An Important Decision.

Taranaki Daily News, Volume XLVI, Issue 219, 20 September 1904, Page 2

An Important Decision.

the dairy act. The following is the full text of the Magistrate's decision in the ease Rowan v. Hale, heand on Beptemi3er Sth, 1b which the inspector of factories brought an action against the owner of the Avaiue Dairy for buying milk from an unregistered dairy

The defendant, wh 0 id the owner of a duly registered dtiiry, purchased milk from the owner oi an unregistered dairy. He knew that his Tendor's dairy was not registered. On thceo facts a prosecution under tihe regulations framed under vThe Dairy Industry Act, 1898," is instituted, and the simple question is whether milk, pure and good, may not be purchased from a dairy owner, who huH not ixigisUiixd his dairy under that act.

Tho information is specifically under No. 26 of the regulations of December 24th, 1900 (New Zealand Gazette, January 10th, 1001). That regulation provides as follows "No owner or occupier shall purchase, supply for sale to athora, Bell or exPosw in or about any dairy premises, milE shop, or store for sale, or mix with milk produced for gale on any dairy premises occupied by him any milk produced at, in or ab o ut, any dairy premisos, cowshed, or dairy which is not registered in accordance with" these regulations." It is contended by Mr Malone for tho defendant that this regulation, so far as it prohibits purchase of milk, is ultra viret?-. The Dairy Industry I Act, 1898, is intitulod "on act to regulate tho inflection of dairies, and the manufacture, inspection, sale and export of dairy produce," and further shortly put to assist the dairy industry. Tho scop# of the act, t here/ore, does not include any reflation of the purchase 0 1 dairy produce ; there is, in J a ct, no prohibition qf such purchase throughout the act. Mr Kerr, -who ,argued the case for th« informant, contended', howovcr, that tho regulation w a s a valid exerciso of tho powers' vestal in tho Governor to m a ko regulations under Section 28. That section empowers tho Governor to make regulations consistent with tho purposes of the act /or certain specific! purposes. Mr Kerr argued that regulation 26 is to be sustained under sub-fection Bor sub-sectiim 15; The power in sub-soction 8 is to make regulations for the purpose of "preveniint; the infection of contamination of dairy produce." Hut upart I (I'ont t-hot fact Unit ther* are other ! I emulations obviously ni a de under litis power, how con one i 4 y th a t tho prohibition oi til« purchase of milk, without regard to it« quality, from an unregistered dairy can aid In preventing tho infection of milk, unices one attributes some <ny£terious power and virtue to the act of registration ? Hut as 8 certiflcato of rogisti-ftUo* of a dairy is no prophylactic agwinst disease in the milk tiiero produced, so tho non-re-gistration of a dairy is not pathognomonic of such disease. It is, I think, quite clear that regulation No. 26 cannot be supported unrtor subsection 8 of the act. Then subsection 15 is a general power. It provides ( 0 r rugulaUoW upon "any other matter for which regulations are contemplated or roquired by this act, o>' *hiich he, the Governor, deems necessary for tho efficient administration of this act." As t.h«. [lower to m a ke regulations is given by this BOcUon 28 only "for any of the purposes" mentioned in the preceding fourteen sub-sections it is doujfttful whot'hw, under the con.qtruction ejusdein goneris, sub-section 15 iwlds anything to what goes before—whether that sub-seotion is not a mere amplification of the procodiing Powers—but in any case I do not think it gives any jKiwer to make n regulation prohibiting the purchase i of milk. Such a regulation is not| "contemplated" by anything in the, act, and it in not "required." There aro ample statutory provisions prohibiting the sa'c of infected milk, or milk likely to endanger the public lvonith, and tie regulatit. its themselves, indeed, pu/hibit the sale of, milk oßtained from an unregistered dairy. The concluding words of the sub-section, referring as fhey do to the administration of tho tt ct, cannot, I think, confer a power to make punitive regulations. I con-! elude, therefore, 011 a consideration of tho act and regulations, that regulation 26 in so far as it prohibits thtf purcheso of".rryilk from an unregistered dairy is ultra, viree ;■ and , the information will bo dismissed.