R.] OF AUSTRALIA. 407 should be allowed as to all but the 2} feet strip of H.C. oF A. 4 1912. — CRAINE Appeal allowed with costs. Judgment "as ae ete ie wried by limiting tt to the recovery U7 ig se ceo @ strip 2 feet 6 inches wide along ax Washington Street. Judgment for the ee ae defendant as to the residue without — costs. itors, for the appellant, Croft & Rhoden. olicitors, for the respondents, Davies & Campbell. B.L. (HIGH COURT OF AUSTRALIA.] SIDENT &c OF THE SHIRE OF | , : PIR is oo gigs Ve igf AND RREtT! AND ANOTHER . . «| RESPONDENTS. ON APPEAL FROM THE SUPREME COURT OF VICTORIA. nent — By-law —Validity — Traction Engine —''Vehicle — Local H.C. oF A. i Act 1903 ( Vict.) (No. 1893) secs. 197 (23), (29), (34), 495, 594. 1912, 'sec. 197 of the Local Government Act 1903 (Vict.) it is provided that a Murzounxe, lity may make by-laws for the following purposes (inter alia) :— Oct. 8, 9, 10, Regulating the hours during which and conditions on which loco- é 'engines or rollers iinpelled by steam or electricity may proceed over Grisith C.J., " Barton and Tsaaes JJ. )) Prohibiting or regulating the use on any road of any vehicle not the nails on its wheels countersunk in such manner as may be specified H.C. or A. 1912. — PrestDENT &c, OF THE Sure or TuNGAMAH v Mrerett. HIGH COURT in such by-law or having on its wheels any bars spikes or other projec forbidden by such by-law." "<(34) Generally for maintaining the good rule and government of municipality." By sec, 594 it is provided that "it shall be lawful for any munic to make by-laws not inconsistent with the provisions of this Part for proceed over any street or road." Held (Isaacs J. doubting), thata traction engine is a " vehicle" within meaning of sec, 197 (29). Ahern v. Cathcart, (1909) V.L.R., 132; 30 A.L.T., 156, overruled. any traction engine having on its wheels any bars, spikes, grips, or other projections, but providing that this prohibition should not apply to (a) traction engine used only for hanling agricultural machinery if the projections on the driving wheels conformed to certain specified conditions ; (b) any tt tion engine the driving wheels of which were cylindrical and smooth sole' and had no other projections than those specified, provided that in the last mentioned case the owner of the traction engine had previously obtained written permission of an officer of the Council to use it on specified road by the engine or any vehicle drawn by it. 'The by-law further provided that no person shonld use in any public highway any traction engine unl planks of specified dimensions upon which the engine should cross over bridge or culvert. Held, that the by-law was within the power conferred by secs. 197 and and was valid. Decision of the Supreme Court of Victoria: Merrett v. President dc. of the Shire of Tungamah, (1912) V.1..R., 248 ; 34 A.L.'T., 35, reversed. x AppEAL from the Supreme Court of Victoria. The President, Councillors and Ratepayers of the Shire Tungamah, purporting to act under secs. 197 (29) and 594 of t Local Government Act 1903, made a by-law which, so far as material, was as follows :— «Bars, Spikes, Grips, or other Projections on Wheels. "1. No person shall use or cause or procure any other perse to use on any public highway any traction engine or oth vehicle having on its wheels any bars, spikes, grips, or 0 y projections :— OF AUSTRALIA. «This prohibition, however, shall not apply to— _ "(a) Any traction engine, used only for hauling agricultural 3 machinery, or hauling a vehicle containing such machinery only, if the projections on the driving wheels of such engine consist only of bars at least two and three-quarter inches in width and not more than one and one-sixteenth of an inch in thickness, and the space intervening between such bars does not exceed five inches, or ne "(b) Any traction engine the driving wheels of which are cylindrical and smooth soled, and having no projections thereon other than diagonal bars of not less than three inches in width nor more than three-quarters of an inch in thickness, and extending the full width of the tire, and the space intervening between such cross bars not exceeding three inches; provided in such last mentioned case— "(i) That the qwner of such engine has previously obtained from the Council or an officer of the Council duly authorized in that behalf a permit in writing specifying the public highways on which it may be used, and that the engine is being used on one of the highways so specified. "(ii.) That the owner has agreed in writing to pay to the Council the cost of making good any damage done to any roadway bridge or culvert by such engine or any vehicle drawn by it. "(iii.) That such engine is not being used (unless with the written consent of the Council or an officer of the Council duly authorized in that behalf) to haul more than two vehicles, exclusive of any vehicle solely used for carrying water for such engine. "(iy.) That the loading of any vehicle drawn by such engine does not exceed nine tons in weight, including the weight of such vehicle. "(y.) That the weight carried by any vehicle drawn by such engine (including the weight of such vehicle) does not exceed three hundredweight for H.C. or A 1912. —— PRESIDENT &C. OF THE Sure oF TUNGAMAH v. MERRETT. H.C. or A. 1912. ~~ PRESIDENT &c. OF THE SHIRE or TUNGAMAH v Menrerr. HIGH COURT each half-inch of bearing surface of the tir felloe of each wheel of such vehicle." "Wooden Planks to be carried on Engine &c. public highway any traction engine unless. there is carried such engine, or some vehicle drawn by the same, at least f wooden planks at least 12 inches in width, four inches in thi ness, and at least twelve feet in length, and when crossing any bridge or culvert the driver or the person in charge of s engine shall lay down such planks and no engine shall be per mitted to cross over any bridge or culvert except on such plank An order nisi was obtained by Charles Edward Merrett William Whiteman calling upon the municipality to show ea why the by-law should not be quashed wholly or in part for tl illegality thereof on the grounds :— : 1. That the by-law and every clause thereof was wholly unwarranted by the Local Government Act 1903, secs. 197 594, and had no warrant or authority under any other law. 2. That the by-law was unreasonable and capricious. : On the return of the order nisi the Full Court, to which the matter was referred, quashed clauses 1 and 8 of the by-law ab set out on the ground of the illegality thereof: Merrett v. P dent &e. of the Shire of Tungamah (1). The respondents to that order nisi now appealed to the Hi Court from that decision. Irvine K.C, and Hassett, for the appellants. The by-law 2 be supported under either see. 197 (29) or sec. 594 of the Government Act 1903. A traction engine is a " vehicle" withi sec. 197 (29),and the decision in Ahern v. Cathcart (2) to contrary is wrong. The word " vehicle" in ordinary collog use is applied generally to anything which goes on wheels 0 the roads. It should not be limited to its etymological meaning In Cannan v. Earl of Abingdon (3) a bicycle was held to be vehicle. When the Local Government Act 1903 was passe there were no other vehicles having bars or spikes on the wh (1) (1912) V.L.R., 248; 34 A.L.'T., 35. (2) (1909) V.L.R., 1325 30 A.L.T.,, (3) (1900) 2 Q.B., 66. L.R.] OF AUSTRALIA, xcept traction engines. Limiting the dimensions and position of bars on the wheels is regulating the conditions on which 'ion engines may proceed over the roads, as are also the other ions of clause 1 of the by-law. As to clause 8 the appel- could, in regulating the conditions on which the roads might -used, prescribe that planks should be put down and used when ing bridges or culverts, and it is ancillary to that power to quire planks to be carried. Mitchell K.C. and Starke, for the respondents. The word "vehicle" in sec. 197 (29) does not include a traction engine. A "vehicle" is something for carrying goods or passengers. Part XXIII. of the Act deals with the regulation of traction engines, and it was not the intention to deal with them also under the cription of vehicles. They referred to Rossi v. Edinburgh Corporation (1); Gentel v. Rupps (2); Ferrier v. Wilson (3); Ahern v. Cathcart (4). A power to prohibit the use of traction nes on roads would be inconsistent with the provisions in XXIII. where a right is given to persons to use the roads ibject to certain conditions. It is a matter of structural neces- y that traction engines should have cross bars on the wheels. Js is of an unusual character. A right to prohibit the use of 'ion engines with cross bars on their wheels would be so consistent with the right of traction engines to use the roads at sec. 197 (29) should be construed as not applying to traction nes. A by-law prohibiting the use of traction engines of the ry normal construction would be unreasonable: Williams Weston-super-Marve Urban District Cowneil (5); Parker v. jor &e. of Bournemouth (6); White v. Morley (7); Attorney- eral v. Scott (8). _ [Grievira C.J. referred to Bell v. Day (9). - Isaacs J. referred to Thomas y. Sutters (10).] 1 ) A.C., 21. (6) 86 L.T., 449. ~ 2) (1902) 1 K.B., 160, at p. 166. (7) (1899) 2'Q B., 34, at p. 39 (3) 4 C.L.R., 785, at p. 791. (8) (1904) 1 K.B., 404. (1909) V.L.R., 132; 30 A.L.T., (9) 2 Qd. L.J., 180. * (10) (1900) 1 Ch., 10. 98 L.T., 537. H.C. or A. 1912. ~ PRESIDENT &c. OF THE Sure or Tuncaman v. Merrett. H.C. or A. 1912. ed PRESIDENT &C. OF THE SHIRE OF Tuncaman . MeERRETT. Oct, 14. HIGH COURT Under sec. 495 agreements may be made in respect of ex weights passing along roads, and there is no power by by-law compel the making of agreements whether the weights 4 excessive or not. As to the weights that may pass along ro sec. 569 indicates the measure, and this by-law goes beyond tha section. [Isaacs J. referred to Lord Aveland v. Lueas (1).] 3 Clause 8 of the by-law makes it a distinct offence not to carry the requisite planks. That is not regulating the conditions o} proceeding along roads. Irvine K.C., in reply, referred to Co-operative Brick Oo. Pi prietary Ltd. v. Mayor &e. of Hawthorn (2); Widyee Sh Council v. Bonney (3). (Grirrira C.J. referred to Plunkett v. Smith (4).] Cur. adv. vult. Grirrita C.J. This was an application to quash a by-l enumerates a number of subjects upon which by-laws ma; made by municipalities. No. 29 is, "prohibiting or regulating the use on any road of any vehicle not having the nails on its wheels countersunk in such manner as may be specified in such by-law or having on its wheels any bars spikes or other projec- tions forbidden by such by-law." The relevant words are " havi on its wheels projections forbidden by such by-law." See. 5! which is included in Part XXIII. of the Act, provides that " shall be lawful for any municipality to make by-laws not incon- sistent with the provisions of this Part for regulating the how during which and conditions on which traction engines m: (1) 5C.P.D., 211; 351. (3) 4 C.L.R., 977. (2) 9 CLR', 301, at p. 306. (4) 4 C.LR,, 76. OF AUSTRALIA. oceed over any street or road." The Supreme Court, following vious decision of that Court in Ahern v. Cathcart (1), held the term "vehicle" in paragraph 29 of see. 197 did not lude traction engines. In that case they founded their judg- 'ment, as I understand, upon reference to dictionaries. They ought that the term "vehicle" meant something drawn, in hich things were intended to be carried. 'Their attention was directed to the English Locomotives on Highwuys Act 1896, hich my brother Isaacs mentioned during argument, in which the term "vehicle" is expressly used to mean a machine drawing s well as the thing drawn. That Act, which made provision for the exemption from certain provisions of certain vehicles, uses expression "vehicles so exempted whether locomotives or drawn by locomotives." So that the English Parliament, at any rate, thought in 1896 that the term " vehicle" might be properly applied to a locomotive drawing other vehicles. I should have Australia, that in 1903 it would include a structure running on eels and drawing another as well as the structure drawn. I am confirmed in that view by the fact that in 1903 e were not, so far as I know, any vehicles in use on roads in tralia having projections on their wheels except traction ines. Iam, therefore, of opinion that the term "vehicle" in paragraph 29 includes traction engines. __ Now, the power given by sec. 197 (29) is to prohibit or regulate e use of vehicles having on their wheels projections forbidden y the by-law. There is, of course, in strict grammar, a contra- diction in terms in that paragraph. Regulating the use of ate expression, but it must be construed reasonably, and word "forbidden" must be read as "forbidden" swh modo. e result is that under that provision a municipality has power tomake by-laws regulating, that is, imposing conditions upon, e use of vehicles of that kind. The case of Williams v.Weston- uper-Mare Urban District Cowncil (2), a decision of a Divisional , is entirely in accordance with that view. I think, there- (1) (1909) V.L.R., 132; 30 ALL.T., 156. (2) 98 L.'t., 537. H.C. or A. 1912. =— PRESIDENT &c. oF THE SHIRE OF Tuncaman v. Merrerr. Griffith C.J. H. C. or A. 1912. —— PRESIDENT &c. OF THE SHIRE OF TuncAMan vw MErReETT. Griffith C.J. HIGH COURT fore, that the appellants had power to regulate the use of tractio engines. I now turn to the terms of the by-law. Clause 1 is sought t be supported under both sec. 197 and sec. 594. That clause p vides that "No person shall use . . . on any public high any traction engine or other vehicle having on its wheels bars, spikes, grips or other projections. This prohibition, hor ever, shall not apply to . . . (b) Any traction engine # driving wheels of which are cylindrical and smooth soled, a having no projections thereon other than diagonal bars of n an inch in thickness, and extending the full width of the tire, and the space intervening between such cross bars not exceedi three inches, provided in such last mentioned case "—that is, obtained from the Council, or an officer of the Council dul authorized in that behalf, a permit, in writing, specifying tl public highways on which it may be used, and that the engine being used on one of the highways 'so specified.'" It is contended that the appellants had no right to impose such a conditit But here we must have regard to the surrounding cireumstances. — The variations of soil in Australia are infinite. There are many parts of the country in which to use a heavy traction engine the roads would be practically to destroy them. Many of the roads are quite unformed, and many only partially formed a only fit for light traffic. It would, therefore, be most reasonable for a shire Council to say "If you want to use a traction engit in this shire you shall only use it on such roads as we tell you." That that is a thing contemplated by the legislature is shown by the provisions of sec. 586, whichis in Part XXIIL, in which sec 594 also occurs, and which deals specifically with traction engin Sec. 586 provides that the owner of a traction engine desiring enter a populous part of a shire is bound before doing so to give notice to the shire secretary that he is going to do so, and OF AUSTRALIA. think, therefore, that that condition is not unauthorized. If ary, I should hold that it fell within the general power ined in sec. 197 (34) to make by-laws "generally for main- ining the good rule and government of the municipality," which, tever interpretation is put upon it, certainly includes any utter which the legislature have plainly said they think to be the good rule and government of the municipality. _ The next condition is, perhaps, more difficult to deal with. It _" That the owner has agreed, in writing, to pay to the Council e cost of making good any damage done to any roadway, e, or culvert by such engine, or any vehicle drawn by it." It said that that is seeking to impose upon a person who is using a lawful instrument of travel a condition that he shall incur a iniary liability which the law does not impose upon him. argument impressed me for some time, but, on reference to 495, 1 find a general provision that under certain circum- tances if damage is caused to a street or road by any excessive veight passing along the same, the Council " may recover rom any person by whose order such weight has passed along h street or road the amount of such expenses" (that is, the enses of repairing the street or road) "as may be proved to have been incurred by such Council by reason of the arising from such weight." Similar provisions have n in force in England for many years, and the term "excessive t" has been interpreted to mean a weight greater than is ied in the normal use of the roads. It certainly cannot be id that in a country district of Victoria driving a traction ine is a normal mode of traffic on ordinary roads. So that, legislature having enacted that a person taking heavy ights over a road should be liable to pay the cost of any thereby occasioned, a stipulation in a by-law that a raction engine shall not use the roads in a particular munici- lity unless the owner of the engine agrees to pay the cost of ing good any damage to the roads, cannot be said to be ultra This particular shire is, I understand, situated upon the wy River, and we all know what would be the condition of e roads there before they are properly formed. The other con- 415: he shire secretary may prescribe the roads that may be used. 1 H.C. or A. 1912. ~— PRESIDENT &o. OF THE Sure or TuNGAMAH wv MerRgeErr. Griffith C.J. Al6 H. C. or A. 1912. ~~ PRESIDENT &c, OF THE Sure or 'TuNGAMAH e Merrett. Griffith 0.9. HIGH COURT fg ditions, which relate to the number of vehicles drawn, the weigl of the loading of those vehicles, and the weight per half-inch the bearing surface of each wheel, are clearly unobjectionable. I think, therefore, that clause 1 can be supported as good under see. 197 (29). It is contended that it may also be sup-— ported under sec, 594 which, as I have said, authorizes Councils. to make by-laws for regulating the conditions on which traction engines may proceed over any street or road. As at present advised, I am disposed to think that the words " proceed over assume that the engine is one that in point of construction may lawfully use the road. I say "in point of construction" as distinguished from the mode of use, and I am disposed to think that the word " proceed" refers, not to the construction of the engine, but to its mode of use. However, in the view I take of — sec, 197 (29), that matter is unimportant. I pass now to clause 8, which applies to all traction engines, ' whether having projections on their wheels or not. It provides" 4 that no person shall use a traction engine on a highway unless — there are carried on the engine four planks of a specified size for the purpose of their being put down on bridges or culverts, so that the traction engine may run upon them in crossing the' bridges or culverts. Now, I think the power to prescribe con ditions on which traction engines may proceed over roads" includes a power to prescribe precautions to be taken so as not to injure roads or bridges-—in particular, bridges—over which the traction engines pass. The precaution of laying down solid planks to distribute the weight of an engine in passing over a light bridge or culvert is an obvious one. It is said that it is difficult to carry out the provision. That is a matter for the municipality to consider, not for us. I think, therefore, that requiring planks to be put down on a bridge or culvert is justified. One of the learned Judges of the Supreme Court thought that, even if that were so, it would not justify the first portion of the — clause, requiring the planks to be carried by the traction engine. — But, with great respect, I would invert the reasoning. If there power to ensure that that precaution shall be taken, and to — require that traction engines shall always be in a condition to_ 15 C.L.R.] OF AUSTRALIA. comply with the precaution. When a traction engine comes to _a place where the planks should be used, there may be no officer 'of the Council at hand to see that they are used. It seems to me, therefore, that the carrying of the planks is incidental to the irement that they shall be used, just as a by-law requiring not required to carry skids. In the same way, a provision that lamps shall be used on vehicles during certain hours would be _yery incomplete if there were no provision that lamps should be carried. _ For these reasons, I think that the requirement that planks shall be carried is merely incidental to the requirement that they shall be used while crossing bridges or culverts, and that clause 8 of the by-law is a good exercise of the power conferred by sec. 594. _ Lam therefore of opinion that the application to quash should haye been refused, and that this appeal should be allowed. Barton J. I will first consider clause 8 of the by-law—the clause prescribing the carrying of four planks of certain dimen- 'sions to be laid down when the traction engine is about to cross abridge or culvert. Sec. 594 gives power to regulate "the con- - ditions on which traction engines may proceed over any street or ." The requirement that a traction engine shall carry these planks and lay them down when crossing a bridge or culvert, and not cross a bridge or culvert except on such planks, is, in opinion, a " condition on which traction engines may proceed any street or road." I see no material distinction between allowing an engine to proceed over a road and permitting the use - of the engine on the road, since the ordinary use of the road is to eed over it, and I do not think that any other use is meant. bridge or culvert is part of a road. 'The objection that the wer given does not cover a condition that engines must carry planks would, perhaps, be a good objection if it stood by itself. But it is prescribed in conjunction with a requirement that a e or culvert must be crossed on such planks. It is to H. C. or A. 1912. PRESIDENT &e, OF THE Sure or TuncaMAH v, Griffith C.J. H.C. oF A. 1912. ——. PRESIDENT &c. OF THE SHIRE OF TuncAMAH v. MERRETT. Barton J. HIGH COURT {191 same as if the paragraph said that engines must not cross the road except on four or more planks of these dimensions, and t that end an engine must carry four or more planks. To dem the carriage of them is an ancillary provision to make the m requirement of using them in traversing a bridge more effective It is within the power. So far as the objection is that the require- ment is unreasonable, it is clear that the legal sense of that term is not that the requirement is unreasonable if it is greater than. Judge thinks necessary or desirable. Reasonableness is in the main a question for a representative body like a shire Council to determine, and, if there is any case in which a determination on such a subject is fatal to a by-law, it would have to be an ~ extreme one. That is the effect of the authorities. f Passing on to the rest of the by-law, I am not sure that see. — 594 does not cover the first clause, with part of the proviso attached, as conditions on which traction engines may proceed — over roads. But assuming it does not, then the by-law would be ultra vires unless in sec, 197 (29) the word " vehicle" includes a — traction engine. The terms of sec. 197 (29) are [His Honor read — it and continued :] The main objection on this part of the case — is that a traction engine is not a "vehicle," and that is the opinion which commended itself to the learned Judges of the Supreme Court in Ahern v. Cathcart (1). No doubt the objection , that the word "vehicle" does not include a traction engine i highly arguable. I have come, on the whole, to the conclusion that the intention of Parliament in making this provision was to include traction engines amongst other vehicles. The sub- section is almost a transcript from an English Act, the Highways and Locomotives Act 1878 (41 & 42 Vict. c. 77). The third and — second sub-sections of sec. 26 of that Act differ from sec. 197 (28) _ and (29) of the Victorian Act only in this respect, that where the English Act uses the words " waggon wain cart or other carriage drawn by animal power," the Victorian Act uses simply the word "vehicle." Without question that term does not preserve the restriction as to the means of traction. Does it preserve the re- _ striction as to the kind of appliance? It is evident that the pro- — visions of the English Act were before the framers of those two (1) (1909) V.L.R., 132; 30 A.L.T., 156. 15 C.L.R.] OF AUSTRALIA. in form. 'Therefore some reason is to be sought for the change from "waggon wain," &., to "vehicle." Was it intended that word " vehicle" should connote merely the things mentioned in the English Act? Clearly not, for the omission of the words «drawn by animal power" opens the way for a greater variety ppliances. Moreover, there would be no reason for the change, that were so, except that the word "vehicle" is shorter than description in the English Act. But where by a subsequent etment Parliament wishes to prescribe the same thing as has ly been prescribed in some prior enactment, it generally its the identical words in order that decisions on the mean- g of the words in the earlier Act, or the practical application of those words as seen in the ordinary conditions of life, may be available in support of the subsequent enactment. When, there- e, the Victorian Parliament adopted the word "vehicle" in place Act in order to meet the altered conditions. I think that is what ey must have done. We must look for a larger meaning of "vehicle" than one which comprehends only waggons, wains, carts nd carriages drawn by animal power. I think the intention was to deal with contrivances other than those drawn by such power, and to include those of more modern invention which would not be luded in the terms waggon, wain, cart or other such carriage. the Victorian Parliament, in looking for a word to supplant more restricted form of expression in the English Act of 1878, ld have turned to the later English legislation, is a most ral thing, and they did turn, I think, to the Act passed in 6 called the Locomvtives on Highways Act, passed only seven before the Act of 1903. Sec. 1 (1) of that Act provides certain enactments contained in a puedule "shall not apply t ony. vehicle propelled by mechanical power" if it fulfils certain ements as to weight and construction and does not draw sub-sections, otherwise they could not have been so nearly identical H- C. or A. 1912. —— PRESIDENT &c. OF THE SHIRE OF Tuncaman H.C. of A. 1912. <a PRESIDENT &c. OF THE Snre oF TunGaMAH MERRE' Barton J. HIGH COURT {92 more than one vehicle, &c., and " vehicles so exempted, whether locomotives or drawn by locomotives, are in this Act referred as light locomotives." In sub-sec. (2) of the same section we fin these words: "In calculating for the purposes of this Act the weight of a vehicle unladen, the weight of any water, fuel, or accumulators, used for the purpose of propulsion, shall not b included." So that it is clear that, without including it in amet definition clause, the English Parliament used the word " vehicle in that Act asa term including locomotives—at any rate, light locomotives—and it applies the term "vehicle" both to the vehicle which is drawn and to the locomotive which draws it. It seems to me very reasonable to infer that the Victorian Parliament in — looking for a larger term than that in the Act of 1878, so as t i include in it the more modern appliances which twenty-fiv years later were being used on roads in the shape of locomotives, turned in 1903 to the English Act of 1896, and that, having done — so, they found there the term that suited their purpose, seeing — that the English Parliament had used the word "vehicle" to — include locomotives used on roads. It also seems to me reason-— able to suppose that they were satisfied in their own minds that they might safely use that word for the larger purpose. Our — intendment should be, if possible, to support this by-law. The construction I have mentioned is, I think, a reasonable one, and upon it the by-law can be supported. It seems to me, therefore, — that the power contained in sec. 197 to deal with traction engines _ under the term " vehicles" is one which the Parliament intended to confer. One is the more likely to come to that conclusion on a closer examination of sec. 197 (29) because it deals with vehicles — having on their wheels spikes or other projections, and in 1903 I think it would have been hard to suggest, and I do not think it was suggested in argument, that there were any vehicles having — on their wheels spikes or other projections unless they were of the class of traction engines or road locomotives that had of late years come into use, all or almost all of which had bars on the tires of the wheels. Ordinary vehicles do not have them, as we all know, and it is reasonable to infer that the legislature intended to include other vehicles than those ordinarily used on roads, I OF AUSTRALIA. 197 (29) has a more comprehensive meaning. Tam therefore of opinion that the power given by sec. 197 (29) one which the appellants might use for the purpose of framing his by-law, and I think, on the whole, that the terms of the y-law are within that power and also within the power given by sec. 594 already referred to. The by-law has been largely quoted, and I do not propose to read it again. If traction engines as I think they are, within the power to make by-laws as to vehicles of a certain character mentioned in sec. 197 (29), then wuse 1 of the by-law down to the end of paragraphs («) and b) seems to me to be clearly within the power. Once you come to the conclusion that the term " vehicle" has an inclusive mean- ing, I do not think it can be contended that the terms of the by-law down to that point are not within the section. Then proviso (i) is, I think, a means of regulating the use of traction engines on roads, and, if it is not, this portion of the by-law comes within sec. 594 as a statement of the conditions on which traction engines may be allowed to proceed over the roads. I _ think the same with regard to proviso (ii), and on that I have 'nothing to add to the remarks which have been made by the ef Justice. J think that proviso may fairly be interpreted to within sec. 594; so that it has, I think, the double cover of 197 (29) and sec. 594. In any case, it and its immediate pre- ecessor are both provisions which come reasonably within the murview of sec. 197 (31). _ I think, therefore, all parts of the by-law which are attacked - are within the power which the appellants lawfully possess; and % therefore I am of opinion that the appellants have made out their _ Isaacs J. read the following judgment :— - Talso think the by-law valid. As to sub-see. 29 of sec. 197 of ie Act, I am not at all prepared to dissent from the view that "vehicle" as there used includes traction engine, but as I have some doubt I prefer to rest my judgment on sec. 594, as to which 'VOL. XV. 28 ik that is an additional reason for saying that "vehicle" in H.C. or A. 1912. PRESIDENT &c. OF THE Sure OF TUNGAMAH v. MERRETT. Barton J. H. C. of A. 1912, PRESIDENT &c. OF THE Surre oF Tu bie AH M ee Isaacs J. - HIGH COURT ie The history of the legislation is important. Until 1891 there was no specific power to make by-laws w reference to traction engines. In that year, by Act No. 1248, i was provided (sec. 46) that sub-sec. xrx. of sec. 191 of the Government Act 1890, which then began " For regulating t and processions," should be amended by adding after the " processions " these words :—" and the hours during which conditions on which traction and locomotive engines and roll impelled by steam or electricity may proceed over any road.' So that the material words conferring the power to mal by-laws as to all those machines were precisely the same as in sec. 594 of the present Act, and it is not to be overlooked hat the power even then included traction engines. In 1900, the Traction Engine Act (No. 1693) was passed, Sec. 12 said that notwithstanding anything in that Act contained any municipality might make by-laws under sec. 191 of the Local Government Act 1890 as amended by the Act of 1891 provided they were not inconsistent with the new Act. So that to by-laws, the concluding words being words of limitation perhaps not necessary but still precautionary. traction engines, as in the case of locomotives, and steam 'electric rollers, except so far as cut down by the new Act. | the meaning of the "conditions" on which they might " proceed" was untouched, and it would be difficult to say that all th abnormally heavy and dangerous and destructive machines were intended to have an indefeasible right to pass over every subject only to conditions not inconsistent with their travelli In other words, I do not construe the power as then existing mean that the first and dominant consideration was the right to pass, whatever the road or other damage might be, such as from sparks flying on to adjoining crops, and then if merely mitigati provisions could be devised they might be adopted, but, if not, n must be imposed. It seems to me that from the first some p ventive power was granted, but if not, then even now loco respects, affecting persons, property and roads. LR.) OF AUSTRALIA. but, as I read it, there was only a re-arrangement of the , all relevant provisions being brought together in Part The old by-law provision that was contained in the ection along with the other engines, as limited by sec. 12 of of 1900, has been reproduced in that limited form in e is therefore no change of intention indicated. The same s must receive the same interpretation in sec. 197 (23) as in 2c. 594. Whatever "conditions" and " proceed" mean in the , they mean in the other. And all we have to consider as to nt with Part XXIII.; and then, so far as not inconsistent, conditions adopted by the municipality regulating the right ceed over roads are those authorized by the legislature, and ww. Before further examining the provisions of Part XXIII. uld here quote some words of Lord Macnaghten in Trevor itworth (1) which have a general application. His Lord- said:—" When Parliament sanctions the doing of a thing mder certain conditions and with certain restrictions, it must. be that the thing is prohibited unless the prescribed conditions | restrictions are observ ed. he Judicial Committee in Slattery v. Naylor (2) ac recog- in the Hawthorn Cuse (3), regulation may include prohibi- It depends on what is to be regulated. 'The regulation of matter involves the continued existence of that subject occasional incidents. In this connection there is a valuable te in Mr. Lefroy's work on Legislutive Power in Canada, at p. which deserves to be made more generally accessible. Speak- 2 App. Cas , 409, at p. 437. (2) 13 App. Cas., 446. 'aad PG) 9 OLR., 301. i 1903 the Act No. 1893 was passed, and the subject was re- H.C. of A. 1912. np See. 197, sub-sec. 23, still makes the same provision in prrsenr of locomotive engines, and steam and electric rollers; but &c- oF THE Sure OF on engines are taken out and are dealt with in a separate pros ipeareteee Isaacs J. H.C. or A. 1912. PRESIDENT &c. OF THE Surre or TUNGAMAH v Merrerr. Tsaacs J. HIGH COURT {1 (1), it is stated that " Lord Herschell observed :— It is the tion of trade generally. One may be said to regulate trad prohibiting or putting a fetter on a particular trade. If y prohibit all trades, you certainly do not regulate trade; but may be said to regulate trade by saying certain trades shall be unlawful." . . . And the Lord Chancellor (Lord Halsbu also said :— Trade generally may be regulated by prohibiti particular trade. Take the case of the prohibition of the expo tion of wool with which this country was familiar at one ti That was a regulation of trade, and it was a prohibition o particular trade. Whereupon Lord Watson observed :— regulate the trade of these islands in tobacco by prohibitin, production, except to a very limited extent!" And after quot ing the judgment (2) the learned author adds: "his clearly is not saying that as part of a legislative scheme for the regulation of trade the prohibition of a particular trade might not incidentally involved." Applying those considerations to Part XXIII. of the prese Act: The legislature appears in 1900 to have thought it neei sary—not for the purpose of giving greater immunity or freed of locomotion to traction engines and thus casting additior burdens on municipalities, but for the purpose of safe-guardit public and private property, all of whieh is evident from 1 nature of the provisions—to lay down some rules of conduct applicable all over Victoria. Parliament enacted certain hours and certain conditions of its own as to the lawful use of tracti engines which no municipality can override. I summari them :— (1) No authority can legalize their use if a nuisance at common law (see. 581). (2) The name and address of the owner must legibly painted (see. 582). (3) Between sunset and sunrise a mi must go at least 100 yards in front to give the travelling public notice that such engine is "travelling on the road" (sec. 583). (4) Stuffing-boxes and safety-valves must be well packed (see. 584) (5) Sufficient brakes must be attached (sec. 584). (6) Spark arresters to be attached (sec. 584). (7) Steam not to be blow n off (sec. 584). (8) Two men at least to accompany (see. 585). (1) (1896) A.C., 348. (2) (1896) A.C., 348, at p. 363. OF AUSTRALIA. } May travel between sunrise and sunset subject to notice to ipal clerk who may direct as to road (sec. 586). (10) Maxi- rate of travel two and a half miles an hour (sec. 586). mage to road through digging out engine to be repaired id for (sec. 587). (12) Damage to bridges or culverts to be ited and notified (see. 588). (18) Driver to be licensed (see. . (14) Engine to stop when requested by driver of a con- nee (sec. 591). ome of these are concomitant conditions of travel, but some re conditions precedent, as brakes and spark arresters and e driver, and name of owner, and man in front. And some hose affect the construction of the engine. nd then, when in sec, 594 the power is given to make further jut not inconsistent regulations as to hours and conditions on ch such engines may proceed over any road, according to local mstances, I am clearly of opinion that conditions may be ent or concomitant, as to construction or management, and "proceed over the road" is equivalent to "travel over the |," that is, to make use of the road for movement. s to the provision requiring an agreement to make good e, and other contents of the by-law, I agree with the e was some suggestion that the by-law was unreasonable. add to what this Court has already said on that subject in cases as Widgee Shire Council v. Bonney (1), a few words of rd Chancellor Loreburn as to a town council by-law in Prato v. Provost &e. of Partick (2):—* It is next said that it nreasonable. All I can say is, here is a specific discretion with d to a matter of power conferred upon this authority named he section, and, when they have exercised their discretion in d faith in regard to it, it seems to me that this Court has no to interfere." Appeal allowed. Order appealed from dis- charged, and order nisi discharged with costs. Respondents to pay costs of the appeal. (1) 4 CLLR, 97. (2) (1907) A.C., 153, at p. 153. H.C. oF A. 1912, ae PRESIDENT &c. OF THE SHIRE OF TenGaMan vw MERRETT. Tsaavs J. 426 HIGH COURT og H.C.or A. olicitors, for the appellants, Boothby & Boothby for | Tae Hargrave, Yarrawonga. ai >= f : Presipenr Solicitors, for the respondents, Gillott & Moir. &c, OF THE B SHIRE oF Tuncaman v. a Merrerr. (HIGH COURT OF AUSTRALIA.] CREAK., < . ; r ' aoe DEFENDANT, AND JAMES MOORE & SONS ecaieer fis LIMITED PLAINTIFFS, ON APPEAL FROM THE SUPREME COURT OF VICTORIA. H.C. or A, Conversion—Sale of stolen goods—Recovery of value of goods from purchaser: 1912. 'ment by cheque—Proceeds of cheque afterwards coming to hands of ow eS go0ds—Obligation to elect to afirm or disaffirm sale. 5 eae ? Ifa man, having received a sum of money which is identified as ai. fact the proceeds of goods of his that have been sold without his author afterwards becomes aware of the fact, he is, as between himself and Oy purchaser of such goods, primd facie bound to elect whether he will affie Tsancs JJ. disaffirm the sale, and the obligation to elect continues until the happet of some new fact which would alter his position to his prejudice if he 1 still called upon to elect. Griffith C.J., If a man, whose servant has stolen his goods and has also stolen his n afterwards receives from the police money found upon the thief, he is stolen goods, so as to exclude the obligation to elect above stated. So held by Griffith C.J. and Barton J., Isaacs J. dissenting. Decision of the Supreme Court of Victoria reversed.