C.A. 1901. HOOKER v. MORRIS. been duly appointed. As the case is not being reported upon this point, this portion of His Honour's judgment is omitted. His Honour then proceeded as follows.] The next question is whether the fact that the clearance notice was not placed on the board which stated the scale of tolls is fatal to the right to collect such tolls. "The Public Works Act, 1894," section 143, is mandatory: it says that no toll shall be payable unless certain conditions precedent have been complied with; but it does not include the notice referred to in sections 153 and 154. Section 154 enacts that when any toll-gate clears any other toll-gate in the same or any other district, words denoting the toll-gate so to be cleared shall be painted on the board which sets out, the scale of tolls. This, it is stated in the case, was not done. The clearance notice was on another board, which was sometimes affixed to the tollhouse, sometimes to the fence, and sometimes on the ground. It was therefore clear that the Council had not literally complied with the Act; but that is not the question, which is whether such non-compliance was a bar to the collection of tolls at that gate. If it had been so intended, it would surely have been easy so to state. Since the Act requires certain conditions to be observed without which no toll is payable, and does not in any way refer to section 154, which likewise does not say that what is to be done is to be included among those conditions, I cannot read the want of literal compliance with section 154 as being included. The maxim Expressio unius exclusio alterius applies, and I must hold the decision of the Magistrate upon this point to be wrong. The last question to be considered is whether the right to collect tolls at the gate in question ceased on the 31st of December, 1892, or whether it in fact was ever an established right, since the notice given to the public made no reference to the limited time. There is no dispute between the parties as to the time when the collection of tolls was intended to comThe authority is a resolution of the Taranaki County Council of the 27th of November, 1889, adopting the report of a committee recommending the erection of three toll houses and gates for the term of three years "—the Omata toll-gate mence. 66 being one and the adoption of a certain scale of tolls, which they call a tariff. Following or purporting to follow section 143, subsection 1, of "The Public Works Act, 1894," the Council publicly notified the scale of charges to be levied at the three toll-gates on and after the 1st of January, 1890. Nothing was published either then or at any time stating the term for which those charges were to continue. Upon this question I am with the counsel for the respondent in his contention that the two clauses of the committee's report must be read together, since there was only one resolution adopting the report, and therefore that the tolls and toll-gates cannot be severed, and if the toll-gates were to cease the tolls were to cease also. But this appears to me to be missing the main questions to be considered, which in my opinion are three, namely: 1. Does the resolution of the Council amount to a determination of the collection of tolls at the end of three years? 2. To extend the term, was another resolution of the Council requisite, and may the other acts of the Council be taken into consideration? 3. Was it necessary in the public notification of the tolls to be charged to inform the public that the Council had determined to charge those tolls for three years? I am of opinion that the first of these questions must be answered in the negative. The report of the committee, and the resolution of the Council adopting that report, appear to me to be more consistent with the erection of toll houses and gates, and the collection of tolls thereat, for a term of three years at least than with such erection and collection for three years and no more. This was clearly the view taken of the matter by the Council. The notice of motion given on the 2nd of November, 1892, for the discontinuance of the tolls for a year from the 1st of January, 1893, would otherwise have been unnecessary, and the amendment adjourning the discussion of the question until April, 1893, which practically was a resolution to continue the tolls beyond the three years, would have been futile. That it was treated as a determination to continue the collection of the tolls is manifest from the fact that a tender for twelve months (being, of course, C.A. 1901. HOOKER 27. MORRIS. C.A. 1901. HOOKER V. MORRIS. for the year 1893) was accepted on the 24th of December, 1892. Similar tenders were accepted annually until February, 1990, when for the first time the tolls were let by public auction, when the appellant became the lessee. This, therefore, answers the second question also, since the acceptance of the several tenders must necessarily have been by resolution, although the word "resolved" is not always used. I am of opinion that, since the respondent relied upon the words "for the term of three years," which could only be discovered by reference to the minutes of the Council, those minutes are also evidence as to the sense in which those words were adopted-shown by the continuous action of the Council. As to the third question, I am quite clear that it was not necessary that the notification under section 143 of the Public Works Act should state the term during which the tolls were to be levied. That section has been fully complied with, or, rather, no evidence has been given that any part of it was not so, and I therefore disagree with the opinion of the Magistrate when he holds that the notification was erroneous because it was silent as to the limit of three years. As I have already stated, I do not consider that there was any such limit; but, even if there had been, it was not, in my opinion, a matter which the Council was bound to publicly notify. I am further of opinion that the resolution of the 7th of January, 1895, as to what gates should be cleared by payment at another gate, although it was an alteration from that which had been passed on the 27th of November, 1889, was not an alteration in the scale of tolls, and therefore that no further public notification was required. It would have been sufficient if section 154 had been complied with; and I have already held that the want of literal compliance with that section does not bar the payment of tolls. The appeal is allowed with £10 10s. costs in this Court, and such costs in the lower Court as the Stipendiary Magistrate shall fix. Leave to appeal to Court of Appeal granted. Execution stayed. Appeal allowed. Hooker, the defendant in the Magistrate's Court and the respondent in the Supreme Court, appealed from this decision. O. Samuel and C. W. Govett, for the appellant: The toll is alleged to have been imposed under section 105 of "The Public Works Act, 1882." But the resolution of the County Council that the report of its committee be adopted did not amount to a resolution that tolls be collected under section 105. Sections 115 and 116 of "The Counties Act, 1886," provide for committees of a County Council. This was a committee "to go into the matter of toll-gates"; it was not, therefore, an executive committee. The Council decided that a poll of ratepayers should be taken. [STOUT, C.J.-Is there any provision for a poll on this subject?] No special provision, but it could quite properly have been taken. The subsequent reference back to the committee, and the adoption of its amended report, were quite consistent with subsequently taking a poll. The intention still was that there should be a poll; but the Chairman stepped in and advertised the establishment of the tolls. The terms of the advertisement cannot help those of the resolution. Madigan v. Gardner(1) no doubt shows that a toll will be kept alive if it is duly established. But what the Council did can only be gathered from its resolutions: The Bank of Australasia v. The Manawatu Road Board(2). An adoption of a report does not amount to agreeing to carry out its terms: Macarthy v. The Corporation of Wellington(3). [STOUT, C.J.-That is quite contrary to the practice of municipal bodies.] Section 112 of "The Municipal Corporations Act, 1886," is different. It provides for executive committees only, not for committees to inquire and report. There should have been added, either in the same resolution or in another, "and that "accordingly toll-gates be established and tolls collected." What will be sufficient in a case of contract will not be suf (1) 6 N.Z. L.R. 99. (3) 8 N.Z. L.R. 168, at p. 178. C.A. 1901. - HOOKER v. MORRIS. ficient where the public are to be affected: In re The Section 117 was not complied with in respect of the clearance notice. Section 117 must be read in conjunction with section 106. Section 117 makes the clearance notice part of the "board" under section 106. The following are cases upon the question whether the provision is mandatory or directory: Woodward v. Sarsons (3); Reg. v. Ingall(4); The Liverpool Borough Bank v. Turner(5); Mayor of London v. The Queen(6); Howard v. Bodington(); Le Feuvre v. Miller(8); Gregson v. Potter(9); Cole v. Green(10); Pearson v. Clark(11); Reg. v. Lofthouse (12). In all of the above cases, in which the provision was held directory and not mandatory, it was so held on the ground of the inconvenience of holding it mandatory. The rate or toll would have been wholly bad. Here non-compliance only extends to making the toll irrecoverable in respect of a day on which the provision was not complied with. It does not make the toll wholly bad. See on the same point Maxwell on Statutes(13). Provisions such as this for the public benefit cannot be waived or dispensed with: Hardcastle's Statute Law(14). (1) 49 W.R. 345; [1901] 1 Q.B. 683. (3) L.R. 10 C.P. 733, 746. (4) 2 Q.B.D. 199, 208. (5) 30 L.J. Ch. 379. (6) 13 Q.B. 30; 17 L.J. Q.B. 330. 3 (8) 8 El. & Bl. 321; 26 L.J. M.C. 175. (9) 4 Ex.D. 142. (10) 13 L.J. C.P. 30. (11) Mac. (N.Z.) 136, 146. (12) L.R. 1 Q.B. 433. (13) 3rd ed. 520. (14) 2nd ed. 287. |