CHALLENGE OF BY-LAW.

Dominion, Volume 7, Issue 1925, 6 December 1913, Page 14

CHALLENGE OF BY-LAW.

NOVEL LAW POINT/ SOLICITORS AND MAGISTRATE. INTERESTING ARGUMENT. A somewhat unusual discussion took placc in tho Magistrate's Court yesterday morning during tho hearing of a easo brought- under the by-laws of tlio Borough, of Karori, charging a resident with allowing a horso to wander at large. The case, was heard by Mr. J. S. Evans, S.M., and "the peculiar feature was that several solicitors not engaged in tho ease wero allowed by bis Worship to address him on a point of .law laid l>y himself.

Mr. England, town elerk of Karori, conducted the case against the defendant, wlio did not appear. The borough ranger gave evidence that he had found the liorso wandering at large, and that tho owner claimed it. Tho magistrate asked for a copy of the by-law and tho information. After examining them he remarked that the information did not, stato the by-law under which tho information was laid. Mr. England pointed out that tlfc information set out that it was laid under the {'general by-law" -of the borough, passed on a date named. His Worship: But it- doesn't state under which particular bj-kw. Mr. England: AYo have only two_ bylaws in Karori —.1 genera] by-lair, which deals with tho streets, etc., mid a building by-law. This information is laid under tho general by-law. His Worship: Yes, but under what section of tho by-law? You see, such a by-law might -deal with a hundred different offences, and I have to search through it to find tho. particular offence charged. Mr. England: Wo havo brought similar cases for years, and the point has never been.raised.

His Worship: "When a defendant appears'and raises no objection, I do not I press tlio point, but when there is no appcaraiico 1 have to bo satisfied that tho infornfation is in order. Mr. J. O'Shea, city solicitor, who was , in court, asked permission tc- see the information, 110 then informed Ins Worship that it was laid in. tho usual way. They never specified the particular clauso of the by-law under which an information was laid. Mr. P. W. Jackson (who war, appearing for tho Onslow Borougli Council in another case): We arc all in tho same box. Mr. O'Shea: In tlio city we have, omy two by-laws—the general and tho tramways. The reason for having a separate tramways by-law is that we have to hang it up in the cars. Mr. England's information is in the usual form. His Worship: But there is a- decision of Mr. Justice Williams to tho effect that tho particular by-law must be specified. A general discussion then cr.sned, in tlio course of wliieh Mr. O'Shea produced several authorities bearing on tho point. He pointed out a ruling of Mr. Justice Prcndcrgasfc to the effect that tho by-law must be expressly referred to —not any particular section of that by--1 *T1 is Worship: All that; would lie necessary would lie to givo the number of the section under wliieh tlio information is laid. \ Mr. O'Shea: That would he referring to tlio section, not to the by-law. His Worship: The Police Offences Act covers hundreds of offences, and it is correct to lay an information charging tlio defendant with committing an act ; "contrary the statute." But you cannot do this with a by-law; you must set out the particular, section. That is the whole effect, of Mr. Justice Prendorgasl's judgment. Som? boroughs have hv-laws each dealing with a specific offence, and numbered consecutively.^ sjr. O'Shea: I have never seen them.

His AYorshin: I have. Mr. Evans then questioned the legality of tlio by-law, which, makes it an offence for a* horse to bo found wandering on uufenccd laud abutting on a street. He- pointed out that the horse might be 011 the land of its owner, He doubted if a corporation had power to mnko such a bv-law. Mr. England suggested that, if tnere was any douhfc as to the legality of the by-law,' bis Worship should adjourn the case for a wee'-:. . j( r . Evans decided to consider the matter further, and accnvdiiijllv adjourned the case- for a- week lie said that ho would consider that tho 1 act at tho horse wandering was proved.