RESIDENT MAGISTRATE'S COURT.

Kumara Times, Issue 2336, 22 February 1884, Page 2

RESIDENT MAGISTRATE'S COURT.

Friday, February 22. [Before J. Giles, Esq., R.M.] STEWART V. SIMMONS. On Friday, the Bth inst., George Stewart claimed a penalty of .£SO from George Simmons for having acted as a Councillor at a meeting of the Borough Council on the 10th January, 1884, the, said George Simmons being incapacitated at the time from so acting. Mr Purkiss for plaintiff; Mr Menteath for defendant. After hearing argumeut, his Worship reserved judgment till today, when be decided as follows : This is an action brought under the 63rd section of the Municipal Corporations Act, 1876, for the recovery of the penalty of £SO for acting as a Borough Councillor when incapacitated under the 4th sub-section of the 61st section of the same Act. The first question to be determined is as to the method of procedure and the jurisdiction of the court. Mr Menteith contended on behalf of the defendant that the procedure should have been by information in a summary way under the Justices of the Peace Act. The 21st section of the Interpretation Act, 1878, was relied upon, which directs that penalties shall be recovered in a summary way under the Justices of the Peace Act, unless the Act imposing the penalty prescribes some other form or mode of procedure. It is also said that the words of the 63rd section of the Municipal Corporations Act, enacting that the peaalty " may be recovered by any person with costs of suit in any court of competent juristiction " do not let in the jurisdiction of the Resident Magistrate's Court, which is confined by the 19th section of the Resident Magistrate's Act, 1867, to claims arisiug out of damage, debt, and detention of goods. This latter argument seems to admit that there is a mode prescribed for the ' recovery of the penalty, and I do not think it can be said that there is not. when the Act says it may be recovered in any court of competent jurisdiction. But, if this be so, the 21st section of the Interpretation Act has no application to the case, and we have only to consider whether this Court is a Court of competent jurisdiction for the purpose required. My opinion is that it is so. The cases quoted show that in England such penalties have been expressly authorised to be recovered in the superior court by " action of debt." It is true that no such words as these are used in the colonial statute, which enacts that the penalty may be recovered in any court of competent jurisdiction. The substitution of these words for the words " superior courts " in the English statute suggests that other courts were intended to have jurisdiction, and the omission of the words " action of debt" is quite in harmony with this view, since that phrase is a technical designation of an action not in use in Resident Magistrates' Courts. But it seems to me, judging the question by the words of the statute, and by the analogy of the English procedure, that the intention of the Legislature was to make the penalty recoverable, as a debt is recoverable, by civil action, with costs of suit, in any couit of

competent jnrisdiction. If this view is correct this court has jurisdiction, and the objection made must be overruled. We now come to the facts of the case which are these :—The defendant being at the time a Borough Councillor, undertook and executed the repair or renewal of a chimney belonging to the Clerk's office at the Town Hall. The price was £2 15s, for which an account was sent in by the defendant to the Borough Council. This account was passed at a meeting of the Council on the 10th January, and was paid to the defendant on the 15th. At the meeting on the 10th, defendant sat and acted as a councillor by moving resolutions and by voting. All these facts are candidly and frankly admitted by the defendant himself, who does not appear to have thought that he was doing anything wrong. The only defence raised is, so far as I understand the arguments of counsel, that this was not a contract legally entered into with the Council in accordance with section 174 Municipal Corporations Act, and that it does not appear from the English cases that every small transaction would be considered a contract within the meaning of the incapacitating clause. Ido not feel much doubt that this was a contract made with the Council, but if this point were open to question the doubt would avail nothing in the present case; for the 4th sub-section of section 61 incapacitates anyone being concerned or participating— not only in any contract with the Council—but in any " work to be done for the Council." It cannot be disputed that the work iu the present case was done for the Council and paid for by the Council, and I am afraid nothing has been shown which can relieve the defendant from the penalty. I regret that I have no power to mitigate the penalty, but it appears to me that the plaintiff is entitled to judgmeut for the amount claimed, with costs. I think, however, I shall not be wrong if in a case of this Bort I stay execution for one month, partly by reason of the magnitude of the penalty, and partly that the defendant may have the opportunity of taking any further steps if he should be dissatisfied with my judgment on the question of jurisdiction.