BY-LAW QUASHED.

Waikato Times, Volume 106, Issue 17835, 7 October 1929, Page 8

BY-LAW QUASHED.

DEFINITION OF OMNIBUS. INAPPLICABLE TO SERVICE CAR. A LEGISLATIVE OMISSION. Reserved judgment by His Honour, Mr Justice Ostler, was given at Hamilton, to-day, on a motion to quash certain traffic bylaws of the Hamilton Borough Council. The bylaw complained of was made in 1922, before the Omnibus Traffic. Act, 192 G, came into operation. The only part of the bylaw, objected to was the definition of “motor omnibus” contained in clause 2 and clause 233. »iie definition is as follows: —“'motor omnibus means a motor for the carriage of passengers for hire, in which the passengers or any of them are charged to pay separate or distinct fares for their respective seats therein.” ” ' Motor cab’ is defined as a motor plying for hire or standing in a public street for hire for the conveyance of passengers, not being a motor omnibus.”

Only two types of motors plying for hire are recognised—motor omnibuses and motor cabs. The only criterion adopted for distinguishiing these two classes is whether or not the passengers are charged separate or distinct fares for their seats.

“Thus,” said Ills Honour, in his judgment, “if the owner of a motor cycle with a side-car attached made a business of taking two passengers for hire at separate fares, one on the pillion and one in the side-chair, liis vehicle would come within the definition of a motor omnibus.”

No Separate Definition of Service Cars. There is no separate definition of service cars, and no provision for the licensing of such vehicles except either as motor omnibuses or as motor cabs. There are at present some 30 such vehicles engaged in regular runs, one of the terminal points of which is Hamilton. These are nearly all large motor cars designed for fast travelling with bodies known as the tourer or sedan type. His Honour said these cars performed a useful service to the public in providing a regular means ol- transport for passengers, mails, newspapers and light parcels to towns away from the railway line. It was true, proceeded the judge, that they competed only too successfully with the railway and in this way diverted revenue from a State monopoly run in the public interest. In this way they caused public loss. But that was a matter for the public. The business conducted by service car proprietors was, in the present state of the law, a lawful business, and was one which served the public convenience. The by-law which was made before this class of business developed, provided stringent conditions as to the construction of a motor omnibus before it could ply for hire in the borough. There must be two doors, one at the front, and one at the back, one of which could be used as an emergency .exit. No other seat than that of the driver could be within throe feet of the steering-wheel or brake levers, unless divided from same by a permanent partition. There were also other special provisions which were obviously not made for ihe class of vehicles used as service cars. The draughtsman, said His Honour, obviously had in mind the large-bodied omnibus, in Ills Honour’s opinion it would be utterly unreasonable to apply these provisions to the class of motor generally used as service cars.

Unreasonable to Prosecute.

The Borough itself would recognise this difficulty, proceeded the judgment, because in most cases it had not endeavoured to enforce its own by-law against the owners of most of the service cars running on routes with terminal points in the borough. It had licensed 30,0 f these vehicles as motor cars, although its executive officers must have known that they were used purely as service cars, and not as taxi cabs plying for hire in and immediately round the borough. The judge said borough officials must know that daily a large number of breaches of the borough by-laws were committed by the drivers of these service cars inasmuch as daily they left and returned to the 'borough unlicensed as motor omnibuses and without complying with the requirements of the by-laws before they could be so licensed. I’housands of such breaches occurred every year to the know-ledge of the borough, for which no one was prosecuted. Why was this, he asked? The only reasonable answer was that the borough officials must themselves have recognised that it would be unreasonable to prosecute because it would Ibe unreasonable to enforce the stringent provisions as to construction in the case of service cars. If so, Ihen it seemed to him there w-as no escape from the conclusion that u, by-law itself was unreasonable. Council’s Powers Limited. If a bylaw- was considered by the enacting power 1o be too unreasonable to. enforce, it must follow that that by-law- was 100 unreasonable to be valid. In only three instances had the borough issued motor omnibus licenses under its by-laws, and those were for vehicles containing In one case 12, and In one 14, and in the other 15 passengers. The 'borough traffic inspector had sworn an affidavit in which he said that he w-as aware that a number of motor cabs licensed by the borough were used as service ears, but owing to the fact that the Council had made representations to the Department of Internal Affairs to pass legislation dealing with omnibuses charging more than 2s for each journey, he had not taken any steps to check the practice except where it competed with a motor omnibus service authorised under the Omnibus Traffic Act, 192 G. That was to say that the inspector admitted that in the one or two instances in which the bylaw had been enforced, the object of enforcement was not the good rule or government of the borough, the conserving of public safety or the regulating of the conduct of carriers of passengers, which w-cre the only legitimate objects of any such bylaw, but for an entirely different one, viz.—to prevent competition in business between two rival carriers of persons. Although borough councils possessed wide powers, His Honour said he had yet to learn that they had power to prevent private competition in business that might or might not he a desirable object, but even assuming it to be desirable, a by-law otherwise un--1 reasonable could not be upheld because it served another desirable, but unauthorised purpose. Gap In The Act. The Motor Omnibus Traffic Act, 1926, was designed, said His Honour, (Continued in next column.)

in the interests of municipal bodies which w-ere the owners of tramway systems. It dealt only with the competition of motor omnibus services running in and in the immediate suburbs of such municipalities, that w-as to say, services in which the fares charged di:l not exceed 2s. The Act did not touch .service cars which had a regular run of 20 miles or more from their terminal points. There was a gap in the legislation. The Hamilton Borough Council had recognised the difficulty and had been asking for legislation lo deal with service cars. But meanwhile it seemed to His Honour to be unreasonable to push them into the category of motor omnibuses, to which they did not naturally belong, by adopting (he artificial “criterion" of whether a separate charge was marie for each seat irrespective of how many or how few seats there were. Meanwhile the public would, he thought, be sufficiently protected if such vehicles were licensed as motor cabs. Before a motor cab license was granted the vehicle must be tested to sec that it was in good order in carry respect. The maximum speed was regulated by the motor lorry regulations of 1925 and Insurance of the passengers was compulsory by the Motor Vehicles Insurance Act, 1928. It had been urged that the Court should amend the bylaw bv limiting the definition of motor omnibuses to vehicles designed for carrying ten or more persons.

New Definition Required. His Honour said he was not disposed to adopt that suggestion. The statutory definition applied to vehicles designed for carrying eight or more persons. The large American motor cars which were mostly used for service cars were designed to carry seven, including the driver. But they were so roomy that there was no difficulty without, overcrowding, in providing room for nine persons. He suggested that it would be reasonable to define motor (minibus as “any motor designed to carry more Ilian nine persons, including the driver, in which separata fares are charged for each seat." This, however was merely a suggestion. He preferred to leave the matter of amendment to the. Council itself, which he felt sure would not be unreasonable. His Honour made an order quashing the portions of the bylaw which were set out in the motion, lie allowed the mover costs. Mr L. Tompkins appeared for the mover and Mr F. Sw«tttfe*ick for th<t Borough Council.