POWER OF BY-LAW

Southland Times, Issue 22043, 16 June 1933, Page 8

POWER OF BY-LAW

RIGHT TO RIDE ON GRASS PLOTS. PROHIBITION INVALID. (Per United Press Association.) Wellington, June 15. In the Appeal Court case Martin V. Smith, the Full Court delivered judgment in favour of appellant. Mr Justice MacGregor, in a judgment in which the Chief Justice, Mr Justice Ostler, and Mr Justice Smith concurred, held that the by-law under which appellant was convicted of riding across grass plots was ultra vires the council, and repugnant to the laws of New Zealand. His Honour also considered it unreasonable and uncertain in its terms. For these reasons the appeal would be allowed and the conviction quashed, with costs (twelve guineas) to the appellant. The proceedings were ordered to be remitted back to the magistrate, with directions to dismiss the information, with the appropriate costs. Mr Justice Reed dissented from the judgment of the other members of the Bench, and held that the council had statutory authority to plant the plots in question, and that, if a local body had the legal right to erect or constitute anything such as a plot on the street, it had also a legal right to make the by-laws reasonably necessary for the protection of the erection.. In his opinion the appeal should be dismissed.

This was the appeal of Doris Martin, of Palmerston North, from a conviction imposed upon her by Mr J. L. Stout, S.M., on November 21 for riding a horse along a grass plot in Church street contrary to the by-law of that city. Mr T. L. Rolling, for the appellant, submitted that the .by-law was unreasonable and ultra vires, in that it had no statutory authority. The material question was whether large parts of streets could be taken away from the public and converted into grass plots across which the public could not travel. Before any council could interfere with the public use .of a highway special statutory authority was necessary, and counsel submitted that the Palmerston North City Council had not that authority. Grass plots, he said, ran for miles on both sides of the street with varying widths of 6ft to 20ft, with the result that the public was greatly impeded in its use of the highway, and danger was created by the congestion of traffic. Mr O’Shea, for the respondent, said the purposes of the grass plots were, first, to beautify the city; secondly, to reduce the cost of maintenance; and thirdly, to keep down the dust nuisance. . He submitted that under the Municipal Corporations Act the council had abundant authority to pass the by-law in question. ___________