SPECIAL INTERVIEWS.

New Zealand Herald, Volume XXXII, Issue 9726, 23 January 1895, Page 3

SPECIAL INTERVIEWS.

THE STATUTORY HALF-HOLIDAY.

ANOTHER LEGAL OPINION.

When -obtaining > legal opinion a few days ago, upon the Shop Hours Act, a Herald representative saw Dr. Laish'ley. He was, however, then too hurried to give his opinion in detail on the immediate questions which had arisen under the Shops and Shop Assistants Act, 1894. These questions were as follow :—

1. Is the Mayor a member of Conference under the Act or has he to be appointed by the Council? -

2. Is the appointment of delegates obligatory on the Council; if obligatory and they fail to appoint would &mandamus be granted to compel them ?

3. Is it necessary that all local authorities in the district should appoint before a conference can be held ? 4. Seeing that the word " afternoon" is used, could shops be opened after dark ? At our request he has now given us his opinion of the Act in detail, an opinion which is not only interesting but lucid, and exhaustive, and coming as it does from one of the leading members of the Auckland Bar it will, at the present juncture, be read with interest. My replies {quantum valeant) to your queries, says Dr. Laishley, are :— THE MAYOR'S EX OITICIO POSITION. 1. That, notwithstanding the words "appointed " and appoint," in sub-sections 1, '_', and 3, of section 9, the Mayor (beyond all reasonable doubt) is, by virtue of his office, a member of the conference, and no action the Council may take can affect his position in that respect (see sub-section 3 of section 9). Indeed, the Wellington City Council have not only acted upon this view, but have considered that they were therefore entitled to appointoutside the Mayorthe number of delegates provided for by sub-section 2 of section 9. This, however, seems to me an interpretation hard to follow in view of the words (in sub-section I of section 9), " a conference of delegates appointed by all the local authorities, and especially iu view of the sentence (in subsection 3of section —the Mayor shall be ex officio one of the delegates for such city.'' Although, ou the other hand, it should not be overlooked that such an interpretation must, I presume, have originated with, or at least received the sanction of Mr. Martin (some time since Wellington town clerk and city solicitor) —an experienced municipal officer. IS THE APPOINTMENT MANDATORY*. 2. That in view of the word "shall "(in subsection 2 of section 9) the appointment of delegates is mandatory — obligatorynot optionalon the Council, and an action for a mandamus might, therefore, succeed against the Council for refusing to appoint : (1) If the Court were convinced that that remedy would be practically effective to secure the object aimed at —vvhich, of course, the Court could not be if it were nob possible to comply with the time named in subsection 1 of section 9 (the month of January); and if (2) the Court were also satisfied that the application had not been delayed too long. But, in respect of section 111 of the Criminal Code Act, 1893, valid defences might possibly be found on behalf of refusing councillors. In case of a conscientious objection on the part of any councillor, resignation instead of compliance would of course have been open, prior to refusal. NOT FREE FROM DOUBT. 3. That (although this is not free from doubt) it is not necessary, under sub-section 1 of- section 9, that all the local authorities appoint, in order that a conference be constituted. 4. That shops, which must be closed on a certain afternoon, cannot legally be opened in the evening of the same day ; because, by section 2, " closed, with reference to shops, means closed against the admission of the public for purposes of trade for the remainder of the day ;" whilst section IS provides the closing hour of offices. THE ISSUE FARCICAL. But the issue here is farcical. For it is solely Wednesday or Saturday, whilst the whole trend of the Act is such that the Wodenites are simply contesting what is a. foregone conclusion in favour of the Saturnites. Let me try to briefly make this clear. One illustration will suffice. By sub-section 1 of section 9, it is expressly enacted that the Conference is only to be held "for the purpose of deciding on which day of the week shops shall be closed ;" whilst the Ist clause of section 10 provides " In the event of any day other than Saturday being appointed by the local authority as closing day under this Act, then any shopkeeper shall be entitled to close his shop on Saturday in lieu thereof (the italics are mine) on giving notice to the inspector of his desire to do so." So that, assuming a conference in any particular district decides on Wednesday or Thursday (Thursday having been chosen at least at Cliristchurch, Lyttelton, and the Thames), any dissentient or dissentients can, practically, obtain a monopoly of the business in that district for that afternoon—surely a contingency scarcely likely to be long permitted by the other shopkeepers in that district, and therefore a contingency alone likely to be fatal to closing on Wednesday or Thursday. But again, how verily it may be said to an unfortunate Wodenite. or Thorite, "Que diable fait-il dans cette galere ?" For if he escape the danger of the Soylla local authority—the conferencehow can he elude the trend of the Charybdis Governor, acting under the 2nd paragraph in section 10. Inasmuch as there seems no doubt but that the words, in the 2nd clause of the same section 10 ("In the event of any local authority failing so to appoint a day, or any conference failing to meet or to decide upon a day") cover the contingency of no day being decided upon, whatever may be the cause of suck nondecision ; and therefore, in such case, the Governor's powers under section 10 would arise. So much for the present farcical issue. "AN ABSUKDITVT."

But apart from its economic fallacy, the absurdity of the scope of the whole Act is worthy of serious attention. For whether a conference decides upon, or the Governor appoints a day, the statute must eventually prove abortive, and for many reasons: but mainly in consequence of the interpretation in section 2 of the word " shop" ; where it is expressly provided that the term "does not include a shop, the business whereof is bona-fide owned and conducted by any person of New Zealand or European extraction whether solely, or with the assistance of members of his or her family below the age of eighteen years, who reside on the premises." Nor is there anything, in my opinion, to prevent a shopkeeper availing himself of the assistance of members of his or her family over the age of eighteen years, provided an arrangement be previously made with them that they be profit-sharers, and thereby become partners—co-owners, and co-conductors ofthe shop. But there are further loopholes. For by section 3 any shop is exempt from the Act " wherein is carried on exclusively one or more of the businesses of a fishmonger, a fruiterer, a confectioner, a coffeehouse-keeper, an eatinghouse - keeper, or the keeper of a bookstall on a railway platform," whilst there is not only an ex. press stipulation in the third paragraph of section 10 in respect of butchers, hairdressers, and photographers, but special provision relating to chemists m sub-sections 2 and 3 of section 4. So that the explicit exemptions in the Act, whereby it is practically whittled away, are so exceedingly comprehensive that they alone would probably prove its ruin, even if there were no fatal economic reasons. In conclusion, my replies may be summarised as follows:—1. The Mayor is appointed by the Act, and can sit independently of any appointment by his Council. 2. The Council might, by action for a mandamus, be compelled to appoint delegates : if the Court were convinced that the remedy would be effective, and that the application was not too late. 3. That (although this is not free from doubt) in order that a conference be constituted, it is not indispensable that all the local authorities appoint. 4. That shops which must be closed in the afternoon, cannot be opened in the evening of the same day. 5. That the Wednesday-Saturday issue is farcical, because the result is a foregone conclusion. 6. That the Act must eventually nrove abortive, in consequence, mainly, of the interpretation in section 2 of the word " shop ": but also in viow of further loopholes available, even if there were no fatal economic reasons. The involved, and careless, wording of the Act is too patent to need comment. Those feeling interested in the subject might profitably peruse the New Zealand action for mandamus commenced against " a local governing body"—the Geraldine County Council— in the New Zealand Law Reports, vol. VIII.