"SUNDAY GOLF"

Dominion, Volume 10, Issue 3042, 31 March 1917, Page 12

"SUNDAY GOLF"

ON THE MUNICIPAL LINKS ; APPEAL BY CITY COUNCIL [.'..: DECISION. RESERVED i". '';/;; " ; '~.___ . "V . 1 An appeal against, the finding of Mr. S. E.- M'Carthy, S.M., in a case '■■ of Sunday golfing on a municipal re-. • ' serve, was. heard in the Supreme Court yesterday. _ The Chief Justice presid- ' ed, and him with Their Honours Sir ! John, Denniston. and Mr. Justice '; Cjiapinan. were associated. • - - Tiie. City Council, as-appellant in the : case, was represented by Mr. A. Gray, - -K.C.. - and Mr. John O'Shet. Sir ! John Findlay, K.C., and, Mr. J. J. ! M'Grath represented the. respondent, '■ AVm. Whitehead. It was admitted in the Lower Court "• that the defendant played golf on a 1 Sunday upon one of the reserves, but! > the Magistrate dismissed the ease I 3 ! upon three grounds:. that. the by-law • fwaa repugnant to tho laws of New " Zealand, that it unreasonably dealt " with the question of religion, and that P it was ultra vires as unnecessarily in- '. terfering with tho right of private 6 judgment. < , •■ Mr., Gray submitted tliat the Mag--1 istrate had. dealt with the by-law as.. ' though it were made solely in the interests of. Sunday observance. He 1 proposed to show that tho by-law was ' not so made, but that it. was reason- ' ablo to assume that other consideraJ tions-might have/influenced the coun- | cil... The; links upon which' the .dofendI ant played .were part of a puhlio re- /. serve vested, in .the corporation by a b conveyance .of,.March;, 20, 1873.,; ! The.' 3 conveyance was made upon trust that 1 the-lands should-bo-for ever-used and " appropriated.., as public ■,'-.- grounds for the inhabitants, and should be controlled.by such rules.and rogula--1 tions. as tho corporation, should, direct. I. There were only two by-laws prohibit- ) ing the playing of games on the munil cipal;.reserves -Sundays. They j' read,:.;"No.persoii:.shall:play. or prac-.i )• tise !golf on Sunday, on, any part t' of the' Town Belt reserves that are vest- - cd in the corporation"'; and "lib; person } shall play, or take, part; in football;- , cricket, or any other similar game in . any such park, .reserve/ or ground on , any Sunday." ■'■'■■>..- , Tiie council had not .let any part of f the reserves to any golf club, but had ~ established the links for the benefit of l : . all tho inhabitants. ; To protect per- . sons desiring to take such recreation as ; walking on the links, the by-law had [ been passed limiting the rights of a i comparatively small number of. the int habitants, of the city. 5 Mr. Justice Chapman: "Protect?" , "What" protection is needed? Is; golf , .a dangerous game? ' .Counsel: s We submit that it is. If j Your. Honour had ever been struck by . a golf ball . •'.-..- j! Tho danger' of golf-playing on Sun-. . day, proceeded counsel, was that\ on r Sunday more people were on the links. J The Court might assume that that con- , sideration might reasonably have been . present in-the minds of the council. [.The -corporation .had- fapilities ; - to. golfers to play-for -six days of the ; week- at a small cost, and at the same :.-time had the rights of those who, fancying golf a dangerous,game, : desired to go upon the grounds. [ :-Sir..: John Denniston.'■ .commented I that.,the general right of:the public to , play golf on the reserves was thus, lim- |.: :ited:.to±the.- sis: daya :on which .people- , were unable to play, j., people:.did' j not work for the full sis-days of 'the , week, and, further, that only a part' , of tho general public desired to play. I golf. jHo-went: on to,, : quote,'the sec'-. : tmn. giving the council.-'poVc'r to pro-' ! hibitialtogether'the; plaj'ihg'' of any : I particular'.game on the reserves.. That I surely implied the lesser power, of pro- . bibitirig ■the playing of a particular L game.'not;altogether,; but for.a shortL period. ''•■'■' Sir John Denniston: Why' is tho \ word "altogether" "used, if not to limit , it to "altogether"? ! Counsel went on to quote authority for the statement that a Court of Justice could-not investigate'-the motives of a legislative body w'hilo acting intra , Tires, - Tiie council had the-power to i regulate as it thought fit tho'playing of games on .the reserves, and it was . not competent for the Court to inquire . why the council chose''.-to make the regulation in question. • ;' Mr. O'Shea supplcmentei Mr. Gray's t argument. He observed that the ease ; had given rise toan'outbrnst of Sabl' batarianism, bub the council wished to . be' dissociated from such support, if support- it could be called."' It, might bo known that certain representations were made to the council, - but ceuld it be said that the council acted upon them, when there were other reasons attributable?', .... - - .-. ..--.-• . Sir John -Eindlay,'- in - reply, suhinitted that if tho Court was-..satisfied' I that the -purpose for which the by-law [. was passed was solely to enforce, a I measure of :Sabb'ath' observance,' the ■ Magistra'te's'ifm'ding must be upheld. ; The Magistrate had found, and stated L unequivocally, that the solo reason for ; the passing of the by-law was one of , Sabbath'observance. r „v,-.The!passing of [ the by-law was due t'orthejinfluence of . a deputation of | ed upon the council upon, itthe "evil of this. Sabbath:dbsecratioiri? ,: ; The Magistrate'.]iad , y:addressed;;;.:liis; mind to_ the questions-! of■."danger^ri'i--s sance,' inconvenience,'-' and complaint,' ■ and had found against; the council .on ' each. '■-. ■•. 'v. •■ , Sir John Denniston: You must ■ then suggest that the defence of the i by-law raised for the appellants is a ' dishonest'one. ; Sir John Findlay: I can't help that, • lour Honour. I do say that when the council passed this by-law its sole purpose in the council's mind was Sabbath observance,, and there was'-.;no other ■ reason for passing it at that time. . Mv . friend is quite right in trying to find ■ some other reasons, for it, because ho ' sees the difficulty. - For if'the by-law i was passed.-for Sabbath observance • only, there is an end of the case. I The links were established, continued counsel, for the people who. could play ( only on Sunday; they were being play- , cd on for some months-'before'the; by r ..' . law was made; no.complaihtjwas'made' about any danger or accidoht.br'about [ any misconduct-on'flie'-'part, of !.the . players; and the. only.fact, to'.be looked , to to explain the'ipassing.oF'the hy- \ law was tho deputation of [. "If the members of'.the City Council . were hero to-day,"; s'aid'counsel;.-'On; what appeared "in;the' 'newspapers !W-, garding the oas'e,-'.they;:Would.,havc»: to admit that thisi.pjy-lowVWasiso'passed;' Counsel for tho a.pp>llttnts;'h'a\ { e:.takon.;' . a certain viow ' fdf'':'th6;; . arguing this case, but'''it';'d6ego.hbt'' i follow that the City Council shares I .that view. I want to protect myself •!■'-frbm any suggestion that I am here | to allege that tho members of the City ■ Council are advancing a ground now • that was not.advanced before." Apart , from the question of Sabbath observ- , ance, the prohibition of playing golf 1 on Sunday .would benefit nobody, but • would placo a considerable number of • people in a position in which they , would bo unable to play golf at.all. , What was tho loss of.the golfers to bo balanced against? -The case was clearly onq, cdims'el finally Submitted, -in which the Magisti'ate's'dccision should be upheld. Mr. Gray submitted again in iho' course of his reply that the council

was not hound to give any reason for making the by-law. ' Mr. Justice Chapman: You might improve your position if jou.did give good reasons. Snob, for instance, as that golf was found to be dangerous in certain-localities. . . . Sir John Denniston You ' are not going to give any reasons, but you arc going to take the risk of not giving 'them. ' - The Court reserved; its decision.' -.