T.B.-Tested Milk

Hawke's Bay Herald-Tribune, Issue 39, 2 March 1937, Page 8

T.B.-Tested Milk

NAPER BY-LAW Does it Usurp Functions of Legisfature?

DECIS10N RESERVED

That the Napier Borough Council 's by-law to ensure the public receiving non-tuberculine milk was a most praiseworthy one but it was another matter whether the by-law did not usurp the functions of the country 's legislature, was the opinion expressed at the Supreme Court, Napier, this afternoon by Mr Justice Ostler. He presided over an action brought by a milk vendor, William J. McGrath, against the Borough Council seekiug a motion to quash the by-law on the grounds of its being unreasonable, unnecessary and ultra vires. His Honour reserved his decision. Plaintiff was represented by Mr E. J. W. Hallett and Mr S. H. Morrison, while Mr H. B. Lusk appeared for the Council. During the course of his submissions in support of his contention that the bylaw was unreasonable Mr Hallett pointed out 'that it did not define who the vendor of milk was but presumably he was a dairyman outside the Napier borough boundaries. "Now this by-law makes it an offence for any dairyman outside the borough of Napier therefore to have in his paddocks any bull or dairy cow which has not been tuberculine tested," said Mr Hallett. "1 subxnit the ■ Borough ' Council has no power to legislate in a manner which will affect people outside the borough." During Mr Lusk '3 submissions in support of the by-law His' Honour mdkle the comment that it seemed to him that while the object of the by-law was a most praiseworthy one it nevertheless appeared to represent a frank attempt to usurp the functions of the country 's legislation. "I may say this by-law is looked upon as a most important one in that it is to protect the "health of the people, and more particularly the children of this community," said Mr Lusk. He denied that the by-law was repugnant to the laws of the country and submitted that because it aimed to protect the public it could not be considered unnecessary or unreasonable. "You need not try to convince me of the praiseworthiness of the by-law," said his Honour, "but what I am concerned with is whether it is making unlawful an Act which otherwise would be lawful. For instance, it is quite lawful for a dairyman to buy a dairy bull and place it with his cows, but this by-law makes it unlawful to do this." v Mr Lusk: "It only makes it unlawful to use a bull to produce dairy calves if it is not certificd as being free from tuberculosis."