S.M. Court.

Manawatu Herald, 28 June 1904, Page 3

S.M. Court.

► Friday, 24th June. (Before A. D. Thompson, Esq. S.M.) CRIMINAL. Isaac Smale was charged with distubing an entertainment, and was fined 10s, costs 7s. W. Kinley, charged with disorderly conduct, was fined tos, costs 7s. Mr Loughnan appeared for accused. W. McLaggan, being a prohibited person and being found on licensed premises was fined £l, costs 7s. Mr Reade appeared for accused. Frank Coyle, for being found on licensed premises was fined £5, costs 7s, or a month’s imprisonment. The same accused was also charged with procuring liquor, he bein£ a prohibited person, and was convicted and discharged. James Harris was fined £2, costs 9s, for procuring liquor for a prohibited person. James McGill was fined £3, costs 9s, or one month’s imprisonment for using obscene language, and on another charge of refusing to quit licensed premises, was convicted and discharged. Priscilla Wilson for selling flounders under size was fined 10s costs 7s, and for being in possession of undersized flounders was again fined xos, costs 7s. FISHERY PROSECUTIONS. Oliver Austin was charged with that in the month of May, 1904, at Foxton, being the occupier of a certain flaxmill situated on the bank of the Manawatu River, he allowed refuse from the said flaxmill to flow into the said river, such river being a stream in which trout exist. Similar informations were laid against a number of other flaxmillers. It was decided to take one case as a test. Mr Fitzhevbert appeared on behalf of the police to prosecute, and Mr Loughnan- appeared for the flaxmillers. . After a number of preliminary points had been disputed to tlie satisfaction of counsel on both sides, Mr Fitzherbert said that the information was laid under the Fisheries Conservation Acts of 1884 and 1903, and the regulations made under those Acts, In the case of Baxter v. Smith, (Goz. L.R. VI 341) which had been decided before the amended regulations of 31st March, 1904, had been gazetted, it had been decided by Justice Denniston, on appeal, that in the regulations gazetted in 1901, the term “ cast ” did not cover the case of refuse merely being allowed to flow into a river, and hence defendants could not be convicted under those regulations. In consequence of that decision the amended regulations of i9°4 been made, prohibiting any person from casting or throwing into any stream in which trout exist, or allowing to flow into such stream any sawdust or sawmill refuse, lime, sheep dip, or flaxmill refuse. Counsel contended that under these regulations it was immaterial whether flaxmill refuse was injurious to fish or not. The regulations absolutely prohibited its being allowed to flow into a stream in which there were trout. Constable Forster gave evidence as to the formation of the shoot from the defendant’s flaxmill, and produced a bucket of refuse got from the shoot. J. W. Anderson gave evidence that there were trout in the river. He had seen them caught there and had caught them himself. The river was navigable where the mills were. He did not think the water was ever salt there, the sea-water did not come up so far. It was a tidal river as far as Foxton. He had worked in a mill. There would be about 10 tons of flax stripped every day. About 8 tons of this would be refuse. The amount of water and refuse thrown from the shoot would be from one to two tons in an hour. He earned his living by fishing, but had got tired of fishing for tow. Mr Loughnan in addressing the Court said that the Fisheries Conservation Act of 1884 gave the Governor in Council power to make regulations to have force only in the places prescribed in the regulations, and to provide for the management of waters in which fishing may be carried on, and prohibiting the casting of sawdust or sawmill refuse into any waters of a river or stream. The amending Act of 1903 extended the Governor's powers to making regulations preventing the pollution of streams by allowing flaxmill refuse to flow into them. Counsel then proceeded to contend by an elaborate argument that the regulations under any Act could derive their force only from the Act to which they related. The original regulations under the Act of 1884 did not prohibit the casting of flaxmill refuse into streams. The Governor was not given power by the Act of 1903 to prohibit the casting of refuse into a stream unless such refuse would pollute the stream. There was no reason to suppose that flaxmill refuse would pollute the stream, and therefore the regulations passed in professed exercise of the powers under that Act were ultra vires. Further, those regulations ap- ! plied to streams only. By a stream was meant an unnavigable river. The Manawatu was not a stream, and therefore could not come under the provisions of those regulations. Further, to prohibit the casting of flaxmill refuse into a river would mean the stoppage of an important industry, and to convict the defendant on the 1 information before the Court would be equivalent to reading into the statute an intention on the part of the legislature to stamp out the whole flaxmilling business. To suppose that the legislature should have any such desire, merely to benefit the few sportsmen ; who fish for trout, was absurd. After Mr Fitzherbert had replied at some length and emphasized the arguments of his opening address, His Worship said that he would reserve his decision for consideration, and would deliver it at Palmerston during the following week.