Country Roads Board v Neale Ads Pty Ltd

[1930] HCA 5

43 CLR 126

THE COUNTRY ROADS BOARD

NEALE ADS PROPRIETARY LIMITED

ON APPEAL FROM THE SUPREME COURT OF By-law - Validity - Hoardings - Advertisements - Power to regulate or prohibit-

Prohibition unless act done with consent of Authority-Country Roads Board -Country Roads Act 1915 (Vict.) (No. 2635), sec. 61; Country Roads Act MELBOURNE,

1927 (Vict.) (No. 3568), sec. 3*-Country Roads Act 1928 (Vict.) (No. 3662), sec. 60*-Local Government Act 1915 (Vict.) (No. 2686), sec. 198 (1)*-Local Government Act 1928 (Vict.) (No. 3720), sec. 198 (1).*

The Country Roads Board was empowered to make by-laws for the purpose of 'regulating or prohibiting the erection and construction of hoardings on or in the vicinity of State highways or regulating, restricting, preventing or controlling the exhibition of advertisements on or in the vicinity of State highways." In exercise of this power the Board passed a by-law of which the effect of clauses 3 and 4 was to forbid advertising hoardings and advertise- ments near State highways unless the consent of the Board was given after it had considered whether certain specified objections existed. Clause 5 * Sec. 60 of the Country Roads Act

of advertisements on or in the vicinity 1928 (Vict.), consolidating the pro-

of State highways; and (e) In relation visions of sec. 61 of the Country Roads

to hoardings or advertisements on or Act 1915 and sec. 3 of the Country Roads

in the vicinity of State highways-any Act 1927, provides: "60. Subject to the

purposes for or in connection with provisions hereinafter contained by-laws

which the council of any municipality may be made by the " Country Roads

may under sub-section 1 of section Board and published in the Govern-

one hundred and ninety-eight of the ment Gazette for the purposes mentioned

Local Government Act 1928 make by- in this Part and for the purposes follow-

laws relating to hoardings or advertise- ing:

(d) Regulating or pro-

ments. In this section hoarding hibiting the erection and construction

means structure for the exhibition of of hoardings on or in the vicinity of

advertisements, and includes sky-sign. State highways or regulating restricting

Nothing in paragraph (e) of this section preventing or controlling the exhibition

shall be construed as limiting the

43 CLR 127

authorized the service of an order of the Board directing the removal of H. C. hoardings, whether constructed before or after the passing of the by-law, when certain conditions were fulfilled, and clause 6 enabled the Board, upon non- compliance with its order, to cause the hoardings to be removed and to sell the materials and reimburse the expenses of removal. Clause 7 enabled the Board by its agent to obliterate or remove any such advertisement if in its opinion it was objectionable.

Held, by the whole Court, that the by-law was valid. Miller v. City of Brighton, (1928) V.L.R. 375; 49 A.L.T. 249, overruled. And held, by Knox C.J., Starke and Dixon JJ., that when the purpose of a power includes both prohibiting and regulating, it authorizes a by-law which forbids conditionally, although the conditions may properly be described as regulatory.

Decision of the Supreme Court of Victoria (Full Court): Neale Ads Pty. Ltd. V. Country Roads Board, (1930) V.L.R. 169, reversed.

APPEAL from Supreme Court of Victoria.

The Country Roads Board made a by-law under the provisions of sec. 61 of the Country Roads Act 1915 (Vict.) as amended by sec. 3 of the Country Roads Act 1927 "for regulating the exhibition of advertisements and the erection of hoardings on or in the vicinity of State highways, and for other purposes." The material provisions of the by-law were as follows (1) This by-law may be cited as the Hoardings and Advertisements By-law 1927, and shall come into generality of the provisions of para-

reimbursing the expenses of pulling graph (d) of this section."

down and removing such buildings, Sec. 198 (1) of the Local Government

erections, hoardings, or fences and in Act 1928 (Vict.), consolidating the

paying into the municipal fund any provisions of sec. 198 (1) of the Local

fees or penalties due by the owner Government Act 1915, provides:-

thereof. For the purpose of this 198. (1) The council of every muni-

paragraph and paragraphs (a) and (b) cipality with the approval of the

hoarding' means structure used for Governor in Council may make by-laws for the following purposes or any of

includes sky-sign. (d) Regulating re- them or for any purpose in connection

stricting or preventing the exhibition therewith (a) Regulating and re-

of advertisements in such places and straining the erection and construction

in such manner or by such means as to of buildings, erections, or hoardings or

affect injuriously the amenities of a of fences abutting on or within ten feet

public park or pleasure promenade or of any street or road. (b) Requiring

to disfigure the natural beauty of a the pulling down and removal of build-

landscape. (e) Regulating and con- ings, erections, or hoardings or of

trolling all advertisements attached or fences abutting on or within ten feet of

fixed to or painted on any hoardings any street or road. (c) Authorizing

or on any building or on any fence rock the council to pull down and remove

cliff or tree. (f) Appointing fees which buildings, erections, or hoardings or

may be charged and received by the fences erected or constructed contrary

council for any act done or to be done to any such by-law or not pulled down

by any of its officers under such regula- or removed as required by or under

tions and for any permit or licence to any such by-law, and to sell the

be issued by the council." materials and apply the proceeds in

43 CLR 128

OF A. operation upon the date of publication thereof in the Government

Gazette. (2) The Board' in this by-law means the Country Roads Board. (3) No person shall, without the consent in writing of the Board, erect or construct, or cause to be erected or constructed on or in the vicinity of any State highway, any hoarding for the exhibition thereon of advertisements of any description, or attach fix to, or paint any advertisement on any building, fence, rock, cliff. tree, or elsewhere on or in the vicinity of any such highway, (4) The Board may, in its absolute discretion, refuse its consent to the exhibition of advertisements in such places and in such manner and by such means on or in the vicinity of any State highway as in the opinion of the said Board will be an obstruction to the vision of persons using any such highway, or will affect or be likely to affect injuriously the amenities of a public park or pleasure promenade or to disfigure the natural beauty of a landscape. (5) If the Board is satisfied that any hoarding, whether constructed before OT after the passing of this by-law, on or in the vicinity of any State highway is objectionable or unsightly, or is an obstruction to the vision of persons using such highway, or is in such a state of disrepair as to be dangerous to the public, it may by order direct the removal thereof, or the making of such alteration thereof as to the Board seems necessary. A copy of such order may be served upon the owner of the hoarding, and on the owner for the time being of the land on which the same is erected, either personally or by affixing the same to some conspicuous part of such hoarding. (6) If within the time prescribed in the said order the hoarding has not been removed or altered as directed, the Board may, by its agent duly authorized in writing, enter on the land on which such hoarding stands, and pull down and remove, or cause the same to be pulled down and removed, and sell the materials and apply the proceeds in reimbursing the expenses of pulling down and removing such hoarding, and in paying into the Country Roads Board Fund any fee or penalties due by the owner thereof. (7) The Board may also, by its agent authorized as aforesaid, abolish, obliterate, or remove any advertisement attached, fixed to, or printed upon the road surface of any State highway, or upon any hoarding, building, fence, rock, cliff, tree, or elsewhere on or in the vicinity of any such highway, if

43 CLR 129

in its opinion such advertisement is unsightly, objectionable, or otherwise undesirable. (8) Any person who contravenes any of the provisions of this by-law shall be guilty of an offence, and for every such offence shall be liable to a penalty of not more than twenty pounds."

The appellant, Neale Ads Pty. Ltd., was a company which carried on the business of advertising contractors, and, alleging that it was aggrieved by the by-law, applied to the Supreme Court of Victoria under: 203 of the Supreme Court Act 1915 (sec. 189 of the Supreme Court Act 1928) to quash the by-law either wholly or in part for the illegality thereof on the grounds 1 that the conditions upon which the consent of the Country Roads Board referred to in clauses 3 and 4 of the by-law will be granted or refused should be set out in the by-law; (2) that the Country Roads Board has no power or authority to confer upon itself the discretionary powers purported to be conferred by clauses 4 and 5 of the by-law, and (3) that the Country Roads Board has no power or authority to confer upon itself the power to abolish, obliterate or remove advertisements purported to be conferred by clause 7 of the by-law.

The application was referred by Macfarlan J. to the Full Court and came on for hearing before Cussen, McArthur and Lowe JJ. The majority of the Court (Cussen and Lowe JJ.) were of opinion that the whole by-law should be quashed. They considered that clauses 3 and 4 left the power to dispense with compliance with the prohibition in the hands of the Board, and that, the conditions of dispensation not being contained in the by-law itself, the clauses were ultra vires for the reasons expressed in Miller v. City of Brighton

1. They also considered that, for the reason above stated, clause 5 was invalid inasmuch as it left each case to the unfettered discretion of the Board, and that clause 6 depended on and fell with clause 5, and that clause 7 was to some extent dependent on clause 6 and also reserved to the Board the same unfettered discretion which was fatal to the earlier clauses. McArthur J. was of opinion that clauses 3, 4 and 5 of the by-law were valid, and that only clause 7 should be quashed: -Neale Ads Pty. Ltd. v. Country Roads Board 2. 2(1930) V.L.R. 169. 43 CLR 130

From the order of the Full Court quashing the whole by-law the Country Roads Board now, by special leave, appealed to the High Court.

C. Gavan Duffy, for the appellant. The case of Miller v. City of Brighton 1 was wrongly decided. That case purported to follow Melbourne Corporation v. Barry 2 and not to follow Williams V. Weston-super-Mare Urban District Council 3, because the Full Court thought that Melbourne Corporation v. Barry was contrary

the English decision. In Miller's Case the Court was wrong in holding that, even if there was power to prohibit, the by-law must contain the whole prohibition and that it could not reserve the right to prohibit to the Council. [Counsel referred to Barry's Case 4.] [He was stopped.]

Eager (with him Clyne), for the respondent. The whole by-law should be quashed, for the reasons given by the majority of the Full Court. Clause 3 is bad because it leaves an unfettered discretion in the Board to give or withhold consent. Sec. 3 of the Country Roads Act 1927 confers a more limited power on the Board than that conferred by sec. 198, sub-secs. 1 and 2, of the Local Government Act 1915 (Vict.) on a municipality to make a by-law. As to clause 4 of the by-law, it is not a law at all and there is no authority for its enactment. It is merely a pious declaration of intention as to the future conduct of the Board. It does not impose any duty on any person, and has no proper place in a by-law. If all that clause 4 does is to make a declaration of what the Board intends to do, it is harmless; otherwise there is no authority for its enactment. As to clause 5 there is no statutory power given to the Board to direct the removal of a hoarding. Such removal might have been directed if the Board had the powers conferred by sec. 198 (2) of the Local Government Act 1915, but such powers were not conferred. Clause 7 is also without statutory authority. Sec. 198 (2) of the Local Government Act 1915 gives a municipal council power to pass such a by-law, but the Board has no such power. This is not a power of regulating or controlling the exhibition of advertisements and, in any event, such regulation or control must be exercised by

1(1928) V.L.R. 375 ; 49 A.L.T. 2(1922) 31 C.L.R. 174. 3(1907) 98 L.T. 537. 4(1922) 31 C.L.R., at pp. 198, 200, 43 CLR 131

the Board and not by its agent. The by-law should state the conditions on which the advertisement is to be removed.

C. Gavan Duffy, in reply.

Cur. adv. vult. The following written judgments were delivered :--------

KNOX C.J., STARKE AND DIXON JJ. This is an appeal by special leave from a decision of the Full Court of Victoria quashing a by-law of the Country Roads Board. The subjects with which the by-law deals are the erection of hoardings and the exhibition of advertisements near State highways. The Board may, by resolution, declare to be a State highway any highway which, in its opinion, is of sufficient importance to be SO declared, and thereupon the highway comes under the care of the Board, and is maintained by it (secs. 5-8 of the Highways and Vehicles Act 1924, now in Part III. of the Country Roads Act 1928). The Board is empowered to make by-laws for purposes which include Regulating or prohibiting the erection and construction of hoardings on or in the vicinity of State highways or regulating, restricting, preventing, or controlling the exhibition of advertisements" (sec. 3 of the Country Roads Act 1927, now sec. 60 (d) of the Country Roads Act 1928). In an attempt to exercise this power, the Board, by clause 3 of the by-law, forbad any person without the consent in writing of the Board, in effect, on or in the vicinity of a State highway to erect any "hoarding for the exhibition thereon of advertisements " or to place any advertise- ments upon any natural or other objects. Clause 4 provides that the Board may in its absolute discretion refuse its consent to the exhibition, on or in the vicinity of a State highway, of advertise- ments which, in its opinion, are open to any of the objections which the clause specifies. The meaning or the application of this provision appears to have been doubted because it does not in terms refer to the erection of hoardings but only to the exhibition of advertisements, and because much of the language in which the grounds for refusing consent are expressed is derived from sec. 198 (1) (d) of the Local Government Act 1915 (now 1928). But the phrase "consent to the exhibition of advertisements " seems a compendium which, although

43 CLR 132

not exact, is practically sufficient to describe the consent referred to

in the preceding clause, and there can be no real doubt that clause states, whether exhaustively or not, grounds upon which the Board may withhold its consent under clause 3. Thus the effect of those two clauses is to forbid advertising hoardings and advertisement: near State highways unless the consent of the Board is given after it has considered whether certain specified objections exist.

In the Full Court, Cussen J. and Lowe J., McArthur J. dissenting were of opinion that clause 3 violated the principle which, in the case of Miller v. City of Brighton 1, the Full Court, consisting of Mann J., McArthur J. and Lowe J., had formulated after they had examined the reasons given in this Court for the judgment in Melbourne Corporation v. Barry 2, and considered them in relation to other authorities. This principle was expressed in Miller's Case 3 by Lowe J., who delivered the judgment of the Court, in the following passage The conclusion at which we thus arrive leads to a uniform rule which applies to all by-laws, whether they be made under a power to prohibit or a power to restrain, or a power to regulate, namely, that the by-law itself must, in the language of Mathew J. in Kruse v. Johnson 4, 'contain adequate information as to the duties of those who are to obey," and we add for ourselves. it does not fulfil this requirement unless the prohibition, or restraint, or regulation, as the case may be, appears from the by-law itself." It may be said that in the present case these conditions thus stated are literally complied with, because there does appear on the face of the by-law an explicit prohibition of hoardings and advertisements without the Board's consent and McArthur J. was of this opinion But it was not in this sense that Cussen J. and Lowe J. understood the "uniform rule," and in Miller's Case the Court had said 5 'In truth, the view that though the prohibition must, the dispensa tion from the prohibition need not, appear in the by-law itself seems founded on the fallacy of supposing that the power of dispensation exists apart from the power to prohibit. There is no power to dispense save as part of the content of the power to prohibit; and

1(1928) V.L.R. 375 49 A.L.T. 249. 2(1922) 31 C.L.R. 174. 3(1928) V.L.R, at pp. 383, 384 49 at p. 252. A.L.T., at p. 252. 4(1898) 2 K.B. 91, at p. 108. 5(1928) V.L.R., at p. 383: 49 A.L.T 43 CLR 133

course no point when the bylaw-making power includes the purpose

of prohibiting. Indeed, in Miller's Case 1, both in the judgment of Irvine C.J. and in that of the Full Court, an objection of an opposite character is suggested when the power exercised is that of prohibiting. Irvine C.J. said 2 :- Had it been free from authority I should think prohibit carried this particular matter no further than regulate, inasmuch as though regulating includes

prohibiting,' in part at least, prohibiting' can hardly include regulating.' I should have thought, too, that a power to prohibit did not include a power to license, and that a by-law enabling some- thing to be done by leave is not a by-law prohibiting that thing.' This view rests upon an interpretation of the word "prohibit which leaves it unsatisfied by anything short of entire and uncon- ditional suppression. It may well bear this meaning in some contexts and in relation to some subject matters, but when prohibiting some course of conduct is expressed to be the purpose of a bylaw-making power, it would more often be understood to confer authority to forbid all or any part of that course of conduct and to do SO absolutelv or subject to any condition which appeared convenient. At least it is clear that when the purpose of a power includes both prohibiting and regulating, it must authorize a by-law which forbids conditionally, although the conditions may properly be described as regulatory.

The power given to the Country Roads Board now in question does include both prohibition and regulation. It is true that the statutory provision uses the disjunctive "or," but it plainly means to describe or define one power or purpose-not two, to be exercised in the alternative. But the reasoning upon which the principle or "uniform rule ,, of the Victorian Full Court is based is directed to the character of the condition prescribed by the by-law, namely, the consent of the council. This the Court described as a dispensa- tion. This term is commonly applied to the exercise of a power to suspend the obligation of a law, or to excuse from obedience to its commands. The consent of the Board, however, is not an indepen- dent power of abrogation, but a condition upon which the tenor of the by-law makes its operation depend. As the passage already

1(1928) V.L.R. 375 ; 49 A.L.T. 249. 2(1928) V.L.R., at p. 377; 49 A.L.T., at p. 249. 43 CLR 134

it follows, in our opinion, as a matter of reason, that the prohibition H. C. which must appear in the by-law itself is the whole prohibition or, in other words, that the prohibition, together with the conditions under which the dispensation will be granted, must SO appear." In reaching this result, the learned Judges were much influenced by methods of reasoning which had been used in support of a restrictive interpretation of powers of regulation but which, in their opinion, were of equal application when the purpose of the bylaw-making power was to prohibit or restrain. Indeed, in Barry's Case 1 Higgins J. expressly says that even if it be assumed that the power then in question sanctions a by-law prohibiting a procession because of its nature or purpose, the prohibition must be by by-law, not by the Council acting at an ordinary meeting, and by the chance majority at that meeting. After thus referring to a by-law which forbad processions without the Council's consent, Higgins J. proceeds to rely upon the provisions of the Local Government Act which prescribe the manner of making by-laws; provisions upon which Isaacs J. had also relied 2. The actual decision of this Court in Barry's Case, however, was based upon the restricted meaning which the word "regulate" appears primarily to bear; a meaning expressed in the often quoted words of Lord Davey in Toronto Municipal Corporation v. Virgo 3 "There is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed." This distinction was expressly referred to and maintained in the judgment of Isaacs J. in Barry's Case 4, who said: "The real truth is that the Council's by-law is framed exactly as if the word prohibiting' were used in the sub-section instead of the word 'regulating'; and that is, of course, a fundamental error and cannot be justified."

In truth, the essence of the objection to which the actual decision in that case gave effect was that the by-law by forbidding processions subject to a condition operated to prohibit them completely if and in so far as the condition was unfulfilled. Such an objection has of

1(1922) 31 C.L.R., at p. 208. 2(1922) 31 C.L.R., at p. 195. 3(1896) A.C. 88, at p. 93 4(1922) 31 C.L.R., at p. 200. 43 CLR 135

quoted from the judgment in Miller's Case 1 shows, the Full Court treated the dispensation as a discretionary power which could not be granted in the exercise of an authority to make by-laws for the purpose of prohibiting and (presumably) regulating. It considered that such a power authorized no more than 'prohibition together with conditions under which dispensation could be granted." But once it is realized that the power authorizes prohibition, complete or partial, conditional or unconditional, what reason is there for denying that the condition may be the consent, or licence, or approval of a person or a body ? The answer that there is none was given by the Divisional Court and approved by the Court of Appeal in Williams v. Weston-super-Mare Urban District Council 2 and we respectfully agree. The supposition or suggestion that the conditions or circumstances should be defined in which the consent, licence, or approval must be given can rest only upon some justification other than the words in which the power is conferred.

From the passage in the judgment of Higgins J. in Barry's Case 3 already referred to, it appears that he considered that such a justification in the case of municipal councils might be found in the view that the procedure prescribed for making by-laws impliedly forbids the choice of the council as the repository of any discretion upon which the operation of the by-law may be conditioned. But this view rests upon an implication which the canons of interpretation scarcely warrant. The municipal council must conform to the prescribed procedure in formulating a prohibition, conditional or unconditional; but why does this requirement import any limitation in the exercise under the by-law of powers or authorities upon which it, in terms, makes the extent of its prohibition depend ? But in any case no such argument is available in the case of the Country Roads Board, a distinction upon which the dissent of McArthur J. turned.

The whole controversy illustrates the danger which attends the formulation of principles and doctrines and all reasoning a priori in matters which in the end are governed by the meaning of the language in which the Legislature has expressed its will. The simple

1(1928) V.L.R., at p. 383 ; 2(1907) 98 L.T. 537 ; (1910) 103 A.L.T., at p. 252. 3(1922) 31 C.L.R., at p. 208. 43 CLR 136

question in this case is whether a clause which forbids hoardings

and advertisements without the consent of the Board answers the description of a by-law 'prohibiting or regulating the erection of hoardings, or regulating, restricting, preventing, or controlling advertisements." If the Full Court had felt itself at liberty so to propound the question and to answer it upon a consideration only of the terms used, probably it would have felt no difficulty in giving the affirmative answer which this Court considers to be required.

Clauses 5, 6 and 7 of the by-law need separate consideration. Clause 5 authorizes the service of an order of the Board directing the removal of hoardings whether constructed before or after the passing of the by-law when certain conditions are fulfilled, and clause 6 enables the Board, upon non-compliance with its order, to cause the hoardings to be removed, and to sell the materials and reimburse the expenses of removal. Such a provision is not authorized by SO much of sec. 3 of the Country Roads Act 1927 as has been already quoted. But sec. 3 goes on to empower the Board in relation to hoardings or advertisements on or in the vicinity of State highways to make by-laws for or with respect to any purposes for or in connection with which the council of a municipality may under sub-sec. 1 of sec. 198 of the Local Government Act 1915 make by-laws relating to hoardings or advertisements. Par. (b) of sec. 198 1 authorizes by-laws for the purpose of, or any purpose in connection with, "requiring the pulling down and removal of ings." According to a decision of the Full Court of Victoria, Levingston v. President &. of Shire of Heidelberg (1), the words which occur at the end of this paragraph "abutting on or within ten feet of any street or road" apply only to the word fences" and do not qualify "hoardings." This decision was not challenged at the bar, and it has stood SO long that we do not propose to consider its correctness. But clauses 5 and 6 do not themselves impose any obligation upon anyone to remove hoardings, whether specified or to be specified. They operate only to enable the Board after notification directing the removal to perform itself the work of removal. On the whole we think that it is not essential that a legal duty to comply with the directions should be imposed, and that these clauses are within the

1(1917) V.L.R. 263 38 A.L.T. 163. 43 CLR 137

powers described by sec. 198 (1) (b) and (c). Clause 6 is supported H. by par. (c) of sec. 198 (1) because that paragraph includes power in relation to hoardings constructed contrary to a by-law or "not pulled down or removed as required by or under any such by-law," namely, a by-law under par. (b), and clause 5 appears to us to be such a by-law.

Clause 7 is based upon sub-sec. 2 of sec. 198, which, however, is not incorporated by the Country Roads Act 1927. So much of sec. 3 of that Act, however, as has been already set out includes a power to make by-laws for the purpose of regulating, restricting, preventing, or controlling the exhibition of advertisements on or in the vicinity of State highways. The word "exhibition" may mean the act of placing the advertisement where it may be seen, or it may extend to the continued display of the advertisement after it has been SO placed. On the whole, the latter seems the proper interpretation of the provision. Upon this interpretation a by-law is authorized which controls or prevents the continued display of advertisements. Clause 7 does no more than this, and is therefore good.

Clause 8 was not attacked, but in any case it creates no liability which would not exist under sec. 69 of the Country Roads Act 1915 (now sec. 92 of that of 1928).

The appeal should be allowed, but without costs in view of the fact that no appeal lay as of right. The order of the Supreme Court should be discharged and the order nisi discharged with costs. The sum of £15 paid into the Supreme Court by the respondent should be paid out to the appellant.

ISAACS J. In my opinion the by-law No. 2 which has been impeached is valid throughout. It consists of eight clauses, the first and second being formal only. Clause 3 is the centre of attack. It purports to prohibit certain acts, "without the consent in writing of the Board." This is the qualifying phrase which is said to mar the by-law, by leaving the prohibition undefined.

Before examining the law, it is desirable to observe that in construction the prohibition extends to "hoardings" and to

advertisements." As to general locality, clause 3 limits it both as to hoardings and advertisements by the words 'on or in the

43 CLR 138

OF A. vicinity of any State highway." The Board is SO far carefully

acting within the legal territory marked out in sec. 3 of Act No. 3568. As to hoardings, the subject matter is restricted to hoardings "for the exhibition thereon of advertisements of any description and as to the description of advertisements, they are all advertise ments attached, fixed to, or painted on anything whatsoever, in the locality mentioned. But the qualifying phrase as to the Board's consent is not left to operate as if clause 3 stood alone. It is limited by clause 4, which marks out the sphere of consideration which the by-law commits to the Board in giving or refusing its consent. That sphere is the same as that which the legislation has itself adopted in sec. 198 1 (d) of the Local Government Act 1915, together with an obviously proper consideration in the interests of safety. The power, therefore, of the Board to "refuse its consent (clause 4) is limited to the considerations mentioned. It is not an arbitrary power, and it is manifestly a perfectly reasonable mode of dealing with the subject, if the law permits it.

The Supreme Court, by a majority, has held that the law does not permit that course, but that the prohibition of a hoarding or an advertisement, in order to be valid, must be ascertainable from a comparison of the by-law itself with the hoarding or advertisement itself. That means a practical impossibility unless the prohibition is total and absolute, for it would need prophetic vision to indicate with necessary precision what and where advertisements will be objectionable, and to leave the decision to various legal tribunals would introduce such diversity and uncertainty, as well as expense, as to make the remedy worse than the disease.

There is nothing in Barry's Case (1) to invalidate the by-law Barry's Case was decided on a power of " regulating" traffic, and not of 'prohibiting' " it. A by-law that under the lesser power of regulation assumed to prohibit processions unless with the consent of the town clerk was held invalid. If the by-law had been in the form of an absolute prohibition, it would have been equally invalid (Municipal Corporation of City of Toronto v. Virgo 2 and see

1(1922) 31 C.L.R. 174. 2(1896) A.C. 88. 43 CLR 139

President &. of Shire of Tungamah v. Merrett 1 ). Barry's Case 2 is, therefore, no authority for the decision appealed from in this case. In the present case there exists the statutory power to prohibit either entirely or partially. The prohibition adopted is not entire, but only extends to instances where the act is done without the written consent of the Board, the power of refusal being limited as mentioned. As I pointed out during the argument, the two positions are essentially different. The power of regulation may, and almost necessarily does, involve some restriction or prohibition. The body entrusted with the power to regulate must in some sufficient way mark out whatever limits of prohibition are to exist. That is to say, legal rights otherwise existing are not to be cut down at the discretion of some individual or individuals, but must be dealt with by the law. And they are not properly dealt with in that case by first exercising the power of prohibition which is not conferred. But where the by-law itself prohibits, and in the absence of a written consent prohibits completely, the consent if refused simply leaves the by-law to operate without it, and if given satisfies the provision of the by-law by a factum which excludes the given case from its operation. Clauses 3 and 4 are complementary, and, read together, are valid. Clause 5, being limited in locality as before, is valid under the powers referentially included in sec. 3 of the Act No. 3568. Clause 6, which, if dependent solely on sec. 198 (1) (e), might be questioned because clause 5 did not go on to require the owner to comply with the order (as to which I say nothing), is nevertheless valid, because the subject matter is conveyed by sec. 3 of the Act No. 3568, the hoardings being those " on or in the vicinity of any State highway." Clause 5 may be regarded, for this purpose at all events, as introductory to clause 6, and as identifying the hoard- ings included in the latter clause. Clause 7 is similarly valid.

The appeal should, therefore, be allowed, and the order nisi discharged.

GAVAN DUFFY J. agreed with the judgment of Isaacs J.

1(1912) 15 C.L.R. 407, at p. 424. 2(1922) 31 C.L.R. 174. 43 CLR 140" text-full="43 CLR 140" text-short="43 CLR 140">43 CLR 140

Appeal allowed without costs. Order of the

Supreme Court discharged and in lieu thereof order nisi discharged with costs. The sum of £15 paid into the Supreme Court by the respondent to be paid out to the appellant. Solicitor for the appellant, Frank G. Menzies, Crown Solicitor for Victoria.

Solicitors for the respondent, Maurice Blackburn &Tredinnick.

[HIGH COURT OF AUSTRALIA.] THE

AUSTRALIAN

GUARANTEE

CORPORATION LIMITED BALDING

ON APPEAL FROM THE COURT OF BANKRUPTCY

(DISTRICT OF VICTORIA). Debts-Future Debts-Book debts-Assignment-Registration-Future instalments of

although not incurred or owing at the time of the assignment"-Hire-purchase agreement-Non-registration as assignment of MELBOURNE,

book debts-Invalidity of assignment-Assigned not entitled to general properly in or to charge or equitable security over property assigned-Instruments Ad 1915 (Vict.) (No. 2672), secs. 127, 180, 181-Instruments Act 1928 (Vict.) April 14.

(No. 3706), secs. 27, 80, 81.

Traders, who afterwards made a deed of arrangement, obtained advances upon the security of assignments of hire-purchase agreements which were framed that (i.) after the first period of hire the hirer's right to retain the