THE HALF-HOLIDAY.

New Zealand Herald, Volume XXXII, Issue 9832, 29 May 1895, Page 6

THE HALF-HOLIDAY.

FURTHER PROSECUTIONS. MAGISTERIAL HEARING. / ABSURDITIES OF THE ACT. At the Magistrate's Co-art yesterday, before Mr. ftortheraft, Stipendiary Magistrate, two

informations for alleged breach of tie Shops and Shop Assistants Act were heard. Tae defendant was Mr. H. S. Dadley, boot importer, etc., of Qaees-eftreet, and the summonses, bid by Inspector Ferguson, charged him (1) with failing on the afternoon of Saturday, May I to close his sbcp; and i'2t with having employed an assistant named Couiea Goldsmith oa the said afternoon Mr. J. A. Tole appeared for the Crown, and I Mr. Thso. Cooper defended at the instance of ] the Shopkeepers'' Defence League. A conj siderable number of tradesmen interested ia I the half -holiday question were present. orsstso FOR the cbow>\ Sir. Tole, 13 opening the case, said the facts j were very simple. Inspector Ferguson had I game into Mr. Dadleya shop at & quarter to j three p.m. en the llth May, found business i beiuj done, and the assistant* working. Mr. j l>adley was sot then in : bat later in the j eretUßZ the Inspector called i;.iia and sawI Mr. I>i-a'ey, who frankly admitted the snap | was open for business and placed no obstacles i j in the way of Mr. Ferguson getting whatever ini.-raaaticn he required. Mr. Tole went oa j j to say that he believed it would be admitted < | the shop was not closed within the meaning ' I of the Shops and Shop Assistants Act. Mr. Cooper : We do not dispute that. I Mr. Cooper : We do not dispute he woald j Mr. Xole went en to say thit he would i pat ia the Government Gazette notice noli- i I frisg the day for the half-holiday—Saturday. ' Of course, one could not. from experience, \ define what might be the objections raised, j or the line of defence followed. Bat there j was no doubt, if the law was good, that Mr. ] Dudley had rait ted a oreacn of it. j THE INSPECTORS VISIT. Inspector Hubert Ferguson gave e ride ace. j He said ©a the 11th May fee had visited Mr. j Dudley's shop. There were five assistants working ween he first called. He went again abont seven o'clock p.m., and saw Mr. I Dadiey, whs gave him his name freely, and ait particulars. Mr. D*dley said he was in the hand* of the Shopkeepers' Defence League. He admitted the snap was open for business, and he said the League would, he supposed, fight the case ca some technical 1 point. Witness thea went on to produce the Government Gazette of April 25, which parported to declare the holiday for Auckland to be Saturday. The defendant'* shop was in the centre of the : ry, and there was no public holiday in the week ending May 11. Cross examined by Mr. Cooper: Tne city adjoined the boroughs of Paraeii, Newton, sad Newmarket. Mr. Tole sail that concluded his case. THE UE.TESCZ. Mr. Cooper said he proposed to raise a cumber of questions of extreme importance, and he would argne thenj tally, because, he understood that whichever party was unsuccessful, they would probably appeal. Yet they did not look noon that Coarc *s a stepping-stone to the higher court. What he and his friend hoped to get was a sound ; exposition of the law. Mr. Tole : I haTe said do thing of the Court of Appeal. Mr. Cooper coatinnia;. said he thought : dvbJ of the points he intended to raise were of importance to the whole colony, though ooe or two perhaps were of specially local importance. The main questions he wou.d I rely upon in asking the cases to he dismissed, i however, went to the very root of the position of the Government ia connection i with the Shop Hours Act; the posititx*- of tradesmen, and the effect of trie statute itself. He did not dispute the facts given l for the Crown. But he did dispute that there ► had been a breach of the law. The case for the CrownMr. Tole : Not the Crown ; the Inspector. Mr. Cooper : It is a Crown prosecution. There can be no question about that. The Inspector w an officer of the Crown, and counsel is the Crown solicitor. The case for the Crown, Mr. Cooper went on, was that the defendant had kept his shop open ; that the Shops and Shops Assistants Act prohibited that shop being open oa that particular half-day which had been selected, and in proof of that Mr. Tole had placed the Gazette notice before the Court. SOT IK OPERATION'. The first question he (Mr. Cooper) would submit was that the clause of the statute, under which the Gazette notice was claimed to have been made, was not yet in operation, and that it did not come into operation until January, 1893. He had abundant ground for raising this contention. He did not intend, in this case, to raise one point for which he bail not the authority of judicial decisions, upon similar points, in the Queens Beach and the Higher Courts at Home. He hoped credit would be given to him that he would not endeavour in any way to strain the interpretation of the statute or judicial decisions. All he wanted to do was to place before the Court a fair argument. As to this first point which he had raised, the Shops and .Shop Assistants Act bore date over it of October, 1594, but that date was no part of the Statute, because the date of its coming into operation was given in the body of the Act. If that clause had not been in the Statute, then, under the Interpretation Act, the date at the head of the Statute would be the date of its coming into operation. But there being the clause he had referred to, was provided that the Act should not come into force until the Ist January, 189j. A SPECIAL CLAUSE. There was, however, a special clause which provided that certain things should not be done until the Ist January 1896. The Act provided that it (the statute) should come into operation on the Ist January, 1835, and there were certain provisions in it which did not interfere at all with the position he wa3 taking up. Section 3 provided that after the Act came into force a "shop shall be closed one-half day in the week." Section 9 said that "in the month of January next" a conference should be held to decide upon a day for the half-holiday. He (Mr. Cooper) was not f :oing to dispute that under the statute shops had to be closed one half-day in the week, but the power to appoint any particular day did not arise until January, 1896, or "January next." Until this time shopkeepers were under no obligation to close upon any special day. If he proved that contention, he would then go on to prove that the defendant's shop had been closed for a halfday in the week ending May 11th, and that therefore the conditions had been complied with. CASES IN' SUPPORT. Mr. Cooper then went on to quote cases in support of his law on this point, reading from "Maxwell on Statutes" (page 2) to show that the words and phrases of the Act should be " strictly construed," and that their meaning should not be departed from, unless upon adequate grounds. His friend (Mr. Tole) would argue that the consequence of this would be that the Act would be inoperative. It was not so. But even if it were, the Court had nothing to do with that. Mr. Tole: I shall argue something stronger. Mr, Cooper : He may, but I do not think he will argue anything sounder. Passing on, Mr. Cooper said he agreed if the Legislature had passed a bad law, and that law could be enforced, and the Legislature had expressed itself in language which admitted of no other interpretation, such a law must be enforced even though it were absurd or mischievous. Still, dealing with the meaning of "January next," from Maxwell, Mr. Cooper then quoted decisions to show " that speculative meanings " must not be placed on words of a statute. One case, he went on, was very closely allied to the present one. That was the case on all fours with the present, mentioned at Gisborne, and which had delayed the coming into operation of the Welsh Sunday Closing Act for a twelvemonth. Wilberforce had crystallised this point in giving the words of Mr. Justice Coleridge, " the words should have their natural meaning given to them, even when there was the strongest ground for supposing such was not consonant with the intention of the Legislature." Mr. Cooper also quoted Lords Justices Brougham and Denman, to a like purport," applying these decisions, and the decision in the Welsh Sunday closing case, to the Shops Hours Act. He held that section 9 did not come into operation until next January. There were two cases on this point he would quote, Wood v. Riley, Law Reports 3, C.P. division, page 26, and Richards v. Mcßride. Mr. Northcroft: The statute does not speak until January, 1895. Mr. Cooper : Yes. Passing on, he said that was the very point in Wood v. Riley, where it had been held that section 5 of the County Courts Act of 1867 did not come into force until a later date, though the 36th section of that Act provided that it should come into operation on " the Ist January next." Mr. Cooper read the decisions of the English judges in this case. That ruling had been the ruling coo in a somewhat similar case in the Court of Queen's Benchßichards v. Mcßride. Here it had been admitted that, without doubt, the Legislature had intended the Act, that for Welsh Sunday closing, to come into force at a certain date; yet the judges had held they were bound to give effect to the words in the statute, and the coining into operation of the Act was delayed for a year. "A GREAT deal further." The counsel for the Crown (Mr. Tole) might say that it had been the intention of the Legislature, under the Shop 'Hours' Act,

thai from January 1. 1395, shops should be dosed on on* half day ia the week. Bit he woolS hire to go a great deal further to do that, sad dispense with the words '' January next," and substitute the ** Ist of January instant" or "■January. 1585." Mr. Tele would argue that the Legislature overlooked the fact, waen they pissed the 9:h section, thai they had provided the Act should not come into operation till the Ist January, 1595, and coaseqceatly that they had mads a mistake- Bat the judges he hud quoted held that they could not assume » mistake in an Act of Parliament; if a draughtsman had made a mistake it mast be ieft to the Legislature to amend. Bath Mr. Justice Grave and Mr." Justice Lopes, ia dealing with the Sunday closing case, came to the suae conclusion by different roads, that in any case they were bound by the words of the statute, though they differed as to what the intention of the Legislature was.

lIVTESTIOX OF THE LEGISLATURE. j As to the Shop Hoars Act. it might be. • said Mr. Cooper, quite within the meaning of j the Legislature that while Section 3 should j come into operation in January. 1595. and that , all shops should close on one half-day in the j week, it was not intended that such a strong | interference with the liberty of the subject ] should be made, without giving the subject ample time to consider the position, and that therefore Section 9, empowering the fixing of j any one particular day, was not to come j into operation till the Ist of January, ! 1535. Closing shops one day in the week was one thing; closing all shops on one | and the same day was another, and the in- ! tention of the Legislature could be well carried oat, with his submission, that section 3 was in operation, while section 9 was not. Mr. Northcrofi asked if the Statute repealed by the Shop Hours Act had not provided for a half-holiday? Mr. Cooper said that was very different; the present measure went much further. Gathering from the statute the intention of ! the Legislature, the earlier Act had been to provide that some shops should be closed one half-day in each week, no day being axed. Then came the statute repealing that, and appointing that all shops (with some exemptions) should close, leaving it optional to the shopkeepers, for twelve months at anyrate, to select a day for themselves— before such a great change and interference with private right, that period should be given before compalsorily closing all oa one day. Mr. Nortbcroft: So that the people might then elect members of the Council to fix the day they require. Mr. Cooper: Exactly. Proceeding, he said the words were open to the construction he bad placed upon them, the alternative being that a mistake had been made by the Legislature. Mr. Tole: No, no. They said what they meant. Mr. Cooper: Exactly, and therefore I say the informations should be dismissed, because no day. by those words, can be appointed till next January. Proceeding, Mr. Cooper said he would not ask His Worship to decide on the point at once. He would lay all his points before the Court and Mr. Northcroft could then determine the whole case. THE GAZXTTE NOTICE. The next point was the validity of the Gazette notice, which he meant to attack. Assuming that the Court was against him as to the time when section 9 came into force he submitted the notice was bad. In, order to mike it a good notice two things were required. First of all the statements in the Gazette notice must be in strict accordance with the statute, and secondly that all the preliminaries must have been properly complied with. The notice must at any rate contain a correct statement of the foundation upon which the Minister for Labour claimed to exercise his jurisdiction. The notice issued by the Minister read, "In exercise of the powers conferred upon me and all other powers and authorities, and it. terms of the notice in writing duly received by me from the chairman of the conference of delegates of all the local authorities, etc., I hereby appoint Saturday." There was no recital or statement that the Conference had decided upon Saturday. The Minister had no power to appoint Saturday until the Conference had decided, and the Gazette notice must contain a statement to that effect. The section under which the notice was published was the last sub-section of section 9. There were three jurisdictions : the local authority, a conference where local authorities were contiguous, and the Gover-nor-in-Council. Mr. Tole would say there was a fourth—the Minister of Labour. That gentleman, however, could not make the appointment of a day; he could simply name the day decided by the Conference. Mr. Tole: You said you would take the plain meaning of words. Mr. Cooper ; I say that is the plain mean- i ing of the words. Passing on, Mr. Cooper submitted that what was required was a j statement that the delegates had met, had ; decided upon .Saturday, and that in consequence of that decision the Minister appointed the day. The vice of the Gazette notice was that the Minister claimed to appoint and did not show he was acting upon the decision of the Conference. Mr. Tole : It is done by virtue of the Con ference, and not by vice. (Laughter.) Mr. Cooper continuing, said to show the state of mind in which the Minister for Labour was, he seemed to have had doubts whether he was authorised by the Act to issue the notice, for he said " in accordance with all other powers and authorities/' This was a bogey possibly to frighten tradesmen. But as a matter of fact he had no power except under the Shops Act. EXCESS OF JURISDICTION". The next point, said Mr. Cooper, was that the Gazette notice was in excess of jurisdiction. The appointment was not one of the day upon which all shops were to be closed, hut only some. Section 3 gave the exceptions to the shops that were to be closed, but there was nothing said about tobacconists, butchers, or hairdressers, such as is stated iu the -notice. The Minister had gazetted a notice, which, giving it the strongest effect which could possibly be given to it, was in terms of an illegal resolution, in which certain shops had been selected, and certain shops left out. In other words, there had been discrimination between shops ; whereas, Mr. Cooper argued, there was no power of discrimination. The powers must be strictly exercised, and must conform in all ways to the jurisdiction conferred upon the authority by the statute. He had examined all this very carefully, and he would submit very strongly that the conference had no power to exempt any shop at all, and if they passed a resolution so exempting, that resolution was in excess of their powers and ultra vires. "ax EXTRAORDINARY measure." The Act was, no doubt, an extraordinarily drawn measure. It was not necessary to argue this, but it seemed to him that it was only where a local authority fixed a day other than Saturday that a tradesman could elect to close on Saturday, such power not being given to a conference, which was not a local authority within the meaning of the Act. There was another absurdity he might point out. Supposing a local authority met on the 31st January, and appointed Wednesday, a shopkeeper who desired to close on Saturday could not so elect, as was supposed, for twelve months, because he could only give notice to the Inspector " in January." This showed the slipshod way in which this Statute had been passed. And as he had pointed out, a local authority could do something which a conference could not. NOT IN ACCORDANCE WITH THE STATUTE. ' His (Mr. Cooper's) next objection to the notice was that on the face of it it showed the provisions of the statute had not been , carried out, because the Governor had not made any Order-in-Council, and the Minister had claimed to exempt certain shops. The appointment by the Minister had to be an appointment for all the shops and not simply for Borne. Suppose Be had exempted drapers, booksellers, and ironmongers, could it be suggested that he had the power? Yet he had no more power with the one than the other. _ And if the notice was vicious iu one point it was vicious altogether, and had no legal force. He submitted also that it was essential on the part of the prosecution to prove the necessary preliminaries to found the jurisdiction. In Section 9 it stated that the production of the Gazette notice should be conclusive proof of the appointment of the day. But suppose that Gazette notice had simply said " Notice is hereby given that I appoint Saturday," could that Gazette notice be called conclusive evidence then? Mr. Tole : Yes. Mr. Cooper : That would be a very bold argument, and no Court in the colony would hold it. Then, if the Court held that on the face of it the notice was good, he (Mr. Cooper) submitted he was entitled to go' behind it to show it was founded on facts which afforded no jurisdiction to the Minister. The word "proof" was unadvisedly used." What the Legislature probably meant was that it should be evidence. This, again, showed the slipshod manner in which the Act was drawn. He submitted he could go behind the Gazette, for the purpose of showing the Minister had no jurisdiction. Mr. Tole: No. " NO CONFERENCE." Mr. Cooper : I do not submit it except upon ample authority. Mr. Cooper then, to prove he could go behind the notice, quoted a Sueen's Bench decision, in Bruyers v. oleombe, 3 Adolphus and Ellis, 381. In this an application had been made upon a certificate, which was " conclusive evidence." Yet that certificate was held to be waste paper such as, said Mr. Cooper, was Mr. Reeves' notice. He was going to prove that no' Conference had been legally called into existence, that it had never met, that no decision was come to, and that the Minister,.

therefore, acted without jurisdiction.. Mr. I Cooper then read the decision of Mr. Justice Cooper then read the decision of Mr. Justice I Dsaman upon the case last mentioned. It ■ would, he said, shock one's sense of justice I for any Court to hold that the Gazette notice | ■was ** conclusive proof" if Conference had j not met Supposing there was abundant eviI dence that there had been no Conference, I .and that the Minister had usurped the powers I of the Governor, would the notice then be 1 "conclusive Js* He was prepared to prove that I these gentlemen who associated themselves J together and called themselves a conference, I formed no conference at all. They therefore I had as right to decide upon a day, and the j * chAirman" had no right to report. In fact, I the report was of a state of things which was I absolutely prohibited by the statute. There I was another case, 39 rears later than the one he had last quoted, Williams v. the Swansea Canal Navigation Company, Law Reports 3, Exchequer Division 153, where the conten- ! tion he had laid down was held by Baron Bramwell, who had dismissed the matter in three lines. Thus he (Mr. Cooper) contended ! the notice was not in conformity with the j statute, bat ia open defiance of it. He I used the word advisedly, because he j would prove not only that the Conference 1 met illegally and came to an illegal decision, | tat that notice of the illegality was conI veyed to the Minister. Mr. To'e: Yoa have no right to argue on j the meats. | Some argument then ensued as to whether 1 Mr. Cooper could deal with the facts oa this s point at this stage. i Mr. Tole contended that there should be a ! ruling first on the law whether Mr. Cooper could go behind the statute. Mr. Xorthcreft said Mr. Tolecould answer Mr. Cooper then if he liked. That was the only chance Mr. Cooper had. Eventually Mr. Cooper proceeded. Mr. Tole taking objection. Mr. Cooper went on to say that he intended to raise the point that the proceedings of the all eged conference were invalid. The Act provided, he said, for the appointment of delegates from all the local authorities, the city to have one more delegate than the rest. The city appointed no delegates, bat the Mayor claiming to act as, exoficio. one of the delegates, attended, and with three other gentlemen assumed the positionof a conference. This they could notdo, and therefore the Gazette notice was founded on a rotten superstructure The terms of sub-section 2 of the Act were imperative as to the appointment of delegates, and the chief city was to supply a majority of the delegates. If the city failed to appoint there could be no conference. It was just as if a company or corporation had to be administered by seven men, and three only were appointed ; there could then be no legal meeting. Where power ] were granted by statute those powers must be strictly construed. Mr. Cooper ia proof of this quoted Cooke v. Ward, Law Reports, 2 O.P. div.. 253. By this it was held that it was not competent for a committee to apportion its powers amongst themselves. This case was a very hard one indeed, bat Lord Coleridge said he was bound to give the decision in the way quoted. Supposing the City Council had appointed four gentlemen and they decided in the present state of public feeling not to go to the Conference, but to send the Mayor, such a procedure would have been illegal. This principle was laid down by Mr. Justice Lindiav. Let this Shop Hours' Act be construed as liberally as possible there was no question that the intention of the Legislature was that there should be an appointment of delegates from all the bodies. The selection of delegates by all was aconditionprecedent to any action. There was, therefore, an inherent defect in the constitution of the Conference. In the case of Regina v. Cousins, .3 Law Journal, Magistrates cases ST, under an Act of 43, Elizabeth, Chap. 2, section 1, a case had been tried as to overseers. The Statute quoted provided that there should be at least two overset to a parish. One only wa3 appointed because there was only one person capable of appointment in the place. But the decision of Mr. Justice Blackburn was to quash the appointment, though to elect a ; second overseer was impossible, because the j Act said two should be appointed, and only ; one had been. j

THE MAYOR'S POSITION. A portion of Mr. Tole's argument would be that because the Statute said the Mayor was tx officio a delegate, that therefore when the Council failed to appoint four delegates, including the Mayor, that the Mayor conld act. There was nothing in the statute which led to that conclusion at all. On the contrary. Mr. Cooper then quoted Riley v. Bryee, in the New Zealand Native Lands Coart, and Mr. .Justice Conolly ia the Onehunga Cemetery case, where the signing of a land warrant by the Governor had been held to be invalid, becau-e His Excellency had no authority in the matter. Although the Mayor in the present instance had an indefeasible right to be appointed to the conference, he had no right to sic until the Council had given effect to that by his appointment. The fourth person to be appointed was a person specifically qualified. And if the Mayor had no right to go to the conference until he was armed by his appointment then there was no quorum. If the conference had been duly elected and only four of the members turned up, the four might possibly act, although in the strange wording of,the Statute it appeared the conference could not act unless the whole seven were present, a3 the quorum had to be the four from the City Council. Mr. Cooper then went to point out that when a Board of Directors was appointed, say of seven, oftentimes i: was stipulated that on« person should form part of the Board. But would it be held that that person could act lor the whole when no one else had been appointed to act with him?

THE REMEDY. The remedy for the state of things which had arisen was that the Minister should have issued a mandamus compelling the Council to appoint their delegates. -Suppose there had been an untrustworthy Mayor, and he had sen- a false notice to the Minister, would that be legal ? Mr. Tole : It is an impossible case. Mr. Cooper : Impossible in Auckland, but mot in other parts of the colony. (Laughter.) Continuing, he said that when the Mayor went to the Conference, he went as a private citizen. In conclusion, Mr. Cooper said there was a case he had omitted to mention—that of Chapman v. Beauchamp, 12 Law Journal, Q.B. Div, 42. This was on the point that the words "January next" must be strictly construed. In this case a contract had been entered into oa the 29th February. There was to be a right of purchase on the "29th February next." The parties had forgotten it was leap year, bat they had to wait until the next leap year. To sum up. he submitted (1) the case must be dismissed because sections 9 and 10 had not vet come into operation; (2) they must be dismissed because the Gazette notice was bad on the two grounds he had pointed out (3) that he was entitled to go behind the notice and show it was founded upon no jurisdiction ; (4) and that the steps taken by the gentlemen who claimed to decide were in contravention of the statute, and their decision was illegal. Therefore there had never been a day decided upon. MR. TOLE'S REPLY. Mr. Tole, at some length, replied to the points raised by Mr. Cooper. i His friend had contended that section 9 had not come into

operation, or, that if it had, that the Gazette notice which had been produced was bad. Mr. Tole proceeded to argue that the Legislature had met in the month ot October, and fixed January as the mouth for the Conference to meet, Mr. Cooper had, he said, drawn the distinction between the passing and the coming into operation of this law, and had glossed it over by sayiug that the Act spoke from the time it came into operation. It was, he thought, never intended that this Act should be held over for twelve months before it came into operation. The meaning to be placed upon the Act was, what was the intention of the Legislature at the time it was passed ? The second point raised by Mr. Cooper was with regard to the Gazette. He understood his ft vend to say that the Gazette should have shown the foundation, or, as it were, the facts upon which the Minister should have been presumed to have appointed this particular day. He (Mr. Tole) did not think that that was necessary. There was no occasion to go through all this with circumlocution. The Minister had received a notification from the chairman of the conference, and had, in accordance with that notice, gazetted the decision of the conference. As to the point raised""by counsel as to the right of Mr. Reeves to appoint a different day for certain shops, he (Mr. Tole) contended that the Minister was in this matter only acting on the decision of the conference. He argued that the conference had this power under the provisions of the Act. The conference could appoint Saturday as the general day for closing and Wednesday for excepted shops. Regarding the question of " conclusive proof," he submitted that his friend was bound by the Gazette notice, and that, he contended, was conclusive proof. This His Worship would see by referring to other advertisements of the Assembly. Quoting from authorities, he soughttoshowthafcouelusive proof" meant evidence upon the production of which the Judge was bound by law to regard some fact as proof, and to exclude evidence intended to disprove. To say that one could go behind the conference was to say that there had beau a failure of the conference. If there had been a. failure of the conference the best evidence would bo an Order-in-Council, which was not forthcoming. He considered that the Gazette notice was a valid one. As to the Eoint of "conclusive proof," nothing e thought could be" more clear than the language of -the Statute itself. Nothing could be more explicit as to the manifest intention of the Legislature when they used these words "as provided by the law." They were few and emphatic and intended to bar

all question of the validity of the notification. Regarding the fixing of the day, everything that was necessary had beer done, Mr. Tole intimated that he would await the decision of His Worship regarding the validity of the conference before arguing on the other matter. As to what had been stated about the Gazette notice not being conclusive proof, Mr. Tole proceeded to read that portion of Mr. Heskeths opinion, published ia the Herald, ia which it was held that the notice would be ** conclusive proof." That was the opinion of an eminent man. Mr. Cooper : I could give yoa the opinion of half-a-dozen eminent men, including Sir Robert Stoat, the other way, and Mr. Hesketh, I believe, is of a different opinion now.

The Court then adjourned till ten this morning, Mr. Cooper intimating that he would call the Mayor and Town Clerk.