BREACH OF BY-LAW.

Hauraki Plains Gazette, Volume XXXIV, Issue 4635, 7 December 1923, Page 4

BREACH OF BY-LAW.

-■ <j —— PLAINS COUNCIL V. BRENAN & CO. VERDICT FOR PLAINTIFF. The reserved decision in the case in which the Hauraki Plains County Council sued Brenan and Co., Ltd., for a breach of the heavy traffic bylaws was given by the Magistrate, Mr J. H. Salmon, at Paeroa on Wednesday. The case was heard at Thames on November 22. Mr E. Walton .appeared for the plaintiff council and Mr J. L. Hanna for the defendant company. The decision ■is as follows :— . The defendant is charged with a breach of the by-laws of the Hauraki Plains County Council in that on the 27th day of October, 1923, being ‘hs owner of a vehicle engaged in heavy traffic within the meaning of clause 74 of the Hauraki Plains County Byr lav/, 1922, to wit; a Dennis motor truck,' did permit the same to be used upon the’ Kerepeehi-Kopuarab.i Road without such vehicle being licensed, as required by clause 75A of the said by-law. * It is not disputed that the truck was upon the said road on the date mentioned, nor- that the truck and its load together weighed some seven and a half tons. It was contended for the defence that the by-law in question was unreasonable and unequal in its operation ; that the defendant company, in the course of its business; trades in five or seven different counties, and that if compelled to take out such licenses in respect of each county it would be called upon to pay in annual license fees some £9O or £lOO ; that the defendant company’s traffic into the Hauraki Plains County was occasional traffic varying considerably In volume ; that ■ the Hauraki Plains County Council had refused to agree with other local authorities in the making of a composite by-law under section 113 of the Counties Act. 1920, whereby a composite license might be granted to a person or company engaged 'in such traffic, as that carried on by defendant company.

The main grounds of defence are, therefore, that the validity of -the by-law is attacked bn the ground that the by-law is unreasonable and unequal in its operation, and a number of authorities were cited in support of these contentions. I intimated at the hearing that I did not think that the defence could be sustained, and a perusal of the authorities confirms the view then expressed. The most recent authority is that >f His Honour Mr Justice Sim in “re a by-law of the Southland County Council, 1923, N.Z.L.R., p,. 1054,” which is directly in point. In that case the license fees made payable by the Southland County Council were very mu?.h higher than those fixed by the Hauraki Plains County Council, but Hlr Honour points out that the comparative highness of the license fees is not of itself enough'to justify the Court in saying that they are excessive. It was st.ated, by Mr- Justice Williams in the case of Atkinson v. Mv.nt, Cottrell-and Co-, 26 N.Z.L.R, 1153, p. 1160 : “ The. heavy traffic license fee is imposed in order to recoup the ratepayers ■to some extent for the .cost of repairing roads cut up by heavy traffic. When making a bylaw on the subject the. local authority has to determine what is a reasonable sum to fix as a fee so as to recoup the ratepayers in the way indicated.”

In view of the evidence as to ths nature and construction of the roads under the jurisdiction of the comploinant council it would be quite impossible for this court to say that its by-law relating to heavy traffic is unreasonable. Such a by-law appears to be more reasonable in the case of a council so placed than in the case of most local authorities .whose roads generally are not constructed over swamp lands, or reclaimed swamp > lands. Nor does the scale of license fees fixed by the bylaw appear to be - excessive; oh the contrary it might, in comparison with the scale fixed by the Southland County Council in the case above cited, appear to be extremely reasonable. Nor does .the refusal of the Hauraki Plains County Council to agree with other local authorities in the framihg of a composite by-law upon the subject whereby composite licenses might be granted .affect the va’idity of the by-law. Sections 113 of the Counties Act, 1920, provides that a Council may join with any othei’ County Council or with any Borough Council in making by-laws to be in force throughout the Counties and /Boroughs within the jurisdicrion of the Councils making the same. There is nothing mandatory in this section; It is optional for a Council to decide whether or not it desires to join with any other council or councils in the making of a joint by-law. This court is not-informed of the considerations that have guided the complainant Council in refusing to join with other local authorities in the making of a composite by-law, nor would this Court in anv event) be entitled to describe the attitude of the Council as unreasonable. The only question that concerns the Court is the reasonableness of the existing by-law, and there is ample evidence and authority for saying that this by-law cannot be regarded as unreasonble. With regard to the contention that the by-law is unequal' in its operation, because 7 of the comparative little use that the defendant company makes of the county’s roads during certain months of the year. This point is also covered by the authority above cited in “re a by-lW of the Southland County Council,” in which it is stated at p. 10157 : " It rests entirely with the owner of the motor lorry to determine the extent to which the right shall be exercised during the period covered 1-y the fee, and the mere fact that he may use the motor lorry once during the year does not make the by-law unequal in its operation. . . . One motor lorry may use the roads twice ar. much as another paying exactly the same fee, but that circumstance does not make the by-law unequal in its operation.

Th'? right of user is the same in both cases, and so long as that is so the by-law, in my opinion, cannot be said to be unequal in its operation. For these reasons 1 think that the defence in the present case cannot be upheld, and' the defendant must, therefore, be convicted of a breach of the by-law, It will be sufficient in the circumstances to record such conviction and to order the defendant to pav the costs of the present proceedings : Court costs, 7s; witness’s expenses, 15s 6d; solicitor’s fee, £2 2s.