SUPREME COURT.

Globe, Volume I, Issue 30, 4 July 1874, Page 3

SUPREME COURT.

SITTINGS IN CHAMBERS. Friday, July 3. [Before his llonor Mr Justice Gresson ] His Honor sat in Chambers at 11 a.m. The Car Case. goodyer (appellant) v. kennedy (respondent). His Honor delivered judgment in this case as follows :—This was an appeal from the decision of the Resident Magistrate of Christchurch, by which the appellant was convicted, and a fine of 10s imposed, for permitting a hackney carriage, of which he was the owner, to ply for hire within the limits of the city of Christchurch, without the same being licensed by the City Council, contrary to the Hackney Carriage By-law No 14. It was proved that the appellant did, on the 6th March last, ply for hire, within the limits of the city of Christchurch, with his hackney carriage, the same being unlicensed ; but the validity of the by-law was impeached, and several grounds of objection were raised by appellant's counsel, all of which were overruled by the Resident Magistrate. The question submitted for the opinion of the Court is whether his decision is erroneous in point of law. The by-law purported to be made under the Municipal Corporations Act, 1867, section 186, and the Municipal Corporations Act Amendment Act, 1873 ; and it becomes necessary to consider certain sections of the first-mentioned Act, with a view to determine whether their provisions have been complied with by the framers of the by-law in question. Section 189 provides that " no by-law shall be made save by a special order of the Council, or unless a copy of the draft by-law as proposed shall have been published in some newspaper circulating in the borough at least seven days before such by-law shall be considered by the Council.*' It was contended by the appellant's counsel that the word " or" must be read as " nor," and that in order to the making of a by-law there must be both a special order of the Council and a copy of the draft by-law published in a newspaper circulating in the borough seven days before such by-law shall be considered by the Council. On the other hand, it was contended by counsel for the City Council, that the word " or " in the section is disjunctive, and that a by-law may be made either by special order or after publication of the draft of the proposed by-law as aforesaid. I think the latter is the true construction, as it is a safe rule of exposition to construe one part of a statute by another part of the same statute. The language of section 241 ot the Act is similar to that of section 189, as is also the language of section 247, and the word " or " in sections 211 and 247 must be read as disjunctive, otherwise it might be virtually impracticable for the Council to exercise the power conferred upon it by the Act of borrowing money on the security of a special rate ; for there must be not only a special order for borrowing money on the security of the rate, but there must also be an ordinary annual election of councillors not less than 21 clear days after the meeting of the Council at which the resolution to borrow was first agreed to, and before the subsequent meeting at which such order shall be confirmed, and at that subsequent meeting the resolution muet be confirmed by a majority of the whole Council. The construction I am disposed to put upon section 189, that a by-law may be made either by special order or after publication of the draft thereof, in the manner prescribed, seems to receive confirmation from the language of section 144, which provides that where the Council are " by this Act empowered to do anything by especial order only, they shall not do such thing unless, &c." The first ground of impeachment of the by-law was, that it did not appear that a draft of it had been circulated in some newspaper seven days before the meeting of the Council held on the Ist December, 1873, as required by section 189 of the Act. It was also objected that the minutes of the special meetings of the Ist and 29th December, 1873. were not signed and were therefore of no effeot. The case sets forth the evidence of the town clerk ; who deposed that a meeting of the City Council was held on the Ist December, 1873, that the minutes were signed by the Mayor, that he received instructions to summon a special meeting and did so, that the meeting was for the purpose of considering the bylaw under which the information was laid, that four copies of the " Lyttclton Times " newspaper, circulating in Christchurch, were produced, dated respectively the sth, Bth, 15th, and 22nd December, 1873, in which the proposed by-law was published ; that he produced the minutes of a meeting held on the 29th December, 1873, which minutes were signed at the next ensuing meeting ; that the report referred to in paragraph 3 of the minutes of the meeting of the Ist December, 1873, was the by-law subsequently considered ; that he had convened the meeting of that date by summons, a copy of which is annexed to the case ; that the meeting of the Ist December was the first meeting held in connection with the by-law ; that he had not advertised the by-law previously to the Ist December ; that the Council met on that day at seven, and after the minutes of the last meeting had been read and confirmed, the Council went seriatim through the clauses of the by-law, over some of which there was considerable discussion, lasting probably two hours ; that the minutes of the Ist December were confirmed on the Bth December ; that there were two meetings on the Ist December, the special meeting first and the ordinary meeting afterwards; that the meeting on

the 29th December took place at seven p.in . in pursuance ot a summons, copy of which is annexed to the case ; that the ordinary meeting of the 29th December was the latter of the two held on that night: that there is -.<> confirmation of the minutes of tlie meeting of 29th December, except that contained in the minutes of the meeting of the Hill January, 187-1. On referring to the minutes of the special meeting of the Ist and 29th December respectively, we find no signature of the Mayor or other person acting as chairman affixed,* but a statement that " the business of the special meeting being ended, the Council held its ordinary weekly meeting." Then follow the minutes of each of these ordinary meetings, and then a signature purporting to be that of the Mayor. I am of opinion that under these circumstances the objection taken to the minutes of the special meeting for want of signature is well founded. The Act makes a very clear distinction between special meetings and ordinary meetings, providing amongst other things that the latter shall be open to the public, and section 152 only dispenses with the necessary proofs of the meeting having been duly convened and of the persons attending such meeting beingcouncillors,Jand of the signature of the Mayor or acting chairman, if the entry of the minutes shall be signed by the Mayor or acting Mayor at the next succeeding meeting; I think therefore that the signature of the Mayor ought to have been affixed to the minutes of each special meeting. The evidence of the town clerk as set forth in the case is clearly insufficient to supply the proofs which would have been furnished 2>rlma facie, if the minutes of the special meeting had been properly confirmed. But independently of this objection, the evidence of the town clerk is to the effect that the special meeting on the first December was for the purpose of considering the by-law, that it was the first meeting held in connection with it, that the by-law was so considered at that meeting, and that it had not been advertised previously to the Ist December. It was contended before me that the statement that " it was so considered on the Ist December " was only the erroneous inference of the town clerk, and that it was really considered on the 29th December, more than seven days before which ' it had been duly published in the " Lyttelton Times" newspaper circulating within the borough. But of this, in the absence of the minutes there is no proof, the evidence being quite the other way. Another objection to this view appears on reference to the summona for the meeting of the 29th of December, which summons, as required by section 145 of the Act, purported to specify the object of the special meeting, and which specifies the business to be to " confirm" (not to " consider") by-law re hackney carriages, &c. It was contended on the part of the City Council that the by-law was duly made by special order, even if not made by publication of the draft by-law within proper time. But to this it was answered that section 144 of the Act requires that the resolution to make the by-law by special order should have been agreed to by the Council in some meeting whereof special notice has been given, and been confirmed in a subsequent meeting held not sooner than four weeks after the preceding meeting, and which subsequent meeting had been advertised once at least in each of the weeks intervening between the two meetings in some newspaper generally circulating in the borough, and that the provisions of this section had not been complied with, as the required period had not elapsed between the Ist and 29th of December, 1873. lam of opinion that this objection is well founded, and that the words " not sooner than" must be read as excluding the day from which the computation commences. Young v Higgon, 6 M and W. 49 ; Reg. v Justices of Shropshire, BAd and El 173 ; Mitchell v Foster, 12 Ad and El 472.) It is unnecessary to notice the other objections relied on. 1 regret that the decision of this case should depend upon questions of so technical a character, but I am of opinion for the reasons above stated that the by-law is invalid, and that the conviction cannot be sustained. Order, appeal sustained with costs. Counsel for appellant, Mr Garrick ; for respondent Dr Foster. KB HORATIO JAMES WOOD. Mr Wynn Williams applied for an order confirming choice.of trustee in this estate. His Honor made the order. KE AUGUSTUS MOORE. Mr Joynt applied for an order fixing date of final examination. His Honor made the order, fixing Thursday, 13th August, for last examination. RE WILLIAM OLIVER GRIDLEY. The bankrupt, in person, obtained an order fixing date-of last examination for Thursday, 13th August. RE THE WILL OF CHARLES LUCAS, DECEASED. Mr Joynt applied for an order to issue letters of administration to Caroline Lucas, widow of deceased. His Honor said he thought it would be better if a renunciation on the part of George Lucas was obtained, when the order would be made. RE WILL OP WM. MAUNSELL, DECEASED. Mr Wynn Williams applied for probate to issue to Mary Maunsell, widow of deceased, as sole executrix. His Honor made the order as prayed,