GERALDINE COUNTY COUNCIL V. M. SCANNELL.

Temuka Leader, Issue 2394, 11 August 1892, Page 4

GERALDINE COUNTY COUNCIL V. M. SCANNELL.

The following is the full text of the judgment given by His Worship, C. A. Wray, Esq., R.M., at Timaru on. Friday last in tlio case Geraldine County Council v. Michael Scanned, in which defendant was prosecuted for infringing a county by-law prohibiting the taking of traction engines exceeding six tons in weight over the Temuka bridge ; Tim defendant, Michael Scanned, was charged at Temuka with a breach of by-law No. 4, made by the Geraldine County Council, clause 16, in taking a traction engine weighing more than six tons over the Temuka bridge. It was proved at the hearing that the defendant was the owner of an 8 h.p. engine, number 2553, weighing eleven tons without water and coal, and twelve tons with fuel. No further evi .once was adduced by the prosecution to identify the registered engine with that seen on the Temuka bridge in charge of defendant, and no witnesses were called in defence. For the defence it was argued that no evidence had been brought to show r that the engine weighe 1 more than six tons, and a number of objections wore raised to the validity of the by-laws. The Court took time to consider those points, and after going carefully through them it appears to me on two points at any rate the by-law fails to meet the requirements of the Statute ; passed at a properly convened meeting of the Council, and (2) that the object or purport of the by-law was not set forth when publicly notifying the resolution making the special order. The council met on the 7th November last, and at that meeting Mr Talbot, a member, in the words of the clerk, “ tabled a notice of motion” calling a special meeting for the 25th November, for the purpose of passing a resolution and adopting a by-law regulating the passage of traction engines over tno county bridges. In consequence of this, the clerk issued notices calling the special meeting. The necessary steps for calling a special meeting are laid down in section 113 of The Comities Act 1836 : “ The council may at any time hold a special meeting, to be called either upon a resolution of the council or upon a requisition in writing, delivered to the clerk, and signed by the chairman or three councillors, and specifying the day,” etc. By section 102, “ every question coming before the council shall ba decided by open voting, and by trio majority present, and in case of an equality of votes, the chairman shall have a second or casting vote.” Sections 121-3 regulate the planner in which a resolution is recorded, iu the minute hook. It does not appear to mu that the mere tabling of a notice by a member can be taken as a decision of the council, which must bo arrived at by a resolution, taken and recorded as required by the Statute—the alternative course of a requisition in writing not having been adopted. If so, the special meeting held on the 25th November, adopting by-law No. 4, was not convened as required by law. By section 304, by-laws can be made only byspecial order, which must; be published, “provided that in publicly notifying the resolution making such order, it shall not be necessary to set forth the whole of the proposed by-law if the object or purport of the same be stated, and if a copy be deposited at the office of the council,” etc. By-law No. 4 contains 26 clauses relating to traction engines, the notice of which is given in the advertisement as follows : “ To make and ordain certain by laws set out iu the special order, for regulating the conditions upon which traction e igines, and carriages and waggons attached thereto, may be allowed to pass along the public roads and bridges in the county.” This is almost a repetition of the empowering statute, sub-section 13 of section 311, hut while that subsection deal wiw fj.ie “ conditions ” only, there is another sub-suiiifpn (12) for regulating the “ weights ” of Bush engines, this showing that in the Statute itself a distinction is drawn between the powers to rogplato the “conditions” and the “weights” i>i fraction engines. Clause 16 of the by daw prohibits an engine weighing more than six tons from crossing the Temuka bridge, but I do not think that the notice advertised as above quoted can be said to indicate any such purpose, and fj?.Jk*r information should have been given to medt the requirements of the Statute (sections and 124). That is to say, the published no Ha; of the special order gives the general purport pf the empowering clause of the Statute; not the particulars of the proposed by-law, required f>r public information. On the above grounds, then, 1 hold that the by-law'is bad/and fha£ the information must be dismissed,. Mr Raymond, for defendant, asked for costs, although it was a case against a local body. Costs had been given against a local body in the Supreme Court in Pearpoint v." Sherratfc, which was also a case of a leal by-law. The name course shindd ,ho followed in this Court, lie could not s.gu guy particular reason why the succo'.sfui should have to pay the costs. Mr White, for informant, fl-e practice in the Magistrate’s Court was not to give costs against a local body. Supreme Court appeals were a different till ug. His Worship thought Ip; must follow the precedent mentioned by M,v Raymond, and he did not see any reason why coat? should not be allowed. Judgment for defendant, with costs and solid foßs fee, fwo guinea;-;.