Case Number
Cr.A. 74/58
Date Decided
2-11-1960
Decision Type
Appellate
Document Type
Full Opinion
Abstract
Section 25(1) of the Road Transport Ordinance and section 99(1) of the Municipal Corporations Ordinance provide as follows:
"25(1) A municipal...council may, with the consent of the district commissioner and the licensing authorfty, 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.
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:
Per Agranat J. (Silberg J. concurring),
(1) the function of the Mayor in designating a parking place as a "regulated parking place" was of a legislative character, while the function of regulating parking thereon by an attendant or by means of mechanical devices was merely administrative in character.
(2) The principle of delegatus non potest delegare is not to be regarded, even to the extent that it 11pplies to the authority of a secondary legislator, as an inflexible rule but merely as a presumption which may sometimes be rebutted, and at least one recognised qualification upon its application 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 authority derives intended by implication to permit him to place upon an administrative body the task of determining when or how the regulations prescribed by such legislator should come into effect.
(3) The provisions of the bye-laws therefore empowering the Mayor to prescribe "regulated parking places" in those places which had previously been designated as "parking places" by the Council itself, and having done so to determine whether parking thereon should be regulated by attendants or by means of parking meters, should be upheld.
(4) The fee imposed for parking was not only of the nature of a "price" but also of the nature of a "tax", and as the authority to levy a tax emanates from the sovereign character of the supreme legislative organ, if for this purpose it has chosen to be assisted by a subordinate law-making body, the latter must necessarily abide, even to a greater degree, by the principle of delegatus non potest delegare; and as moreover the Council could itself control the fixing of the price either by outlining a rational basis or mode of action for guiding the Mayor in prescribing "the relevant scales of fees or by fixing a maximum rate for the parking fee, the determination of the scale by the Mayor alone was of no effect.
Per Goitein J. (dissenting), 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.
Keywords
Legislation, Administrative Law, Tax
Recommended Citation
Agranat, Shimon; Silberg, Moshe; and Goitein, David, "Attorney General v. Hornstein" (1960). Translated Opinions. 66.
https://larc.cardozo.yu.edu/iscp-opinions/66
