TUESDAY, NOVEMBER 29, 1904. THE SHOPS TEST CASE.

Evening Post, Volume LXVIII, Issue 130, 29 November 1904, Page 4

TUESDAY, NOVEMBER 29, 1904. THE SHOPS TEST CASE.

It is three weeks to-day since the session ended, and during that time section 3 of the Shops and Offices Act, which there was small opportunity for considering while if; was in the making, has almost entirely monopolised public attention. One of the requirements of the Act is that tho Minister of Labour should insert a notice in the Gazette describing each "combined district" and its component parts. This he has nob done, though sufficient time has elapsed to have enabled him to discharge an obvious duly; and all that we take the Magistrate to have decided yesterday is that the omission is a dereliction of duty on the part of the Minister which reduces section 3 to a nullity, because there is no euch thing as a "combined district" until the notice appears. The Rigßl Hon. the Minister of Labour has sins enough to answer for in connection with this Act, and there is apparently no reason whatever why the notification of the combined districts should not ere now have been gazetted, but at the same time -we must confess that we are, quite unable to follow the reasoning by -which the Magistrate holds the omission of the notice to be a fatal defect. Seeing that subsection 3 of .section 8 declares that "the Minister shall, by notice in the Gazette, specify each combined district," etc., the Magistrate's conclusion that the language is to be considered imperative and that "the thing must be done" seems inevitable. The Minister has a duty under the section which he has not discharged, but what is there in the Act to show that the negligence or procrastination of the Minister in the discharge of his duty shall suspend the operation of either tho early closing provisions (section 3) or the half-holiday provisions (section 8)? The answer turns upon whether subsection 2 or subsection 3 of section 8 is to be held to prevail. The contention of the Labour Department wa-s that subsection 2, which says that ''all boroughs and town districts, any one of which is within a mile of any other, shall be deemed to constitute a 'combined district,' " creates the combined districts without any action being necessary on the part of the Minister. Defendant's counsel argued on the other hand that subsection 2 did not operate ipso facto, but was contingent upon subsection 3, of which the full text is : "The Minister shall, by notice in the Gazette, specify each combined district^ and the respective boroughs an 3 town districts comprised therein, and such Gazette notice shall be conclusive evidence of the matters stated therein." It was argued on behalf of the Department that the object of these words was merely to facilitate the proof of the identity of the combined districts already created by subsection 2, but the Magistrate has decided against this contention on two grounds: (1) that subsection 2 merely defines the . combined districts, but does not create them ; (2) that the creation is contingent upon the act of the Minister under subsection 3. "I cannot agree," he says, "that the sole object of subsection 3 of section 8 is evidential. There are two principal sentences — "The Minister shall specify," etc., and "And such notice shall be conclusive evidence," etc. It does -not say that the Minister shall specify by notice 'which' shall, etc., but 'and' such notice, etc." This distinction between the relative potency of "which notice" and "and such notice " must appear to the ordinary intelligence extremely subtle, not to say absolutely shadowy ; and if the Magistrate saw so much virtue in the division of the subsection into " two principal sentences" — sentences, by the way, divided only by a comma — why has he been able to ignore the division of the section into subsections? If subsection 3 had been incorporated with subsection 2, there would have been some plausibility in making the two speak as one, so that the operation of the whole was contingent upon compliance with the formal requirements of the subsidiary provision. But this is not the case, and precisely the same words which in subsection 1 create the separate districts ai'e in subsection 2 only held to define the combined ones. It would have been wrong to accept such a decision without cippeal if an appeal had been the only mode of escape, but the gazetting of the notice is a simpler and cheaper expedient, and this omission should be repaired at once. On the more substantial point raised by the proceedings it would appear that the Magistrate favours the contention of the prosecution. As soon

as the Minister has complied with subsection 3 of section 8, there will, if we understand the Magistrate rightly, be a "combined district of Wellington." The difficulty is that the section under which the proceedings are taken refers to such a district, whereas the actual district when gazetted under section 8 will include that of Wellington, Karori, Onslow, Miramar, and Johnsonville. Counsel for the Labour Department argued that "of" in the phrase " combined district of Wellington" might be» treated as meaning " including," but no authority or analogy was cited for such an interpretation, and the Magistrate very properly brushed it aside. .Certainly, if the Labour Department is going to have all the problems presented by section 3 decided in this piecemeal fashion with a separate judgment for each, the full interpretation may easily be delayed till after the general election.