Attorney General v. Hornstein

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\u27s 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\u27s 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

Malka v. Attorney General

On September 1, 1953, the appellant, who was driving a truck, knocked down a child of two years of age, Shimon Manan, causing a fracture of the arm. The child was taken to hospital where the doctors examined the arm, discovered the fracture, but also found that the fracture was a closed one so that the child\u27s blood had not come in contact with the road. The doctors considered that there was, for this reason, no need to give the child an antitetanus injection, and that in fact it might have been dangerous to do so. The child remained under treatment in hospital, but a few days later the wound opened. The child was given antibiotics but no injection against tetanus. On September 9 the child died. The appellant was charged under s. 218 of the Criminal Code Ordinance in the District Court of Haifa with having unintentionally caused the death of manan. The court held that the appellant had been negligent in driving the truck when he knocked down Manan and that there was a causal connection between the accident and the death and accordingly found the appellant guilty of causing the death within the meaning of the section. The appellant was fined I.L. 75.-. Held: allowing the appeal, that although the appellant was negligent when he knocked down the child, his negligence was not the cause of the death of the child since it was not possible for the appellant to foresee what the doctors had failed to foresee. Held further, that the measure of liability for the purposes of s. 218 of the Criminal Code Ordinance, 1936, is the same as the measure of civil liability in the law of torts, and that s. 60(a) of the Civil Wrongs Ordinance, 1944, which deals with the measure of liability in tort for the consequences of an act, determines that measure according to the rule in Hadley v. Baxendale, (1854), 156 E.R. 145, and not that in re Polemis [1921] 3 K.B. 560

Deutsch v. Attorney General

The effect of the provision in section 217 of the Criminal Code Ordinance, 1936, 1) that an unlawful omission is an omission amounting to culpable negligence to discharge a duty (of care)... is that a person can be convicted of the offence of manslaughter, defined in section 212 2) as causing the death of another person by an unlawful act or omission , only where it is proved: (a) that the lack of care on the part of the accused amounted to gross negligence , that is to say, was a serious divergence from the standard of reasonable care, and (b) that the accused acted as he did out of recklessness , that is to say, after foreseeing that his conduct was liable to endanger the life or person of another. Semble, where the negligence of the accused does not amount to gross negligence, but his recklessness expresses itself in indifference to the consequences of his omission, it is possible and also right to convict him of manslaughter as defined in section 212. The accused, an architect supervising the work of repairing the roofs of abandoned houses in a village, being in need of a certain material for the work, went with a party of workmen to dig that material out of a bank at the roadside. The bank had a portion overhanging a cavity like a roof, and the accused, who was supervising the operation, directed the workmen to dig in the cavity. Two officials of the Public Works Department passed by and warned the accused of the danger of a landfall. Notwithstanding that warning, the digging proceeded. The bank fell in and two workmen were killed. Held : the accused was guilty of manslaughter. Held further: though the sentence of six months\u27 imprisonment imposed upon the accused by the District Court was not, in the circumstances, excessive, it would nevertheless not be confirmed on appeal, the offence having been committed in January, 1950, and the appeal having been heard only in January, 1954

Attorney General v. Dizengoff & Co., Ltd.

Three different rates of exchange were introduced as a result of the variation of the official rate of exchange of lsraeli currency in 1952. The rate applicable to shipping matters necessitated an increase in the charges for port services, including those for Israel shipping, in order to avoid the charge of discrimination in favour of such shipping. The excess earnings made by the port service companies in respect of Israel shipping was, at first by agreement and later by Order, made transferable to the Ministry of Finance. The respondent resisted this arrangement in respect of its own Israel ships and refused to pay the transferable amount. The Order embodying the arrangement was given retrospective effect but as a result of doubts as to the adequacy of the Order the authorities published a Defence Regulations Order. The respondent persisted in its refusal to pay the Ministry\u27s portion of the port charges due from it. Instead the lighterage company involved assigned the debt of the respondent to the Government which unsuccessfully sued the respondent, the District Court rejecting the Government\u27s claim on the grounds that the retrospective effect of the Defence Regulations Order and the new scales payable thereunder was not binding. Held: The Ports\u27 Ordinance under which the Ports\u27 Order was made contains no express prohibition upon giving retroactive force to any Order made thereunder. References to retroactivity in the Ordinance did not touch the subject matter of the Ports\u27 Order. Notwithstanding the views sometimes expressed in English case law, there was no reason in principle for distinguishing between delegated legislation of the type of the Ports\u27 Order and local authority bye-laws, when it came to testing the validity thereof. The question of reasonableness is one aspect of excess of authority and, therefore, there can and ought to be a close parallel in the manner of judicial scrutiny of all types of delegated legislation. All the various tests employed-unreasonableness, lack of good faith, having regard to improper considerations, extraneous objects-are merely different forms of testing excess of authority or abuse of power. In the instant case, the retroactive force given to the obligation to pay the increased charges was not in the circumstances unreasonable by itself. It did not constitute an invasion of the contractual relations between the parties, since any rate that was imposed depended upon the law and not upon the bargaining powers of the parties. The period of one and a half years of retroactivity was, however, unreasonable since it involved reopening transactions wholly completed. Likewise, the contributions to the Ministry of Finance were unreasonable since they constituted an indirect and camouflaged collection of an impost which had nothing in common with the purpose of the legislature when it authorised the fixing of port charges

Jiday v. Chief Execution Officer and Sweidan

The second respondent, the wife of the petitioner, claimed maintenance against her husband in the religious court of her community, the Greek Catholic Melkite Community. The religious court gave judgment in her favour and the petitioner, her husband, appealed to the Court of Appeal of the Community. The Appellate Court confirmed the judgment and ordered the petitioner to pay his wife the sum of IL. 90.- per month as follows: IL. 60.- monthly, commencing April, 1953, and the balance from his share in his father\u27s estate, due after the father\u27s death. The second respondent duly applied to the first respondent to execute the judgment. The petitioner thereupon opposed the execution of the judgment. The Execution Officer rejected the opposition. Accordingly a petition was presented to this court and an order nisi was granted calling upon the first respondent to show cause why he should not refrain from executing the judgment of the religious court of October 22, 1953. On the return day arguments on behalf of the petitioner and the second respondent were heard. Held : that the order nisi should be discharged

Rosenbaum v. Zeger

In September 1950, the appellant lent to the respondents for a period of two years the sum of I.L. 800.- secured by a mortgage on land and a building registered in the Land Registry. To ensure the return of a sum equivalent to the amount lent, and having regard to a possible fall in the value of the Israel pound, it was provided by clause 9 of the mortgage deed that, if at the time of payment the value of the land and building had risen, the lender should receive on repayment an addition to the sum of I.L. 800.- representing the change in value. When the time for repayment of the loan arrived the value of the property had risen owing to a fall in the value of the Israel pound and the respondents offered to repay the sum of I.L. 800.- but refused to pay the additional sum provided for. They sought a declaration in the District Court that they were entitled to redeem the mortgage and have the registration money removed from the Land Registry upon payment of I.L. 800.- and expenses. The respondents contended (a) that clause 9 of the mortgage deed was illegal, being contrary to Ottoman legislation regarding a maximum rate of interest that might lawfully be charged and (b) that clause 9 was unenforceable as being contrary to public policy, in that it encouraged inflation. On the basis of these two contentions the court made a declaration in favour of the respondents and the appellant appealed. Held, allowing the appeal, that clause 9 of the mortgage deed was not contrary to the Ottoman legislation. A clause in a mortgage deed calling upon the mortgagor to pay in Israel pounds a higher sum than that lent, if at the time of redemption the value of the land and building, subject to the mortgage, had risen because of a fall in the value of the Israel pound, is not contrary to the Ottoman legislation regarding interest and there is nothing contrary to public policy in such a clause

Ben Kosta v. Minister of Interior

In 1955, the petitioner, a Christian, obtained a licence for the sale of pork under the then current bye-law. Consequent upon the enactment of a law enabling local authorities to prohibit or limit the sale of pork in the whole or part of their area as long as such prohibition or limitation were binding upoh the whole population of such area or part, a new bye-law was passed in 1957, containing penal provisions for offences thereunder committed within 42 days from its date, unless immediately prior thereto the sale of the pork was lawful under the law then in force. Soon afterwards a quantity of meat belonging to the petitioner was confiscated and despite his protests and requests for its return, was destroyed. The petitioner claimed that the new bye-law was unreasonable and in excess of the Law, that the non-use of the discretion to exclude some part of the area from the prohibition was discriminatory and that the confiscation was in violation of the new bye-law. Held: (1) The new bye-law was not unreasonable nor in excess of the authority given by the Law which required the prohibition to be applied on a territorial and not a personal basis. The fact that it might affect Christians equally with Jews and Moslems did not render it an invasion of Christian religious rites nor discriminatory on grounds of religious affiliation. Christianity does not impose a duty to eat pork. The Law and the bye-law do not prohibit the consumption but the sale of pork. (2) The court will not interfere in the exercise of the discretion granted by the Law to a local authority whether to exclude or not to exclude any part of its area from the prohibition, since the exercise of the discretion involves an assessment of the existing circumstances, a matter which lies entirely with the local authority, provided it is done bona fide and within the scope of the Law. (3) The confiscation of the meat was unlawful, since prior to the new bye-law the petitioner must be deemed to have been at liberty to deal in pork, the old bye-law not being in accordance with the Law in that it imposed a personal \u27discriminatory\u27 licensing system, and the manner of confiscation therefore offended against the new bye-law which now applied

Mandelbrot v. Attorney General

The appellant was charged under section 214(b) of the Criminal Code Ordinance, 1936, with the murder of one Meir Shifman. He was employed at the Ata textile works in the north of Israel in the year 1951. On December 26, 1951, he went to work taking a loaded revolver with him. At 9.30 a.m. he went towards a fellow employee, with whom he had at one time been friendly, one Luba Kreiner, and fired two shots at her which struck her in the right arm. She tried to run away from the appellant, but tripped up and fell. Shifman, a member of the workers\u27 committee, seeing what had happened threw himself face down on the floor of the works but the appellant came up to him, fired two shots into his head, and killed him. After firing these two shots, he reloaded his revolver, fired further shots at Kreiner and at other persons and then left the place where he had been working. The appellant was arrested on the following day and charged with the murder of Shifman and with the attempted murder of Kreiner and another. After the charge had been read to him and he had been warned that he need not say anything but what he did say might be used at his trial, he admitted that he was the man who had done the acts that had occurred at the Ata works, one day previously. At the trial his defence was that he was not of sound mind when he fired the shots at Shifman and he relied upon the M\u27Naghten Rules as set out in section 14 of the Criminal Code Ordinance, 1936. The appellant was examined by a number of medical experts who came to the conclusion that he was a paranoiac, that he knew what he was doing and knew that what he was doing was wrong, but after he had fired the first shots he was in a state of trance and that at the moment when he fired at Shifman and thereafter he acted in a trance. The District Court held that the defence set up under the M\u27Naghten Rules must, in the light of the medical expert evidence, fail and was further of the opinion, in the light of the statements made by the appellant the day following the killing, that he was not in a state of trance at the time he fired at Shifman. As, however, the element of preparation had not been established he was convicted of manslaughter and sentenced to life imprisonment. The appellant appealed against the conviction and sentence. The Attorney-General cross-appealed. Held: by a majority that the appeal be allowed and that the cross-appeal be dismissed. Per Agranat J., the M\u27Naghten Rules as set out in section 14 of the Criminal Code Ordinance did not provide a defence in the present case but that section 14 did not exhaust the rights of a paranoiac. Such a person may also rely on section 11 of the Ordinance which lays down that a person shall not be criminally liable for any act or omission which occurred without the exercise of his will. As in the present case the appellant was not capable of exercising any will, he had a good defence to the charge of murder. Per Silberg J., the court below was wrong in refusing to accept the unanimous and uncontradicted evidence of all the medical experts that at the time of the shooting at and killing of Shifman, the appellant was in a state of trance. The court of first instance was not entitled to refuse to accept this evidence merely on its own belief that certain actions of the appellant at the time of the shooting, of which the experts were aware, seemed to negative their conclusion. Accordingly, as the only evidence before the court was that the appellant was in a state of trance at the time when he fired the fatal shots at Shifman, it could not be said that he knew what he was doing or knew that what he was doing was wrong. The M\u27Naghten Rules as set out in section 14 of the Criminal Code Ordinance therefore applied, and the appellant had a good defence to the charge of murder. Per Goitein J., on the medical evidence the M\u27Naghten Rules did not apply and the court below was entitled to rely upon the statements made one day after the killing by the appellant himself, from which it might be inferred, and the court of first instance was entitled to infer, that the appellant was not in a state of trance when he fired the shots which killed Shifman. It was not for the appellate court to find facts different from those found by the court of first instance when the findings of the judges of that court were based on an appreciation of the evidence. Accordingly the appellant knew what he was doing at the time he fired the shots and knew that it was wrong to fire them. As, at the time, he was not in a state of trance, section 14 of the Criminal Code Ordinance offered him no defence and since, however, the element of preparation had not been proved, the court below was right in finding him guilty of manslaughter

Atia v. Rosenbaum

The plaintiff was employed by the defendant to work an electrically-driven wool-teasing machine. On January 17, 1951 the plaintiff was cleaning the machine when his hand got caught and, before it could be released, was seriously injured. The plaintiff sued the defendant for damages for negligence and breach of the statutory duty to fence securely every dangerous part of any machinery or to provide the other safety measures set out in s. 18(1) of the Factories Ordinance, 1946 The Court of first instance, in dismissing the claim, held that there had been no breach of statutory duty because the employer had put the necessary fence on the machine and although there might be greater protection for the worker by use of a morticed lock, in fact no such lock was in use or available in Israel nor was it used to a great extent outside Israel. Held, allowing the appeal, that the duty to secure the safety of the employee was absolute, and that this duty was not discharged by employing a method by which the safety of the employee was in fact not secured although such method was the one generally employed. The appellant was awarded IL.15,000.- as damages for the injuries received

Barriya v. Kadi of the Sharia Moslem Court

An application was made to a Moslem Religious Court by the aunt of three minor children to be appointed their guardian. The applicant\u27s deceased brother, the father of the children, had directed before his death that the mother of the children should be their guardian. After his death the mother had remarried and the aunt, relying upon Moslem law, had taken the children into her care and had prevented them from remaining with their mother. In the course of the proceedings before the Moslem Religious Court the mother submitted (inter alia) that she was entitled to the guardianship by virtue of s. 3 of the Women\u27s Equal Rights Law 2. The Moslem Religious judge (the Kadi) decided to deal with the legal arguments only after hearing and considering the evidence in the case. The mother believing that the Kadi had in effect already decided to apply Moslem religious law and to disregard the Women\u27s Equal Rights Law applied for an order staying or setting aside the proceedings in the religious court. Held per Olshan P. : There was nothing in the record of the proceedings before the religious court to show that that court intended to disregard the civil law and rely only upon the religious law, and the order in which the religious court decided to proceed with the case was a matter of procedure with which the High Court would not interfere. per Goitein and Berinson JJ. : If in the event it is seen that the religious court confined itself to the Sharia 1) law and refused to take into account the civil law regarding equal rights for women, then it would be acting without jurisdiction and the High Court would come to the aid of the petitioner. The present petition was premature as there was nothing to show that the Kadi intended to disregard the civil law