H. D. Bell and M. Myers, for the respondent : The The resolution adopting the report of the committee was a sufficient resolution authorising the collection of tolls. dictum of Prendergast, C.J., in Macarthy v. The Corporation of Wellington(1) has been misunderstood. The report of the committee in that case not only contained nothing about the particular point, but it contained no recommendation of any kind. It is no authority whatever for the proposition that the adoption by the Council of a report recommending that a certain course be taken does not amount to a resolution by the Council that that course be taken. It is clear that it does amount to such a resolution, and it has always been so treated. It is said that the tolls were established for three years only. The word "established" is not used in this Part of the Act. The Council had caused tolls to be collected. It could continue to collect them. It was not necessary to readvertise them. Advertisement is only required before the scale first becomes payable. The tolls did not again become first payable in 1893. It is said, that the Council did not resolve to continue the collection of the tolls. It did so in so many words. It resolved to accept tenders for the collection of the tolls. Omne majus continet minus. There is nothing to make a resolution in the express terms of the statute necessary. If from the resolutions there can be gathered an intention on the part of the local body to continue the collection of the tolls, that is sufficient. Section 117 did not create a condition precedent under section 106. Compliance with section 117 is not expressed to be a condition precedent; compliance with section 106 is. That emphasizes that compliance with section 117 was not intended to be a condition precedent. It is said that section 117 is incorporated into section 106. But it would have been simple, if it had been intended, to have concluded section 106 with the words nor unless the other provisions of the Act in "regard to the Board are complied with." The Court cannot collect by inference that the provision was intended to be mandatory. The appellant is asking the Court to reverse a 66 (1) 8 N.Z. L.R. 168, at p. 178. C.A. 1901. HOOKER V. MORRIS. C.A. 1901. HOOKER v. MORRIS. long line of decided cases upon this point. The test is, is there an absolute prohibition laid down by the statute? Pearson v. Clark(1). Gregson v. Potter(2) was a very different case there the wrong scale was on the board. [EDWARDS, J.-Here you have a wrong scale. Your scale is not complete unless it shows that you are entitled to clearance at the next gate.] Although it is part of the scheme, it is not part of the scale of tolls; otherwise it would require to be advertised, which it clearly does not. See, further, on the question whether section 117 creates a condition precedent: Shire of McIvor v. Nolan (3); Wilberforce on Statute Law(4); Cole v. Greene(5); and Le Feuvre v. Miller(6). O. Samuel, in reply: In Macarthy v. The Corporation of Wellington(7) the committee did recommend something: it recommended the Council to accept a certain offer. STOUT, C.J.:— Cur, adv. vult. In this case the appellant was sued in the Magistrate's Court at New Plymouth for the sum of ls. for toll for passing through the Omata toll-gate, in the County of Taranaki, and 10s. for compensation for loss of time in recovering the sum. The Magistrate decided on two grounds that toll was not payable, the grounds being, 1, that the scale of toils was not properly advertised; 2, that the clearance of the gates for ten miles from Omata did not appear on the board at the Omata toll-gate, on which the scale of tolls was painted. Reference is made in the Magistrate's judgment to sections of "The Public Works Act, 1894," as if these had to be complied with; but, as the toll, if established at all, was established in 1889, the reference should have been to "The Public Works Act, 1882," so far as establishing the toll is concerned, and to the 1894 Act as to the clearance of the other (1) Mac. (N.Z.) 136, 146. (2) 4 Ex.D. 142. (3) 6 W.W. & A'B. (L.) 259. (5) 13 L.J. C.P. 30. (6) 8 El. & Bl. 321; 26 L.J. M.C. 175. (7) 8 N.Z. L.R. 168. gates. This is of little moment, however, as the sections dealing with tolls in both Acts are identical. So far as the case and judgment are concerned, it does not appear that any other questions were raised before the Magistrate than those decided. Mr. Govett, one of the counsel for the appellant, stated during the argument that the sufficiency of the resolution establishing the toll was also raised. When the case was before the Supreme Court on appeal this question was not raised, and there is no reference to it in the judgment pronounced in the Supreme Court. The first point raised before, and decided in the appellant's favour by, the Magistrate was properly abandoned by the counsel for the appellant as untenable. It was not necessary in advertising the scale of tolls to make any reference to that part of the resolution that mentioned three years as the term for which the tolls were to be imposed. The appellant relies now on three points-viz.: 1. Tolls were not properly established, the resolution of the 27th of November, 1889, not being sufficient. 2. The tolls ceased at the end of December, 1892. 3. The provisions of section 154 of "The Public Works Act, 1894," are mandatory, and, not having been literally complied with at the time the appellant passed through the Omata toll-gate, no toll was then payable by him. 1. The resolution imposing the tolls appears in the form of a report from a committee of the Council. The report stated that the committee recommended the erection of three toll houses and gates for a term of three years, and recommended the adoption of a tariff, which is set out. And when the report was brought before the Council the following resolution was passed: "That the above report be adopted." It is contended that this was not sufficient, and that some other words besides the adoption of the report should have been added to the resolution. Reliance was placed on an obiter dictum of the late Chief Justice, put in the form of a doubt in the case of Macarthy v. The Corporation of Wellington(1). No other case or authority was cited. If the law be so laid down by this Court the whole mode in which local bodies and (1) 8 N.Z. L.R. 168, at p. 178, C.A. 1901. HOOKER บ. MORRIS. public companies carry on their multifarious duties in this colony will have to be changed. The County Council has power to appoint committees for the regulation and management of, or for the inquiring into and reporting upon, such matters as it thinks fit (see sections 115 and 116 of "The Counties Act, 1886 "). If a committee reports recommending or suggesting a certain course, and the Council adopts that recommendation or suggestion, that is, in my opinion, sufficient to approve of what a committee has done: See Arnold on Municipal Corporations(1); The Barnsley Local Board of Health v. Sedgwick(2). In my opinion the adoption of the resolution was sufficient, and therefore the County Council did cause tolls to be collected. 2. The second point is as to the limitation in the resolution that the tolls were to cease at the end of three years, and that therefore the tolls would require to be re-established and readvertised. The County Council could not limit the legislative right of future County Councils. Six months or earlier after the resolution to collect tolls for three years only had been passed, the County Council could have struck out and rescinded that part of the resolution. Nor does the continuance of a toll come within the words "toll first payable in section 106, to make a new advertising necessary. The only question is whether the resolutions passed in 1892 were sufficient to negative the three-years limitation. In my opinion the resolutions of the 7th of December and the 24th of December, 1892, were sufficient, and the tolls were authorised to be continued to be collected for 1892, and thereafter from year to year until after the time for paying the toll sued for. 3. The third point is, whether, if the provisions of section 154 are not literally complied with, a toll can be collected. In my opinion, non-compliance with the provisions of the section does not make the toll not collectible. The cases are numerous as to where non-compliance with statutory provisions renders a rate void: See Le Feuvre v. Miller(3); (1) 4th ed. 38. (2) L.R. 2 Q.B. 185. (3) 8 El. & Bl. 321; 26 L.J. M.C. 175. Shire of McIvor v. Nolan(1); and Reg. v. Ingall (2). In this . section 154 does not have any such declaration as appears in What the practical effect will be of holding section 154 to be mandatory may be stated. If no toll is collectible at the Omata gate, then a person cannot get through the other gates within ten miles of the Omata gate without payment of tolls —that is, those using the road might have to pay two tolls instead of one. To hold that, because of the words "Clears 66 the toll-gates" (naming them) not being painted on the board, no toll was payable at the Omata toll-gate might cast an additional burden on the persons using the road. No advantage would be obtained by the toll-payers by the remission granted by the -County Council. Can this section 154 C.A. 1901. HOOKER V. MORRIS. |