EVADING THE TOLL

Otago Witness, Issue 3244, 17 May 1916, Page 4

EVADING THE TOLL

GREEN ISLAND COUNCIL v. M. STEVENSON. In the City Police Court on the 12th, Mr J. R. Bartholomew, S.M., delivered his reserved judgment in the case of the Green Island Borough Council v. Malcolm Stevenson on a charge of leaving the Mam South road on April 11 and returning thereto within 500 yards on either side of the Green Island tollgato. After reviewing the evidence leading tip to the decision to establish the toll, his Worship went on to deal with the arguments put forward by counsel on cither Bide. lie said: " Counsel for the defendant contended on a number of grounds that the tollgato lias not been lawiully established, their principal contentions being: 1. That the statutory formalities as to the establishment of a tollgato have not been complied with. 2. That the regulations are ultra vires. Mr W. C. MacGregor, for the council, submitted in the first place that the legality of the toll cannot be cjucstioned in these proceedings. . . . But the toll is a creature of statute, and does not come into existence—is not a legal toil—unless and until the statutory requirements of such creation have been complied with. Counsel also claimed that by virtue of section 93 of the Crimes Act, the defendant was Uable, and that the court was not concerned with the question whether the toll was legally established or not. Before there can be intent to commit an offence there must first be an offence created by law. Hero defendant accomplished his object, he cither evaded a lawful tollgato or avoided an unlawful obstacle. It follows therefore that the legality of the toll must be established by the prosecution. Counsel contended that tho resolution calling the special meeting is irregular, as it does not specify the place of meeting, and also that the resolutions are defective, as they do not clearly specify that a bridge toll is to be established. The minute of November 1 apparently refers to such a toll The town clerk's notice summoned the special meeting: 'To consider and adopt tho following resolution with tho view of the same being confirmed at a subsequent meeting of tho council and operating as a special order—namely, ' In pursuance and exercise of the powers vested in it in this behalf by tho Municipal Corporations Act, 1908, the Green Island Borough Council hereby resolves to establish a tollgato for the purpose of taking tolls at tho br.dgo over the Kaikorai Stream on tho Main South road within the Borough of Green Island.' " As I have already pointed out, the minutes of the meeting of the 6th of December authorising the special meeting are obscure, and such a notice could not be drafted from the minutes themselves, and the minutes of the special meeting do not show any such resolution was considered or passed. Again, the minute of 12th January has no reference to the confirmation of any such resolution. Tho minutes are eo obscure and defective that they fail to show that any special order Wits duly made. I must find, therefore, that the tollgate has not been duly established as required by statute. Defendant is entitled to a dismissal on this ground, but as a further ground of defence was fully argued I think it proper, in view of possible_ further proceedings to express my opinion thereon. Counsel for defendant further contended that regulation 46 (a) is ambiguous and uncertain. This regulation is in almost similar terms to section 163 of the Public Works Act. I think that when effect is given to the governing words of the regulations—" with intent to evade toll "—the moaning is reasonably clear: that if a person leaves and returns to a road and his point of leaving or of returning or both such noints are within 300 yards of the tollgate, with the intent aforesaid he commits an offence. A more serious objection to the regulat : on is that it is invalid as being unauthorised by the Municipal Corporations Act. Power is given by_ section 198 to establish tollgates at a bridge or ferry, and under section 203, the Governor has power to make regulations for, inter alia, imposing fines for non-pay-ment or evasion of tolls. It is contended that this gives no power to create offences, but is limited to imposing fines for acts declared offences by the statute, and does not extend to diminishing the ordinary right of user of roads by the publ'c. It is to be noted that section 202 of -The Municipal Corporations Act. 1908.' contains a restrictive provision with regard to ferri's and bridges, but the Act contains no Mich provision affectmg the use of roads as is contained in section 163 of ' The Public Works Act, 1908.' It is unreasonable to diminish rights unless there is a clear and unambiguous authority to do' so. Section 203 does not in terms give power to restrict the user of roads, nor does this follow by irresistible inference. The eubjoct matter is ferry and bridges and a certain scopo can be given to section 203 without affecting the user of roads, which is not necessarily incidental to -its object. If the prosent regulation is valid, what limits can be fixed to the power claimed? Can 300 yards be extended to 1000 or 3CCO yards? In the present case the regulation affects the right of user of Runciman street. Neill street, and North Taicri road. If there is this wide power to make regulations, what was the object in enacting section 202? The existence of this section appears to me to _be an argument against the power claimed. I think for the above reasons that the regulation creates an offence which is not authorised bv the statute, and is accordingly inval'd. The information is therefore dismissed." Mr Callan. who, with Mr Stephens, appeared for the defendant, asked for cost's, which were granted as follows:—Solicitors fee £3 3s, court costs 3», and witness expenses 43.