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Cr.A. 74/58. ATTORNEY-GENERAL v. HORNSTEIN
In the Supreme Court Sitting as a Court of Criminal Appeal Agranat J., Silberg J. and Goitein J.
Administrative Law— Delegatus non potest delegare— Delegation by municipality of its statutory powers to Mayor— Legislative and administrative functions— Delegation ofpowers to impose tax— Road Transport Ordinance, sec. 25 (1)— Municipal Corporations Ordinance, sec. 99 (1). Section 25(1) of the Road Transport Ordinance and section 99(1) of the Municipal Corporations Ordinance provide as follows:
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*25(1) A municipal...council may, with the consent of the district
commissioner and the licensing authority, make bye-laws in regard to the following matters-...
(b) the regulation by prohibition or otherwise of vehicles when
stationary within the municipal... area.” “99(1) A municipal council may make by-laws to enable or assist it to carry out any of the matters it is required or empowered to do
under...any other Ordinance... and may by such by-laws provide for the payment of any fees...by any person...in connection with such matters.”
In bye-laws made by the Municipal Council of Tel-Aviv-Jaffa under the above sections
provision was made for the designation by the Council of “parking places”, and the Mayor was empowered, after consultation with certain officials, to set apart a “parking place”, to regulate parking in a “regulated parking place” by an attendant or by means of mechanical devices, and to prescribe different scales of fees for the different regulated parking areas according to the hours of parking, the periods and types of vehicles. The by-laws also provided that a person who contravenes any of their provisions shall be liable to a fine of IL 100.
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The respondent was convicted by a Municipal Court of an offence against the bye-laws
in that he had parked his car in a “regulated parking place” regulated by means of mechanical devices, namely, parking meters, without depositing the fee prescribed in the Mayor’s notice which appeared thereon. On appeal to the District Court the conviction was quashed on the grounds that the delegation of powers by the council to the Mayor was ultra vires the powers of the Council under the sections cited, and that the Mayor's regulations regarding the duty to pay a fee at a certain rate were of a legislative character and had not been published as required by law. The Attorney-General appealed.
Held, dismissing the appeal: :
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PerAgranatJ. (SilbergJ . concurring), (1) the function of the Mayor in designating a parking place as a
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the function of regulating parking thereon by an attendant or
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character.
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“regulated parking place” was of a legislative character, while by means of mechanical devices was merely administrative in
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(2) The principle of delegatus non potest delegare is not to be regarded,
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even to the extent that it applies to the authority of a secondary legislator, as an inflexible rule but merely as a presumption
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which may sometimes be rebutted, and at least one recognised
qualificationuponits applicationis thatinthecaseofasecondary
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regulations and not merely rules of an executive nature in relation thereto—it may be inferred that the Law from which this authority
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legislator upon whom full legislative authority has been conferred
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to regulate a number ofdifferent matters—power to make primary
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derives intended by implication to permit him to place upon an
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administrative body the task of determining when or how the
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regulations prescribed by such legislator should come into effect.
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(3) The provisions of the bye-laws therefore empowering the Mayor
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to prescribe “regulated parking places” in those places which
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itself, and having done so to determine whether parking thereon
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should be regulated by attendants or by means of parking meters,
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had previously been designated as “parking places” by the Council
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should be upheld. (4) The fee imposed for parking was not only of the nature of a
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“price” but also of the nature of a “tax”, and as the authority to
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legislative organ, if for this purpose it has chosen to be assisted by a subordinate law-making body, the latter must necessarily
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non potest delegare; and as moreover the Council could itself control the fixing of the price either by outlining a rational
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‘the relevant scales of fees or by fixing a maximum rate for the
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levy a tax emanates from the sovereign character of the supreme
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abide, even to a greater degree, by the principle of delegatus
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basis or mode of action for guiding the Mayor in prescribing
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parking fee, the determination of the scale by the Mayor alone
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was ofno effect.
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Per Goitein J. (dissenting),
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the parking fee was not of the nature of a tax, and the Council
had therefore not exceeded its powers in delegating the function of prescribing the fee to the Mayor.
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Israel cases referred to:
(1) Cr.A. 213/56— Attorney-General v. Yeshayahu and Genya Alex-
androvitz (1957) 11 P.D. 695.
(2)
H.C. 220/51—Jemal Mahmud Asslan and others v. Military
(3)
H.C. 104/54—Irgun Nehagei- Moniot Sherut Le’Mehoz Tel-Aviv v. Mayor of Tel-Aviv, Haim Levanon, as Local Road Signs Committee within the meaning of Road Transport (Traffic) Regulations,
Governor ofGalilee, Nazareth (1951) 5P.D. 1480.
5713-1953 and others (1955) 9 P.D. 100. (4)
C.A. 300/53— Yosef Woszczyna v. Local Council of Kiryat Haroshet (1955) 9 P.D. 1639,
(5) H.C. 21/51—N. Binenbaum and others v. Tel-Aviv Municipality (1952) 6 P.D. 375. (6) Cr.A. 75/54— Attorney-General v. B. Schreiber and A. Mitelman (1954) 8 P.D. 927.
(7)
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C.A. 43/53—The Local Council of Kfar Ata v. “Ata” Textile
Company Ltd. (1955) 9 P.D. 869.
.
English cases referred to:
(8)
Allingham and another v. Minister of Agriculture and Fisheries
(9)
Ferdinand Longfield Speight and others v. Isaac Gaunt [1883-84] 9 App. Cas. 1.
[1948] 1 All E.R. 780.
(10) The Queen v. Burah [1877-78] 3 App. Cas. 889. (11) Charles Russell v. The Queen [1881-82] 7 App. Cas. 829. (12) Archibald G. Hodge v. The Queen [1883-84] 9 App. Cas. 117. (13) King Emperor v. Benoari Lal Sarma [1945] 1 All E.R. 210; [1945] A.C.
(14)
14.
Shannon and others v. Lower Mainland Dairy Products Board [1938] 4.C. 708.
Australian cases referred to:
(15)
Croft v. Rose (1957) Argus Law Reports 148.
American cases referred to:
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(16) Union Bridge Company v. United States (1907) 51 Ed. 523. (17) May W. Borum v. H.S. Graham and others (1935). 4 Cal. App. (2d)
331.
(18) Minnie Gould and others v. Western Dairy Products, Inc., and
(20)
others (1936) 12 Cal. App. (2d) 188, 191. Angelo Mecchi, Jr., a Minor, etc. and others v. Lyon Van & Storage Co. (1940) 38 Cal. App. (2d) 674. People v. Sullivan (1930) 238 N.Y. Supp. 253;72 A.L.R. 231.
(21)
Samuel C. Taylor v. Abel J. Roberts (1922) 84 Fla. 654; 72 A.
(19)
L.R. 231. 73
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(22) State ex rel. Harkov v. McCarthy (1936) 171 So. 314; 108 A.L.R.
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1153-1154.
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(23) J.W. Hampton Jr., & Co. v. United States (1928) 48 S. Ct. 348.
(24) pany City ofBirmingham and others v. Hood-McPherson Realty Com(1937) 108 A.L.R. 1140. :
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(25) Commission Marion L. Frost and others Co-partners, Doing Business under the of The State of California (1926) 47 A.L.R. 457.
Name and Style of Frost & Frost Trucking Company Vv. Railroad
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American Act referred to: Constitution ofthe United States ofAmerica, 1787, Art. 1,2,3.
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Zilbiger andRivka Dinai for the appellant.
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The respondent appeared in person.
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AGRANAT J. The problem involved in this appeal is of a constitutional
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Municipal Council statutory ofTel Aviv-Jaffa. The question arose in connection with the following provisions:
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and sec. 99(1) of the Municipal Corporations Ordinance, 1934, and continued)
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Council (hereinafter referred to as “the Council”) enacted the “Bye-laws
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for Tel Aviv-Jaffa (Stationing and Parking of Vehicles), 1945” (Reshu-
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character, concerning the legislative powers of a local authority, the
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(Thelearnedjudgecited sec. 25(1)oftheRoadTransport Ordinance | Relying on these two statutory provisions, the above Municipal
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mot, 1954, no. 459, p. 1000—hereinafter referred to as “the Bye-laws”).
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mitted under section 2.
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Sec. 1 ofthe bye-laws contains the following definitions:
“*A parking place’ is a place where the parking ofvehicles is per-
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“‘A Regulated Parking Place’ is a parking place set apart as a
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regulated parking place under section 3(a).”’
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The following are other sections ofthe bye-laws which are important
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in the present context.
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“2. With the approval of the Traffic Commissioner, and
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after consultation with the Chief of Police, the Council may
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prohibit, limit and regulate the stationing of vehicles or of a
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particular class of vehicles, and also designate a street or part thereof or some other place as a parking place in which the
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parking of vehicles or of a particular class of vehicles is permitted, prescribe the days and hours and the periods when
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parking is permitted, and the number ofvehicles which may at
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3.(d) The Mayor may, after consultation with the Traffic Commissioner and the Chief of Police, designate a parking
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any one time park in such place.
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place as a regulated place and regulate parking thereon by-an attendant or by means of mechanical devices.
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(b) Where parking is regulated by an attendant, a person
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leaving a vehicle in the parking place must comply with the
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instructions of such attendant in every manner pertaining
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to parking.
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(c) Where parking is regulated by mechanical devices, a
person leaving a vehicle in the parking area must leave it within
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one of the vacant spaces marked therefor, opposite the
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mechanical device allotted to such space, and set the mechan-
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stated thereon.
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ical device in operation in accordance with the directions
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11.(a) No person shall station or park, or permit another
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to station or park, a vehicle in a regulated parking area unless
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prescribed for that parking place under subsection (c). (c) The Mayor, with the consent of the Traffic Commis-
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he has paid a parking fee in accordance with the scale of fees
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sioner, may prescribe different scales of fees for different
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regulated parking areas, according to the hours ofparking, the
periods and types of vehicles.
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(d) The scale of fees as prescribed under subsection (c)
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shall be set out in a notice by the Mayor and publicly displayed
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in the regulated parking area or upon the mechanical devices.
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(f) Where parking is regulated by means of mechanical
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devices, the fee shall be inserted in the mechanical device by a
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coin or by a special metal token in accordance with the directions for use which shall be set out upon such devices.
14.A person who contravenes any of the provisions of these By-laws shall be liable to a fine of IL 100.”
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It is not in dispute that on November 19, 1956, the respondent
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stationed his car in one of the streets of the city of Tel Aviv-Jaffaina
place where parking was permitted under sec. 2 of the the bye-laws, which had been designated by the Mayor as a place where parking 75
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was “regulated” by means of a mechanical device (hereinafter referred
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did not deposit in the meter—and therefore did not pay—the fee
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to as a “parking meter”) under sec. 3; likewise, that the respondent
prescribed in the Mayor’s notice which appeared thereon. On these facts, the respondent was found guilty by the Municipal court, in his
absence, toofpayan aoffence under secs.to IL11(a)4. He andappealed 14 of theagainst bye-laws, and ordered fine amounting the con-
viction to the District Court and his appeal was allowed upon the
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following grounds:
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the authority conferred upon it at the time by Mandatory legislative
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sec. 99(1) of the Municipal Corporations Ordinance, but such
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(a) The effect of the provisions enacted in secs. 3(a), 11(a) and
11(c) of the Bye-laws is that the Council had delegated to the Mayor
organ pursuant to sec. 25 of the Road Transport Ordinance and ddelegare. elegationForof thisthatreason, authorithety regulations was not permademis ibbyle theandMayorultra pursuant vires the Municipality’s powers in view of the principle delegatus non potest
toforce.secs.To3(c)support and 11(c) of the bye-laws wereCourt likewise this ground, the District reliedlacking upon in thelegal rule in Allingham v. Minister ofAgriculture and Fisheries (8). (b) The Mayor’s regulation regarding the duty to pay a fee at a certain rate made by virtue of sec. 11(c) of the bye-laws is of a legislative character and required publication in Reshumot in accordance with
sec. 17 ofthe Interpretation Ordinance. As for this ground, the District CourtI shall basednow itselfon therulein TheAttorney-Generalv. Alexandrovitz(1). deal with the first and main reason of the District Court.
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In this regard, I shall first of all confine myself to the question of the validity of the provisions of sec. 3(a) of the bye-laws. I hold, contrary
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provisions and accordingly that the designation of the “regulated area” involved, which was made by the Mayor by virtue thereof, is valid. My
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to the District Court, that the Council was authorized to enact these
reasoning on this point is as follows:
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A. The decision in the Allingham case (8) is not relevant because all that was decided there is that the principle that an agent cannot
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delegate the thedelegation to another ofa function function hasofanbeenadmin-imistrative precludes character by one upon whom such
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author:
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| (2nd edition) pp. 204-5, and also in Griffith and Street, Principles of Administrative Law. 1 will merely content myself with citing the first
posed. That rule is construed in this sense in Allen, Law and Orders
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“__it is clear...that any administrator,...if certain specific executive functions are committed to him,...cannot, without
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authority, entrust them to a deputy of his own choice.”
This rule is not germane to the present case since the authority
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conferred upon the Municipal Council under sec. 25 of the Road Transport Ordinance to enact by bye-law provisions regulating -the parking of vehicles within its boundaries, is clearly of a legislative character. Moreover, in view of the wide language employed—*to
regulate parking... by prohibition or otherwise” —the section is to be
construed as vesting in the Council the power to determine even the “primary law-making” in this sphere and not merely the executory
regulations. (As to the distinction between these two categories of secondary legislation, see an article by Professor H. Klinghoffer, Practer Legem Regulations, in 14 Hed HaMishpat, 1957, p. 245, 257). Considering the broad character of the legislative authority conferred upon the Council, no doubt whatever can arise regarding its power to provide by bye-laws intended to regulate the parking of vehicles within its boundaries for the administrative functions which it has placed upon
the Mayor to carry out for this purpose. Such bye-law provision would accordingly not involve any “delegation” to another of a function of this character by one charged to carry it out. Therefore, if the matter of designating a “regulated place” and the regulation of parking thereon
by means of a parking meter constitutes a function of an administrative character, the provisions of sec. 3(a) of the bye-laws do not conflict howsoever with the principle of delegatus non potest delegare and are valid. But even if these provisions must be treated as conferring upon the Mayor a function of a legislative character, the question still remains whether the said principle is applicable to a situation in which a body which has been granted power to regulate a given matter by means of secondary legislation, purports to yield some of its legislative authority to another. This is evident from the following observation of Allen’s
(ibid.) when dealing with this question: “In respect of legislative func-
tions, however, the position is not so clear.” Be that as it may, the rule in Allingham’s case (8) does not assist us in the present case. B. From what has been said in the preceding paragraphs it follows
that the first question which we must resolve is whether the function
dealt with in sec. 3(a) of the bye-laws—the designation of a “regulated place”, etc.—is administrative or legislative. We all know that it is sometimes difficult nowadays to determine the quality of a function
assigned to some or other body or official, in regard to whether it belongs to one or the other of these two categories. One of the factors 77
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(Cmd. 4060) published in 1932, emphasized (at p. 95):
toonedraw a precise dividing line between the legislative on the hand and the purely administrative on the other; admin-
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executive characteristics.”
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Thus in England the report of the Committee on Ministers’ Powers,
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“Itis indeeddif icult intheoryandimpossibleinpractice
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istrative action so often partakes of both legislative and
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giving rise to this difficulty is that in many instances the legislative and administrative characteristics of a given function are intermixed.
If we consider the content of sec. 3(a) carefully, we are persuaded
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a duallegislative functionandwaspartly placedadministrative. upon the Mayor, or atheleast, which || isthatpartly Firstly, may one determine
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that a place in which parking has been permitted by the Council, in
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accordance with sec. 2 of the bye-laws, shall be a “regulated” parking area. What such determination means is that any person who parks
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his in thatorplace comply withupon the directions whovehicle is present the must “instructions” the parkingofthe meterattendant found
there which he is to set in operation (Sec. 3(b)). Secondly, after he
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be applied —regulation by an attendant, or by means of a mechanical
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of things—that the Mayor will in practice carry out both such functions
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has decidedmust that choose a certainbetween “parkingtwoplace” be a “regulated” the Mayor parkingshall arrangements which place, are to ||
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device; and, havingIndeed, made the choice, it becomes his duty it into || effect accordingly. it may be supposed—since it is to in put the nature
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same considerations. In theory, however, it is possible tothem, separate the | simultaneously and even be guided, as regards each of by the two; for example, it is not impossible that the Council would assume
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the task of determining the “regulated” places, leaving to the Mayor
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only the decision asor tometer—which the choice ofmustone beof made the twowithparking ments—attendant regardarrangeto such
places.
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Reverting now to the question posed at the beginning of this
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section, my answer is that the first function is to be regarded as of a
legislative character but the second as of an administrative character. Alexandrovitz (1) from which it appears that the distinguishing features
To support this conclusion, I rely on the decision in Attorney-General v.
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of a regulation of legislative effect are “first, that it should establish
a legal norm” (rule of conduct) and thereby bring about a change in the law of the country, and secondly, “that this should be a general
or ‘abstract’ norm, ie. a norm directed to the public generally, or
at least to an indefinite part thereof.” It was accordingly held in that
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case that the prescription of a mark of identity for merchandise subject to purchase tax by the Director of Customs and Excise (by virtue of the “authority granted to him under sec. 15 of the Purchase Tax Law, 1952)
constitutes a provision of legislative effect, inasmuch as it “adds an obligation which, apart from it, would not exist” (ibid, p. 702). In his judgment, Sussman J. followed the decision of the High Court of Justice in Asslan v. Military Governor of the Galil (2), which held that it was essential to treat as of legislative character an order issued
pursuant to sec. 125 of the Emergency Defence Regulations, 1945, because the effect of the order was to limit freedom of movement enjoyed previously by citizens in the region which had been proclaimed a closed area by the order.
This rule is also applicable to the designation of a particular parking area as a “regulated” place, since the two distinguishing features which characterize a legislative regulation exist in relation thereto: (a) the designation constitutes a provision directed to an indefinite portion of the public, namely, the class of persons who need to park their vehicles in a place as aforesaid; (b) its effect is that those persons have to obey the attendant present at the regulated place, or to set the parking meter in motion, whereas before the designation they were under no obligation to observe either of these rules of conduct. I must add that it is possible
that the definition upon which I have based this conclusion cannot be reconciled with the view expressed in Irgun Nehagei Moniot Sherut v. Mayor of Tel Aviv (3), with regard to the character of a decision to erect traffic signals, made pursuant to Reg. 111 (a) (2) of the Transport (Traffic Rules) Regulations, 1953. I do not intend to dwell at length upon this matter except to observe that that view was obiter and was not required for determining the question which was considered in that case (see, ibid. (3) p. 102, between the letters Cand D). As for the function of regulating parking in a “regulated” place by the use of one of the two methods provided therefor in the bye-laws, I find that the decision of the Mayor thereon lacks the distinguishing feature of a “change in the law” and that consequently its character is merely administrative. The duty resting upon one who has put his vehicle in a parking place as aforesaid—to obey the attendant or to activate the meter—flows from the provisions of sec. 3, subsecs. (b) and (c) of the bye-laws, as well as from the designation of the place by the Mayor as a “regulated” place. The fact that the choice of one or the other of the two forms of regulating parking requires the exercise of a certain discretion on the part of the Mayor cannot bestow upon this function any legislative character whatever. If it were otherwise, it would mean 79
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that it is impossible to impart to any function whatever an administrative character when to carry it into effect demands the exercise of discretion. Such is not the case.
I have deemed it proper to dwell on the theoretical distinction
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which is to be drawn between these two functions, not only in order
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forewarn that due to the close connection which exists between them
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to give a precise answer to the above-mentioned question but also to the distinction may have an important legal consequence. For example,
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itrequires can bepublic arguednotice, that whilst the act of designating a “regulated” place the same does not apply to the function of regulat-
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Iningparkingi the report ofthe English Committee above-mentioned itwas likewise stressed that n suchaplacebymeansofanattendantoraparkingmeter. “totheytakeare any set of regulations and conclude that, because primarily administrative, they can be disregarded
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C. The upshot of this is that the question which we have to answer
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as having no legislative aspect may often be wrong.”
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at this stage is whether the District Court was right in holding that the
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Council did not have the power to delegate to the Mayor the legislative
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function of designating “regulated” places.
To justify this conclusion, the respondent stressed that sec. 25(1)
of the Road Transport Ordinance—the source of the Council’s authority
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to regulate parking—says that it “may make by-laws” for this pur-
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function in this matter alone and that therefore it may not be aided to
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for his argument in Woszczyna v. Local Council of Kiryat Haroshet (4),
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in Council 1922 provided that the appellate jurisdiction of the District
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pose, from which it is inferred that it has the power to carry out such
this end by the Mayor or anyone else. The respondent found support in which it was decided that since Art. 40(2) of the Palestine Order
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Courts may be extended “as may be prescribed by any ordinance,” the Palestine legislator could not thereby nominate any other person for this
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(A), 1950, made by the Minister of the Interior by virtue of sec. 5(2) of the Local Councils Ordinance, 1941, (as amended in 1947), according
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purpose with the result that sec. 84(a) of the Local Councils Order ofthetheDistrict appealsCourts committee inauthorized connectionto with tax assessments, todecision which were hear appeals from a was not lawfully enacted. In other words, just as the limitation inherent
in the words “as may be prescribed by any ordinance” in the Palestine Order in Council prevented the High Commissioner from nominating
another to carry out the task of extending the appellate jurisdiction of
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the District Courts, so the limitation implicit in the words “may make by-laws” precluded the Council from designating the Mayor as the person to make legislative arrangements for regulating parking within
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its boundaries.
It should be noted that there is nothing in common between this
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argument and the principle of delegatus non potest delegare by which the District Court judges were guided, since this argument relies upon the language used by the legislator, which in the respondent’s opinion forbids in and by itself the Council to give up to another any of its powers
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in the matter under consideration, whereas the said principle is invoked — for the purpose of deciding whether to nullify the transfer of power
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which some Law has conferred upon an authority—when no prohibition
is expressly prescribed in that law. Similarily in the Woszczyna case (4)
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from which the respondent drew an analogy to the instant case, the
Deputy President (Cheshin D.P.) emphasized that “there is no question
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here of a delegation of authority from one agent to another, but of adhering to express limitations which have been laid down by superior
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legislation” (at p. 1646).
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As for the argument itself, I think it is untenable. In the Woszczyna
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case, the enabling provision was devoted to a specific limited objective, to enable the appellate jurisdiction of the District Courts to be extended, and since the provision had clearly prescribed that the method to be followed for extending such jurisdiction was by enactment of an “ordi-
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nance’, there was no avoiding the conclusion that this restriction con-
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stituted an express prohibition upon the delegation of the power for
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achieving the result to one not authorized to enact “ordinances”. On the other hand, we have seen earlier that the enabling provision in the present case, in sec. 25(1) of the Road Transport Ordinance, is devoted to regulating the entire field of matters pertaining to parking
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of vehicles within the boundaries of local authorities, and in view of the
wide terms conferring the power upon the Municipality to do so within
its own area, which indicates that it was also empowered to prescribe
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“the primary regulations” in this connection, it is impossible to hold ipso facto—merely in reliance upon the words prescribing that the
Council may effect this purpose by means of bye-laws—that it is for-
bidden to delegate to the Mayor the task of formulating the “details”
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required for the putting into effect of the regulations prescribed by it in the bye-laws it has enacted. Such an “automatic” inference is not possible even if the prescription of such details bears a legislative character. This may be seen from the view expressed by Griffith and Street,
op. cit. (p. 69), that
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legislation, suggestedis that his powertotomake authorize himself “If theit isMinister empowered subordinate or others by such subordinate legislation to make sub-
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delegated legislation depends on the generality of the statute
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defined. If the statute is so widely phrased that two or more
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‘tiers’ of subordinate legislation are necessary to reduce it
tomay be specialised can tobemake based,thethen that therules courtsonwillwhich implyaction thepower neces-it
and the extent to which the powers to legislate are there
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sary subdelegated legislation.”
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Nevertheless, I do not in this part of my judgment adopt this view
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and have only mentioned it to show that in face of the “generality” of the language of the enabling provision in the present case and the
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it to regulate matters of this kind, it is impossible to hold that there is an express prohibition on delegating the function of designating “‘reg-
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extent of the powers thereby granted to the Council in order to enable
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ulated” parking places to the Mayor, and that therefore the real proJ the Mayor to perform that function. The solution of this problem does
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principleof
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blem calling for solution is whether it is possible for us to hold that
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this provision impliedly confers upon the Council power to authorize
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indeed depend foremost upon the answer to the question whether the
inciple of delegatus non potest delegare, the principle invoked (if at all)
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d e l e g a t u s nonpc gare, the princip d ( i f Whatever the answer to that question, it is clear in any event that the only in those cases in which the statute has not expressly forbidden
Ek fill
the delegation of powers granted to some authority, is applicable here.
i
: El:
iI |
|
grounds upon which the respondent sought to support the decision
of the learned judges below are quite baseless.
|
id
D. To persuade us that that principle is irrelevant in the present
kil
context Mr. Zilbiger who appeared for the appellant pointed out, firstly,
H: )i J| il HTr| i| Ibg Iaei
the dictumof aofdifferent Witkonprovision” J in the “the Woszczyna casepower (4), that “in tothea absence legislative granted non-sovereign legislative organ may be delegated” (at p. 1646). He arguedOrdinance—of further that thetheextended 25(1) ofthe RoadarrangeTransport Council’sform—in powers sec. to regulate parking
I
mission in what the Deputy President (Cheshin D. P.) said in the Woszcz-
iSy 111H
||
|
hi!
powers it ments within its constitutes area aindicates sovereignto us bodythatwhich within thesuchlimits matters of these may
either itself legislate, or delegate the power to legislate to another. Counsel for the appellant found support and an analogy for this sub-
yna case (4) about the position of the Palestine legislator of the time,
namely, that “he was not in any sense the delegate or proxy of the King
:
in Council” even though “he drew his strength and derived his authority
from the provisions comprised in the Palestine Order in Council”
|
but that “within the limits of this authority, he was himself sovereign
and might himself legislate directly or delegate his law-making power
|
to another, even as those who had promulgated the Order in Council” (ibid). Finally, Mr. Zilbiger emphasized the politically “autonomous”
and “independent” character of the Municipal Council, in the sense
|
that its members were chosen by the local inhabitants in free elections.
I
The democratic character ofthis body, so he argued, is enough to negative
|
any possibility of regarding it as a kind of delegate, i.e. a representative or agent of the sovereign legislator as to the matters which it was empowered to regulate by legislative means and that also from this point of view the principle aforesaid is not to be applied in the instant
case. In this connection appellant’s counsel drew our attention to a passage in Hart, Local Government and Administration (5th ed.) p. 6, on the independent status of local authorities in England:
“In the first place local authorities are legally independ-
ent entities. They have separate legal existence as corporate
;
bodies; they are not mere off-shoots of the Central Govern-
ment....
i
“Secondly, in modern times local government is administered by local authorities each acting in a particular area and elected by the inhabitants of that area. This dependence on local election serves in the political sphere to support the legal independence of local authorities. Local authorities are neither legally nor politically the agents of the Central
:
Government.”
And also to Klinghoffer, op. cit. (p. 257):
“Such secondary legislation” —meaning, secondary legislation of the praeter legem variety— “is made by independent local authorities chosen by the residents of their defined jurisdictional area. Like the rule of Law, municipal autonomy is also a combination of democratic and liberal
i
elements.”
These submissions of counsel—which signify that within the limits of its legislative competence a municipal council constitutes an “omnipotent” body—strike me as excessively far-ranging. I shall deal with them in the reverse order.
) 83
ol
ir
| 1
(1) Notwithstanding the democratic nature of the Council’s
||Hi |
composition, it isofimpossible hold that it isin independent ofthe control and supervision the centraltogovernment matters which it has been
; iy I!
charged to regulate by secondary legislation. For example, sec. 99(4) of the Municipal Corporations Ordinance expressly provides that no bye-
il 11
ter of the Interior. Professor Klinghoffer also concedes that “our local
ik | !
as well”. He says further:
il |"
]If| i |
law enacted by a council shall have effect until it is approved by the Minisgovernment is subject to onerous control and supervision by the central government and, in many matters, to its discipline and benevolence
kil ;
“As to secondary legislation entrusted to local councils,
i|
the said nexus of subordination expresses itself in that bye-
| il | ihe |i i
|
| HE i
laws and certain kinds of general local government decisions require the approval of the central government.”
’
It follows that a comparison of the status of a municipal council
in Israel with that of a local government council in England is not one which can be of assistance for the needs of the present case.
It is true that when enacting bye-laws on a matter committed to its
a
competence, the council acts in its own name and not in that of the
3
this point, counsel for the appellant started from the premise that the
|
a
resentative” or “agent”, since one of the characteristic qualities of the
|
i!
behalf of the principal so that whatever the former does within the
}
I
on 1
sovereign legislative authority. It is conceivable that by emphasizing
term “delegatus” in the Latin maxim has only the meaning of “repagency relationship is that the agent is a person who acts for or on
I! 4°
sovereign law-making authority. One answer to this argument is that
II
which also characterizes the legal relationships subsisting between
Kil
i
|j|[ hhi ii
Re i
scope of his authority is attributable to the latter. Accordingly Mr.
Zilbiger argues that the Council is not the legislative “delegatus” of the
the authorising body possesses additional qualities the existence of
connection with the competence ofthe former to enact auxiliary laws,
the municipal council and the sovereign law-making authority in
E\
no less than they are characterized by the absence of the quality referred to by counsel. I refer here to the principal’s power to control and maintain continuous supervision over his agent’s activities, to limit his
i! La ,
“delegatus” and “agent” are not regarded today as necessarily synonymous for the purpose of applying the principle delegatus non potest
fi i |0i :
Hid
authority at any time and to revoke it, and even to take independent actionMyin other mattersandwhich he hasanswer been toauthorized to do. is that the terms the main that argument
84
;
|
|
|
3
delegare. For example, in English private law, a distinction is drawn
between agent and trustee in that the former is limited by the instruction he has received from his principal, from which he may not deviate to any extent whatsoever, whereas the latter may generally exercise a
|
wide discretion as to the subject matter of the trust. And so in the Com-
mon law the rule has been established that because of this quality characterizing the function of the trustee—namely, precisely because those who appoint another to act as trustee do so in reliance upon his personal qualification to exercise the discretion proper to the matter
in which he is required to act—the prohibition of the principle applies to him and therefore he may never delegate his authority (except as to matters of a technical or ministerial character) to a third person (See Speight v. Gaunt (9); also Richards, Delegation in Local Government, p. 33). This approach, behind which lies the rule aforesaid and
|
which enables the principle forbidding the delegation of delegated . authority to be applied even to one who does not act as such in the legal
| |
technical sense, embraces the justification for its application also to matters relating to constitutional law. Thus, Dr. de Smith in his recent
books, Principles and Scope ofJudicial Review (p. 171), writes: “A discretionary power must, in general, be exercised
only by the authority to which it has been committed. It is
i
a well known principle oflaw that when a power has been con-
fided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been ex-
pressly empowered to delegate it to another. This principle,
which has often been applied in the law of agency, trusts and arbitration, is expressed in the form of the maxim delegatus
non potest delegare....The widespread assumption that it
applies only to the sub-delegation of legislative powers...is
|
unfounded.”
It is superfluous to emphasize that the exercise of any kind of lawmaking power necessitates recourse to discretion by the one exercising such power, which explains the view of this scholar that generally the
said principle applies equally to one upon whom the power to enact secondary legislation has been lawfully conferred, and this even
“where legislative powers are delegated by Parliament, or validly sub-delegated by Parliament’s delegate, the delegate or sub-delegate exercises his powers in his own name.”
85
1lak
i)
Plainly the fact that the municipal council when it makes bye-laws
i ||
acts in its own name does not—even though it permits the inference
i|I 1B1.i
authority —strengthen the argument of counsel for the council constitutes a body of a democratic complexion andappellant. that the . responsibility of its members is primarily to the electorate, the local
iN
because the exercise of wide discretion is involved in the operation of
!|
that that body is not then acting as the agent of the sovereign legislative
it B
oreover, in as far as it is necessary to take account of the fact that the
HE
| iid
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1|i is(
residents, I think that this fact is antithetical to the argument. Just
.
towards them butto carrying will themselves the said discretion—as far as it relates out of theexercise law-making task imposed upon } them—and not delegate it to others.
}
Likewise, is noD.P.firmsaidbasisin thefor Woszczyna the analogyCase which(4) counsel drew(2)between whatthere Cheshin and the
law-making sphere with the authority he had derived from the Palestine
ix
conferred upon it and it also may delegate part thereof to another.
|i h,
|
the power, thosewillresident—voters are ofentitled to expect that representatives not rid themselves the responsibility they their bear
i i | ki
i IE ii
4
present case, that just as the Palestine legislator was sovereign in the
4
Order in Council and was therefore permitted to delegate it, so the municipal council is also sovereign in the realm of the legislative power
The justification for the view which attributes a “sovereign”
TIN
character to the legislative authority of the Palestine legislator lies in the broad and inclusive phraseology in which this is formulated in
ii
pursuant to'which the High Commissioner (subject to certain restrictions
|i! iii|{ |
:, thatthesamedoesnotapplyt o thebye-lawswhichamunicipal council of reasonableness (Binenbaum v. Municipality of Tel Aviv, (5)). This
1|
i1 ]1| ,1 | 41 i{
Art. 17(1) (a) of the Palestine Order in Council (as amended in 1923), 4:
not germane here) had the power to enact any Ordinance required for ensuring “peace, order and good government” in Palestine. What this power meant was that the High Commissioner could currently, within the limits of his jurisdiction, enact any Ordinance he pleased, whether it was desirable or undesirable, reasonable or unreasonable. It is clear
may make and which, as is generally known, must always pass the test
I ia
difference in the nature of the legislative competence conferred upon each of the authorities aforesaid requires us to attribute a “sovereign”
Bi
ercises. In their book The Constitutions of the Commonwealth, at
iislil|
\i i
1 i | :
character to that whichcharacter the Palestine legislator time usedcouncil to exercise and a non-sovereign to that whichatathemunicipal ex-
: 3
p. 47, Jennings and Young observe: 86
|
“Within its powers a legislature, unlike a local authority
...can pass what legislation it pleases. It has been said that a
colonial legislature is ‘sovereign’ within its powers. To a political scientist this phrase is nonsense, for the essence of sovereignty is that powers are unlimited. But it is a convenient
way of stating that a power to legislate for the peace, order and good government ofa colony is a power to enact any kind of legislation, reasonable or unreasonable, desirablé or
ed invalid because The bye-laws local authorityThere mayisbenodeclarthey areofa unreasonable. such
undesirable...
power over colonial legislation.”
tive authority Thus as soon as we a “sovereign” character towethearelegislawhich the attribute Palestinian law-maker possessed, com-
pelled to concede his power to make it over to others. In contrast, since
we have not found it at all possible to attribute such a character to the
authority of the council to enact secondary legislation, it is impossible that we should, on the basis of the “sovereignty” theory or the “analogy” rule, render valid the delegation of that authority to anyone in the absence of an express provision in that behalf by the sovereign legislator (see Jennings and Young, op. cit., pp. 47-8.) ,
(3) From what has already been said, the rule would seem to be
that the principle delegatus non potest delegare operates equally in the legislative sphere and therefore I cannot agree to the generaliza-
tion that “in the absence of a provision to the contrary, the law-making -
,
power granted to a non-sovereign legislator may be delegated”. 1 said
that this “would seem” to be the rule because I think it would not be
right for us to treat it as a rigid rule from which one may not depart
whatever the conditions. Even Allen—while expressing the view that*in
principle” it would amount to ultra vires if the “legislative agent” were to put another in his place—admits that it is still impossible in the absence of a line of clear decisions to speak of this with “confidence”
.
(op. cit. p. 205). I have also noted the views of Griffith and Street about
the possibility that the court might construe a particular statute as impliedly authorizing the secondary legislator to charge some other organ with the task of enacting “detailed regulations” whereby the arrangements prescribed by the secondary legislator would be put
:
into effect. However, they also emphasize that no authority exists upon this point and that therefore a “more dogmatic” view cannot
be expressed (op. cit. p. 69). Finally, de Smith (op. cit. pp. 175-6) indicates
his approval of the following view:
87
J
Hiii
“The maxim delegatus nonpotest delegare does not enun-
i
ciate a rule that knows no exception; it is a rule of con-
| Hy
which the statute has conferred it and by no other authority,
Ji Ji
struction to the effect that a discretion conferred by a statute is prima facie intended to be exercised by the authority on
ih hil
but this intention may be negatived by any contrary in- dications found in the language, scope or object of the
|i
statute.”
Hl
In my opinion therefore the said principle is not to be regarded—
iJ
even to the extent that it applies to the authority ofa secondary legislator
ih
may sometimes be rebutted. The question under what circumstances
Hit!
within which the application of the principle in the legislative sphere
||: |
application, which all acknowledge and which is pertinent in the present
IgE |
—as an inflexible rule but merely as apresumption, a presumption which
this can be done when no express provision exists, what are the limits
i| i]
is to be confined—this question has not as yet been fully answered. But I am certain that there exists at least one qualification upon its
§1|
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context.
)
.
E. I now turn to the qualification dealt with by appellant’s counsel in his further submission which is less far-reaching than the “sovereignty” argument upon which he relied. The qualification is that in the case of a secondary legislator upon whom full legislative authority has been conferred to regulate a number of different matters—power to make primary regulations (and not merely “rules of an executive nature’) in
relation thereto—it may be inferred that the Law from which this authori-
ty derives intended by implication to permit him to place upon an admin-
3 li i | | Fo 1
istrative body the task of determining when or how the regulations prescribed by such legislator should come into effect. The justification for making this qualification is based upon the demands of political reality, with the object of ensuring that the affairs of state are regulated and
|{
always appropriate for enforcing the legislative arrangements in which
il
ion |
conducted efficiently, and in the general recognition that otherwise
place is not always expedient, since the matter depends upon the pre-
LA i 1 Hi
prevention being.better than cure, that the arrangements should be fixed in anticipation and the actual execution thereof be subject to future decision on the question whether in point of time or place the
Ai
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h 1
l
thelife, “wheels of government”, especially in the complexities of modern ) will not be able to “turn”. What I wish to say is that the time is not
|| |
gil i Ha
:
the secondary legislator is interested and its introduction to a particular
vailing factual conditions, and such conditions are likely to vary in respect of both time and place. Nonetheless, it is sometimes desirable,
5
h p :
conditions suitable therefor exist. Thus a secondary legislator charged
with the task of finding fundamental solutions to broad topics, varied
and numerous, has no available time—and if it is comprised of a body
pursuing the legislative process along parliamentary lines, will find it difficult—to inquire daily whether the factual conditions are appropriate and suitable for putting into effect the special arrangements with which it is concerned. It is therefore better for it to assign the task to an ad-
ministrative body and delegate to the latter the function of deciding, in the light of the factual inquiry it has carried out, whether the time
is ripe or the place suitable for bringing the arrangements into force. It is true that such a decision on the part of this administrative body cannot be reached without prior exercise of its discretion. It is
also true that the determination of time or place in which the arrangements of the secondary legislator should apply constitutes—so the
definition with which we dealt above in paragraph A requires—the enactment of regulations of legislative import. It follows that the approach which countenances the delegation of such a task by the secondary legislator to an administrative body represents indeed a departure from the principle delegatus non potest delegare. Yet, as to the first concomitant, it may be observed that even the carrying out of obvious administrative functions sometimes requires the exercise of discretion by those charged therewith. Furthermore, the fact that the result of the factual inquiry which the administrative body has made must be its sole guide when making its decision means that the exercise of its dis,
cretion will cover a rather narrow area. As to the second concomitant, it may be said that for all the legislative character of the function carried
out by administrative body in this situation it also represents the “apparatus” which enables the implementation of the arrangements prescribed by the secondary legislator in its regulation and from this
point of view there is really nothing extraordinary in committing such a task to one who is accustomed to carry out executive functions. These two points which I have singled out—restricting the area in which the
administrative body exercises discretion and devoting its legislative
function toward an “operational” —*executive’ —purpose minimize to
some extent the deviations from the basic principle with which we are concerned.
Authority for the said qualification and for its justification is to be found in English and American decisions to most of which counsel for
the appellant drew our attention. Before citing some part of what has
been said on the subject in these authorities, I must by way of preface make one observation. A perusal of these authorities makes it apparent 89
’
by il
I
that the courts in approving the said rule do not admit that they are
Ii
thereby validatingwhicha departure from ouris fundamental The magic formula they invoke—this mainly true ofprinciple. the English
iI
decisions—is that thethe legislation makes thedependent implementation the arrangements, object of which the legislation, upon theof “factual” administrative is merelyofconditional legislation decision and doesofnotantherefore involve body the delegation legislative
i i
i |1|
* authority to anyone.Adif erent formula—and this is mostlytrueofthe
ii
istrative character. In my opinion no other explanation exists for this
i| |bi ; i Y i; i Hit 3
Ii
gi :
s
desire to remain loyal to the principle that an agent may not appoint
a sub-agent, in the light oftheir premise that this principle does not toler-
ate—in the absence of any provision in that behalf by the sovereign leg-
islator—the slightest derogation. This is also the view of de Smith, (op. cit. p. 176):
E !
I
In this way an unreasonably restricted meaning has often
! | |11 i il
ha,
categories: (1) English decisions; (2) Decisions of the Supreme Court of the United States; (3) American decisions dealing with a secondary legislator being a local authority.
(1) To the first category belong: The Queen v. Burah (10); Russell v.
Cl
Lal Sarma (13).
I ie ! | 3b I|
In the Burah (10) case, the question was whether the then Indian had revoked the legislaturejurisdiction might prescribe criminal of the byHigha statute Court inin which certain itregions in Bengal
od
regions as would be determined by the Lieutenant Governor of Bengal.
i kl 1]
LH
Y
I proceed now to the authorities which I divide into these three
The Queen (11); Hodge v. The Queen (12); King-Emperor v. Benoari
||
;
been given to the concept of delegation.”
I
JI i “4 i
:
of power (in theit isabsence be held to be cannot valid unless held toofallexpress short ofauthority) delegation.
ED
HE
‘
“the Courts have sometimes assumed that the maxim
does lay down a rule of rigid application, so that devolution
iLli Hi1
:
legislative reform which has been prescribed shall apply is of an admin-
HR
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:y
Americancases—ist h a t t h e f u n c t i o n ofdeterminingwhenandwheret h e : unusual approach by the judiciary than that traceable to their strong 1
i
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.
province and vested it in the local courts of those regions that this provision should come into effect only from such a day and in such
This question was answered in the affirmative by the Privy Council in holding:
2
I
’
a
{
¥
“Where plenary powers of legislation exist as to particulat subjects...they may...be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise ofa limited discretion, en-
trusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in certain circumstances, it may be highly convenient. ...It cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers it from time to time conferred.”
‘
:
I am fully alive to the fact that this case involved a “territorial”
legislature which derived broad legislative powers from a statute of the British Parliament and that the decision of the Privy Council was
influenced by the notion that such legislature is “sovereign” within the area of its authority and may not therefore be regarded as the
“legislative agent” of the British Parliament (p. 904). Nevertheless,
I think that the words I have quoted from the judgment reflect an additional reason, and perhaps even the main reason, for the decision since otherwise they would have been superfluous. Thus this reason
is equally valid as to a secondary legislator to whom “plenary” legislative powers have been granted for the purpose of regulating “particular” matters, in the sense of the authority to prescribe therefor “primary regulations”; hence the qualification to the prohibition under con-
sideration, which we discussed above.
The same is also true of the three other cases. For example, in the Hodge case (12) the justification for making the said qualification is
|
explained in language which differs in no respect from the “sovereignty” approach, as follows:
“Such an authority is ancillary to legislation, and with-
out it an attempt to provide for varying details and machinery to carry them out might become oppressive, or absolutely fail.
)
The very full and very elaborate judgment of the Court of
Appeal contains abundance ofprecedents for this legislation,
entrusting a limited discretionary authority to others, and has many illustrations of its necessity and convenience. It was .
*
argued at the bar that a legislature committing important
regulations to agents or delegates effaces itself. That is not so.
It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another or take the matter directly into its own hands.»
) 91 R
|i
Similarly in the Benoari Lal Sarma case (13):
|o i
“This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by
i iH | ii | |1 ; 5 |Ai
which the local application of the provision of a statute is determined by the judgment of a local administrative body as to its necessity.” The Australian case ofCroft v. Rose (15) in which the Burah decision was applied to the regulation of a secondary legislator is ofinestimable importance. The regulation involved was enacted by the Governor
iE
those parts of the state highways which required to be lighted was for-
|
General in Council and provided that driving above a certain speed on
t
‘ :
3
:p
| i!
bidden. In adopting this regulation, the Governor General relied upon
§| ' kill !
driving speed limit along any highway or section thereof. The Australian court held that regulation to be lawful, notwithstanding the fact that
' 3
ing the effect of a regulation passed by a subordinate law-making authority, the question must be examined against the wide power which
{
of the speed of driving upon the highways. (ii) This approach justifies the
|
li i
a 1951 statute under which he was granted the power to fix a maximum
ildeal || H; i ii i:
iH
|
of others. Inlight their arrangements reasons, thejudges constituting the majority emphasizcare ofthe of parts of the highways was in charge 3 ed these three points: (i) Whilst thematter involves a question concern- )
i
it derived from the statute which authorized it to regulate the matter
ii; |Hii
on i Hi a |
|1H |1| I
N . || h!
application ofthe rule in the Burah case to thematter under consideration with the inevitable result that there was no defect in the regulation
i
|i
providing that theportions directionof theas tohighways maximumwhichspeedwouldshouldbe designated come into | effect for those by others. (iii) While it is true that such a regulation amounts to a
delegation others ofthelegislative powerof committed a subordinatethe law-makingtoauthority, delegation the task oftodetermining permissible. it is as well to quote from limited questionAs toasthistothird whenpoint, and where the regulation shouldthejudgment: operate is p{
“Themostthatcouldbesaidi n favourofdelegationwas persons other than himself the power to determine when and
!
il.
that the Governor-in-Council had placed in the hands of
;
ig / i! il 1 f
where the provisions of the regulation should operate. But this does not amount to a delegation that has, as we understand the matter, ever been considered as objectionable or
:
|Ei io
as going to power.”
(2) In the Supreme Court of the United States the question before
| :¢
us arose in connection with the authority of Congress to bestow some
BE
92
I
1
FO
{
of its legislative power upon an executive authority in view of the doctrine
.
of the separation of powers which constitutes a corner stone of the
constitution of the United States (Articles 1, 2 and 3) and which seems
to prescribe that none of the legislative, executive or judicial branches should encroach upon the domains of each other (See Corwin, The Constitution and What It Means Today , pp. 2-3). Notwithstanding this doctrine—and it is pari passu with the principle delegatus non potest delegare (ibid. p. 113)—the Supreme Court ruled in keeping with the above-stated qualification. I shall content myself here with quoting from one decision to that effect. In the case of Union Bridge Co. v. U.S. (16), the statute considered was one which required the Secretary of War,
upon finding that any bridge constitutes an obstacle to navigation upon a navigable water-way, to effect appropriate changes to remove the hindrance. It was argued at the trial that this provision violates the Constitution because it constitutes a delegation to an executive authority .
i
|
of the legislative power which belongs to Congress. Rejecting this argument, the Supreme Court said (at pp. 533-4):
“But investigations by Congress as to each particular bridge alleged to constitute an unreasonable obstruction to
.
|
free navigation, and direct legislation covering each case separately, would be impracticable, in view of the vast and varied interests which require national legislation from time to time. By the statute in question Congress declared in effect that navigation should be free from unreasonable obstructions
arising from bridges of insufficient height, width of span, or other defects. It stopped, however, with the declaration of a general rule, and imposed upon the Secretary of War the duty of ascertaining what particular cases come within the rule prescribed by Congress, as well as the duty of enforcing the rule prescribed in such cases. In perforniing that duty the Secretary of War will only execute the clearly-expressed will of Congress, and will not, in any true sense, ...exert legislative... power.” And further:
“Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some factor of the state of things upon which the enforcement of its enactment depends, would be ‘to stop the wheels of Government’ and bring about con-
fusion, if not paralysis, in the conduct ofthe public business.” 93
'
|
||
(3) In the State courts ofthe United States it has been decided on
Il| |i]
many whenever council is empowered regulateoccasions traffic andthatparking withina itsmunicipal area it may provide by the bye-lawto
th {
in which it prescribes the various arrangements for these purposes
il |
that these should apply to such places and at such times as should be
ial |
determined by an official or body named in the bye-law: see Borum v.
|ij
Lyon Van and Storage Co. (19); People v. Sullivan (20); Taylor v. Roberts,
|a |
Graham (17); Gould v. Western Dairy Products Inc. (18); Mecchi v.
||
(21); State ex rel. Harkov v. McCarthy (22).
d; |
i| Ji I i |
:
jill |
In the Gould case it was said (at p. 191):
.
“The right of legislative bodies to delegate power to administrative officials to determine facts in carrying out provisions of legislative enactments has been upheld in many
; ,
cases.... Even a casual observer of government growth and
bl | :i|
development must have observed the ever-increasing multiplicity and complexity of administrative affairs—national,
fH ig |
‘
state and municipal —and even the occasional reader of the
gey :
law must have perceived that from necessity, if for no better
fi
many quasi-legislative and quasi-judicial functions...are in-
|!g !
These things must be done in this way or they cannot be done
||J i| J i Jhe | | ’ ih
Tothesame effect intheMecchicase(atp. 682): “To enforce an ordinance, a legislative body—in this case the board of supervisors—may delegate to the board or an ordinance shall operate.... A denial of such right would commission therighttodetermineastateoffacts uponwhichbe ‘to stop the wheels of government”.
ThE |
i ‘ |
grounded reason, it has become increasingly imperative that
i i
trusted to departments, boards, comrhissions and agents...
| | LR]
;
atall.”
¢t
:
J
: 51 ]
i I
And also, in the Taylor case (at pp. 658):
|a |i i
=
Police with the approval of the Mayor’ the authority to reg-
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“Itis contended, however, that vesting in ‘the Chiefof ulate traffic...at any...congested portion of the city, is an
: 3
power vested in the Chief of Police was an administrative and
:
not a legislative power.
:
unlawful delegation of power to the Chief of Police. The
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The organization and government of municipalities,
94
particularly with regard to the regulation and control of
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traffic on streets, necessarily contemplates a certain power
and discretion being vested in the police officers in carrying
into effect the ordinances of the city, and if the.rules and
! :
regulations, adopted by the police under the authority vested in them by the Ordinances, are within the express general
purpose of the ordinance...they are not subject to the criticism that they are an unlawful delegation of authority.”
: |
Finally, in the Harkov case (22), the Supreme Court of the State of Florida uphold a bye-law adopted by the Miami Municipal Council, whereby the city manager was given the authority to determine the parking areas and to erect parking meters there.
:
In the face of the uniform reasoning in all these authorities, I am persuaded that the rule limiting the principle of delegatus non potest delegare has its place in the legislative field and should be applied in
‘ |
Israel as well.
;
F. By virtue of this rule it is possible to uphold the provisions
3
of sec. 3 of the bye-laws empowering the Mayor to prescribe “regu-
lated parking places” in those streets of the city Tel Aviv-Jaffa, which
|:
have previously been designated therefor by the Council itself (sec. 2), and having done so to determine whether parking thereon should be regulated by means of attendants or parking meters.
:
Firstly, the authority to solve the problem of parking vehicles moving within its boundaries, which the council has been granted by sec. 25(1) of the Road Transport Ordinance, was phrased, as 1 have indicated, in very broad terms, embracing also the making of “primary
. /
regulations”. The fact that the section says that the council must do
:
this by means of bye-laws does not derogate from the wide extent of that
authority.
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Secondly, it is manifest from the provisions of the bye-laws that the Council’s policy is to solve the problem of the existing traffic load, or of the one likely to arise, in certain of the city’s streets, by regulating the parking of vehicles which happen to be there, by means of attendants or meters. It is clear that the designation of the specific places in which
one or the other of the two arrangements is to be adopted in those
be
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streets requires a preliminary investigation of the conditions bearing upon such problem; and that these conditions. are likely to change
at any moment. It follows that the task which the Mayor must carry out
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in the matter is at bottom merely one to institute an enquiry into the factual question whether the conditions in one or other place are suitable 95
3
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for the employment of one of the said parking arrangements and so to
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selected. Indeed, the proper fulfilment by the Mayor of this task requires
i| i
determine, in the light of the results ofthis enquiry, the precise time and
the specific place for putting into effect the arrangement which he has
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that he should in some degree exercise his discretion, but only in a
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rather narrow area. Although imposition of this task upon him con-
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stitutes a delegation of the legislative authority of the Council and
therefore some departure from the principle forbidding such delegation,
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the significance of vesting such power in him is only that the Council
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has set up the “machinery” to serve the purpose of executing the legisla-
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tive policy which it has laid down with the object of solving the problem of parking for vehicles which move about the streets of the city. Sec. 3
ii
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arm of the Council for operating part of the primary regulations which
itbe regarded as necessary indispensable, so that the matter should properly and efficientlyand ordered.
ofthebye-lawsmerelymeansthattheMayorwould serveastheauxiliary
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Finally, I take into consideration the fact that this problem is not
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the only one committed to the Council to deal with and that the area
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of its legislative activity comprises and extends to a number of other subjects (secs. 96 and 98 of the Municipal Corporations Ordinances);
likewise, that the Council constitutes a body whose members carry
out the legislative procedures in which they engage in a parliamentary
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fashion. Under these circumstances, it would not be practical for us
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to make it obligatory upon this body to take into its own hands the
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task of making the continuing factual investigations, upon the result of which depends the realization ofthe policy which it had laid down for reg-
ulating the matter. It is therefore only right that the Council should pos-
sessthe powerto beassisted in this regard bythepersonwhoservesasits of(municipal) government will not be able to turn.”
executive arm, the Mayor (ibid, sec. 59 (a)). Otherwise, “the wheels
Accordingly, in my opinion, the delegation of the authority mentioned in sec. 3 of the bye-laws is legally supportable, and the determination of the Mayor regarding the location of regulated parking, which is the subject of our considerations, rests upon firm foundations.
1h
JJ iii
the task of prescribing the parking fees which anyone parking his
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vehicle in such a place must pay by depositing it into the adjoining
G. Was it competent for the council also to delegate to the Mayor
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will be recalled that the 11 charge filed against appellant inbye-laws)? the present mechanical device (secs. (a), 11 (c), and 11 (f) of the It case is based upon his non-fulfilment of this duty to make payment.
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96
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.
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After some hesitation, I have come to the conclusion that the learned judges were right in answering this question in the negative.
(1) Itis superfluous to explain at this stage—in view of the definition of a regulation having legislative effect, with which we were concerned
in the first part of this judgment—that the enactment in sec. 11 of the bye-laws regarding the obligation itself to pay a fee is of such a character. The same is true of the determination which the Mayor was to make
regarding the scale of this fee, since the obligation would not be complete unless its amount were also determined. Thus subsection (ay of the
said section provides that no one shall park a vehicle in a regulated
parking place “unless he has paid a parking fee in accordance with the ~ scale of fees prescribed for that parking place under subsection (c)”; whilst under that subsection the task of fixing the scale of this fee is
put upon the Mayor. The rule laid down in Attorney-General v.
.
Schreiber (6), upon which appellant’s counsel relied, is not pertinent here, since it dealt with the non-payment of a fee for a building permit, the rate of which had been previously determined, and the fact that the municipality refused to accept this fee from the applicant for the permit— this is the essence of the decision—did not affect his absolute duty to
pay it before starting to build.
(2) The relevant provision—concerning the Council’s authority for prescribing the various kinds of fees, and pursuant to which it acted when enacting the provisions of sec. 11 aforesaid—is to be found in sec. 99(1) of the Municipal Corporations Ordinance. It will be recalled that the latter states that with regard to the matters which the
Council may or is empowered to regulate or to carry into effect by means of bye-laws, it may “provide” in such bye-laws “for the payment
of any fees”. Appellant's counsel emphasized the words quoted, and inferred therefrom that the terms of the power were wide enough to
permit the Council to be assisted by others in fixing the scale of fees, upon the payment of which it had decided. The proof lies in the fact that when the Mandatory legislator wished a council (or some other authority) itself to define the extent of the payment which it was empowered to demand, he made use of narrower expressions such as “prescribe”, “fix”, “levy”, etc.
In my opinion, appellant’s counsel cannot rely upon such a distinc-
tion. The breadth of language which the legislator employed in sec. 99(1) of the above Ordinance may be explained by his desire to express three things in “‘one breath”: (1) the Council may impose the obligation of paying fees and their scales; (2) it may do so with regard to matters 97
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the regulation of which is part of its functions; (3) it must incorporate its directions in these matters in the bye-laws which it enacts. Compare, by way of contrast, sec. 5(5) of the Trades and Industries (Regulation) Ordinance, which contains a provision concerning the payment of fees for trade permits “at the ratesusedprescribed” the Schedule. It is quite obvious that here the legislator the narrowinexpression “prescribed”
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that the terms of sec. 99(1) do not exclude from consideration the
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in connection with the scale of the fees alone. Nonetheless, I think
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possibility that the Council could to some extent depart from our basic principle (against the delegation of legislative authority). But the
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what extent—depends upon other factors, namely, (a) the character
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answer to the question whether it may do so in the present case—and to
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oftheothersfee under by in fixingconsideration, the scale. and (b) the extent of the need to be aided
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(3) The nature of the fee. The dispositive question is, does the ;)
parking fee possess the character of a tax? This is a question which
cannot easily be answered. In his Introduction to Taxation Law (p.4), Witkon J. -defines the term “fee” as an obligatory payment payable
“in consequence of some service”. It seems to me right to reconcile this definition with the term employed in the present matter as follows:
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a “parking fee” means a payment made in consequence of some privilege
which a person parking his vehicle in a regulated parking place receives.
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The privilege consists in that he is entitled against this payment to park
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for a time in excess ofthat required for taking up or putting offpassengers,
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or for immediate and uninterrupted loading and unloading (compare the provision in sec. 5(a) of the bye-law.) In the above-cited Harkov
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case (22), the American court said—according to the digest of the
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“those who enjoyed the privilege of parking, rather than
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decision published in 108 A.L.R. p. 1154—that
the general public, paid the extra cost of providing and maintaining the means for the enjoyment of the privilege, and the
extra cost of the supervision and policing of it.”
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Ontheother hand,itis not to besupposed that the scale ofaparking
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fee will be determined—even if a yardstick exists for enabling this to be
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“the absence of a direct quid pro quo” is “one of the indicia of a tax
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done—by taking into account the monetary value of the privilege;
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intheitscourse primaryof attending sense” (Witkon, loc. cit.),needsMoreover, person whoin ina to his business to parka his vehicle
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do so only in a “regulated” parking place and then he has no choice
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street in which parking is regulated by means of parking meters, must
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but to pay a parking fee. Indeed, the use of different vehicles for essential needs is on the increase in this country as well, especially, in a large and
busy city like Tel Aviv-Jaffa, and it can therefore be said that in practice if not in theory such a person is not free to waive the benefit which he Teceives by utilizing the privilege (see Berinson J.’s judgment in Local Council of Kfar Ata v. Ata (7) at pp. 873-4). It follows that in
the payment of such a fee there also exists the element of “compulsion”, which likewise constitutes a distinguishing feature of a tax. The result is that the fee with which we are dealing is of the nature
both of a “price” and a “tax”, and therefore the description which
Witkon J. has given to this type of payment— “something of a hybrid
creature” (op. cit. p. 8)—also fits it. Nevertheless, as will subsequently appear more clearly, for the purpose of the problem which claims our attention, I attach greater importance to the tax element which it embraces.
(4) As I have indicated, the second consideration to be considered arises from the need of the Council to be assisted by someone in order that such fee should be set at an appropriate level. According to sec.
11(c), the Mayor may prescribe “different scales of fees for different regulated parking places, according to the hours of parking, the periods and types of vehicles”. I infer from this provision that upon its enactment
the city fathers acted on the assumption that conditions in any regulated parking place, such as the size of the place and its capacity, the traffic load and the overcrowding of cars, change or are likely to change
from place to place and from time to time, as well as in the light of the type of vehicle that is parked there. They decided therefore that it would not always be expedient in practice to fix a standard fee for every
place nor to classify the fees in advance in different groups. In other
words, I attribute to the members of the Council the view that since they themselves are unable always to follow the development of the situation at every regulated parking place in the city, it is equally impossible for the Council to be saddled at all times with the task of prescribing the scale of the fee to be received from drivers who park their vehicles. Hence they found the solution to the problem by delegating to the Mayor the entire function of fixing the various scales. I think that these considerations which faced them—as distinguished from the
solution which they found acceptable—constitute practical and legitimate considerations which even we must take into account for the purposes of our decision.
](5) How do the conclusions which I have reached in the preceding 99
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first conclusion—that a privilege fee possesses the two elements char-
two paragraphs affect the question with which we are occupied? The
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that the Council should not rid itself of the task of determining the level of this fee. The accepted view is that the authority to levy a tax
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acteristic of a compulsory payment of the nature of a tax—requires
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emanates from the sovereign character of the supreme legislative organ
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and that theoretically it alone can do so and if for this purpose it has
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chosen to be assisted by a subordinate law-making body, the latter must
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non potest delegare. The second conclusion—that one should take
necessarily to agreater degree, bywhichtheprinciple ofdelegatus into accountabide,the even practical considerations the members of the
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Council put to themselves as described above—requires that this body
should be able to be assisted in discharging its task by its executive arm so that the matter should not prove unduly burdensome and in
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order that it might achieve its purpose. This conclusion therefore involves some deviation from the confines of our principle. It is essential to
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bridge these two conclusions and the question is how this is to be done.
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My answer is that for this purpose two possibilities exist as to the
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means be pursued Council. possibility s to outline rationaltobasis or modebyof the action capableOne of guiding the iMayor in pre-a scribing the relevant scales of fees. Even if the employment of such a
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mode required prior examination and appraisal ofthe factual conditions in the light of which the fee scales have to be calculated, it does not
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to which my remarks were devoted in the earlier part of my judgment.
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facts lies the justification for following this method. On this point, the
matter since this may be reconciled with the qualification of our principle
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Moreover, in carrying out the task of investigation and appraisal of the
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Judgment of the Supreme Court of the United States in the case of
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Hampton v. U.S. (23) is instructive. That case involved a congressional
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Law which empowered the President to increase or decrease up to 50%,
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to be rates determined by thebyPresident reference to any imported thehad customs prescribed theLaw;withtheincreased ordecreased rate article in an amount equal to the difference between the costs of produc-
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tion of that article in a foreign “competing” country and the costs of
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production of a similar article in the United States. Chief Justice Taft
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pointed out in his judgment the factual difficulties which confronted
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dealing itselfwith the procedure for increasing or decreasing the customs
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that difference is, Congress seems to have doubted that
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Congress, in the light of changing conditions, and prevented it from
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rates. He said at p. ofthedifficultyinpractically 350: “Because determining what
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the information in its possession was such as to enable it to
make the adjustment accurately, and also to have apprehened that with changing conditions the difference might vary in such a way that some readjustments would be necessary to give effect to the principle on which the statute proceeds.” Therefore, he continued, the solution to devise a plan and to be
,
assisted in its operation by the executive branch occurred to Congress. “To avoid such difficulties, Congress adopted...the method of describing with clearness what its policy and plan was and then authorizing a member of the executive branch
to carry out its policy and plan and to find the changing difference from time to time and to make the adjustment necessary to conform the duties to the standard underlying that policy and plan....He was provided with a body of investigators who were to assist him in obtaining needed data and ascertaining the facts justifying readjustments.”
’
Approving this solution, he stated at p. 353: “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may
authorize the Chief Executive to carry out this purpose.” Mr. Zilbiger argues that likewise in the present case the Council laid down in subsect. 11(c) of the bye-laws principles adequate to guide the Mayor in determining the scales. This argument is inherently erroneous because there is nothing in those principles which serve as any rational basis for calculating the scales.
(6) The other possibility which the Council might have pursued, in my opinion, was to fix a maximum rate for the parking fee and to authorize the Mayor to vary it downwards with regard to different, regulated parking places and upon consideration of the other factors set out in subsec. 11(c). I have not found any direct authority for this
view, but it commends itself to me both on account of the practical reasons above referred to, as well as because after all the fee—and here
I emphasize its other aspect—also partakes of being “a price”, due to the “benefit” derived, and does not constitute a pure tax. Although the adoption of this method means vesting a discretion in the Mayor 101
:
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in respect of the level itself of the fee, he is restricted by the maximum which the Council has prescribed, and to acertain extent bythe principles mentioned in subsec. 11(c). I think that in the absence of any possibility
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of effectiveness justifies resort to this method.
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of prescribing any other method for calculating the scales, the factor
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oftheMayor—andthiscannotbe. Finally, I have borne in mind the possibility of attributing to the
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secondary law-maker the intention that the Mayor should calculate the scales according to the expenses involved in erecting and main-
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But I have rejected becauseof itthewasparking not clearly established during this the possibility trial whetheralso,thefirstly, collection fees
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taining the mechanical devices in the relevant places within the city.
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shoulders of the members of the Council and transferring it to those
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would result in removing the task of exercising such discretion from the
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, toomannerwidethea discretion. In other words, an attempt to validate in this . determination of the Mayor, under sec. 11 of the bye-laws, iE
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as suitable to constitute the maximum rate ofparking fee. On the other hand, resort to the yardstick of reasonableness—especially when it relates to the rate of any kind of payment,—necessitates the exercise of
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pass the test of reasonableness, i.e. whether this test may be regarded
fee.sinceButonI have beenhand convinced that itisnotright to relytoonputsuchanidea, the one the Council itself is bound the scalesof prescribed by it to the touchstone of this test; any one of a number fees couldthebeCouncil thoughthemselves reasonabletoandchosethethedutyamount devolveswhichupontheythemembers of regard
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as a yardstick for the maximum rate at which he may fix the parking
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In this connection I have given thought to the idea whether that part of the bye-laws now being considered may not be interpreted as
impliedly providing that the scales which the Mayor prescribes must
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was for the purpose only of covering these expenses—whether, for
:
example, it does not also serve the purpose of increasing the general income of the city: Shannon v. Lower Mainland Dairy Products Board
(14). Secondly, it is difficult to assume that onit issuch withinan thearithmetical range of practical possibility to calculate the scales basis. (Consider Dalton, Public Finance, pp. 30-1, regarding the impossibility of calculating the price of the services obtained from the British Post Office, or any other public enterprise, according to the expense involved in providing these services.)
hardlytonecessary in subsec. Councilthe did notIt isresort either oftotheobserve above that described methods11(c)forthefixing
102
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rates of the parking fee, nor did it determine such fees itself. (It is an interesting fact that in the two American cases I found, which turned upon the legality of regulating parking by means of parking meters, the city council itself prescribed the scale in the body of the regulation which it adopted: Birmingham v. Hood-McPherson Realty Co. (24) and Harkov (22)). Such being the case, and in view ofthe principle ofdelegatus non potest delegare, the said provision must be regarded as invalid.
It follows that the determination of the scale by the Mayor for
the non-payment of which the appellant was prosecuted, was of no effect, and his acquittal from the charge against him was well founded. I must add that I have not ignored the fact that the scale which had been fixed in the present case is of such an insignificant amount that it is difficult to envisage that any citizen would refuse to pay it. In this regard the appellant’s attitude is undoubtedly extraordinary. On the other hand, had we validated the method whereby that scale was prescribed, it might have opened the door wide to municipal and local councils divesting themselves of the responsibility resting upon them to give their attention to the level of the fees which they are authorized to levy in many other spheres. Briefly, the principle that the amount
:
involved is not relevant is no less.valid in constitutional law than it is _
in private law.
This conclusion relieves me of the duty to deal with the reasons of the judges below that the fixing of the scales was invalid by reason of its non-publication in Reshumot pursuant to sec. 17 of the Interpretation Ordinance. For myself, I think that this requirement has been
sufficiently met by virtue of the provisions of subsec. 11(d) of the byelaws, since in these provisions—which were published in Reshumot— the public is referred to the Mayor’s notice (concerning the scales pre-
scribed by him) which he was to display “upon the regulated parking area or upon the mechanical device” (see, by way of analogy, Irgun Nehagei Moniot Sherut v. Mayor of Tel Aviv (3) at p. 102). The conclusion is that the appeal should be dismissed and the judgment of the District Court affirmed. SILBERG J. I concur,
GOITEIN J: I agree with the first part of the judgment of my learned colleague, Agranat J., and I have nothing to add to it. I regret that I do not see my way clear to agree with him as to the latter part and, with all due respect, I take issue with him thereon. 103
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If I understand this part of his judgment correctly, my colleague is
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prepared to dismiss the appeal of the Tel Aviv-Jaffa Municipality on
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The feebywhich a driver hasAnd to pay,if thisif hefeewants to use a parking place(a)regulated meters, is a tax. is really deemed to be
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two grounds:
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a tax, then it is fot the whole Council to determine its amount and the
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authorization being repugnant to the principle that an agent may not
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I find it difficult to agree that the payment which a driver makes
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Mayor has no right to prescribe it. (b) If a bye-law of the Tel Aviv-Jaffa Municipality authorizes the Mayor to prescribe the level of the fee, the bye-law is ultra vires, the
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delegate.
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for parking a particularsaystimethatis this to befeeconsidered a tax.using In ahiscertain judgment my space learnedforcolleague partakes
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or part thereof, which the city obtains in this way, will not be included
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of the quality of a tax because we do not know whether the receipts,
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initsgeneral income aswould bethecasewith any other tax.
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will produce a profit for the Municipality, or ‘that this profit will be
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It is clear that money is required to acquire these meters. It is equally clear that to keep them in working condition and the special
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volve expenditure.
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is not parking a scintillaareasof evidence to prove that the use ofThere regulated in whichbefore metersushave been installed
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included in the city’s budget.
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supervision required of the police or municipal officials, likewise in-
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I am prepared to assume that the lion’s share of the receipts from and that a small part will perhaps be left over and diverted into the city’s budget, but I would not agree to hold that the fee is not a payment for a definite service, ponly because the possibility exists that a small
the use of these meters was intended for their purchase and maintenance
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percentage of the receipts will find its way to the municipality’s treasury.
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I do not think that this court has to decide that the installation of these parking meters—the purpose of which is to regulate traffic in a
city in which transport problems reached a critical designed in order to exact taxes inhaveround-about way; I stage—was do not see here any conspiracy between the Mayor and Council to levy taxes
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unlawfully.
|
104
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It appears that my colleague’s judgment reveals concern lest the
grant of authority to the Mayor to determine the level of the fee carries
)
with it the danger that the citizen will be called upon to pay taxes which have not been levied upon him in accordance with law.
It may be that I am mistaken, but it seems to me—and I say this res-
)
pectfully—that this concern flows from the political struggle with the monarchy of past centuries, at first in England and afterwards across the Atlantic Ocean in the United States. There were times when the
citizen fought for his right not to pay taxes unless his representatives in Parliament agreed to the imposition of these taxes (no taxation without representation). But the echoes of the historical past in other countries need not reach as far as Israel where, during the thirty years of the Mandate, we all paid taxes without having any right to elect our representatives to approve the levy of any tax whatever. We received an edict from above and paid the taxes which were demanded from us.
"Even income tax which takes away an appreciable part of our income was imposed upon us by the High Commissioner in Council and to this very day that is the law which applies in Israel. The same may be said of the Municipal Corporations Ordinance. We received this Law also from the High Commissioner in Council and after eleven years of statehood it is still valid and subsisting, and determinative of the rights of city dwellers. It is true that the citizens elect those who will manage the affairs of the city, but it is not they who decide the levying of taxes. A veto or approval of the taxes which the representatives of the electors desire is dependent upon the will of the Minister of the Interior. Therefore, the whole theory according to which no taxes are to be imposed unless they are prescribed by the representatives of the people is of small value in the cities of Israel. Moreover, if the respondent wanted to prove that a part of the meter fee is ultimately to be included in the city’s budget, like other taxes, he should have produced evidence to that effect. I have not forgotten that we are dealing with a criminal trial in which it is for the prosecution to prove the offence, but the burden of proof shifted to the respondent the moment when the Attorney-General produced to the court the Municipality’s bye-laws which have been published in Reshumot and bear the signatures of the Mayor, the acting Minister of Transport, and the Minister of the Interior. Prima facie these bye-laws are valid. This court will assume that omnia rite et solemniter acta and
if the respondent wishes to adduce facts to prove that it is not so, the burden isupon him. It follows that in the case before us the respondent has not endeavoured to shift the burden ofproof back upon the Attorney105
”
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payment for a service and not a tax—is not really a fee, a payment
which covers the expenses of purchasing the meters, their supervision * and maintenance. Without evidence I am not prepared to accept as a fact that part of the receipts from the use of the meters goes to the municipal-
ity’s budget.
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in agreement withTextile BerinsonCo.J.Ltdwho(7)in(atthep,appeal - of theI am, Localrespectfully, Council ofKfar Ata v. Ata 874),
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choice, in consideration ofa certain payment for each use and
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saerplacevice, suchasal cal transportentwater erprisesupply , aswimmingpool, ofpublic oentertainment, which is not
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exclusively in the hands ofthe council etc.” It is my view that although the object of installing the meters is not for the purpose of doing business but for regulating traffic, payment
forfacieusenoofdifference parking between space is apurely a business matter and there is prima swimming pool, for example, as Berinson J.
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remarked, and a service regulated by parking meters.
Instead of a driver roaming around the streets in his car for a quarter
ofwasting an hourpetrolor more in searchforeign ofa place wherehetopaysparkaandfixedinstead and thereby currency, amountof | so that he should be permitted to use a regulated parking space in
different parts of the city. I cannot therefore adopt this part of my
learned colleague’s judgment which treats this fee not as a fee for a definite service but as a payment forthe benefit ofthe city’s taxes.
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Agranat J. regards as an additional indication that this is a fee of a
tax character and not a price, that the driver is compelled in some areas to use only a regulated parking place and, as is known, compulsion constitutes one of the indicia of a tax. I respectfully disagree with this view. If a driver were permitted to park his vehicle only in a regulated parking place, it is conceivable that I might agree that there is an element
ofin Telcompulsion, it isarenotnotso.regulated There areparking numerous placesis Aviv-Jaffabutwhich placesparking and if there
no sign forbidding parking in a certain place any driver may park his
vehicle there (subject, of course, to prohibitions prescribed by the
Transport Regulations). In many streets, non-regulated parking places
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are found some small distance away from a regulated parking place.
In an announcement pursuant to the Tran$port (Traffic Signs)
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Regulations, 1949, regarding the determination of classes of signs, their form and meaning (Official Gazette, 1950, no. 61, p. 505), we find
(at p. 507) in class B, Directional signals—(1) Prohibitory Traffic Signs, the sign no. 2A-19, which forbids waiting and parking and sign no. 2A-20 forbidding parking; and also, in class C—Information Traffic Signs— sign no. 1-3, for the parking of vehicles. Even though the municipality
has installed parking meters and permanent parking places, there are still to be found parking places for vehicles where sign no. 1-3 is posted,
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and many places where signs no. 2A-19 and no. 2A-20, which prohibit parking, are absent.
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It follows then that a driver is under no obligation to park his vehicle in a regulated parking place alone but is entirely free to find for
himself some other place in the city where parking is not prohibited.
In my opinion therefore the two foundations upon which my learned colleague based that part of his judgment which holds that
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subsec. 11(c) of the bye-laws is ultra vires, because it prescribes a fee which is in fact a tax (which only the Municipality can impose), are not
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foundations upon which it is possible to base such a finding.
Under sec. 99(1) of the Municipal Corporations Ordinance, 1934—and the bye-laws of Tel Aviv-Jaffa concerning the stationing and parking of vehicles were adopted pursuant to this sgection—the Municipal Council may adopt such bye-laws “to enable or assist it to carry out any of the matters it is required or empowered to do under this Ordinance
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or any other Ordinance or law...and may by such bye-laws provide
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for the payment of any fees or charges...and for the grant or issue of licenses or permits in connection with such matters, and for the fees
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to be paid therefor.”
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I infer from this that although the Council is under a duty to enact
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the bye-law and afterwards to obtain the approval of the High Commissioner (now the Minister of the Interior), it does not mean that it must in the bye-law itself take upon itself the execution of those things which are to be done pursuant thereto.
In the case before us, if we look at it in a practical and not merely a theoretical manner, it would appear that neither the Council nor even the Mayor would be able to prescribe the appropriate fee on the basis
of personal knowledge alone.
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The Council, like the Mayor, would have to refer to statistics deciding where to, instal parking meters. Additionally, the Council, if it
regarding the volume of traffic in various places in the city before
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were making the decision, and likewise the Mayor, if he decided, would have to know the price of the parking meters and the cost of their main-
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parking meters.
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tenance, and many other things in connection with the methods of using
I do not imagine that all the members of the Council are required
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to stand a whole day or perhaps a week with notebook and pencil in hand
at a particular spot in the city to record the number of cars that pass
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there at all the hours of the day, and having completed their work there
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would not instal parking meters until Doomsday. The Mayor, likewise, who has to determine the places for installing the parking meters and
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to goIfontothe Council adifferentwerespotindeed to makeasimilar statistical study. required to do this, the Municipality
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the fee, would not be able to carry out this work by himself but would have
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to obtain detailed information from experts in this matter, and on the basis of the statistics he obtained from thent and upon which he would have to rely, would prescribe the conditions under which a driver was
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to make use of the meters. It is therefore true to say that when the
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and the fee which drivers have to pay, they do not impart any of their authority to anyone else.
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Council have delegated this function of designating the parking places
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The Mayor will determine the fee on the basis of the information
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which he receives from the experts and the Council thereby performs its
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information. function, for neither will it be able to determine the fee without such
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This is not a delegation of authority; it is only a way of carrying into effect that which lies within its authority.
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Sec. 99 of the Municipal Corporations Ordinance does not
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, preclude the Council from taking steps for effecting the arrangement
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by one of its members, the Mayor, and with his help.
When we take into account the difficult problems which arise from
the increase in the number ofcars in our cities, we should look favourably
upon regulations whose purpose is the enforcement of order in place of chaos, and not to be over zealous in inquiring whether or not they are
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ultra vires or according to the letter and not the spirit of the law.
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Judge McReynolds says concerning this subject in Frost and Frost
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Trucking Co. v. Railroad Commission of the State of California (25), (at p. 466), that the States (read, cities) “are now struggling with new and enormously difficult
problems incident to the growth of automobile traffic, and we should carefully refrain from interference unless and until there is some real, direct and material infraction of rights "guaranteed by the Federal Constitution” This was said in 1926, and it is even more true in 1960. There is
no real infringement of the citizen’s rights because the Mayor received
permission under a bye-law to fix a price for a service to car drivers. It seems to me that the installation of parking meters is helpful to
the citizen; they do not curb any of his privileges and I therefore see
no reason for regarding that section in the bye-laws which empowered
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the Mayor to determine the level of the fee as ultra vires.
For my part, I would allow the appeal of the Tel Aviv-Jaffa Munici-
pality.
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Appeal dismissed.
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Judgment given on February 11, 1960.
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