028-NLR-NLR-V-07-KARUNARATNE-v.-BOTEJU.pdf
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KARUNARATNE t'. BOTEJU.
P. C., Colombo, 84014.
Ordinance No. 20 of 1865. s.-2—“ Stone or other snbstaru-es “—Removing sand fromseashore.
The removal of sea sand from the seashore near public roads, afternotice of an order of prohibition by a Government Agent, is an offenceunder section 2 of the Ordinance No. 20 of 1865.
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HIS was an appeal by the Attorney-General against an order ofthe Police Magistrate acquitting the accused, who had been
charged with removing sand from the seashore between the pointwhere the railway line approaches the beach at Kollupitivn(Colombo) and the Old Police Station at Galle Buck, in breach ofthe notice of prohibition of sqch removal given by the GovernmentAgent of the Western Province in the Ceylon Government Gazetteof August 28, 1893, in terms of Ordinance No. 20 of 1865, section 1.
Maartensz, C.C., for appellant.
Walter^ereira, for respondent.
18th January, 1904. Mowqreiff, J.^-
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The Government Agent is empowered by the section in questionto prohibit “ the removal of stones or other’ substances from theseashore adjoining or near public roads and thoroughfares. ” The
1904.
January 1
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1904.
January 18.MoNCBSIOT,
J.
learned Magistate thought that “ other substances ” did not includesand, and acquitted the defendant.
The matter does not strike me in the same way. Sand iscomposed of broken rocks, chalcedony, shells, coral, and is for themost part of the same substance as stone. If it were not so, at wbatpoint of diminution does a stone cease to be of the same substanceas a larger stone and become liable to be removed from the sea-shore in spite of prohibition?
Again, if sand were of a different substance, it seems to meabsurd that the Legislature should forbid through the GovernmentAgent the removal of stones from the seashore and permit theremoval of the seashore itself. The seashore is in some placesalmost entirely composed of sand. The Legislature must have asmaller sh,are of wisdom than I credit it with if it did not meanby this provision to give the Government Agent power to prohibitthe removal of every substance going to fqrm .the seashore which canadd,to the support afforded by the seashore .to the adjacent land.
The argument sought to be drawn from the words in the sectionof .the Ordinance—" break or remove stone or other substances—might have been of some avail if the word used had been•“ and ”. It is or consequently no such argument can bedrawn from the words.
The fact that a repealing Ordinance has been drafted in ■whichsand is specially mentioned does not necessarily show more thanthat somebody thought it best to put an end to the doubtssuggested by those who contended for the right to remove sand.
Of the cases cited in argument' I think – that Casher v. Holmes(2 B. & Ad 597) scarcely applies. English authorities do speak ofthe rule of ejusdem generis. Bowen (L. J.) seems to consider it arule of common sense father than of law. But, if it-is a rule, it isonly applicable when the context shows such to have been theintention of the Legislature. In Ex parte Jqjf,n Hill, 3 G. & P. 225,Bayley, J., held that there was a penalty for cruelty, to “ any horse,mare, gelding, mule, ox, cow, heifer, steer, or other cattle;" butnot cruelty to a bull, which is not ejhsdem generis with the class“ ox, cow, heifer, steer.” Perhaps this case is not fully reported,but as it stands I do not understand it. From Skinner v. Shew,1B.1 Ch. (18f>3) 424, where the words " by circular, advertise-
ment, or otherwise” were under discussion, it is clearfthat the1 general words are to be governed by the intention expresseck^n theterms of the provision, add not by any dogmatic rule of ejusdemgeneris.
The acquittal in thi§ case is set aside, and the case is sent backto be proceeded with in due course.