CARRIAGE OF TIMBER.

Wairarapa Age, Volume XXX, Issue 8870, 2 November 1907, Page 7

CARRIAGE OF TIMBER.

AN EKETAHUNA BY-LAW CASE. IMPORTANT SUPREME COURT JUDGMENT. At the Supreme Court/ in Banco, on Wednesday last, His Honor Mr Justice Cooper delivered his reserved judgment in the case of JJames Huntor (appellant) v. Richard John McLean (relltindent) in the matter of an appeal upon questions of law from the decision of "the StipendiaryMagistrate at Eketahuna. At the argument Mr Page appeared for the appellant and Mr Robinson for the respondent. In his judgment his Honour said the appellant was convicted by the Stipendiary Magistrate at Eketahuna of a breach of a by-law made by the Eketahuna County Council. The bylaw related (inter alia) to heavy traffic and prescribed a license fee 44 in respect of every vehicle, engine, or machine engaged in heavy traffic upon any road where timber, whether split,, sawn, or in logs, or wood or bricks, is or arj being transported either separately or together, with any other thing or things," and clause 43 of the by-law made it. an offence for any person to conduct or engage in any heavy traffic where timber, whether sawn, split, or in logs, or wood or bricks is or are * either separately or together with any other thing or things, being transported witi; or by means of any vehicle, engine, or machine, until the license fee payable in respect thereof under the by-law has been paid to the Council. The facts found by the Magistrate were that on May 17th, 1907, the appellant drove a timber waggon, having two pairs of wheels along the Newman-Stirling Road, a public road in the county and under the control of the county, and that the waggon contained 1,368 superficial feet of timber, the waggon without the timber weighing ten hundredweight. The anpellant had no license. The also found that a superficial foot of timber measured one foot by one foot by one inch, or one-twelfth B of a cubic foot, and that a cord was a cubical measurement containing 128 cubic f et.. The case "did not state whether the timber contained in the vehicle was sawn, split or in logs, or whether it was mixed timber. The contents of the waggon measured superficially weighed, according to the standard of superficial measurement prescribed by the bylaw, with the weight of the waggon, over three tons. If tjie weight was calculated according to cubical meas-, urement, the total weight of the vehicle and contents would be under three tons. In the one case the total weight would exceed the statutory limit, in the other case it would be under it.' Two grounds as an answer to the information were taken before the Magistrate—(l) That the consent of the Minister of Public Works to the b>-law had not been proved; (2) that that part of clause 4 of the by-law relating to timber was uncertain, in that it not clear, precise, nor free from doubt, and that it vested certain discretionary powers in a person in the employment of • the Council. The Magistrate held that neither of these contentions afforded any ground of defence, and he convicted "and fined the appellant. The question for the opinion of the Court was whether his determination was wrong in law. His Honor said that clause 43 of the by-law referred to three classes of tsnber, namely, sawn timber, split timber, and timbev in logs. But clause 4 did not differentiate the classes. Under that clause "500 superficial feet of any timber shall -weigh; a cord of any timber shall j weigh one. ton five hundred-weight. The weight of any load of timber shall be computed from the super- ) •ficial measurement of such load, un-; less in the opinion of the person measuring the same the measurement of such load can be more convenient- ] ly or accurately measured by cubical , measurement, in which case such weight shall be ascertained by | - ! cubical measurement." The by-law purported to give to the person measuring the load, and who was not defined, but who was probably intended to be the person referred to in clause 44 as an officer or any other person in the employment of the Council, an option, according to his opinion, of convenience, or accuracy of measurement, to apply alternative methods of ascertaining the weight of any load of timber. Acting under the power conferred on him by clauses 4 and 44 he might measure sawn timber, split timber, or logs at his will either by superficial or by cubical measurement, and the hypothetical weightof the load was made to depend upon this person's opinion of convenience or accuracy of measurement. He might measure a load of timber by one method one day and another load of the same class of timber by the alternative method the next day, and, if this part of the by-law was valid the computation in each case was final and conclusive in any proceedings under the by-law. In his Honor's opinion, this meth • od of alternative measurement at the will of the person measuring was unreasonable, and was outside the powers contained in the statute. The appeal would be allowed, and . the conviction set aside, the matter to be remitted to the Magistrate with the opinion of the Court that the information must be dismissed with such costs in the Magistrate's Court as the Magistrate may consider reasonable. The respondent must pay the costs of this appeal, fixed at £7 7s, and necessary Court fees.