F.C. 1922 BARRY v. THE CITY OF MELBOURNE. circumstances and differentiating between the circumstances as required, and in so doing reserves to the council the very matters which the Courts have the right to investigate and decide upon, and, further, does not direct the public as to what the conditions of the regulation are. To be valid the by-law should set forth the conditions under which consent would be given or withheld, varying the conditions as necessary to make them applicable to each class of case, and providing a uniform and general regulation with regard to each such class. Compare Rossi v. Edinburgh Corporation (e). In Parker v. Mayor, etc., of Bournemouth (f) a by-law was held bad which withdrew altogether from those having to interpret it and consider its validity the question as to whether the consent was reasonably withheld. That case was applied in Moorman v. Tordoff (g). By-laws were held invalid because in excess of the power to regulate in Waite v. Garston Local Board (h); Dick v. Badert Frères (i). See, too, Londonderry Harbour Commissioners v. Londonderry Bridge Commissioners (k); Calder and Hebble Navigation Co. v. Pilling (1). Barton, J., in Co-operative Brick Co. Pty. Ltd. v. Mayor, etc., of City of Hawthorn (m) lays down this test-that unless the entire prohibition of the operations in question becomes an actual necessity as an incident to the effective exercise of the power to regulate, then a by-law containing such a prohibition is bad. There is no right to discriminate between various persons of the same category except by laying down a general rule applicable to all such persons: See Yick Wo v. Hopkins (n). A municipal ordinance was held bad on the ground that it conferred on the municipal authorities arbitrary power, at their own will and without regard to discretion in the legal sense of the term, to give or withhold consent: In the Matter of Phrazee (0). See also Anderson v. City of Wellington (p); State ex rel. Garrabad v. Dering (q); Anderson v. Telford (r). These decisions support the principle deducible from the English de cisions, and it is submitted that Rider v. Phillips (s) is inconsistent Latham, K.C., and Dixon, K.C. (Lowe with them), for the respondent, to show cause-The expression "traffic and processions" in sec. 197 (22) is a compound, not a distributive, expression, and the thing to be regulated is traffic going through the streets, whether ordinary traffic or processions. It is submitted that the interpretation of sub-sec. (22) is concluded by the authority of Rider v. Phillips (v), and that that case ought not, according to the practice of this Court, to be overruled except by the full bench of the Full Court, and, further, that it should not be overruled at all, because it has been accepted by the Legislature in the enactment of the Local Government Act 1903, which was not a mere consolidating Act but a complete redrafting. Moreover, the view it contains has been acted upon and reaffirmed in Bannon v. Barker (w) and in Levingston v. The President, etc., of the Shire of Heidelberg (x). It is submitted that Rider v. Phillips was rightly decided, and that the by-law now in question is valid as being within the power to regulate traffic and processions. The word "regulate" is not a term of art, but is elastic and controlled largely by its context. The subject-matter to be regulated may be such as to involve prohibition. Traffic is such a (8) [1884] 10 V.L.R. (L.) 147. (w) [1884] 10 V.L.R. (L.) 200. (x) [1917] V.L.R. 263, at pp. 269, F.C. 1922 BARRY บ. THE CITY OF MELBOURNE. subject-matter-e.g., a procession involves the prohibition of traffic interrupting the procession's route. Neither "traffic" nor "processions" can be regulated in any sense without some partial prohibition-i.e., as to occasions and places: See Cassell v. Jones (y). It is for those attacking the by-law to show where the line of demarcation between regulation and prohibition falls. Subsec. (22) means merely that traffic and processions are to be dealt with by way of regulation. A certain class of traffic could be prohibited entirely-e.g., the use of bullocks-but that would be a regulation." Trade" may be regulated by declaring that certain trades shall be unlawful: See President of Shire of Tungamah v. Merrett (z). See also Slattery v. Naylor (a), which is consistent with Municipal Corporation of City of Toronto v. Virgo (b). All that the latter case decides is that "regulation" does not include the total abolition of the subject-matter. It is submitted that it is consistent with that case to regulate by placing a condition upon the subject-matter, by robbing it of this or that characteristic, or stopping this or that part of it; and that the condition may be that someone must consent. A by-law prohibiting the standing of any vehicle of a certain kind in any street within the district without the authority of the President of the Board was held valid by the State Full Court in Calder v. Lewis (c). See also Bell v. Day (d). It cannot be said that there is a difference in kind between enacting that on every occasion the consent of A. B. shall be necessary and imposing any other condition. Bennett v. Daniels (e) is authority for the position that regulation and control involve a prohibition subject to the discretion of an individual or individuals. The fact that a power may be abused is no reason for limiting the existence of the power. See, too, Colman v. Miller (f), which also shows that regulation includes the prohibition of classes of persons subject to the consent of an authority. As to "reasonableness," this is not relevant to a public body such as a municipal council making by-laws under the Local Government Act, but is relevant only to bodies, other than bodies of a public representative character, which are entrusted with public property or public functions: Kruse v. Johnson (g). The expediency of a by-law is not a matter for determination: Widgee Shire Council v. Bonney (h). The sole test of validity is whether the by-law is or can possibly be for the purpose of regulation, and it is submitted that "regulation" includes conditional permission. As to the effect of re-enactment see Maxwell (6th ed.), at p. 542; Dale's Case (i); Greaves v. Tofield (k). This by-law may be supported under sec. 6 of the Police Offences Act 1915. There is no power in the Police Offences Act enabling a municipality to make regulations under that Act, but see secs. 203, 204 of the Local Government Act 1915. Regulations are to be construed in the same way as a by-law, and the power to make regulations is a power to make by-laws. It is submitted that it is a reasonable provision for "keeping order in the carriage and footways and public places" to provide that a permit for any large assemblage of persons, whether a procession or a meeting, should be obtained from the council, which must be in a position to control the comings and goings of people in the street, and the more so when they are assembled for the purpose of a procession, which essentially may be an obstruction in the street. Compare Gentel v. Rapps (1). It was not necessary to limit the by-law to processions which are in fact obstructions. Pigott in reply-The difficulty of fixing the line between prohibition and regulation does not occur in this case because this is a clear case of prohibition. The American authorities cited show that prohibition is not regulation unless the conditions are imposed as a means of regulating processions generally, and the exclusion of funerals and military processions is no answer. It would not be open to the council to say that there should be no procession except military and funeral processions. Levingston's Case (supra) does not follow Rider v. Phillips (supra), the words containing the power there being "regulating and restraining." Rider v. Phillips does not specify on what principle it is based, and the decision may have been based on the fact that in that case the consent of the town clerk, not that of the council, was necessary, and, if so, that, it is submitted, would be an inadmissible delegation of a municipal act to that officer, and would make the decision inapplicable to the facts of this case. The effect of the by F.C. 1922. BARRY v. THE CITY OF MELBOURNE. (h) [1907] 4 C.L.R. 977, at p. 982. (i) [1881] 6 Q.B.D. 376, at p. 453. (k) (7) [1880] 14 Ch. D. 563, at p. 571. F.C. 1922 BARRY V. THE CITY OF MELBOURNE. law here is that the council prohibits all processions and defers to a future time the question of deciding with regard to their regulation. The argument as to sec. 6 of the Police Offences Act 1915 is based on a wrong assumption-namely, that a procession is an unlawful thing. It is only when a procession is in fact an obstruction that there is power to prevent it under that section. Cur. adv. vult. IRVINE, C.J., read the following judgment:-Return of rule nisi calling upon the Mayor, etc., of the City of Melbourne to show cause why by-law No. 162 should not be quashed, upon the ground, inter alia, that the by-law was ultra vires and illegal and beyond the powers conferred by sec. 197, sub-sec. 22, of the Local Government Act 1915. The by-law in question contains the following provision : 3. No processions of persons or of vehicles or motor-cars or of any combination of persons vehicles or motor-cars shall, except for military or funeral purposes, parade or pass through any street unless with the previous consent in writing of the council given under the hand of the town clerk and by the route specified in such consent, and unless and until the recipient of such consent has given at least 24 hours' notice, with particulars of such consent and route, to the officer in charge of the city police. The first question for the Court is whether this by-law is authorized by the provisions of sec. 197 of the Local Government Act 1915, which, amongst other things, authorizes the corporation to make by-laws for the purpose of "regulating traffic and processions." It was contended by Mr. Pigott, against the validity of the bylaw, that it contains, in effect, a general prohibition of processions, coupled with a power to the council to dispense with the prohibition in particular cases, and that such a prohibition does not come within the power of the council to regulate" processions. As against this view it was contended by Mr. Dixon that the expression "traffic and processions," as used in the subsection, is a compound expression equivalent to "traffic, including processions," and that the subject of regulation being the composite whole, the prohibition of a part came within the proper meaning of "regulating." It was also argued that the interpretation to be placed upon the sub-section had been decided by the |