NOT ILLEGAL

Evening Post, Volume XCV, Issue 50, 27 February 1918, Page 8

NOT ILLEGAL

SUNDAY TRADING IN MARBLE BARS IMPORTANT JUDGMENT BY CHIEF JUSTICE. An important judgment declaring, in effect, that Sunday trading in marble bars and similar establishments is not illegal, was delivered in the' Supreme Court to-day by his Honour the Chief Justice (Sir Robert Stout). The case was an appeal brought by the respective managers of three city establishments controlled by the Marble Bar, Ltd., against their conviction by Mr. S. E. M'Carthy, S.M., on a. charge of keeping their shops open on a Sunday. In his judgment, his Honour said :— "These three appeals are appeals on a point of law, and the question arises on section 17 of the Police Offences Act, which deals with Sunday trading, and provides that every person is liable to a fine who, on Sunday, in or in view of any public place, keeps open any shop, etc., for the purpose of trading, dealing, traasacting business, or exposing goods for sale. The proviso to the section says :—'Nothing herein shall apply to works of necessity,' etc. The Magistrate has found that the various appellants kept their shops open, but he has also found that it was a necessity to certain people who were patrons of the shop tr> obtain refreshments on Sunday. "It appears from the statement made at the hearing that similar shops are kept open at Lyall Bay, Day's Bay; and. other parts on the eastern side of tho 'harbour on Sunday for the supply of food to people who are travelling on the Sunday. The Magistrate has fonnd that there were several persons in the appellants' shops being served with light refreshments,' such as soft drinks, icecreams, tea, coffee, cocoa, milk drinks, bread and butter, meat sandwiches, cakes, pastry, and such like on the Sunday. He also find's as follows:—'A few patrons come regularly for light meals on all Sundays. Some of these live in apartments, or what is termed -"bach" in houses rented or owned by themselves respectively. Others visit Wellington on Sunday for the day, retiirning home in the evening. These make no provision for supplying themselves with meals. To all these the pupply of light refreshments is a. necessity.' He also found, however, that the great majority of tho patrons are casual customers who reside in Wellington, and who have made provision for supplying meals or refreshments in their own homes, and that for such patrons the supply of light refreshments outside their own homos is not a necessity. "Having, however, found that the supply of meals is a necessity to certain people who visit the shop, it cannot be said that keeping the ' shop open—and that is the charge in the Act—is not a work of necessity. Where are they to get food? Possibly they might visit hotels, but it is stated that the charges in hotels are heavier, and many people object to visit hotels. This is not a charge of selling goods to a customer, nor does the Act assume that the shopkeeper is bound to differentiate between people who visit' his shop, namely, only to supply a certain class and not another class. The offence is of keeping open a shop. Jf, therefore, it is a necessity for his shop to be open he cannot be convicted. : "It may be that the law is inefficient. It is to be observed, however, that if people could get food in their own houses, and were forced (o do so, and not to get it at Testaurants, it might be that more work would be done and more people employed on the Sunday than if the restaurants were kept open, because it would mean that people, servants and others, would be kept in nouses providing meals for those people who go to the restaurants. If, therefore, the restar rants were closed, there would be more Sunday labour than if they were kept open, and it appears to me that the whole purpose of Section 17 of the Act was to lessen Sunday labour. The law might have been so drafted as only 'to' have allowed shops to be open at certain hours of the day—at meal times— but that is not provided for in the Statute. In my opinion, therefore, tho Magistrate having found that the shops were \open of necessity—for he so .finds —for some people to be supplied with food, and as the offence charged is simply that of keeping open the shops a:id not selling goods, the appellants ought -not to have been convicted. In my opinion, therefore, the conviction is wrong, and the appeals must be alkwed." No costs were allowed. At the hearing of the appeal Mr. A. W. Blair appeared for the appellants and Mr. P. S. K. Macassey represented the Crown.