a consent in writing had been given pursuant to section 82 <1 the same Act. The offensive matter deposited was nightsoil, and no proof had been given that any consent had been given by the Board in respect to tho removal or depositing of night-soil, either generally or in to far as the defendant was more particularly concerned. Assuming that the by-law No. 3 was ultra vires, it did not apply to the facts of the present case. This reasoning, applied to tho second information equally with the first. If the Board wished to test the validity of the action of the defendant in carrying or depositing nightsoil, it should proceed under either sections 83 or B+. He was further of opinion that sub-clause to) of clause 4■ of the by-laws, on which the second information was founded, was i.ltra vires, because the power to make by laws was subject to the qualification that the by-laws should be made "in order to prevent or diminish the offensiveness of the trades regulated and to safeguard liie punlie health." Ho thought it could not be said that a regulation providing that a nightsoil cart should have the name of the owner painted on it would cither pievent or diminish the offensivertess of any trade or safeguard the publio health, and he had keen unable to discover any provisions of tho Road Boards Act which would authorise the making of such a by-law. For theso reasons the magistrate dismissed both informations with costs. Mr. T. N. Baxter appeared for the plaintiff, and Mr. 11. McYeagh defended.