ENFORCING A BY-LAW

Dominion, Volume 21, Issue 125, 24 February 1928, Page 11

ENFORCING A BY-LAW

Reserved decision was given by Mr. E. Page, S.M., in the Magistrate's Court yesterday in the case in which James Benjamin Harman was charged with keeping pigs in the Johnsonville town district contrary to one of the Town Board's by-laws. In reviewing the evidence, Mr. Page said that the by-law in question set out that no person should keep pigs or goats in the town district without the previous written, consent of the board, but added that the board was not obliged to remove any existing pig or goat farms, provided they were carried out to the satisfaction of the board. The Magistrate said that Harman had applied for the board’s consent after receiving notice to discontinue keeping the pigs, but the board had refused its approval. Witnesses for the defence had said that the pig farm was very well kept, and an inspection of the farm found this to be the case. The evidence for the defence had negatived the suggestion made by the sanitary inspector that seepage from ■ the farm might find its way into a creek running through the town. The bylaw was not an absolute prohibition, but the board contended that it absolutely intended to prohibit the keeping of pigs. There was no suggestion that the board really considered that the keeping of pigs was a nuisance or injurious to health—it sought to enforce the by-law for other reasons. The bylaw was a valid one, but the board, in dealing with the application, had not considered any of the circumstances relating to the farm. The bydaw gave the board power to regulate and not to prohibit the keeping of pigs, and it was their duty to deal with the case on its merits.

Mr. Page added that the defendant’s remedy was to issue a writ of mandamus to compel the board to grant its consent or to deal with the application on proper grounds. Until this was done, and so long as the board refused to give its consent, there appeared to be a breach of the by-law. So that the parties could consider the position the Court would adjourn the matter for three months, so that, if necessary, the defendant could issue a writ of mandamus. At the hearing Mr. E. M. Sladden appeared for the Town Board, while Mr. W. E. Leicester represented the defendant.