and that, therefore, the by law was bad. BOROUGH INSPECTOR, TAURANGA v. CATTANACH, 19 M.C.R. 45. [New Zealand.]

By-law-Validity-By-law void in partSeverability.-Where a by-law is good in part and bad in part it is only where the good and bad parts are so blended together as to be incapable of being dissevered that the whole by-law is bad. In this case defendant was charged with, and admitted, breach of a borough by-law limiting the speed of motor vehicles over any street in the borough to 12 miles, and round any corner to four miles per hour. Held that although the by-law was unreasonable and therefore void in limiting the speed round corners to four miles, that part of the by-law was severable and the Court convicted defendant only of the offence of exceeding the speed limit of 12 miles per hour. POLICE V. WILSON, 19 M.C.R. 124. [New Zealand.]

II. GENERAL.

Ordinance-Public reserves-Public meetings or addresses-Council's right to prohibit. Under the Local Government Ordinance No. 48, cl. 15, where a public reserve is unsuitable for holding of public meetings, the Council may, by notice, prohibit the same. The determination of the question whether a reserve is suitable or unsuitable is for the Council, and as long as it exercises its powers bona fide, it cannot be interfered with in the exercise of them. TRICKETT v. MEATHERINGHAM, 24 S.R. 379; 41 W.N. 94; 7 L.G.R. 26. [New South Wales.]

Act, No. 41, 1919, s. 470—L. G. Ordinance 60 -Destruction of noxious plants-Liability of Pastures Protection Board.-Pastures Protection Boards, though having the control and management of reserves under s. 26A (1) of the Pastures Protection Act 1912 and 1918, are not liable as occupiers to prosecution under s. 470 of the Local Government Act, 1919, for not destroying noxious plants. A Council's only remedy in such event is by application to the Minister under s. 26A of the Pastures Protection Act. KYOGLE SHIRE COUNCIL v. CASINO PASTURES PROTECTION BOARD 6 L.G.R. 172. (J. L. Shropshire, P.M.). [New South Wales.]

Act, No. 41, 1919, ss. 245 and 277 (m)Ordinance 30 clause 107-Damage caused by carting building materials across a footpath— Liability for acts of independent contractorValidity of ordinance.-Under Ordinance 30 clause 10 (b) a building contractor is only rendered liable for damage to a footpath proved to have been done by him or his servants, and not for damage done by persons supplying bricks to him for the building. If Ordinance 10 clause (b) purports to make a person erecting a building liable for damage done by persons over whom he has control it is ultra vires. WAVERLY MUNICIPAL COUNCIL v. KELLY, 6 L.G.R. 174. (Curlewis, D.C.J.) [New South Wales.]

By-law-Prohibition of blasting and quarrying operations except with consent of councilException as to certain operations.-The City of B., by a by-law, prohibited the carrying on of any quarrying operations within the city except with the consent of the Council, with a proviso (following the words in the Local Government Act 1915, s. 197 (21) "Provided that the provisions of this by-law shall not apply to any such operations in connection with works commenced before 13th February, 1922." The defendant company had, prior to the 13th February, 1922, owned land on both sides of P. street, within the city of B., and had for long before that date carried on quarrying operations as part of a brick, etc., manufacturing_business on its land on the east side of P. street. In 1924 it commenced quarrying operations on its land on the west side of P. Street. The clay from this quarry was taken to the works on the east side and there manufactured into bricks, etc. The whole of the work on both sides was under the same management. The defendant was convicted in respect of its quarrying operations on the west side of P. street of an offence against the above by-law. Held, (1) That the words "works commenced before the 13th February 1922 " included the whole of the defendant's establishment on the east side of P. street but (2) that the quarrying operations on the west side of P. street were not operations in connection with" such works, and that the defendant was rightly convicted. DAWSON v. HOFFMAN BRICK AND POTTERIES LTD., 1924 V.L.R. 208; 45 A.L.T. 145; 30 A.L.R. 156. [Victoria.]

By-law purporting to be made for regulating or controlling quarrying operations-Form of -Whether regulating or prohibiting-Uncertainty-Unreasonableness-Validity.-A municipal by-law which purported to be made under S. 197 (21) of the Local Government Act 1915 for regulating or controlling quarrying operations provided (inter alia) as follows:- (1) No person shall fire or discharge any shot or blast in connection with any quarrying operations within the limits of the City of N. except upon such days and at or between such hours and at such distance from any highway as shall be appointed or approved from time to time by the council of the City of N. '(2) No person shall carry on any quarrying operations . except at such place or places and to such extent as shall be appointed or approved by the council of the City of N." Held, that the by-law was a proper exercise of the power to prohibit quarrying or blasting operations contained in s. 197 (21) of the Act, and was accordingly valid; and that it was immaterial that it should have been wrongly described as a by-law for the regulation or control of quarrying operations. Neptune Oil Co. Ltd. v. City of Richmond (1924 V.L.R. 385) and Williams v. Weston-super-Mare Urban District Council (98 L.T. 537) applied. BYSOUTH v. CITY OF NORTHCOTE, 1924 V.L.R. 587; 46 A.L.T. 100. [Victoria.]

By-law-Validity-Prohibiting farmer from selling his milk from milk shop without a license. By cl. 877 (i) of the City By-laws a nearby farmer was prohibited from selling his milk from a milk shop or depot unless he obtained a license, and the only form of license that he could obtain was useless for that purpose in that it prohibited him from selling any milk or cream other than that supplied by the corporation. Held, that the by-law in so far as it prevented the milk of nearby farmers being sold from a milk shop was ultra vires. CHARLES v. DUFFY, 19 M.C.R. 116. [New Zealand.]

By-law-Validity-Power of regulating and prohibiting storage of dangerous things— Volatile fluids-Approval by Council of site of buildings-Power to prohibit-Unreasonableness-Ultra vires.-Under an absolute power to prohibit a municipal Council may, by by-law, prohibit the building or occupation of a store for the purpose of storing dangerous things, except upon a site approved by it, thus, in effect, prohibiting storage of such things except upon approved sites. A municipal by-law which came into operation in 1918 purported to be made under the powers conferred by ss. 197, 198, and 217 of the Local Government Act 1915, and provided, inter alia:-"Every person who proposed to construct, alter or occupy any building for the storage of more than 250 gallons of petroleum or any products of petroleum, turpentine or other volatile fiuid shall comply with the following requirements: (1) The site of all such buildings shall first be approved by the Council for that purpose.' Held, that the by-law was a valid exercise of the power conferred by sec. 197 (20) of making by-laws for the purpose of " regulating or prohibiting the keeping of any place or the keeping or storage of any animial (including birds) or thing in the opinion of the Council offensive, injurious to hea th or dangerous," and was preserved by s. 3 of sub-s. 2 of the Health Act 1919, when S. 197 (20) above-mentioned was repealed by that Act. NEPTUNE OIL COMPANY LTD. v. CITY OF RICHMOND 1924 V.L.R. 385; 46 A.L.T. 14; 30 A.L.R. 270. [Victoria.]

"

,,

Water authority-By-law-Using water for other than domestic purposes-Watering gardens Non-observance of conditions "Domestic purposes." "—Notice-Validity Presumption of validity-Onus of proof.A by-law of the Townsville Water Authority provides : A copy of every notice relative to discontinuing the supply of water for nondomestic purposes shall be published in one or more issues of a daily newspaper usually circulating in Townsville, and if there shall be more than one such newspaper, then in two such newspapers. From and after the date mentioned in such notice water supplied by the authority shall not be used for other than domestic purposes without the written sanction of the authority; such sanction may be given either absolutely or subject to any condition as to quantity, mode of use, or otherwise, and may be withdrawn or modified

at any time. Any person who while such prohibition is in force uses without the written sanction of the authority, for any purpose other than domestic purposes, any water supplied by the authority or, otherwise than in accordance with such conditions, shall be liable to a penalty not exceeding £5." The clause purported to be made under ss. 36 sub. s. (3), 65, and 68 of the Water Authorities Act of 1891; and power to make the by-law was granted by s. 36. By s. 3 of the Act it is provided that "the term domestic purposes includes all the purposes for which water is ordinarily used in a dwellinghouse or in the premises attached thereto, or in any ship, but does not include the washing of decks or boats." The respondent published: Notice is hereby given that in consequence of the continued dry weather the use of water, supplied by the Water Authority, is from the date of this notice and until further notice, prohibited for other than domestic purposes, unless with the written sanction of the Water Authority. Such sanction is hereby given for use for manufacturing purposes and for the watering of household gardens, provided that no hose shall be used in connection with such gardens, except between the hours of 2 o'clock p.m. and 7 p.m. each day, and only then whilst held in the hand of some responsible person. Any person found using water in contravention of this notice will be summarily prosecuted and is liable to a penalty of £5." appellant used a hose which was not held by any person, at 7. a.m., for the purpose of watering a small garden attached to and within the same curtilage as his dwelling house; and he was convicted and fined for having committed a breach of the by-law. Held, that the appellant had used the water for domestic purposes. Held, that the by-law dealt only with the use of water for other than domestic purposes, and was inapplicable, and as the appellant was prosecuted only for an offence against that by-law, the respondent had failed to make a case against him warranting his conviction. Sect. 79 of the Act gives power to make an extra charge for the use of water for any of the purposes specified therein if the Water Authority thinks fit (even though such use in a particular case might come within the meaning of "domestic purposes under the Act) and, by forbidding its use for those purposes, except upon payment of such additional charges, a Water Authority may create a statutory offence and impose a penalty for commission of that offence. Hodge v. City of Townsville (18 Q.J.P.R. 35) (Douglas, J.) reversed. HODGE v. CITY OF TOWNSVILLE, 1924 S.R. (Q.) 174; 18 Q.J.P.R. 73. [Queensland.]

a

By-laws regulating building. See Buildings.

6. OTHER CASES.

The

4.

A council wishing to appoint to a permanent position a person who at the time is employed by the council and holds a position temporarily but for a definite term is not a person desiring to obtain an employee " under the Returned Soldiers Employment Act 1919, s. 12 and need not apply to a labour exchange or repatriation committee before making such appointment. The fact that an employer enters into a contract to employ on a future date a person not already in his employment, in anticipation of a future need, will not prevent him being an employer

Act 1919 No. 41, s. 95 (3)—Preference to returned soldiers-Other things being equalConsideration of mattter in committeeResponsibility of council Evidence - Admissibility-Ordinance 1, cl. 48.-A municipal council was proceeded against for a breach of s. 95 (3) of the Local Government Act 1919 in that in appointing a park ranger it did not, other things being equal, give preference to a returned soldier who was an applicant. After evidence had been given that the question of the appointment had been first considered in committee and that the recommendation of the committee was adopted by the council, evidence was tendered of the proceedings in committee. The magistrate rejected this evidence, and, after hearing evidence as to the qualifications of the rejected and successful candidates, found that the qualifications of the returned soldier candidates were not equal to those of the person appointed and dismissed the information.

On a special case stated, held, that in order to determine whether the council had disregarded its statutory obligation under the section, it was necessary that the magistrate should know exactly what was done by the council, and should be put as far as possible in possession of all the information that was before the council when it made the appointment, and that, for such purpose, evidence of what happened in committee was material and relevant. Further, that such evidence was not inadmissible by reason of Ord. 1, cl. 48, which has no applicability to involuntary disclosures in a court of justice. The above section is not to be construed by reference to S. 3 of the Returned' Soldiers and Sailors Act 1919, and the section does not prevent a council from discriminating between two applicants, one of whom is more capable of effectively performing the required duties than the other. GARDNER V. KOGARAH MUNICIPAL COUNCIL, 24 S. R. 474; 41 W.N. 137; 7 L.G.R. 38. [New South Wales.]

Employment

Action for negligence-Continuing damage -Action-Limitation of liability.-In an action against a council for negligence causing continuing damage to the plaintiff's

land, the judge directed the jury that every time fresh damage occurred a new cause of action arose or occurred " within the meaning of s. 580 of the Local Government Act of 1919, and that the plaintiff could not recover for damage done prior to six months before the commencement of the action. ROBINSON v. HORNSBY SHIRE COUNCIL, 6 L.G.R. 148. (Campbell, J.) [New South Wales.]

Limitation of action against Municipal Council of Sydney - Notice before action. -A person claiming to be injured owing to the negligence of a council informed the council of the facts and requested it to intimate whether it was willing to compensate him without the necessity of litigation.. He subsequently wrote that unless they were prepared. to come to an amicable settlement he would be compelled to proceed. It was held that these letters did not amount to a sufficient notice of action as required by s. 38 of the Municipal Council of Sydney Electric Lighting Act 1896. ASLETT V. SYDNEY MUNICIPAL COUNCIL, 6 L.G. R. 130. (White, D.C.J.) [New South Wales.]

manner.

Landlord and tenant-Land on which arrears of rates due Possession taken and land leased by mnuicipality-Title still in name of original owner-Removal of gravel by tenant-Damage-Whether action maintainable by municipality-Covenants-Rights of original owner.-A municipal council acting under the powers which are now contained in Part XI., Div. 5, of the Local Government Act 1915, in the year 1908, by agreement in writing, leased to H. certain land of which it had taken possession in the year 1901 for non-payment of rates, and of which the original owner was still the registered proprietor. The lease contained an express stipulation to repair, but did not contain a covenant to use in a tenant-like In the year 1921 W. entered into possession of the land, and afterwards became tenant from year to year of the council on such of the terms of the lease to H. as were applicable. There was on the land a quantity of gravel which then formed part of the surface of the ground, and was not chattels W. having removed and converted to his own use portion of the gravel, and thereby caused substantial damage to the realty, the council brought an action against him, claiming damages for the injury to the realty and an injunction. Held, (1) that, for the purpose of maintaining the action, the council was in the same position as if it were the full owner of the land. (2) That the council was entitled to damages for the injury of the land, and, further, to an injunction either in tort or on an implied covenant which included a prohibition against interfering with the land in such a way as to cause damage to the realty. Dictum in Kirkham v. Julian ([1885] 11 V.L.R. 171) applied. Ferguson v. Registrar of Titles (1919 V.L.R. 509) referred to. Statement in Woodfall's Law of Landlord and Tenant, 21st ed., at p. 755, that if there be in a lease an express stipulation to repair, no implied stipulation to use in a tenant

like manner can arise, disapproved. CITY OF BALLARAT v. WALLER, 1924 V.L.R. 115; 30 A.L.R. 51; 45 A.L.T. 116. [Victoria.]

Municipal Corporation-Tenders called for advertising contract-Tender less favourable to corporation accepted-Whether acceptance ultra vires-Injunction.-A municipal corporation may not enter into any contract its Council thinks fit. The Councillors are trustees for the ratepayers, whose interest they must conserve. It is not, however, the function of the Court to supervise the work of the Council, or to dictate to it what contract should or should not be accepted by it All that the Court can do is to lay down the general principle of law and inquire whether it has been violated by the Corporation. The Court will set aside as ultra vires a contract entered into by Municipal Corporation that is, on the face of it, manifestly impolitic, improvident, and otherwise unreasonable; but where it is only probable or possible that the contract is unprofitable to the Corporation the Court will not in the absence of mala fides interfere with the exercise of its discretion by a municipal authority. The defendant corporation called for tenders for a contract relating to the employment of an agent to obtain advertisements for exhibition on its tram cars. Two companies called C. & Co. Ltd., and the N. A. Co. Ltd., tendered for the contract. The former company had for ten years handled the Wellington tramways advertisements, and also had long association with other tramways, while the latter company had not had the business before, nor (except in one or two towns) had experience of advertising on other tramways in the Dominion. On the advice of its Acting-Manager the defendant accepted the tender of C. & Co., the Acting Manager giving as reasons for his advice (inter alia) the facts that C. & Co., Ltd., had practically built up the whole of the advertising business in Wellington tramways, and that he had found this company satisfactory The revenue guaranteed by the N. A. Co. Ltd. for the term of the contract was, on the face of it, considerably more favorable to the Corporation than that guaranteed by C. & Co. Ltd. Certain ratepayers, having objected to the action of the Corporation, sought an injunction restraining it from executing or completing the accepted tender on the ground that, in the circumstances, it was so improvident as to be ultra vires of the Corporation. Held, refusing injunction, that the Court could not, in the absence of any mala f des, interfere with the exercise of its discretion by the defendant Corporation. ATTORNEY-GENERAL v. WELLINGTON CITY CORPORATION, 1924 N.Z.L.R. 818; G.L.R. 267. [New Zealand.]

an

Negligence-Acetylene gas plant established and kept by borough council-ExplosionInjury to adjoining properties-Whether council liable-Notice of action-" Without prejudice."-Where a borough council established and kept under its management an acetylene gas plant to light the town, and an explosion took place in the building in which the plant was housed, causing damage

to the adjoining properties and no act of God or act of any stranger was proved. Held, that the onus was thrown upon the council of explaining how the explosion happened and that, in the absence of explanation, the council was liable for all damage proved to have been caused by the explosion. Held, also, that a notice of action was duly given although contained in a letter written without prejudice and containing an offer of settlement. MCBRIDE v. BOROUGH OF QUEENSTOWN, 19 M.C.R. 47. [New Zealand.]

Loans to public bodies-Loans by CrownRate of interest chargeable-Statute-Interpretation-Effect of repeal. By the Local Public Works Loans Amendment Act 1904 (Tas.) as amended by s. 2 of the Local Public Works Loans Amendment Act 1916 (Tas.), it is provided in s. 1 that" There shall be payable and paid by any public body to the Treasurer of the State upon any sum or sums of money advanced as a loan to such public body after the commencement of this Act under the Local Public Works Loans Act 1890 interest at such rate, not exceeding seven pounds per centum per annum as the Governor may from time to time fix and determine, and the Governor may, in his discretion, from time to time revise the rate of interest so fixed, and again fix and determine the same," &c.: and in s. 2 that "the interest to be so paid by the public body may from time to time be fixed and determined by the Governor at such a rate as to only include and cover (1) Interest at the rate for the time being payable by the State;" &c. Held, that the words interest at the rate for the time being payable by the State meant interest at the rate for the time being payable by the State on the money raised by the State and advanced to the particular public body in pursuance of the Act. Decisions of the Suprme Court of Tasmania reversed. MARINE BOARD OF LAUNCESTON AND MARINE BOARD OF BURNIE v. THE KING, 33 C.L.R. 142. [High Court.]

Removal of refuse

Municipal corporation from Crown buildings-Right to recover charge therefor.-For some years prior and up to October, 1921, the suppliant corporation had removed refuse from five post offices in Auckland and had collected payment for such services at rates agreed upon between the corporation and the Post Office Department. In January, 1922, the Department notified the corporation that it was considered that the charges were in the nature of rates, for which the Department was not liable, and therefore declined to make any further payments in respect thereof. The corporation continued the service until May, 1922, and now sought to recover payment therefor from October, 1921, to May, 1922, the charges being based on those made and paid by the Crown in previous years, which it was not disputed were fair and reasonable. Held, that although the Crown was not bound by the provisions of the Municipal Corporations Act 1920, and therefore the powers given to Corporation

by s. 89 thereof could not be invoked, yet as it was a matter of necessity in the interests of public health that such refuse should not be allowed to accumulate and the Crown had availed itself of the service provided by the corporation it was under an implied obligation to pay a reasonable sum therefor. Dominion of Canada v. City of Levis ([1919] A.C. 505) applied. MAYOR, ETC., OF AUCKLAND V. THE KING, 1924 G.L.R. 415. [New Zealand.]

66

Contract-Removal of nightsoil-Non-performance-Evidence-Burden of proofCouncil's books on certificates of contractor— Effect.-A contract for the removal of nightsoil which prescribes that the contractor is to provide all necessary plant for cleansing waggons and pans by steam pressure, and the mode of changing and cleaning the pans, and a payment of the sum of 9d. per pan for each removal, emptying, and cleaning, is an entire one, and in an action for payment of the amount fixed the council is entitled to give in evidence the fact that a large proportion of the pans have not been properly cleansed, and that in other respects the contract has not been performed. Vigers v. Cook ([1919] 2 K.B. 475; 88 L.J.K.B. 1132) followed; Dakin v. Lee ([1916] 1 K.B. 566; 84 L.J, K.B. 894), and Morrison v. Grovenor (5 N.S.W. L.R. 195) distinguished.. Upon such evidence being given, the burden is thrown back on the plaintiff to show that he had fully complied with the contract, and that the pans in respect of which the action was brought were properly cleansed. Entries made in a council's books on certificates of a contractor are not fatal to the council in an action against the council for the work so certified. HUNTER 2'. WEST MAITLAND MUNICIPAL COUNCIL, 6 L.G.R. 142. (Supreme Court). [New South Wales.]

Special statute-Subsequent general statute Generalia specialibus non derogant Whether agreement by local body not to exercise its statutory functions-Necessity for borough council to obtain license to use its works to supply electricity.-The Wanganui Suburbs Lighting Act 1903 empowers the borough council to light the borough with gas or electricity and to supply gas and electricity for lighting or domestic purposes, or for motive power or otherwise, within certain geographical limits which included the town district of Gonville. Sect. 30 provided that notwithstanding anything contained in any Act of the General Assembly, it should not be lawful for any person or company other than the borough council for a period of 42 years, from 20th November, 1903, to establish gas works, or works for the supply of electric lighting or power, manufacture or supply gas, or electricity for lighting, heating, or motive power within the limits of the Act without the joint consent of the borough council and the local authority or authorities having jurisdiction within the prescribed limits. In 1912 a deed of agreement was made between the corporation

or

of the borough of Wanganui, and the Gonville Town Board, with reference to the supply of gas by the corporation for 21 years from the 1st October, 1912, to persons in the town district, and cl. 15 thereof provided that the Town Board should not, during the said period, instal or supply, or sanction, or permit any person, corporation or company, to instal or supply any electrical or other system of lighting in the Board's district. In November, 1921, the Wanganui-Rangitikei Electric Power Board was constituted under the Electric Power Boards Act 1918, which empowers a board to purchase and construct electric works (ss. 53 and 57), to purchase electric energy in bulk (s. 57 (d)), to make contracts with local authorities and others to supply to them electric power in bulk (s. 57 (m)), and to sell electric energy to any local authority and others in bulk or otherwise (s. 57 (0)). Held, (1) That the provisions of the Electric Power Boards Act were dominant, and that whatever was found in s. 30 of the local Act, to obstruct the exercise of its powers by the Electric Power Board was swept away so far as it was concerned, and that there was now, assuming that it was empowered to erect and conduct works, nothing to prevent it from exercising its full authority to buy and sell electric energy. (2) That cl. 15 of the deed of agreement had now no restrictive effect and the Town Board and its inhabitants were free to purchase electric energy from the Power Board. (3) That the Electric Power Boards Act, 1911, did not interfere with the lawful acts of the borough within the borough boundaries or with the operations of the borough under the local Act, save where they tended to obstruct the operations of the Power Boards, but that the borough was not exempt from the requirements of the law as to having a license under the Public Works Amendment Act 1911 to use its works to supply electricity. Semble, that the deed of agreement was an instrument by which for 21 years the Town Board agreed not to exercise its statutory functions and that if that was so no effect could be given to cl. 15. Ayr Trustees v. Oswald (8 A.C. 623) followed. MAYOR, ETC., OF WANGANUv. GONVILLE TOWN BOARD, THE WANGANUI RANGITIKEI ELECTRIC POWER BOARD, AND THE ATTORNEY GENERAL, 1924 G.L.R. 281. [New Zealand.]

Cancellation of driver's license after enquiry before committee of municipal councilViolation of principles applicable to such enquiry Certiorari Cancellation quashed -Power to relegate matters to committee.When a city council, acting under s. 49 of the Municipal Corporation Act 1920, has relegated to a committee a matter of enquiry and the enquiry is held and the committee makes its report, which the council by resolution adopts, it is the council that has determined the matter and it cannot be contended that the council has unlawfully delegated its functions. Plaintiff, who, in August, 1923, held and had held for some years prior thereto an omnibus driver's license from defendant,