BY-LAW.—CONVICTION.—PENALTY

SUPERIOR Court, Montreal, 31st january 1873.

Present: MACKAY, J.

Er parte LACHAPELLE, petitioner for certiorari.

Where a conviction was had for repairing a roof with shingles and it was shown that the statnte, on which the by-luw was based, only mentioned cov rar g a roof with shingles:

Held: That the by-law could not go beyond the statutes, and that the conviction was bad.

The petitioner has been condemned by the recorder to pay a fine of $10, and also 10$. costs and to be imprisoned for tifteen days in the common juil, for violation of à by-law of the corporation, The charge against petitioner is that he has repaired certain roofs with shingles in the city limits, The extent of repair 1s stated to have been à quarter of the super'ficies of one roof and a third of another. No particular byaw is named by date or number as having been violated. From the time Gf the passing of 14 and 15 Vict., ce. 128, the corporation has had right (with x view to prevent accidents by tire) to prohibit and prevent “ the construction of any ‘wooden buildings, orthe covering of any building, of any “kind whatsoever, with shingles”” That 14 and 15 Vict, has been amended by various acts. One is 32 Vic. c. 70, of 1869. Its section 17 allows the Corporation, towards enforcing its

by-laws, to enact some things extra, such as condemnations in costs as Well as penalties, imprisonment, &c. By a by-luw Of 15th march 1870, it is ordered, as à former by-law of 1865 had ordered, that no person shall cover, wholly, or in part, any building of any kind with shingles. And, by section 5, no person Shall repair or enuse to be repaired any roof, of any brick or stone house, with any shingles. The charge against petitioner is not that he has covered any building with shingles, but that he has repaired two roofs of à stone house with shingles. The Lby-law, under which petitioner has been contemned, is doubtless the one of 15th march 1870. The petitioner's contention before me is. that the conviction of him is illegal, the by-law prohibiting repairing roofs with shingles being unauthorized, the only power in the Corporation being prevent the covering of buildings with shingles ; that. though repairs in shingles are prohibited by by-law, no statute expressly mentions repairs. Says petitioner : “ Lhave “ not covered any building with shingles, and, in repairng “my roofs with shingles, Ê was in my common law right. “Show me statute to prevent me.” When we talk ot covering a thing, we have for ide à Lboly or surface that shall be covered, covered over its whole surfice, The English word ‘cover ” means that. The question is whether the by-law preventing even the repairing of roofs with shingles, is authorized by any statute or law. Allowing even (as some hold) that the intention may prevail over the literal sen-e of the words of à statute, it can only be where we are able to collect the intention with an amount of clenriess or certainty. [sit certain that the Legislature intended to allow the Corporation to prohibit even the repairing of roofs with shingles ? They have authorized à prohibition of wooden buildings, or the covering of any building with shingles. Between the covering of à building with shingles, and merely repairing à roof with shingles, there is a distance, This is apparent even from the by- law : else why did the makers ' it go beyond prohibiting, in the language of the statute, add prohibitions of repairs, and to add to the word “ cover she 6 the words “ wholly, or in part ?” The by-law cannot be stronger than the statute. Suppose it had been in the very words of the statute, and that defendant had been charged with violating its prohibition against “ covering” any building with shingles, could he have been condemned, as here, for having merely repaired à roof ? Ethink it likely that the Legisature did not intend to prohibit mere repairing. Suppose tive or ten shingles requisite for a repair of an old roof, did the Legislature mean to prohibit such repairs ? Perhaps they did not : I cannot see that they did. The expression of

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mnations a by-law W of 1865 part, any tion 5, no of, of any re agarnst ing with one house has been ). The peon of him h shingles ion being les ; that, »y-law, no : “Thave repairing law right.

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the statute does not clearly involve such intention ; so the words of it must be followed, and petitioner go free. This may lead to inconveniences and extra risks of fire ; but the Legislature is at hand’ to atfford a remedy. It may, if it please, prohibit any application of shingles to roofs, or to repairs of them. Petitioner had the right, before the by-law in question, to repair with shingles. The prosecution was bound to show law that, hefore the date of the prosecution, had taken away that right. If no such law cun be shown there is no offence, nor liability to imprisonment or penalty. { see no such law. Penal laws cannot be extended ; so the certiorari is to be maïntained, and the conviction complained of quashed, with costs io the petitioner. (3 R. C., 87)