THE INVERCARGILL BEER DEPOTS.

Evening Star, Issue 13002, 22 December 1906, Page 10

THE INVERCARGILL BEER DEPOTS.

O NEW REGULATIONS UPSET. His Honor Mr Justice Chapman delivered judgment this morning in the case of Lavincton George Roope v. Atkinson M‘Dowell (Collector of Customs at Invercargill), Mr Sim appeared for plaintiff, and Mr Macassey for defendant. His Honor said : The plaintiff -is a brewer carrying on business at Invercargill, and* defendant is Collector of Customs tlierc On tlio 21st November, 1905, tho plaintiff had duly granted to him by defendant a depot for the storage and sale of beer under tho Boer Duty Act, 1860, in respect of a building situate outside the boundary of the Invercargill Licensing district, and less than a mile therefrom. Pursiunt to the grant and certificates, the plaintiff erected a depot on this site, which ho used until recently. On the 6th day of December, 1905, No-liccnsc was carried in Invercargill. Since that vote came into operation on Ist July, 1906, and up to 28th November, plaintiff has from time to time applied for ami obtained from the defendant permits for tlie removal to and sale from this depot of beer in terms of the regulations made in pursuance of the Beer Duty Act, 1880. On tho sth of December, 1906, plaintiff applied to defendant for permits to remove certain beer from his brewery to the depot, without which it would bo unlawful to do so, blit tli; defendant refused to issue any permits, quoting his inatruotions and the “ new regulations.” In these circumstances plaintiff now applies for a mandamus to compel the issue of such permits in pursuance of see tion 52 of tlic Beer Duty Act, 1880, so that he may carry on his lawful business. The defendant justifies his refusal on the ground that the depot was nearer to the boundary than tho law allows. For this ho relics on the regulations made by the Minister of Customs on the 7th of December, 1906, superseding similar regulations made on the 28th November, both being in extension of tins regulations of 27th Deocn her, 1888. These now regulations are in the following terms: —“ (1) No permit under section 32 of tho Beer Duty Act, 1850, shall bo granted, or, if hereafter lawfully granted, shall bo used lor the remove 1 of beer from a brewery to any depot, warehouse, or othe- place of storage or sale, us mentioned in that section, situate within any licensing district where for tho time being no licenses exist as the result of a licensing poll, or withir live miles of the boundary of any such district. (2) For the purpose of preventing evasions of duty and ensuring tho better administration of the aforesaid Act, it is hereby declared that, except in special cases, and with the previous consent in writing of the Collector of tho district in which any place of storage or sale as aforesaid is situate, it shall not be lawful to remove beer from such place of storage or sale between, the hours of five o'clock in tho evening and eight o’clock of the following morning. It will be observed that the first paragraph of these regulations prohibits the issue ot a license to remove bee. - to a pla.ee where for tile time being no licenses exist as the result of a licensing poll, or within hvo miles of the boundary of any such district. Tho second paragraph makes certain provisions “for the purpose of presenting evasions of , duty . and ensuring the better administration of the 'aforesaid Act.” Nothing turns on the latter paragraph, but its terms, contrasted with those o! the first, make it quite clea l ' what tho object of the first ph No question of evasion of duty is met the first paragraph, nor am I that 'if. has anv connection with the administration of' (ho Act. It can only he read as a regulation m awl of the administration of the Alcoholic l-aquore bale Control Acte. This renders it necessary to consider the respective rights and pmvor. of tho parties. Prima facie, a .subject has an unrestricted right to sell beer, and for (hat or any other purpose to remove it from place to place. Thw right is restricted in various ways by the Licensing Act.s and allied Acts. The Boor Duty Act, 1880, contains certain provisions which in effect place restrictions on the sale and removal of beer. These restrictions, however, axe of a conditional character, andby complying with (lie statutory conditions Die "owner frees himself from them. This Act. Vs called “an Act to impose an excise dutv cm beer,” .and recites that it is expedient, for the purpose of making good deficiencies in the public revenue, to impose an excise duty on beer.” All the machinery of the Act is directed to thus end. There is no trace of any other purpose in it. It is the right of the plaintiff to cany on iris business in all ways that are not forbidden, by law, and he now wants to remove beer under the authority of section 32 of the Beer Duty Act, 1880. and offers to comply with all the provisions of the Act, A power to prohibit or restrict this liberty must bo based on some specific law, and such a law can only lie made by Parliament under express parliamentary sanction. This makes it obvious that unless something under the authority of Parliament can be pointed to, the plaintiff is entitled to seek such remedy ns shall free him from embarrassment, and in this case such remedy is the one which lie now seeks. I am quite satisfied that the regulation relied on cannot be upheld. No purpose connected with the administration of the Act can bo pointed to as justifying it, and it is clear, as a matter of law. that ■the Act “be construct it was uu<lorstood by tho. legislature which it m .1880. before tho prohibitive Jaws existed. The efforts of Government to ensure that tho laws shall bo effective arc laudable, but Pai*l lament lias conferred on its officers no power lo pursue them in this way. The cuv-cu cited (.specially— Municipal Corporation of tho City of Toronto v. Verge (1896. A.C., 88) —arc very much in point, and unless he can show his action or inaction to he support od by legislative authority an officer of tho Government irs in 110 different portion from -a local governing l body. There will be an order for a mandamus, as prayed, wiih costs (£7 7s) and disbursements.