122-NLR-NLR-V-14-CRITCHLAW-v.-BOX.pdf
( 432 )
Sept. i5,191
Present: Grenier J.
CRITCHLAW v. BOX.
589—P. C. Kandy, 26,539.
Municipal Councils Ordinance, a. 122—By-law prohibiting motor carsbeing driven on a road between certain hours—Not ultra vires.
A by-law (No. 218a) framed under section 122 of the MunicipalCouncils Ordinance was as follows :—
No motor cars, except those going out of town or going to orfrom a house in Victoria drive, shall be driven on thesaid drive between the hours of 4.30 P.M. and 6.30 P.M.”field, that the by-law was not ultra vires of the Municipal Council.
fJ>HE facts are set out in the judgment.
Elliott, for the appellant.
Walter Pereira, K.C., S.-G., for the respondent.
Cur. adv. vult.
September 25, 1911. Grenier J.—
The appellant was convicted of a breach of by-law No. 218a ofthe by-laws of the Kandy Muncipality, in that he drove his motorcar round the Victoria drive, Kandy, between the hours of 4.30 p.m.and 6.30 p.m. on July 20,1911. The by-law is very clearly worded,and there can be no doubt as to its meaning. It is in the followingterms : “ No motor cars, except those going out of town or goingto or from a house in Victoria drive, shall be driven on the said
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drive between the hours of 4.30 p.m. and 6.30 p.m.” The objectthe by-law had in view was to keep the Victoria drive free frommotor cars at certain hours in t he evening, during which the resi-dents of Kandy were accustomed to use it as a safe promenade forwalking and driving. The framers of the by-law were careful notto exclude motor cars altogether from the Victoria drive during thehours in question. The by-law allowed motorists to use the Victoriadrive, but imposed a condition, which was reasonable, and whichenabled them in certain circumstances, emergent or otherwise, togo on the drive. It might sometimes happen that motorists wantedto leave town, or were on their way to town, or that they desired tomake calls at houses in Victoria drive, or that they were suddenlyobliged to summon a medical man or to see a lawyer. I mightmultiply cases, but there is no necessity for it; and the by-lawhas, therefore, made express provision in the interests of all suchmotorists as might find themselves placed in the different situationsI have mentioned. But what the by-law has distinctly aimed at isthat between the hours of 4.30 p.m. and 6.30 p.m. no motoristsshould be allowed to drive round Victoria drive. I was nearlyusing the word “ spin ” as more faithfully descriptive of the wayin which motor cars are driven at times, to the discomfort anddanger of a large number of people who have the right to use thepromenade without incurring any risk to life or limb. I think theMunicipal Council of Kandy would have failed in its duty to thepublic if it had not promptly risen to the occasion and successfullyinvoked the aid of the Legislature to prevent motorists frommaking the continuous circuit of a favourite promenade like theVictoria drive, which by reason of its configuration would easilylend itself to accidents and disasters.
It was, however, submitted by the appellant's counsel (l) thatthe by-law in question was ultra vires of the Municipal Council, onthe ground that it has expressly prohibited motor cars from goinground Victoria drive during certain hours of the day ; and (2) thatthe by-law is inconsistent with, and not authorized by, section 122of the principal Ordinance No. 7 of 1887. Both the objectionsmay be regarded practically as one. I really do not see how section122 can be said not to give the Municipal Council the power to makethe by-law under consideration. It was under this very sectionthat the by-law was made, and unless the terms of section 122 aresuch that the Council clearly exceeded the power given by theLegislature, the Council was entitled to make this by-law andsimilar by-laws, in order to give effect to section 122 and to makeit workable. I think it cannot properly be argued that by-lawshave not the force of law, even if they are intra vires. Apart fromseveral decisions of this Court, in which the question has beendecided in the affirmative, when once by-laws have received legislativesanction, it necessarily follows that they are of equal effect with
S3J. K. A 9334ft (11/40)
Sept.
Grenibr J.
Critchlaw v.Box
( 434 )
Sept. 25,1911
Grenier J.
Critchlaw v.Box
the substantive enactments under which they are framed. If thiswere not so, the raison d’etre for bylaws would be difficult to dis-cover. .Now, it was urged in this case for the appellant that theMunicipal Council, although it may have the power to Tegulatetraffic by means of appropriate by-laws, yet did not possess thepower to make any by-law which would result in the prohibition oftraffic. The proposition, stated broadly as I have stated it, seemsa sound one. The learned Solicitor-General was reluctant to admitthat had the by-law^entirely prohibited the use of motor cars inVictoria drive, and thus interfered with the right of the subject touse a particular mode of locomotion, not dangerous except in thereckless, rash, and negligent use of it, the by-law would have beenultra vires. The inclination of my opinion is that such a by-lawwould be ultra vires, but there is no necessity to decide the questionhere, for there has been no prohibition as contended for by appellant’scounsel. The meaning of plain words must not be overlookedin order to found a legal argument. “ Regulation of traffic ” and.“ prohibition of traffic ” have nothing in common between them.They mean two different state and condition of things. Bothassume in the first instance, however,, the existence of traffic, butyou cannot regulate and prohibit traffic at one and the same time.In the present case all the by-law did was to regulate traffic, andrequire that within certain hours no motor cars should do the con-tinuous circuit of Victoria drive, but, subject to some conditions,it permitted their use in Victoria drive. Where did the prohibitioncome in ? If there was any prohibition, and I if am using the wordrightly in this connection, it was not directed against the use ofmotor cars in Victoria drive, but against their use in certain hours,within a certain circuit and in a certain manner. Clearly, therefore,it is a misuse of language to say that there was any prohibition, orthat the by-law contained anything which would justify the positiontaken by the appellant.
The case of Scott v. Piliner? which was cited to me by appellant’scounsel, as well as the case of The Attorney-General for Ontario andAttorney-General for the Dominion and the Distillers’ and Brewers’Association of Ontario have no manner of application to the presentcase. In thecase of The Municipal Corporation of the City of Torontoand Virgo, which went in appeal to the Privy Council,2 it was heldthat a statutory power conferred on a Municipal Council to makeby-laws for regulating and governing a trade does not, in the absenceof an express power of prohibition, authorize the making it unlawfulto carry on a lawful trade in a lawful manner. That was the caseof a by-law prohibiting hawkers from plying their trade in animportant part of the Municipality, no question of apprehendednuisance having been raised. It was expressly held that the by-lawdid warrant the prohibition, and that the effect of it was practically1 K. B. 855.2 {1896) A. C.-88,
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to deprive the residents of what was admittedly the most importantpart of the city of buying their goods of, or of trading with, theclass of traders in question. In'the present case the by-law im-pugned does not amount to a prohibition of motor cars in Victoriadrive or in any part of Kandy at all, and there is therefore noanalogy between the two cases.
The last point raised involved a pure question of fact. It wasargued that it was for the prosecution to prove affirmatively thatthe appellant did not stop the car at any bungalow in Victoriadrive, or that he was not going to or. from Kandy. The argumenttook me by surprise, because there was evidence, such as in thecircumstances it was possible for the prosecution' to adduce, butthe accused did not make.the slightest attempt to rebut it, nor didhe give evidence himself. Whether he stopped his car at anybungalow, or whether he was going to or from Kandy, were matterspeculiarly within his knowledge, and under section 166 of theEvidence Ordinance the prosecution having established a primafacie case, it was his duty, and the onus was thrown on him, torebut it.
The appeal must be dismissed, and the conviction and sentenceaffirmed.
Appeal dismissed.
+, ■
Sept. 25,1911
Grenier J.
Critchfaw v.Box.