RAILWAY DEPARTMENT AND SALE OF LIQUOR

Dominion, Volume 20, Issue 297, 14 September 1927, Page 5

RAILWAY DEPARTMENT AND SALE OF LIQUOR

IMMUNITY OF THE CROWN POLICE PROSECUTION FAILS An interesting judgment concerning tho Railway Department’s power to sell liquor was given by Mr. 11. Page, S.M., in tho Magistrate's Court yesterday, when dismissing the- information against Cecil William Price, who was charged by the police with auctioneering less than five gallons of liquor for sale. “Tho defendant," said His Worship, “who is a licensed auctioneer, carrying on business in Wellington, was on August 3 last engaged by the Railway Department to conduct the annual auction sale of unclaimed luggage and goods for Wellington district. Amongst the unclaimed goods were two cases of whisky. These were duly auctioned by the defendant, the price being fixed at per bottfe, but the whisky sold at per case. The defendant was charged 195 of the Licensing Act, that he did sell liquor without being duly licensed to sell same, “For more than one reason I think that this charge must fail- The New Zealand Government Railways are vested in His Majesty the King, and the activities of tho Railway Department are State activities, carried ou by Lisi Majesty.” His Worship went on to say that it was a well-established rule in the construction of a statute that His Majesty was not bound by it, unless there were express words or a necessary implication to that effect, for it was inferred, prima laele, that the law ’made by the Crown, with the assent of the Houses of Parliament, was made for subjects and not for the Crown.

“Tho Licensing Acts contain no statement that the Act is to bo binding on tho Crown, nor is there any, necessary implication to that effect. The Crown therefore is not affected by the provisions relating to licenses contained in tho Licensing Acts, and if the State activities in connection with the Railway opartment involve the selling of intoxicating liquor, tho Crown is not subject to the penalties prescribed by those Acts for soiling without a license. This view of the immunity of the Crown under tho Licensing Acts is confirmed by the provision contained in section 201, and by tho practice that prevailed in relation to the selling of liquor in Railway Department rooms. That section provides that any jierson selling liquor in any building connected with a railway station without having a license from the Minister of Railways so to do, shall bo deemed to be selling liquor without a license. The inference is that such a license is a sufficient authority lawfully to sell ”

Mr. Page said that in practice liquor was for many years sold at the Railway Department rooms in New Zea--land, but the premises were not deemed to bo within the jurisdiction of the licensing committees, no licenses wore ever issued by such bodies for such premises. The present defendant, in selling this liquor, was the ugent of the Crown, and, aslsuch, ho is entitled to all the protection and immunity given to the Crown. “I may say," continued the Magistrate, “that, apart from tho immunity attaching to the Crown and its agents, there seems to mo to bo another reason why this charge cannot succeed. Section 23 of the Government Railways Act, 1926, under which this sale of unclaimed goods was effected, gives express power to sell "any goods loft ou the premises of a railway.” Having regard to the scope and purpose of tho section, it seems to me that this express power would impliedly override the provisions of the licensing legislation, and that such provisions would not apply to these occasional and isolated sales of unclaimed goods. I base rpy decision, however, on tho ground first mentioned. Mr. A. W. Blair, who represented defendant, asked for costs against tho police. “The reason I make this request,” ho said, “is simply because the police were told at tho time the exact position, but would persist in bringing tho prosecution.” Mr Page: I have given the matter consideration, but as the case Ims been brought by the police as a bona-fide one I do rot propose to allow costs. I will, however, say that I think tho RailwayDepartment should indemnify Price.”