SUNDAY GOLF

New Zealand Times, Volume XLII, Issue 9623, 31 March 1917, Page 10

SUNDAY GOLF

!S IT LAWFUL? SUPREME COURT TO DECIDE QUESTION. CITY COUNCIL AND SABBATH OBSERA ANCE, Tho vexed question of golf-playing on Sunday has reached tho Supremo Court. Yesterday the case for and against Sunday golf, and the law around it and about, were fully argued before the Chief Justice (oir Robert Stout), -Mr Justice Dennisxon aud -Mr Justice Cooper. The City Council recently proceeded against one Avilham Whitehead by way or a test case to decide the validity ot a by-law prohibiting the playing of golf on Sunday at the municipal golf links at Berhampore. The case, -wincli excited much interest and considerable controversy in the press at the time, was heard by Air S. E. Alcv,arthy, S.M., in the Magistrate’s Court at Wellington. The magistrate dismissed the information on three grounds, namely—tiiat tho by-law was repugnant to the laws of New Zealand; that it unreasonably dealt with the question of religion; and that it was ultra vires as unnecessarily interfering with the rights of private judgment. The appellants were represented by Mr A. Gray, K. 0., and Air John O’Shea, city solicitor; and respondent by Sir John Findlay, K.C., and Air J. J. McGrath.THE CASE FOR THE COUNCIL. Air Gray, in opening the case for the appellants, cited the by-law in question, and the reasons which impelled the magistrate to the decision that it was outwith the powers of the city corporation. 'The question of Sunday observance need not be raised at all, as the by-law was passed for totally different reasons.

Sir John Findlay disputed this. He stated that - tho magistrate, in his statement, had found that the question of Sunday observance did concern the council.

Tho Chief Justice said ho would be very surprised if Air Gray could suggest that the City Council had any other object in view when it passed tho by-law besides that of Sunday observance.

Air Gray replied that the city solicitor had not dealt with the question of Sunday observance in tho lower court. He had relied on tho power of tho council to pass their by-law.

Mr Gray then dealt at some length with the powers of the corporation to (leal with the town belt, and quoted from the deed vesting the control of this in the city, and said that the colmcil, in passing the by-law, bad considered the interests of the majority. There were the people who went for a walk on Sundays to bo considered. Sir John Findlay demurred. Ho said Mr Gray had raised a point which bad been settled in the lower court. It had been shown by evidence that the particular part of the reserve was used by golfers only, and the magistrate had [held that Sunday golf-playing had not caused any interference with the rights of the general public. Mr Justice Denuiston asked Mr Gray whether ho suggested that the court would not be forced to conclude, as the magistrate had done, that the bylaw was passed for the purpose of enforcing Sabbath observance. Mr Gray said he did. The council had granted the privilege of playing golf ■on six days of the week. The council might have desired that the town belt should be reserved solely for the'use of pedestrians on Sundays. Mr Justice Chapman asked in what way the existence of‘the links excluded the public. Mr Gray replied that a man had been hit by a golf ball. They were dealing with a real danger. A municipal body bad the right to prohibit the playing of a game altogether on its reserves. Surely that included the right to prohibit the playing of any game on any day. in any case, the motives of tiro council (if any) in passing the by-law were immaterial. Mr Gray cited cases in support of his contention that a court was not competent to decide upon the motives of a legislative body. Under the Municipal Corporations Act and the Public Reserves Act, the City Council, had ample authority to control games on the city reserves in any manner it thought fit. Mr O'Shea held that if so long as the City Council could justify tho bylaw on one rational ground, it must be held valid. The two by-laws in question had been passed to protect public interests on the only free day of the week. It was maintained confidently that there was an element of serious danger-in tho playing of golf. While admitting that the question of Sunday golf-playing had given rise to an outburst of Sabbatarianism, the council did not desire the support—if it were support—of Sabbatarians. The council would have granted an exclusive lease to the Municipal Golf Club had it not been mindful of public interest. CASE FOR SUNDAY GOLFERS. Sir John Findlay said the main question was, for what purpose was the by-law passed? The council had nothing to do with public morals—that was left to the law of the land. If the court were satisfied that tho by-law was passed only to enforce a measure of Sabbath observation, then tho magistrate’s judgment must be upheld. The City Corporation provided golf links for a class which tho corporation knew could only play on Sunday. They had allowed the links to bo used on Sundays for a year before passing the by-law which destroyed the benefits which tho links were intended to confer.

Mr Justice Chapman: “You assume the by-law was passed in consequence of this deputation? Does not that show how dangerous it is to go into such matters at all? The deputation might hare stimulated the corporation to make one kind of inquiry, whereas they made inquiry as to any danger arising from the use of the links." Sir John Findlay said he was not arguing that Sunday observance was the onFy purpose for which tho by-law was passed. Mr Justice Denniston: “Experience may have shown that there was danger.” Sir John Findlay: “There was not a particle of evidence as to that.” Mr Justice Chapman: “Who is to bo the judge of that?” Sir John Findlay said there was no evidence whatever of any danger to the public arising from the playing of tho game. On tho contrary, the care-

taker had given evidence, showing that danger was excluded. Golf had been played on the links for a considerable time before the by-law was passed, and no accident had happened and no nuisance had been created. No cx'ra expense to the Corporation was involved in Sunday playing. On the evidence before them there was no danger to the public. Tho by-law was passed, not on account of any danger to the public at all, but due to one cause, and one cause only—the influence of tho deputation which created on the council the impression of Sabbath “desecration,” as it was railed. There could be no doubt oi that, in view of the' magistrate’s finding. The attack on the by-law was mado on the ground that it had been passed in the interests of Sabbath observance. There was not a word said about protecting the heads and bodies of people walking about the links. Tho caretaker, who was best qualifiad to speak on the matter, gave evidence tlm;. no complaint had been made. The magistrate hud found that the sole reason for passing tho by-law was that of Sabbath observance. Air Justice C hapman said that the court might find that the magistrate was wrong; there might be another reason.

S : v John Findlay said there was no inconvenience caused to the neighbourhood by the playing of golf, nor to the people living there, and no other cpnclusiou was reasonable in the circumstances. Air Gray was quite right to try to find other reasons, because of tho difficulty ho was in. If tho by-law had been passed to uphold Habbath observance only, there was an end of the case. The by-law was not limited to a certain locality. Did not this show it was not the protection of ihe people that was aimed at? Golf was prohibited on Sundays even in parts not,'frequented by the public. The by-law was ii general prohibition against playing golf on public reserves nn Sundays. Air Justice Dennitson .said it was a by-law against the playing of golf in tho abstract.

Air Justice Chapman said it was within tho power of the City Council to prohibit the playing of golf on part ,f tho reserve on the ground that it was too extensively used for other purposes to permit of golf being safely played there. Sir John Findlay; “That might be verv strongly supported.” Air Justice Chapman: “That opens up the question who is to decide the limits of the prohibited ground?” Sir John Findlay said that every person had a right to play golf on the Town Belt, subject to such restrictions as tho council might pass. H the council passed restrictions, the onus of justifying these lay on the council. The restrictions might_ bo easy to justify, or they might not. The municipal links had been established for a class that could play only on Sundays. No complaint had been madci about any danger or accident, and the players had conducted themselves properly. The only outstanding fact which could explain the passing of the by-law was the’deputation of Presbyterian ministers. ,' THE LAST WORD.

Air Gray said that it was true the magistrate had said he; was forced to the conclusion that on the evidence before him the by-law was passed for tho purpose of enforcing Sabbath observance, but the court, was not bound to accept that. The reason for the passing of the (by-law might be a composite one. The controversy in the press between tha Sabbatarians and their opponents was quite beside the question. The corporation had power to regulate the use of the grounds, under -its <. control, prescribe the' games to be played, or forbid them being played at all. ' It did not appear that the council’need give reasons for so doing, and no court could interfere.

Thes Chief Justice pointed out that the council had proceeded by way of by-law. Air Gray said that it was not likely the council would have passed a by-la-w on no other ground than tho enforcing of Sabbath ' observance, nor having done so, was it likely that the council would have taken proceedings to enforce the by-law. \ The Chief Justice: “I am afraid you have not had much experience of local bodies.” , . This concluded the argument, and the Bench reserved decision.