SC.

1901. MCPHEE

WOLTERS.

law is to create a licence fee which, whilst it is a fee for a year, yet only allows the licensee to have the use of the road for seven or less months, and this though he pays a yearly licence fee. There is a fixed period for which the licence is to issue. Any rebate in the licence fee is left entirely to the discretion of the Council (section 4). A law should be certain, and not leave anything, especially regarding rates or licence fees, to the discretion of the Council. If the by-law had fixed a rebate in accordance with the time the licence had to run, the by-law might have been held valid; but it seems to me, when the owner of a machine pays his licence fee he is supposed by the statute to have a licence to use the roads for a year. This is not granted to him by the by-law, and I think, therefore, that the statutory authority — section 130, subsection 2, (g)-has not been followed, and the by-law is bad. The matter is not without some doubt, but I cannot read the section as allowing a licensee who pays a yearly licence fee to use the road for, perhaps, only one month. This is what the by-law provides. The statute contemplates, as I have said, a licence fee being fixed as an equivalent for tolls, and that when this fee is paid a user of the road for a year is granted. The by-law should, in my opinion, have so conformed to the provisions of the statute.

I am therefore of opinion that the conviction should be quashed, with £6 6s. costs.

Conviction quashed.

Solicitor for the appellant: C. A. Pownall (Masterton).

Solicitor for the respondent: H. S. Izard (Carterton).

HARDING. THE CHAIRMAN, COUNCILLORS, AND
INHABITANTS OF THE EKETAHUNA COUNTY.

S.C.
IN BANCO.
WELLINGTON.

1901.

By-law-Making—Validity—“ The Counties Act, 1886," Sections 124, 304, 303, and 311-"The Public Works Act, 1894," Section 130, Subsection 2, (d) and (g)-Heavy Traffic-“ Yearly Licence Fee "—Damage to Roads-Con July 24, 31. ditions of Licence.

Subclause (d) of subsection 2 of section 130 of "The Public Works Act, 1894," authorises a provision in a by-law that any damage done to any road, bridge, or culvert by a vehicle engaged in “ heavy traffic" shall forthwith be repaired and made good by or at the expense of the owner of the vehicle, unless it can be proved to the satisfaction of the local body that such bridge or culvert was not at the time in a fit and proper condition to carry the ordinary traffic thereon; and authorises, further, making the giving of security for such damage a condition precedent to the issue of a licence.

Section 311 of "The Counties Act, 1886," when read with section 130 of "The Public Works Act, 1894," sufficiently empowers a County Council to affix certain conditions, other than the payment of a licence fee, to licences to be issued in respect of vehicles engaged in heavy traffic.

The same decision as in the case of McPhee v. Wolters(1) given upon questions as to the procedure for making a by-law under "The Counties Act, 1886," and as to the necessity for a yearly licence fee, imposed on vehicles engaged in heavy traffic, under subclause (g) of subsection 2 of section 130 of The Public Works Act, 1894," entitling the owner to a year's use of the roads, or, at all events, to a rebate where the licence issued to him will give him less than a year's use.

THIS

(1) Ante, p. 493.

HIS was an appeal from a conviction of the appellant, by W. P. James, Esq., S.M., sitting at Eketahuna, for that the appellant did, on the 9th of March, 1901, conduct heavy traffic, to wit, the transportation of timber upon a vehicle, to wit, a timber wagon, which, together with the timber being transported thereon, weighed more than 1 tons to each pair of wheels, upon a road under the control of the Eketahuna County Council, the licence fee for the current year not having been first paid, contrary to a by-law of the County Council.

The procedure followed for the making of the by-law was the same as that followed in the case of the by-law in question in the case of McPhee v. Wolters(1), and set out in the (1) Ante, p. 493.

STOUT, C.J.

S.C.

1901.

HARDING

บ.

CHAIRMAN, &C., OF EKETAHUNA

COUNTY.

report of that case; the dates of the two meetings being the 24th of December, 1900, and the 4th of February, 1901. The resolutions provided that the by-law should come into force on the 1st of March, 1901.

Section 13 of the by-law related to traction-engines, but was referred to in subsequent sections relating to other heavy traffic. It provided that the owner of every traction-engine within the county should, on or before the first Monday in March in each year, or upon bringing such traction-engine into the county, make application in writing to the Clerk for a licence. The application was to contain certain particulars, and to state that the engine was reasonably safe, so as not to be dangerous to the persons and property of the public in the county, and was to be accompanied by a licence fee of £5: "Provided that, where any traction-engine is brought into the "district within six months of the date fixed for the expiry "of then current licences, the Council may, in its discretion, "refund a proportionate part (not exceeding one-half) of such "licence fee." Section 20 provided that every owner should, before the issue to him of a licence, give security to the satisfaction of the Clerk that no special damage would accrue to any road, bridge, ferry, or ford which should be under the control of the county by reason of the transportation of the traction-engine in respect of which the licence was issued. The security was to be by bond, in such form as and with or without securities as the Clerk might require, in a sum not exceeding £50: Provided that, in lieu of a bond, the applicant might deposit with the Clerk a sum, not exceeding £50, to be fixed by the Clerk. Section 21 provided that any damage done to any road, bridge, or culvert by an engine should forthwith thereafter be repaired and made good by or at the expense of the owner of such engine, unless it could be proved to the satisfaction of the Council that such bridge or culvert was not, at the time such injury occurred, in a fit and proper condition to carry the ordinary traffic thereon; and nothing in the by-law contained was to be held to relieve the owner of any engine, carriage, or vehicle from liability in respect of any injury or damage which might be occasioned or done by any such engine, carriage, or vehicle to any bridge, road, or culvert.

Sections 38, 40, 42, 43, and 46 related to certain heavy traffic generally, and not specially to traction-engines. Section 38 provided that a yearly licence of £25 should (subject

as afterwards provided) be paid in respect of every vehicle, engine, or machine engaged in heavy traffic upon any road where timber, wool, or bricks was being transported, either separately or together with any other thing or things, and that upon payment thereof a licence should be granted as afterwards provided. Section 40 provided for an application in writing containing certain particulars. Section 42 provided that upon being satisfied of the truth of the matters contained in the application, and upon payment of the prescribed fee, the Clerk should issue a licence, to continue in force until the first Monday of the month of March then next ensuing, but such licence should not, in the case of a tractionengine, be delivered to the applicant, or have any effect, until the provisions of section 20 had been complied with. No provision was made by section 42 for any rebate of the licence fee in the case of a vehicle brought into the county during the current period of existing licences. Section 43 provided that no person should in any year engage in heavy traffic of the kind specified in section 38 until the licence fee payable under the by-law had been paid to the County Council. Section 46 provided that sections 20 and 21 should apply, mutatis mutandis, to all vehicles licensed under sections 38 to 42.

The facts were admitted at the hearing, and the only questions raised at the hearing and on the appeal were as to the making and validity of the by-law.

The objections to the by-law which were raised before the Magistrate will be found stated in the judgment of Stout, C.J. The appeal was argued immediately after the case of McPhee v. Wolters(1).

66

Skerrett, for the appellant:

66

The objection to the making of the by-law is the same as in the last case. Next, as to the yearly licence fee: This case is on all-fours with the last one, except that there is no provision for a reduction of the licence fee in the case of a wagon. Yearly" must mean yearly from the date of the licence," or, at all events, it must mean that the licence fee is to be at a yearly rate. The other objections seem to be founded on a misapprehension. Clause 20 of the by-law seems to be within the authority of subsection 2, (d), of section 130 of "The Public Works Act, 1894." But compliance with clause 20 ought not to be made a condition precedent to the grant of a licence. It should be enforced by a penalty.

(1) Ante, p. 493.

1901.

HARDING

v.

&C., OF EKETAHUNA COUNTY.

66

As to the making of the by-law: It cannot be amended before it is once passed. There is nothing in either section CHAIRMAN, requiring notification of the first resolution. It is clear that adopted" and "adoption " are used in the two sections in two different senses. In section 124 it means the passing of the first resolution. In section 304 it means the confirmation or final making of the by-law itself. As to the yearly licence fee: "The Public Works Act, 1894," is not the only authority to make this by-law. Section 303 of "The Counties Act, 1886," gives very general powers. There would have been power under that section to regulate heavy traffic. And further powers are given by section 311. It is within the power of the County Council, as the legislature for the county, to provide as a matter of convenience that these licence fees shall be collected once a year. The by-law calls the fee a yearly licence fee. If the licensee chooses he can contend that the licence really carries him on for a full year from its date. On having paid the fee he may come for a mandamus for a yearly licence. But he cannot go upon the roads without paying his licence fee. Subsection 2, (d), of section 130 of The Public Works Act, 1894," authorises making compliance with clause 20 of the by-law, as to giving security for damage, a condition precedent to the issue of a licence. It is in the power of a licensing authority to make a condition: Reg. v. County Council of West Riding of Yorkshire (1). The following are cases on the extent of by-law-making powersthe legislative power of local bodies: Slattery v. Naylor(2); Kruse v. Johnson(3); Bell v. Johnston(4).

Skerrett, in reply:

On the contention for the respondent, a local body can impose a tax on any kind of vehicle. But the power to specially impose a tax in certain cases excludes the power to impose it in other cases. The taxing-power is separate from the by-law-making power. An owner could not have mandamus, because there is no good by-law, and therefore no duty to issue a licence. The licence must be taken as it reads; it cannot be treated as extending beyond the period which it names.

(1) [1896] 2 Q.B. 386.

(2) 13 App. Cas. 446, 452-53.

Cur, adv. vult.

(3) [1898] 2 Q. B. 91.

(4) 18 N.Z. L.R. 185.