OWAKA CEMETERY CASE.

Otago Witness, Issue 2861, 13 January 1909, Page 52

OWAKA CEMETERY CASE.

THE BYE-LAW UPHELD. At the sitting of the Magistrate's Court j afc Balolutha judgment was given by Mr ■ Kenrick on two informations which wer4 : beard on December 16. The judgment is as follows : — > This is an information laid again&t the defendant, Charles Bird, by one of the trustets and secretary of the Owaka Cemetery charging the defendant with, contrary to bye-law No. 21, knowingly and unlawfully j entering upon & burial allotment (No. 67), wherein an interment had been made, defendant not being the sexton. There is a second information against the same defendant charging him with, contrary to bye-law No. 4, unlawfully interfering with allotment 69 in the cemetery by digging in. same without having first obtained ihd special permission of the trustees. The evidence on the two cases was taken, together. It is admitted defendant wme on both of the allotments, and that he was refused permission by the cemetery trustees, but had the authority of the proprietors of the lots to keep them in order. Much evidence given was not relevant to toe points at issue. Mr Grigor, for the defence,, says there is no jurisdiction for a magistrate to deal with the charges in "The Cemeteries Act, 1908," the Act omitting to g-ive that power. I think the Justices of the Peace Act, section 382, and other sections, combined with the powers mentioned 1 in the Cemeteries Act, gives jurisdiction for a magistrate to hear the case. The second contention is that th© bye-law is bad because it requires a person to obtain permission first from the trustees of the cemetery before entering any allotment therein. Mr Hay, in reply to this contention, cays the purchasers of burial allotments only have the right of burial of dead therein, but nothing further, except such righte as are given under the byelaws. Bye-law No. 4- provides that no person other than the sexton shall perform any work in the cemetery or interfere with, the graves, etc., without special permission of the trustees. But permission shall not be necessary for the proprietor of an allotment, or for the widow, widowere, or blood* relations of any deceased person interred in the cemetery, to keep the grave of the deceased in order. I think this by-law very reasonablo, as also bye-law 21, which is of a similar nature to No. 4- The case of Kruse v. Johnston, 2 Q.B. 91, lays it down that a court should be clow to hold a byelaw void for unreasonableness, and that it should be supported unless it is manifestly partial and unequal in its operation. The only question that has been raised as tq the unreasonableness of this bye-law is that if the proprietor of a burial allotment does not desire to keep it in order himself or with the assistance of relatives, he is not allowed to employ an outsider, but must then employ the sexton to keep "it in order. I fail to see anything \vn reasonable in this. In the present case before me it is proved that if the eexton does not have the right to keep graves in order for those who do not desire to do it fchemeelvee or by their relatives there is not sufficient in the burial fees alone to induce anyone to take the position of sexton, and that this email cemetery of Owaka is now threatened to be without a sexton to dig the graves. Th© present defendant was the sexton, and resigned, and now retains the work of keeping the graves in order aa against any new sexton, although the trustees have Tefused him permission. I think this unreasonable, and contrary to the bye-laws. I exiter a conviction in each case, and fine defendant 10s in each case, with court costs (7s in each case). The eases having been brought to test the validity of the byelaw*, I allow no other coats than the court coats.