ant Reid stated that on the 30th of November, 1901, while Reed, in support of the application: The conviction is bad in law, and the warrant of commitment is also bad. The Justices had no jurisdiction to deal with the case or to commit the defendant to gaol unless they first informed him that he had the right, if he so desired, of being tried by a jury. This notification to the defendant was a condition precedent, compliance with which by the Justices was necessary before they could exercise any jurisdiction in the case. The provisions of the English Summary Jurisdiction Act, 1879,"(1) are identical with our statute, and in Reg. v. Cockshott (2), where the Court failed to inform the defendant of his right, the conviction was quashed, though the defendant. after first denying the charge, had pleaded guilty. As no counsel appears to oppose in the present case it is right to point out one distinction between the English statute and our Act. In the former, instead of the word "Magistrate" the words "Court of Summary Jurisdiction "' are used. The term Court," however, in our Act, is used interchangeably with "Magistrate." Magistrate" must also, necessarily, here include "Justices." Under The Indictable Offences Summary Jurisdiction Act, 1894," "Justices" is interpreted as inclusive of "Magistrate," and "Magis"trate" means a Stipendiary Magistrate, appointed under "The Magistrates' Courts Act, 1893." If the proper construction of section 6 of our statute be "Magistrate only," a person charged before Justices could not claim the right of being tried by a jury; or, if he did claim the right, it could be disregarded by the Justices on the ground that it (1) 42 & 43 Vict. c. 49, sec. 17. (2) [1898] 1 Q.B. 582. 66 S.C. 1902. REX บ. REID. S.C. 1902. REX บ. REID. could only be made when a charge is heard before a Stipendiary Magistrate. This construction would therefore be unreasonable. No counsel appeared to oppose. CONOLLY, J. I think it is clear that "Magistrate," in section 6 of "The Indictable Offences Summary Jurisdiction Amendment Act, 1900," means a Stipendiary Magistrate. As to whether "Magistrate" includes Justices of the Peace, it is unfortunate that when English Acts are copied by our Legislature they are not copied literally. Had this been done in the present case there would have been no room for any question at all. I am clear, however, that Justices of the Peace must be included in the term "Magistrate," for it would involve an absurdity if Justices could exercise the power of conviction and sentence without informing the defendant of his right to be tried by a jury, while a Stipendiary Magistrate was required to inform the accused before he could deal with the case at all. There can be no doubt that this was a case in which the defendant should have been informed of his right to be tried, if he chose, by a jury. He does not appear to have been aware of this right at the time, and probably the Justices were not aware of it either. The conviction must be quashed. A writ of habeas corpus for the release of the prisoner was granted, returnable at 10 a.m. on the following day. On the matter being called on, J. A. Tole appeared on behalf of W. R. Lawry, the informing constable, for the purpose of applying for a rehearing of the argument. Reed opposed. CONOLLY, J. — Since this matter came before me last Saturday I have carefully considered the application to have it reargued, and I have come to the conclusion that I cannot allow it to be reopened. The rule nisi must therefore be made absolute in due course. It is ordered accordingly that the rule be made absolute, without the actual issue of a writ of habeas corpus being required. Solicitor for the defendant; J. R. Reed (Auckland). "The Road Boards Act, 1882," Sections 4, 5, 6, 14-New District-Special November 4. Rate-Collection by Old Board-Petition to constitute New DistrictSignature-Public Notification-Objections to Validity of Special Order— Quashed The Counties Act, 1886," Sections 127, 125-"The Road Districts Validation Act, 1898”—Statute—Application—Construction— "Shall"-Imperative Duty. 46 Per Curiam (Stout, C.J., and Williams, J.; Edwards, J., dissenting). -Where a special rate has been made by a Road Board as security for a loan, and subsequently, during the currency of the loan, a part of the road district is constituted a new road district, under section 4 of "The Road Boards Act, 1882," the special rate ceases to be payable to the Road Board of the old district by the ratepayers of the new district. The matter is one for adjustment between the Boards of the two districts under subsection 4 of section 5 of "The Road Boards Act, 1882." case, Per Williams, J.-The effect of section 14 of "The Road Boards Act, 1882," protecting the rights of creditors of the old road district in such a is, however, that, if default should be made by the Road Board of the old district in payment of the interest or sinking fund of the loan intended to be secured by the special rate, the creditor may apply for the appointment of a Receiver under section 47 of "The Rating Act, 1882," and the Receiver will have power to collect the special rate from the ratepayers within the whole of the district originally rated, including the part thereof which has been constituted a new district. Per Edwards, J.-Looking to all the provisions of "The Road Boards Act, 1882," 'The Roads and Bridges Construction Act, 1882," and The Rating Act, 1882," subsection 4 of section 5 of "The Road Boards Act, 1882," cannot be reconciled with section 14 of the same Act, and should be regarded as overridden by it, and be rejected. Per totam Curiam.-A petition under subsection 1 of section 4 of "The Road Boards Act, 1882," for the constitution of a new road district must be signed by two-thirds of the ratepayers of the whole of any existing road district part of which is to be comprised in the new district. Curle v. The Oxford Road Board(1) and The Birkenhead Road Board v. The Waitemata County Council (2) approved. The only public notification of a petition under the above section was published on the 17th of December, 1897, and was in the following terms: "A petition will be presented to the County Council praying that a part of "the Kaiti Road District be constituted a new road district, to be called "the Titirangi Road District.'" This was signed by a ratepayer on behalf of the petitioners. The petitions which were presented were dated (1) N.Z. L.R. 5 S.C. 211. (2) 6 N.Z. L.R. 17. C.A. 1901. TUCKER V. INHABITANTS OF KAITI ROAD the 29th of August, 1898. A special order in accordance with the petition was made on the 23rd of September, and confirmed on the 4th of November, 1898. Held (per Stout, C.J.), That it was doubtful whether the above was a sufficient notification, but, semble, that it was immaterial whether or not the petition was signed at the date of the notification; (per Williams, J.) that the petition need not be signed at the date of the notification, but that the notification was insufficient because it did not set out the boundaries of the proposed new district; (per Edwards, J.) that the notification must be a notification of an existing petition, and that the statute had not, therefore, been complied with. Per totam Curiam.-Although compliance with each of the subsections of section 4 of The Road Boards Act, 1882," is a condition precedent to the power of a County Council to make a special order constituting a new road district, the effect of section 127 of "The Counties Act, 1886," which provides that no special order shall be quashed by any proceedings in any Court or otherwise unless such proceedings shall have been commenced within six months of the making of such special order, is that a special order constituting a new road district must, after six months from its making, be deemed valid for all purposes in proceedings in which its validity comes in question collaterally only, as well as in any other proceedings. Section 2 of "The Road Districts Validation Act, 1898," provided that in any case where, at any time before the coming into operation of that Act, any County Council had by special order constituted a new road district under section 4 of "The Road Boards Act, 1882," the validity of such special order, or of the constitution of such road district, should not be questioned or affected by reason merely that the petition pursuant to which such special order was made was not duly signed as prescribed by that section. A special order constituting a certain new road district was completed by a County Council on the 4th of November, 1898 (the day before the coming into operation of the above Act of 1898), but it was not until the 9th of March, 1899, that it was gazetted, as required by section 125 of The Counties Act, 1886," which provides that a special order of the kind shall be gazetted by the Colonial Secretary, and shall only take effect from the date of such gazetting. Held (per Edwards, J.), That, the County Council having, so far as it was concerned, constituted the new road district before the Act of 1898 came into operation, that Act applied to the case and validated the proceeding, notwithstanding that the special order was not gazetted, and so did not take effect, until after the Act came into operation. Sed quære, per Stout, C.J. T'er Williams, J.-The word "shall" in section 4 of "The Road Boards Act, 1882," is imperative, and a County Council cannot refuse to constitute a new road district where the conditions prescribed by that section have been complied with. Quare, Whether the word "shall" can ever be read as may" in such a case. At any rate, if it ever can, there must be other language in the statute which renders the inference that it is to be so read overwhelming. THIS was an appeal from a decision of Conolly, J., in an action in which the respondent road district sought to recover the amount of a special rate from the appellant. C.A. 1901. TUCKER OF KAITI ROAD The appellant was a ratepayer of the Titirangi Road District, which had formerly formed part of the Kaiti Road District. The special rate in question had been made by the Kaiti Road Board at a date when the area afterwards formed INHABITANTS into the Titirangi Road District formed part of the Kaiti Road District, as security for a loan raised on behalf of the whole of the Kaiti Road District. The other facts of the case will be found sufficiently stated in the headnote and judgment. The case was tried at Gisborne by Conolly, J., without a jury, on the 4th of May, 1901, and His Honour gave judgment for the plaintiff Corporation (now respondent) for the amount claimed and costs. On the judgment appealed from the appellant can be made liable twice over. The portions of the Acts bearing upon the matter are sections 3, 4, and 5 of "The Road Boards Act, 1882"; section 8 of The Road Boards Act 1882 Amendment Act, 1883," which provides for the appointment of a Receiver when a new district fails to do its duty; section 10 of "The Government Loans to Local Bodies Act Amendment Act, 1896," and section 9 of "The Government Loans to Local Bodies Act Amendment Act, 1898." It is said that section 14 of "The Road Boards Act, 1882," is against the appellant. But it is only the ratepayers who remain in the old district who remain liable under that section. This is not a case between the public creditor and a section of the ratepayers, but simply between the old local body and the ratepayers of the district which has been cut out. A case of the kind is specially provided for in sections 182, 183, and 184 of "The Municipal Corporations Act, 1900." A. Gray, for the respondents: The award operates only as between the two local bodies. In any case, its validity has never been tested. The loan was raised under "The Local Bodies' Loans Act, 1886," sections 8 and 25, and "The Government Loans to Local Bodies Act, 1886," sections 6 and 24, both of which require an annually recurring rate to be made as security, which is to continue until the loan has been paid off. The whole of the old Kaiti Road District was made one special-rating district, and has never ceased to be one. The Colonial Treasurer is entitled still to look to the local body which raised the loan. Section 14 of "The Road Boards Act, 1882." protects the rights VOL. XX.-39. |