054-NLR-NLR-V-27-ANDERSON-v.-SINNATAMBY.pdf
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Present: Dalton J.
ANDERSON v. SINNATAMBY.
763—P. C. Anuradhapura, 59,700.
Local^Bocird—Power to make by-laws—Supervision and control of dairies—Refusal of licence to sell milk—Ordinance No. 13 of 1898, s. 56,The power given to a Local Board under section 56 (5) of theOrdinance No. 13 of 1898 to make by-laws for the supervisionand control of dairies enables such authority to, refuse a licenceto sell milk, on failure of the applicant thereof to comply with theregulations, governing the issue of such licence.
PPEAL by the Solicitor-General from an acquittal by thePolice Magistrate of Anuradhapura.
The Inspector of the Local Board of Anuradhapura charged theaccused with keeping a dairy without an annual licence from theChairman of the Local Board in breach of a by-law framed by theBoard. The by-law, for as it was material to the present case, is asfollows :—“ No person shall, within the limits of the Local Board,keep any dairy without an annual licence from the Chairman, LocalBoard, which licence the Chairman is hereby empowered to refuseto any person failing to comply with any of the following rules orany existing Local Board rules providing for the regulation andcontrol of the places aforesaid . . .
The learned Police Magistrate held, that the by-law was ultravires of the Ordinance, and discharged the accused.
Mervyn Fonseka, C.C., for Solicitor-General, appellant.
Joseph, for respondent.
February 10, 1926. Dalton J.—
This appeal raises a question as to the validity of certain by-lawsmade on August 5,1922, by the Local Board of Anuradhapura underthe provisions of section 56 of Ordinance No. 13 of 1898 (LocalBoards Ordinance), as amended by Ordinance No. 27 of 1916.
The Inspector of the Local Board lodged a complaint againstS. Sinnatamby of Anuradhapura for keeping a dairy without anannual licence from the Chairman of the Local Board in breach ofby-law 1 set out beiow. The Magistrate held, that the by-law wasultra vires of the Ordinance, and discharged the defendant. Fromthat decision the Solicitor-General appeals.
The by-law in question in its material parts, is as follows:—
(1) “No person shall, within the limits of the Local Board, keepany …. daily without an annual licence from the Chairman,Local Board, which licence the Chairman is hereby empowered to
1926*
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refuse to any person failing to comply with any of the followingDamon J. rules or any existing Local Board rule providing for the regulation
and control of the places aforesaid …. Such licence shall
Stonatamby farther be subject to such fees as the Local Board shall from timeto time determine with the sanction of the Governor in Council.”
The by-laws purport to be made under the powers given by section66 of the Local Boards Ordinance, section 56 (5) providing forthe making of by-laws is as follows :—“ (5)…. and for
supervision and control of private markets …. dairies
If
Section 11 of the Interpretation Ordinance enacts certain generalprovisions with respect to powers given to any authority to makerules. By sub-section (1) (d) of that section it is provided that powerto make rules for regulation, supervision, protection, or controlshall include power to make rules—
(1) For the issue of licences for the purpose of such regulation,supervision, protection, or control; and
(3) For the refusal of licences in cases of non-compliance with theprovisions of any rule so made.
This sub-section (1) (d) was enacted in 11)16 as a result, so Counselstates, of the decision in Perera v. Fernando 1 where Pereira J. andDe Sampayo A.J., Wood Renton C.J. dissenting, held, that it isultra vires of a Sanitary Board constituted under the Small TownsSanitary Ordinance, 1892, to make a regulation under a section ofthat Ordinance requiring vendors of fish at places other than apublic market established by the Board to take out licences for thesale of fish. This case arose, be it Doted, out of an Ordinance otherthan the one in question here. It is, however, referred to in theMagistrate’s judgment, from which I understand, that he came tothe conclusion that the by-law was ultra vires relying on this decisionand upon the decision in Sanitary Inspector v. Harmanis.2 It isupon the latter case that Mr. Joseph relies in his argument for therespondent together with two English decisions to which I referlater. Sanitary Inspector v. Harmanis (supra) was decided in 1917after the Interpretation Ordinance had been amended by the insertionof section 11, sub-section (1) (d) to which I have referred above. Italso arose in respect of by-laws made under the Small Towns SanitaryOrdinance, 1892, and not under the Local Boards Ordinance. TheSanitary Board of Galle purporting to act under section 2 (2) ofthe Ordinance made a rule in 1911 forbidding the sale of fish withouta special licence of the Board at any place outside the public market.In holding that the rule, whether made before or after the amend-ment to the Interpretation Ordinance in 1916, was ultra vires of theOrdinance, Shaw J., following Perera v. Fernando (supra) in that
1 (1914) 17 N. L. B. 494.
* (1907) 19 N. L. B. 339.
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1026.
Damon J.
Anderson v.Sinnatawbij
“ No doubt the regulation and governance of a trade may involvethe imposition of restrictions on its exercise, both as totime, and to a certain extent, as to place where such restric-tions are, in the opinion of the public authority, necessaryto prevent a nuisance or for the maintenance of order.But their Lordships think there is a marked distinction tobe drawn between the prohibition or prevention of atrade, and the regulation or governance of it, and indeed apower to regulate and govern seems to imply the continuedexistence of that which is to be regulated or governed.”
In Parker v. Mayor of Bournemouth* a by-law for a similarpurpose, regulating hawking on the beach, was held to be ultravires, as it was held to be unreasonable, and in effect reserved tothe corporation the right to Tefuse permission to trade to anyparticular person.
Basing his argument on the last three mentioned decisionsMr. Joseph urges that by-law (1) goes beyond any supervision orcontrol, but might amount to the absolute prohibition of carrying ona dairy, which is a lawful trade, in a lawful manner. With this argu-ment I am unable to agree, because the by-law expressly sets outthe grounds upon which a licence can be refused, failure to complywith certain rules (by-laws 32-50) which deal with such matters assanitary requirements, drainage, water, employees or animals,suffering from disease, utensils, number of cows and sheds ; theserules the Magistrate has held to be generally intra vires. Theseprovisions are, at any rate for the most part, clearly reasonable andfor the public benefit, and come with the powers of supervision andcontrol to which the Ordinance refers. Express power as set outabove is given by the Ordinance to make rules refusing licences incase of non-compliance with the provision of any rule. By-law (1)
1 (1896) A. a 83.2 {1902) 86 L. T. 449.
respect holds that section 2, sub-section (2) (d) of the Small TownsOrdinance did not authorize a rule forbidding sales outside the publicmarket without licence, because that was not " supervision orcontrol,” but might amount to absolute prohibition of lawful salesconducted in a proper manner.
In the same way the decision of the Privy Council in City ofToronto v. Virgo1 is summarized as follows : A statutory powerconferred upon a Municipal Council to make by-laws for regulatingor governing a trade does not, in the absence of an express powerof prohibition, authorize the making it unlawful to carry on a lawfultrade in a lawful manner. The. by-laws in question prohibitedhawkers from carrying on their trade in certain streets, and wereframed under a statutory power “ for licensing, regulating, andgoverning hawkers … In the course of the judgment it
was stated:—
27/21( 288 )
1926.
Dalton J.
Anderson v.
Sinnatamby
then does not include or contemplate the possibility of an absoluteprohibition of dairying conducted in a proper manner, but speci-fically sets out the cases in which a licence may be refused, whichare, when the trade is carried on, in an unlawful manner.
The authorities cited, therefore, in support of the contention thatthe by-law is ultra vires of the Ordinance, are not applicable here,since they proceed on the ground that the by-laws which had to beconstrued might prohibit lawful trade conducted in a lawful manner.That is not the case here, the grounds upon which the licence canhe refused being clearly restricted as I* have already stated.
With respect to the power to require the payment of a fee for alicence, the Magistrate states that the provisions of section 11,sub-section (1) (d) of the Interpretation Ordinance is silent on thepoint. He has apparently overlooked the provision of section 29aof the Local Boards Ordinance, which gives authority to levy feeson licences granted under the Ordinance or under by-laws made underthe Ordinance. The case of Thomas v. Junis Lebbe1 to which herefers has no application here. It refers to Ordinance No. 7 of 1876,which was repealed by the Local Boards Ordinance, 1898.
The appeal is, therefore, allowed, the order of the Magistrateset aside, and the case will be remitted to him to decide and toadjudicate upon the facts.
Appeal allowed.
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1 5 S. a. C. (5.