MAYOR'S COURT.

Evening Star, Issue 2816, 27 February 1872, Page 2

MAYOR'S COURT.

Tins Day. (Before Lis Worship the Mayor.) DRUNKENNESS. David Ritchie, Robert M'Farlane, and Fred. Luhniug were each lined ss. ASSAULT. Joshua Fcclcs, remanded from yesterday, was charged with wife-beating. The Commissioner of Police said that the complainant had to be sent to the Hospital on Saturday, and had been drumc since ; so that the police had been unable to make anything of her. His Worship, in discharging the defend ant, said it was exceedingly fortunate for him that his wife did not appear. He would e irncstly impress upon him the necessity of living away from her and giving her a separate maintenance, or he was sure something

would result from their mutual dissipation and violence. When she came to take out the information she was a most deplorable sight. As she did not appear, the charge would be withdrawn SABBATH OBSERVANCE. Richard Lockwood, carrier, was charged with a breach of the Sunday Observance, 18G3. The facts of the case, which, it was stated by the Commissioner of Police, was a test case, wore admitted, and were these : On Sunday, ihe ISth inst., the defendant drove a six horse team into town, and put up at tiie Royal George stables, George street. The waggon was loaded with wool. It was also admitted by the informing constable that carriages and cabs were driven through the streets on the same day.

Mr Stout, who appeal'd! for the defendant, submitted on various grounds that there was no case to answer. As he did not, however, wish to go over the whole of them he would state the principal, upon which he would contend that tne summons should be dismis=ed. The lirsD was that the Ordinance, under which the information was laid, was ultra vires, inasmuch as the Provincial Conned had no authority to pass it. The Ordinance was passed in ISIjJ, and enacted that “ any person who shall on Sunday, or in view ol any road, street, or public place, trade, deal, transact business, or expose goods for sale, or keep open lo public view any house, store, shop, bar, or other place ior the purpose of trading, dealing, transacting business, or exposing goods for sale therein,'’ Was liable to a p malty, the only exception being in favor of druggists and chemists. It was, therefore, a new olfeuce, and Provincial Councils had no power to create new offences or make alterations in the criminal law. The Constitution Act said: —‘ ’it shall not be lawful for Superintendents and Provincial Councils to make and ordain any law or ordinance inter alia, or alter in any way the criminal law of New Zealand, except so fa as relates to the trial and punishment of such offences as are now or may be criminal by the law of New Zealand, and punishable in a summary way.” The statute in foice in England 29 Car. IL eh. 7 could not be said to be suitable to the circumstances of the Colony in Jan., ISIO, and consequently the offence created by the Ordinance was a new one. it hid been even found necessary to amend the English Act to the oxtout ol providing that informations under it should be laid by police officers—a step rendered necessary owi .g to the action of the London .'sabbath observance Society, in summoning s-lh.-rs of ca ibages. I’n »lic opinion in England had come to that stage that it would not permit any interference with the rights of citizens in r j spect to .Sunday any more than any other day. As to the contention that the Act oi diaries 11. could not be said to be applicable to the circumstances of the Colony ; it was passed in a country which had a (State Chmcli, and a Parliament that had paid clergy; but here in New Zealand the Par.iaiuuut Dad no religion. In England there wa. a religious test applied to the Queen and the Prims Minister ; but there was none for the Governor and his Ministers. But the Act could not be said to be in force in the Colony—consequently the Provincial Council had created :v new offence, which they had no power to do ; if it was in force, the Provincial Council had no power to pass the Ordinance. As bearing out his contention that it was not applicable to the circumstances of the Colony, the learned counsel showed by the alphabetical digest to Judge Johnston’s Justice of the Peace,” that Otago was the only province in New Zealand that had a Sunday Observance Ordinance. Suppose he grauted ! ihat 29 Car. if., uh 7, was in force in New Zealand, and was applicable to the circumstances of the colony, the Ordinance was still ultra five . on this ground. By Judge Johnston’s synopsis the words “any person whatsoever” in the English statute, were defined to mean “any tradesman, artificer, or workman.” The English statute also excepted works of necessity, merey, and chanty, but the Ordinance did not make that exception, so that, in attempting to overrule the statute it was ultra vires. There was a second class of objections, and these related to the Ordinance itself. .Driving a waggon was not transacting business. It required two persons to transact business.

His Worship: Is not driving a loaded waggon transacting business '! Mr Stout: No, except the person was bargaining to drive it. Driving a cab could not be considered “transacting business,” auy more than a man driving a private carriage or a man walking. The meaning of the words “transact business” were to be gleaned from the words of the Ordinance itself. Transacting business meant dealing or exposing goods for sale ; and lie thought the meaning of the words so fully proved by the provisoes as to require that he should not dwell further on the point. lie had already pointed out that Courts had held that the words “auy person whatsoever” only meant tradesmen, artificers, and workmen; it had even been decided that they did not include a farm laborer. It would be absurd to say that driving a dray or cab was transacting business, because, if that were dune, cabs could not run on Sundays, although they were mo e fairly' liable, because the driver’s took fares. But not only would cabmen he liable, but clergymen, doctors, and even policemen, because there was no exemption, as in the English statute, for works of necessity, mercy, or charity'— in fact there was hardly a person in Dunedin but who wa? liable to be taken up under the Ordinance, if bis Worship put on the Ordinance the construction the informant wanted him to place on it. Without at all going into the law questions, but merely from a careful perusal of tire Ordinance he thought it was plain that it referred merely to prevent selling or buying, and that no doubt was the purpose for which it was passed. The Commissioner of Police having intimated that he woiild, if necessary, have the other side represented by counsel. His Worship adjourned the case till Saturday for that purpose as it was desirable that the question should be definitely settled. He thought the question was not so much as to whether the Ordinance was ultra vires or not, but whether tire 29 Car. 11, ch. 7, was applicable to the Colony or not. At present he was rather inclined to believe that the Ordinance was not applicable to the particular offence. Case adjourned accordingly.