MOTORISTS AND TRAMCARS

Otago Daily Times, Issue 18760, 13 January 1923, Page 15

MOTORISTS AND TRAMCARS

CITY BY-LAW UPHELD. MAGISTERIAL DECISION. In the City Police Court yesterday Mr 11. W. Bundle, S.M.. gave judgment m the case in which Alex. Win, Milne was charged with having driven a motor car past a stationary tram car. Iho magistrate's decision is ns follows: “The defendant is charged with a breach of by-law No. IC, 1921, of the Corporation of the City cf Dunedin, dealing with passing stationary tram cars. 'lho defendant disputes the validity of the by-law on various grounds, which may be summarised as follows: —(1), the by-law is inoperative in that a by-law dealing with the matter already exists; (2), the by-law is ultra vires and therefore unreasonable; (3), the by-law is void for uncertainty. With regard to (I) it is contended that by-law No. 9, 1920, being repealed, sub-section C of 852 and sub-section D of section 853 of By-law No. 1, which were repealed by By-law No. 9, wore revived. I do not think this objection is relevant. I he, same facts may constitute an offence under different by-laws. However, even if relevant, I do not think the repeal of by-law No. 9 revives the by-laws originally repealed by it. Section 20 of the Acts Interpretation Act, 1908, provides that the repeal of an act shall not revive any enactment previously repealed unless specially provided. ‘Act’ includes rules and regulations made under an Act. A by-law made by a corporation under the Municipal Corporations Act, 1908, is a regulation made under an Act. Iho corporation is invested with delegated authority to make same. With regard to (2) I am unable to agree that the by-law is ultra vires and unreasonable. The defendant contends that the corporation has no power to interfere with the free use of streets by the public ami that if it has any rights the by-law attempts to exorcise such rights in an unreasonable manner. Iho powers given to a corporation to make by-laws are contained in Sections 344, 345, and 346 of the Municipal Corporations Act, 1908. Ample power is given by Section 345 (a) to make by-lawa concerning streets land the use thereof.

“A tramway car has no right in claim to bo king of the road. Its rights are limited by statute. The fact that the corporation which passed the by-law also owns the tramway system is a factor to bo taken into consideration, and any encroachment upon the free use of the streets by the public generally [must be zealously watched. But the present by-law is clearly designed for the safety and protection of persons using a common mode of transport. These considerations far out-weigh any inconvenience caused to drivers of vehicles. They usually have their own remedy. They can use the side streets Were tramway lines laid in every street the objections would have more weight. Mr Justice Williams, in discussing the general question of the validity of a by-law, in relation to reasonableness in Grater v. Montague, states: ‘A corporation ought to know the wants of its district better than a judge or a magistrate can know them, and therefore a by-law so made ought not to be held invalid except on the clearest grounds. I adopt that reasoning. It was urged by Mr Callan that the by-law was unreasonable in its application in that it applied only to certain classes of vehicles. If the corporation thinks that other classes of vehicles are not dangerous it may be wrong. This is an argument to be addressed to the council for the amendment of the by-law, but it does not affect ijtia validity. All vehicles of a certain type ore governed by it. The third point, is the most difficult point to decide—namely, whether the by-law is uncertain. A by-law should bo so certain that there can be no doubt as to how a person to be bound by it is to act under it. The object of the by-law is to protect persons boarding or alighting from tramway cars. “Mr Callan, taking into consideration the wording of the by-law, stressed fhe point that it is quite impossible for a driver to know the minds of the persons in a oar as to alighting or of those in the road as to boarding. A reasonable meaning of the words is clearly, I think, ‘until passengers have alighted and iho persons waiting have safely boarded.’ The words ‘all passengers who arc assembled at the side of a tramway oar’ are a little ambiguous, and might properly bo worded ‘at the stopping place.’ It is objected that there are no definite stopping places fixed by the by-laws. The stopping places are indicated by discs which are visible hy day to drivers. By night it may certainly bo difficult to see them, and a driver must watch a car. It is usually easy to determine whether a car ahead is pulling up. A tramway car does not usually stop except for the purpose of setting down or taking up passengers, and the mere stopping Is a sufficient guide to drivers. I see i.o necessity for stopping places being fixed by by-laws. It would be a convenience to motorists and pedestrians alike i/ lights were shown by night at the stopping places. It is considered that the by-law is not clear in that, the term ‘in the roar of’ is too indefinite. 1 do not think so. If any portion of a' oar or other vehicle overlaps it is not in the rear. The phrase, is quite definite. I am of opinion that the by-law enforces a strict prohibition on the drivers of vehicles. This prohibition is clearly expressed in that drivers have to obey certain directions. I think tho by-law is clear and definite in its terms. The conditions regarding the traffic at tho Stock Exchange buildings and the monument at busy hours are far from perfect, and it should b© possible to adopt some system causing less inconvenience to drivers of At present 4 ,tho by-law is especially annoying. I omitted to mention the objection taken by Mr Callan that the St. Kilda terminus—a terminus outside the city boundaries—is included in tho by-law. Surely this cannot affect the by-law. It is surplusage only, and operates to exclude a terminus to which tho bylaw cannot apply. I hold that the byliiw is valid. The defendant has been convicted on the facts, and is fined 20s with costs (7s). “It may bo useful to mention certain points in connection with the by-law. (1) If a tramway car ahead stops tho driver of a vehicle should pull up and wait till the passengers have alighted or boarded. (2) Tliere is no obligation in the terms of the by-law on the driver of a vehicle to wait until the alighting passengers reach the footpath, but driving on might result in a charge of negligent driving: (3) the by-law states that a driver may pass on the off-side, taking every care before doing so to see that the course is a safe one to follow. This is an extremely dangerous practice, and if an accident results tho driver has only himself to blame. Tho consolation that the by-law allowed him to do so woidd be a poor one; (4) at times tramway cars are held up by other cars ahead. Tho driver of a vehicle is not prohibited from passing such a car.’’