OMATA TOLL CASE.

Taranaki Daily News, Volume XXXXIII, Issue 44, 28 February 1901, Page 2

OMATA TOLL CASE.

A SUCCESSFUL APPEAL. 1 j In the Supreme Oeurfc on Wednesday, . Mr. Justica Oonolly delivered j'idg 3 merit on the appeal by B. Alovri 1 (lessee of the Ounta toll) agnii at the " decision of Mr, Stanford, S.M„ in the cage of Morris v. Hooker, in which the defendant was sued for Is, the amount, t of toll demandfid and refused to he pnid. His Honor faid iha 1 -. thf | Stipendiary Magistrate held (1) that the tolls were not payable at the Om*ta > gate on Junuary 28th, 1901, since the f authority to collect expired en 31st | I) cimb r, 1892; (2) that notice of 5 clearance from payment at certain t other gates had not been sufficiently - given, and (3) that the appella » was nos duly appointed. Dealing wi h Ihe first po nt, His Honor said it hiul be i n strongly pre-snd, but he on>sidered there was so li:tle in it that Ik 1 did not require counsel for the appelI laiit to argues it. Af'ar reiitfng th ; terms of section 146 of the "Pubic i Works Act authorising tolls, and leferrirg to the Council's proceo'inre t i'i letting the Omata toll to the, nppplhnfc by auction in Mi.ic'n, , 1900, His Honor said that for -onie unexplained reason the lense to the appellant wan not exc.ip'd until the 2;3ni Novemb r, 1900, Ir. was s : <;ivd by the appelln.t, by his two eu e ios, ' and by the Ch irmau and two oth r members of the Council. The seal of the Oou' cil was also attached to the lease. It wis clear thnt tha lessee or ■my porson appointed by him in writing i J to be deemod for al purposes a collector duly appointed by the Council. It is unnecessary to decide whethor i he powers giv>n by this lease were retro-

rolls by the app Hani; prior to j's date, since the toll in this case was demanded on the 29th Jmuary, 1901, Some doubt as to this was probably supges'ed to the Council, since on tho 7th January tt.ey pissi d a resolution ratifying and npprovir.g the collection of tolls by Becjamin Morris. Whether the resolution was required at all may le doubted. The uezt ques'Jon wns whether the clearance notjie not \< ing attached to !fi) scale of tolls was fatal to the right to coli'ot such tolls. It. wts clear that the Council had not literally complied with tho Act, but that is not the question, whio'u is whether such non-complianca w»s n bir to the collection of tolls at tliatji ga'e. If it had so intended it J: would surely have be- n eisy i o to state' i since the Act requires oertaia oondi- I

tious to be ob«ei'ved without which na toll is payable, aud does not in any way refer to section 154, which likewiso does not say that what is to be done is ti be included among those conditions!, His Honor could not read the want of literal compliance with s ction 154 as toi»g included. He held, therefore, that the. decision of the Magistrate was wrong on that point. The last question was whether the right to collect tolls ceased on 31st December, 1892, or whether it ever was an established right. After reviewing the facts relating to the iuiation and continuance of the toll-gate, His Honor said tho main questions to lie considered were (1) Does the rseolutiou of the Council amount to a determination of th* collection of tolls tit the end of three yens ? (2) To extend the term, was another resolution of the Council requisite, and may the other acts of the Council bi taken into consideration ? (3) Was it necessary in tho public notification of the tails to be charged to inform the public that the Council had determined to charge those tolli for throe year* ? He considered the first of these quest-'ons must ba answered in the negat've. Tho report of tbo Committee and the resolution of the Council adopting that rfporfc appeared to him to be more consistent with the erection of toll-houses and gates, and tho collection of tolls thereat fur a term of throe years at least than with such erection and collection for three years and no more. This was ch arly the view of the matter taken by the Council as shown by its continuous notion. As to the third question, he was quite clear that it was not necesfary that the notification under section 143 of the Public Works Act should state the term during which the tolls woieto be levied. That section has been fully complied with; or rather, no eviderjee has been given that any part of it was not 80. He did not consider there was any such limit; but even if there had been, it was not, in h?6 opinion, a matter which the Council w.is bound to publicly notify. He was further of option that the resolution of the 7th January, 1895, as to what gates should be cleared by payment at another gate, although it was an alteration from that which bad been passed on tho 27th November, 1899, was not an alteration in the scale of tolls, and therefore no further public notification was required. It would have been sufficient if section 154 had baen complied with; and he had already held that the want of literal compliance with that S'c.ion did not bar the payment of tolls. The appeal would be allowed, with 10s costs in this Court, and such costs in the tower Court as the Magistrate should fIK. Leave to take tha case to the Court of Appeal wns grantol.