MACKENZIE COUNTY.

Timaru Herald, Volume XIIIC, Issue 14321, 11 October 1910, Page 6

MACKENZIE COUNTY.

ITS EXISTENCE CHALLENGED-

FURTHER COVRT PROCEEDING £- Further hearing of the (iiarge against William Morris Willetts, that he-used a vehicle drawn by a traction engine and engaged in heavy traffic on the Main Mackenzie road, without liav-

inu such velueb duly licenced, oc-r-u a lung sitting 01 the Timaru Ma CV-ir;: yesifiday, Mr V. Ci l)av. S.M.. IK-Ina .«3i th» beuch. Mi F. J. Hulle>:ton :ii.iv:i.;nti im" -'•' Mackenzie Cunty Council, the miorm ants, and the deic-mlam was. reyrc-.-tin *d bv Mr \V. K. Kmnerney, yitli Imi 3lr C. T. H. Terry. At the Jirsi tearing considerable interest wa; aroused through the somewhat -.artHue defence set up by Mr K:nnerir.->> To\he eife-t that the Ma<-kx>u:u> Conntv has. no legal exigence. .Nt proceedings yesterday were w: .toaec ■f>v. Mr F. R. GULinguam o the County Council, and Mr a.. L Banks. countr engineer. At the outset Mr iourjemey salt. lie had onlv a few words to aad ti -what he had said when, the case wa; -oreviouslr before the Court. 1 ic- con tended that the. resolution pa; sod aj the Mackenzie County Council m ~e gnrd to the merging of the re ad la trict was bad because it was pas sed >es: than two months after the presc .ntatioi of the netitiou. and thereto jj th( period ("two months) allowed by ,sectioi 37 of the Counties Act 1376, hid aoi elapsed. It had hern impos>£>le + < present a petition because the .resolu tion for the merger was passed, tr.t- tin first meeting nf the Council on Decern ler 3rd. 1883. and the subscrp-.e- t_re Eolution was pa-sed on Janmry i"th 18S4. a little orc-r one month -liter "hi passing of the first resolriion. - sufficient period to allow of a eourte; petition had not therefore *jeen allow ed To elapse.. Mr ICinner ney furtl-ei quoted a decision by Mr -fnstice "Wa Jiams to show that there wis no rowei to issue licenses for heav— traffic- ex cept under Tlie Public "Works Act. anc the power conferred by -this Act wa. etrietly limited to roads under tht power and control nf a C< -unty Council and the maiu Marfcemae road. on ■v-hich. ~he r'<»ie'id:»ut in this case n= charged Tricli taking his traction eng.ne plant, was not ieg:ily under the control of the Mackenzie bounty Council. Referring: to the reasonableness of the by-law counsel contended that the charge of £-3 per truck was quite unreasonable, beeaus? if any damage ■were done it war. done- by the engine, and not by the trucks. Mr Day said he had had it put the reverse way to him in Ashburtou.

Mr Kinnerney said he would call evidence in support of iiis contention. He first called. F. W_ Sttibi-.s. clerk to the Geraldine County Comic!, who y.v.d Jit? had been in South Canterbury dnee IS-52. Joined the Geraldine County Coioicil as clerk in ISSO. County ..teeters rolls were made up fur Ck-raldice Co.miy in 1533. Witness had Lis rniira to Ix ok of October IS-S3. and Mr Iviniie-ney elicited that this contained a. miiiTe 'giving authority for two members "[" the Council to sign the rate roll v.-!ten ready. This was the first county roll of any kind that was made up. No rate had ever been made hy GeraJiir.e County Council before that. taid he knew the main Mackenzie road running through i'airlit- township. It was a public Irish way long before ISB3. The Geraldine County Council never -lid anything to that road and exercised no control over if. To Mr Rolleston: Pri.-.c to 1533 there were eU-etluns to the Geraldine County Council. A Council had been elected jo~t lic-fora witness joined in ISS). "Witness gave the names of the members of the Council in ISSI. Could not say whether they were elected or appointed. Never saw an electors roll prior t;> ISS3, but would not- swear that there was not one. "n ISS3 the ,: Geralrline Guardian"' circulated in the country, but it was really

a Tenruka paper. It contained a report of the meeting of the Geraldine Comity Council which report was

taken from the "Timartt Herald." A ilr "Wilson was the first proprietor cf "the "Guardian." When the Mackenzie Conntv was constituted a eounty there was no opposition to it by mem-

i bars of the GoraWine Council so far as ) witness could r-erusmber. To Mr Kinuernev: "Was quite sure ! that there was no electoral roll berore i October 1533. I E. G. Kerr, manager of the 'Tiniaru ; '-<er lid "' nave evidence showing that ■xlu- ••Herald - ' was published in Ita-3 • and ISS-L as well as another paper, the '-South Canterbury Times.'" in Temuka the -Temuka Leader and ■•Cieraldine Guardiaiv" were published. The Mt. Cook Road Board, and Mackenzie Conntv Council published dl tbeir notices in the ••Tiniaru Her:'ld. ilad searched the ••Herald" end ihe . -South Caiit-rlmrv Times" from Ocio- ' Wr to De:-eml>cr of "ISS3, but found no notice callinn-a meeting of the Mackenzie Conntv Council for December :kd. : '.SS3 >'<•' such notice appeared Hi | either of the ]>apers mimed. Mace a Siurther search from December .kd. I 18S3. to January Ulth. 1884. or these ! papers to ascertain whether any notice i of "a meeting of the Mackenzie County ! Council was contained in these issue-., ( lr.it oulv found notice of a special I order on December :>'.'. ISS3. ! A. L. Martin, clerk in the office or i Terry. JVrrv and Kiunerney. sa.id he I had 'also searched the newspapers reI ferretl to by tlie last witues-. and could 'corroborate his evidence. Also search!ed the files of the "Temuka Loader land ••Geraklhie Guardian." for the i date referred to, but found no notice of i a meeting of the Mackenzie County Council published. To Mr Eolleston: Witness did not 'emember searching particularly for pro- . clamatious in the Gazette. He was ' not told to search for them. '\a> ; told specially to search for the notice : referred to. It was a fact that there ; was a proclamation in the Gazette that he had overlooked. ' J. M. Willetts, defendant these [ proceedings, said lie resided at Fairlie, '_ and worked chiefly in the Mackenzie Countv. Began hauling there 7 or S years ago. - The damage was chieth [ done to the roads by the engine. Trucks loaded up to o tons each would I not hurt the main roads in Mackenzie County. He could null more on some ! of the roads now than when he lirst started hauling. There was more '. i traffic with, waggons and carts than . ' with traction engines.

To Mr Rolleston: The width of tyres on the trucks drawn hy tho engine used by wituess varied from 4'. to 7 inches.* Knew the road to the Coal Pit., and would say that it had been improved by the traction traffic. \V. 11. Leeder. borough engineer at Timaru, ssid that before taking up his pre-eiit appointment- he was c:iginner t.j the Chitha County Cv.uncil. Had also been with the Mornington Borough Council. With regard io traction engine traffic, he would »ay that most damage was done by the engine. More damage was done by G cud S-iuirse waggon' teams to country roads thaji by traction engines and trucks with their wide tyres. This had been clearly demonstrated in Clutha when he was there.

To the Magistrate: If one engine followed in the same track as another it would do more damage to the roads than, if the traffic was spread over the road.

To Mr Rolleston: It depended to some extent upon the formation of a road as to the damage that would be done by an engine. He had no knowledge of the reads in the Mackenzie County. A truck with a tyre of ij inches might or might not- damage a road. Id woTild depend upon the state cf the road and the weight of die load.

- To Air Kinnerney: His evidence applied to ordinary country roads. Down south the roads were always in a worse condition than up here. They were for the mast j>art clay roads: they had not ; the shingle down south that was to he ohtained up here.

_ Matthew : Andrews. of Pleasant Point, said he knew the main roads in Mackenzie. County, which wore all metal. Witness had an engine and trucks the width, of his tyres being from 6 to S inches. Knew of no truck tyres so narrow as -11 inches. The damage would be done by tho engine, if at all, and then onlv when Oie trucks were overloaded. Traction traffic had improved the reads in + he Mackenzie County. Horse traffic did the most damage. A horse waggon had to make three trips to carry is much as an engine in one load. To Mr Rolleston: "Was directly interested in the result of this Va--«'. Snnpcsed he would contribute towards the costs of the defendant in this case.

Tlik was all the evidence for the defendant.

Kor the prosecution y\v l!.o||,..si"ii callvtl.

F. "SV. Merchant, who - ;l jrJ that he wai cierk ;uid engi'.ocv to ihe Mount Cook' Road Bourd in' ISS3 and to the Mackenzie County Council when it was .firc-t constituted. The Gazette notice setting forth the steps taken in. converting the Jit. Cock Road Board into the Mackenzie County Council was quit-e correct. All the necessary steps were taken and complied with. The latv-Mr Tripp, then chairman of the. Geraldine County Council, was the only one who opposed the severance of part of the Geraldine "district to join the Mackenzie County. Many roads in the Mackenzie County Council would be ruined by traction engine traffic, while others which were well metalled might bo improved as the engine would consolidate the metal. He quite agreed that it was the engine which did the mischief. .Believed that a paper called the "Goraldino County Chronicle" was iu circulation when he was engineer to the Mackenzie County Council. To .Mr Kinnerney: The Geraldine Countv Cotmcil did no work in the Mt. Cook Road district when witness was there. R. L. Banks, clerk and engineer to the Mackenzie County Council said he had occupied this position for over 20 years. His experience was that the traction engine traffic did a very great deal of harm. On unformed roads in di'v weather the traffic would consolidate the roads, hut on formed roads it did harm. The main Mackenzie road was kept .out of tho whole county Fund and it was the only road which was so charged, the other roads being charged to 'their respective ridings. To Mr Kinnerney: An engine without trailers would not do nearly so much harm as an engine with trail : ers. He did not agree that most damage was done by the engine. _ F R Dillingham, chairman ot the Mackenzie County Council, said he had been member or chairman tor -4 years Traction engine tralne hao a "verv bad effect on the county roads. It 'was extraordinary traffic and ditl extraordinary damage. This was proved very clearly recently on the Cave to Pareora road. In 1906 the Council deckled to put a tax on this traffic. .This concluded the evidence Leal afntment occupied the whole of the afternoon. Mr RoUeston spoke for an hour and a quarter, attor which Mr Kinnerney replied, also at great length Mr R olios ton contended that the" "proclamation proclaiming the rountv of Mackenzie was complete, as it contained all the essentials memumcd in section 14 of the Counties . A -ct under which it was made, ind there was no Haw of any descr.ption. In going back for a period of 1~ ye'.r? ami looking up the old records h - 11 -i-" been surprised to find that a '.odv so isolated, "liv'ng practically among the mountains had conducted its husne.-s with such accuracy. One would almost expect to have found some informalities, but there are none. Certain specific points in the proclamation had been attacked, but there wa«_ a good answer to each fault found. His learned friend said the petition for the merger had not been signed by Geraldine County electors and was therefore bad. but it* was signed by ratepayers of the Mount Cook Road district and aceor-I-ins to section 40 of the Counties \ct 1876 thev were county electors within the meaning of the Act. The interpretation clause of the Counties Act also showed that the petition was in order. His learned friend said that there was no county electors roll for the Poad cVstrct and that this was proof that those within such district were not cotintv electors, but that was no proof that "a roll did not exist M<- Stnbles said he had not seen one but he would not swear that one did not exist. If there was a. roll for the riding or Road Board d : sirict that was sufficient to comply with the statute.

Mr T>av here remarked tliat Apparently the Geraldine Conntv Council elections prior, to 1883 were held without a- roll. Mr Rolleston sa : d there must have he-en a roll, and if his learned friend desired to Drove otherwise he should nave called Mr Stubbs's predecessor 'is county clerk. Tn any case they had it that TTis Excellency the Governor, who must l>c presumed to have at least a modicum of common sense, had expressed his satisfaction with the petit'on. said that it- was in cyder, and that all requirements had heen complied with. That was surely strong evidence as to the completeness of the i;jt it inn. A . question had been raised :>•; ro the hmindaries of the Mount C'.:o]< district not- beins properly set out in the .petition, hut it was clear that the whole district was included in the part sought to he merged into the county. Then there was a point as to the verifying of the signatures to the petition. That was met hy the fact that the' Governor had said the petition was in order. And as to the suggested failure of the proclamation to fix a date for the election of the Council, the date did not appear in the original hut- it did appear.in the Gazette notice. The Governor had appointed a day for the election of members of the Council and this notice was connected with the previous proclamation coiistitut : n<i the county. Everything was therefore in perfect order. Counsel put it to His Worship that if they could get behind the Act. what would he the effect? Who would it_ beneiiti - ' Would it not bring about- a state of chaos to the Mackenzie Comity:' There would be i no one responsible for the loans raised I by the ■ Council, no one able to collect I rates, and no one with anv authority [to do anything. The Act "of ISSo de~- | fined the counties in Xew Zealand, and [as Mackenzie was included in the : schedule it must be taken that this '■ county had been accepted as having ; been legally constituted, and section | 17 provided for validation in the case .of any informality. The consolidation | Act of 1908 also dealt with Mackenzie j county as a county recognised by statute'., and any by-laws in force 'under the Act of iSSIi were deemed to be in force under the Act- of VMS.

In reply to the Magistrate Mr Kin-

norney said tlicro is a .Mackenzie County bnfc no legally constituted Council, anil the remedy was to ' get the Governor to issue a proclamation appointing a. Council. Continuing, Mr Rolleston said that the constitution of the Council could not be attacked in proceedings such as this. It rr.tLst be bv separate action altogether. Moreover it d : d not iollow that a by-raw was bad because there might have been an informality in the election of the Council Referring to the merger of the Road Board he said everything must be presumed to liny.- Ueen correctly done in tho absence ,;f proof to the contrary and arter such a long lapse of time '-, s 07 years. Nonce had been given thr" weeks prior to the passing of the resolution as required bv the Act -in-i with Iliey had the certificate of Mr *• "'• Marchant that all the reouirements ot the'statute had been complied t o \t^ontrarv! : ** ™ *™°« Mr Rolleston submitted not and added that the Gazette notice «n« conclusive. Objection had been raLd that two months had not been given in which to present a counter petftioTt but he contended that it had if the time were counted from the daL of the first advertisement instead of tffer the first resolution as suggested bvl% learned friend. If the lit Cook Road district had not been merged into the Mackenzie County he would like to F to b i f r id *>&»¥, - Z of.ip« -'id who were it^ executive office Th , » ; gorta arguing, , .

Mr Kinuerney said it did exist in point (it law because it liatl never been properly abolished. A little joke was here propounded on the amount- of back pay which Mr Ma'rehant would be entitled to eolieet from the Koad Board whose employ he had left in ISS3. As to the reasonableness of the heavy traffic by-law Mr Holiest™ said thai the 'Wainiate County Council's by-law provided for a license fee of £2 10s a truck plus a bond of £2o. This had been. held by the Supreme Court to be reasonable, and it did not differ materially from the Mackenzie County Council's by-law which provided for £5 a truck and no bond. Mr Kinneruey in reply .said the proclamation was not complete, for it omitted one of the most important essentials in that the signatures were not verified. Mr Justice Kdwards had held that all these provisions must be strictly complied with, and this uas one of the statutory essentials in constitution u new county. The document must tdiow on its face that It is sufficient. The same argument applied to the petition of the Mi. Cook Koad Board. There was nothing to show that the petitioners wre general county electors. It only showed that they were electors in the Head District. Before they could become qualified To vote their names must he on the electors' roll, hut there was nothing to show that a roll had even been made out by the county cleric. The Governor had absolutely no proof before him in the petition which he had received—notliing to justify him in proclaiming the Koad District a County. Evidence had been produced to .show that up to October 1883 no electoral Toll was in existence; and that no petition had been sr>nt other than the one from the Hoad District was proved by the letter from the Colonial Secretary, who specially referred to the ratepayers in that district. Then with regard to boundaries. His learned friend said, these had been properly set cut. but the fact was that the boundaries were altered by the Act of 1877. and the petition referred to the old original boundaries. Then as regards the proclamation not containing a date for the election of the Council. The Act provided for the Governor fixing a date separately from the proclamation oonstituiug the County, and the proclamation on which his learned friend relied was not a proclamation by the Governor-in-Couucil. as required, but by the Governor —the very point which had ben held by Mr Justice Gillies, in the case Aitken v. Bremner. to be bad. Mr Kinnerney said it was not necessary for him to prove that the County did' not exist now: nil he had to do was to show that it did not exist in 1883 or 1884 when these, proceedings were taken, and whether there had been a merger as between the Head District and the County.lt was plain that the proper steps had not been taken. With regard to the merger, for in/stance, no special order had been made ,for the statutory requirements had not been complied with. Lt was absurd to say that two months' notice 3iad been .'g'ven, for the period between the first and the final resolution was only one month, and it would be impossible to expect a counter petition before the first resolution as tlie~e was then nothing to petition on. The notice could not date from the first advertisement as his learned friend said, for the ratepayers could not possibly know until it was actually" passed what form the resolution would take, and notices were not published during the. three weeks immediately prior to the passing of ihe resolution of January 7 as required by the Act of 1882." There had'been a failure to comply- with some of the most import, ant statutory condition* and the result was that the Mackenzie County Council was not at ihe present time in a. pndtion to enforce its heavy traffic by-law's. Counsel on both sides cited mimfii ous authorities in surawrt their several contentions, and His Worship said he would take time to consider his decision.