DE KRETSER J.—Bakelman v. de Silva.
£938Present: de Kretser J.
BAKELMAN v. DE SILVA.
105—P. C. Dandagamuwa, 1,724.
By-law—Prohibiting the exposure of fish outside public market—Validity—Small Towns Sanitary Ordinance, No. 18 of 1892, s. 9 e (2) (d).
A by-law made under section 9 e (2) (d) of the Small Towns Sanitary-Ordinance, which prohibits the exposure of fish for sale outside a publicmarket without a licence, is not ultra irires.
^f^PPEAL from an acquittal by the Police Magistrate of Dandagamuwa.
E. A. L. Wijeyewardene, K.C., Acting Attorney-General (with him
Jansze, Acting C.C.), for complainant, appellant.
No appearance for accused, respondent.
May 20, 1938. de Kbetser J.—
The accused was charged as follows: —
“ That he did on or about August 11, 1937, at Kuliyapitiya within thelimits of the Sanitary Board expose for sale fish outside the public marketswithout a licence from the Board in breach of by-law 1a (1) of by-lawsframed under section 9e (2) of the Small Towns Sanitary Ordinance,No. 18 of 1892, and published in the Ceylon Government Gazette No. 8,283of July 10, 1936 ”.
The accused pleaded not guilty and trial was fixed for November 20,1937.
1 6 N. L. R. 193.
07 N. L. R. 65.
DE KRETSER J.—Bakelman v. de Silva.
On that day his Proctor admitted the sale of fish and contended thatthe by-law was ultra vires.
This contention was upheld and accused was acquitted. The Attorney-General appeals from this acquittal.
The accused was not represented nor present at the hearing of theappeal.
The Magistrate had followed the case of Perera v. Fernando
The Attorney-General’s contention briefly was that that case had ho' application since the circumstances were different. He also suggestedthat the decision was erroneous.
With regard to this suggestion all I need say is that 1 am bound by thatdecision and that there do appear grounds for having that decisionreviewed in a suitable case. It would serve no Useful purpose to give myreasons for saying so.
In that case, which was decided in 1914, the by-law now in question,which was framed only in 1936, was not the subject of discussion ordecision. That case referred to a by-law relating to private markets,which would come under section 9e (2) (d), and not to the hawking-of fishwhich does not come under that subdivision.
Briefly in that case two out of the three Judges decided that in spite ofsection 11 (1) (d) of the Interpretation Ordinance it was open to a Court tocanvass the question whether the by-law was ultra vires or not, and thatthe evidence in that case showed that the real object of the by-law thenin question was not to control or supervise private markets, but to preventaltogether the sale of fish at any place other than the public marketestablished by the Sanitary Board.
The by-law then in question authorized the Chairman of the SanitaryBoard to cancel any licence which may have been issued. It thereforegave him the opportunity to use his power in such a way as to stop all saleoutside the public market.
The by-law now in question gives him no power to refuse a licence or to.cancel one already issued.
Not only therefore are we now concerned with a by-law of quite adifferent type but there is no evidence that there is any ulterior motivebehind it. The accused has not desired to place any evidence beforeCourt and should not be now allowed to do it. The procedure adoptedwas both irregular and unsatisfactory but the plain meaning of what tookplace was that the accused would plead guilty if the by-law was found tobe valid.
I am of opinion that the decision previously referred to does not affectthe decision of this case. It is necessary now to consider the by-law onits own merits.
In doing so it is necessary to bear in mind the difference between by-lawsmade by responsible local bodies, usually created on a democratic basisand lacking any personal interests, and by-laws made by private bodieslike companies. It is also useful to remember that in the former case theLegislature signifies its confidence in the public body in different ways.
Maxwell on the Interpretation of Statutes (6th ed., p. 524) says:—“Indetermining the validity of by-laws made by public representative bodies
= 7 N. L. R. 494.
I * I
DE KRETSEB.—Bakelman v. de Silva.
under statutory powers, their consideration is approached from a differentstandpoint from by-laws of railways or other like companies, which carryon business for their'profit, although incidentally for the benefit of thepublic. Courts of justice are slow to condemn municipal by-laws asinvalid, on the supposed -ground of unreasonableness, and support themif possible by benevolent ’ interpretation, and credit those who have toadminister them with an intention to do so in a reasonable manner. But,on the other hand, if a by-law necessarily involves that which is unreason-able, it is the duty of the Court to declare it to be invalid
It must also be remembered that with changing conditions, andespecially the development of democratic ideas, the Courts have lessreason to guard against the use of dictatorial powers and as a result theattitude of the Courts has altered.
In Cassell v. Jones', Channell J. emphasized this change in attitudeand said: “ There is no doubt that the views of the Court as to by-lawshave altered very considerably during recent years, and it has beenpointed out that the by-laws which have been made by a public body asto property to which the public have access—it does not signify whetherrightly or not—stand on a very different footing from the by-laws madeby other corporations, and which were scrutinised in the most carefulfashion by the Courts in olden times. The principle which lies at the rootof these by-laws is this, that the local authority must decide local questions—and they are authorised by the Legislature to do so—and if theybona fide form the opinion that certain things are, in fact, an annoyance,the local authority must be supported in the assertion of their powers,unless it is quite clear that they have exceeded them ”.
It must also be borne in mind that the by-law is published by HisExcellency’s command over the signature of the Minister of LocalAdministration, which means that it has passed this scrutiny of theCommittee of the State Council which deals with that subject and which iscomposed of the representatives of the people.. It is common knowledgethat these by-laws are usually passed by the law officers also. There istherefore an abundance of checks on the despotism of local bodies and it isno doubt for that reason that the Legislature was content to enact in theInterpretation Ordinance that by-laws when published in the GovernmentGazette should hhve as full force as if they had been enacted in theOrdinance itself.
The by-law in question purports to be made under section 9e (2) of theSmall Towns Sanitary Ordinance, 1892. Section 9e (2) has manysubdivisions and the last of them is wide enough to cover the by-law nowin question. I see nothing unreasonable in the by-law and, in my opinion,it is not ultra vires.
The acquittal is set aside and the case sent.back for the Magistrate totake further proceedings, which I take it will mean nothing more than thepassing of sentence.
It is interesting to note that in the by-laws contained in Schedule D of 'the Ordinance No. 13 of 1898 is a by-law on the same lines as the by-lawnow in question, viz., by-law. 2 in Chapter IV.
i 70S Law Times $0f>.
BAKELMAN v. DE SILVA