LIQUOR IN NO-LICENSE AREAS.

Otago Daily Times, Issue 15064, 10 February 1911, Page 7

LIQUOR IN NO-LICENSE AREAS.

NOTICE REQUIRED FROM

BREWERS,

MR JUSTICE WILLIAMS DECIDES.

In the Supremo Court in Banco yesterday a question of special interest to brewers was brought before his Honor Mr Justice Williams for his decision. The ease was one in which an appeal was stated againet tho conviction of Richard Wittingham, of luvercargill, browcr. IJriefly, the facts are these:

Whittingham was charged at Balclutha, on the information of Constable Londell, that on the 13th August, at Waikiwi, ho Bold fivo gallons of bce-r to he order of P. Neilson, of \Vainiahaka, situated in the nolicense district of Clutha, and, beins awaro that the liquor so ordered was to be sent to a, no-license district, lie failed to furnish to the clerk of the court at Balclutha a statement in writing of the name and address of the person ordering the liquor, and the person to whom it was sent. Mr Bartholomew, S.M., held that tho notice should have been posted contemporaneously with the despatch of the beer, and convicted, fining Whittingham £1, and costs. ■\yhittingham now appealed from that decision on the ground that the magistrate was wrong in holding tnat tho notice must bo sent at the eame time as the goods. The section of tho act in question is as follows:—Subsection (b , : "Kvery person who sells any liquor in compliance with any such order shall, if eo notified as aforesaid, or if aware that the liquor ordered is to be sent or taken into such district, furnish to some clerk of a. Magistrate's Court, to be appointed bv the Minister, a statement in writing o; the nature and quantity of the liqiiir so sent or (aken, and of the name and address of the person ordering the same, and of the person to whom it is sent or by whom it is token; and all 6uch statements shall be filed by the clerk."

Mr Neavo appeared in simport of the appeal; Mr Eraser, K.C., for tho respondent, Constable Lopdell.

Mr Neave said the offence in this case was under section 14-7 of the Licensing Act of 1908, which had 6peeial reference to r.olicenso districts. Under that section, in any no-license district any person who gavo an order for the purchase of liquor to bo sent to a no-license district had to givo to the person from whom he proposed to purchase notice in writing setting forth certain details—his name and address and the placo to which it was to be sent. Tho vendor had, under the circumstances, to furnish to the clerk of the court a similar notice. Tho Clutha district ran to within 10 miles of Invercargill. and a considerable nraount of liquor was sent to the no-license districts adjacent. The liquor sent to tho Clutha district in this cae'e was consigned to Waimahak-a. Tho beer was consigned by the defendant at tho railway station at Invercargill for conveyance to Waimahaka. This was on the 13th August, which was a Saturday, and tho notice was sent to Balclutha on tho Tuesday. As a result of tho judgment business had been interfered with. All the persons affected by the act were desirous of having his Honor's ruling, eo that there might be a unanimous practice. The magistrates in Southland held different opinions about the construction of the section. Mr Cruickshank had stated judicially that notices should be Rent at least twice a week to the clerk of a court—that was to say, within three days of the" date of sale. Mr Young followed closely on Mr Cruickshanks view. Mr Bartholomew held, however, .that the notico inu6t bo sent contemporaneously with tho goods. Learned counsel went on to say that the section stated that any person who failed to furnish tho required statement was guilty of an offence. The answer to that was set out in tho ca6C. The defendant did furnish a statement, with all the necessary particulars. It might, of course, be said if that were the correct reading of tho law it might be possible for him to send notice 12 montli6 afterwards. But in this case the sale was made on the 13th August, notice was received on the 17th August, and the information was laid on the 29th, charging the defendant with having failed to furnish the required statement. But it wa6 no offence, because as a matter of fact tho defendant had furnished the statement. The brewers in Invercargill had their breweries outside the town, ami goods were eent . away from the breweries, but it was only at tho close of the day tlrat information as to tho goods sent awav was taken into Invercargill to be dealt with by the clerical stafT there._ It might be passible, therefore, that a notice would not be sent out for a day or so. He submitted (1) thero was no failure to furnish, as the information had been _ furnished, and (2) tho magistrate had imported into tho statute vor.y stringent words, ■ when he wae not entitled to import into it any words at all. Tho magistrate had read into the section "shall furnish at the, same time." But if anything - was to bo read into the section it should be " shall furnish within a reasonable time." It was with a view to having the meaning of the Law settled, so that licensees and brewers might know the position, that ybia case was brought. If the present ruling was right and extra, clerical assistance had to bo obtained of course it would be obtained. It might bo necessary to have a special clerk to do tho work. His Honor: Why? He has to give the notice at somo time or other. Mr Neavq: Yes, but he has to do it at tho same time.

Mr Eraser 6ai<l it, was a duplicate of tho entry by tire clerk thfc was sent, and therefore the notice was ready at the same time as tho goods were sent away. Mr Neave eontoncled that if tho notice liad to bo sent at tho same time as the Goods it would mean more work. Mr Fraser said that the first step to be taken towards determining what interpretation was to bo put-upon the words "shall furnish" was to ascertain the scqpe and object of the enactment, and then to take the course that was best calculated to carry out such intention. Tie object of the Legislature was to prohibit, or at least penalise, the importation of liquor into a Jio-boense district without the authorities being aware of such importation, and to enablo tho latter to check tho correctness of the notices given 'by buyer and seller. It was for this reason probably that any qualifying words suoli as " immediately" or "forthwith" wore omitted, as it was apparent that the notice given to the cleric of the court must bo part and parcel of tho sale and contemporaneous therewith. JSieso words "immediately" and "forthwith" had no fixed and absolute meaning, and must always be construed with reference to tho objects of tho statute ov rule and the circumstances of the oa-so— Rcgina v. J. J. Berkshire (27 W.R, 798), and R. v. Ashton (19 L.J., .M.0., 206). If the notioe wero delayed until after the liquor would in ordinary course arrive at its destination, thu notico would be valueless, and the liquor received, distributed, and consumed as if the statute had not been passed. A delivery into a no-license district was illegal unless the proscribed formalities wero complied with. There was no penalty on a seller who refused' to supply, and there could ba no hardship entoiled upon\ him by a literal compliance with the direction as to notice. On the other hand, to sanction the delay of suoli a notice would give a distinct advantage to persons who were guilty of the design of evading the sections. There were no cases with exact bearing on tho point, which was ono that must bo settled' 'by the application of recognised canons of construction. It seemed neither unjust nor inconvenient to exact a rigorous observance of the prescribed formalities as essential to tho acquisition of tho right or authority conferred, and it was therefore probable that suoh was tho intention of the Legislature (MaxwelJ, 4th ed., 557). The giving of the notioe should form part of the transaction, and the time of the giving of the notice should be eo close to the time of tho sale that the whole practically would form ono transaction. It was analogous to the exerciso by an auctioneer of his power to bind both parties at an auction salo—if he waited until tho sale was over and closed he was no longer an agent. It was not neccsMry that he should stopatcachlotandsign a. memorandum, but ho must sign directly lha 6alo was over—it must be a contemporaneous act. Different magistrates took dileront views of within what period of time the notice must be sent, and it was not fwcessary for the purposes of this case to (jpeoulato as to what view the court woud tako of a notice sent, say, six hours a-'l-v the sale. From his (Mr Eraser's) ;-9mt of view, the sending of suoh a notico would not be a compliance with tho act, and the seller could bu successfully prosecuted. In the present case the seller allowed over three days to elapse before giving the notice, and the magistrate had held that that was not a compliance with the statute. As far as tlio .merits of tiiis particular case were concerned, the decision ■of tho magistrate to convict must be upheld. If the notico was delayed so that it arrived after the delivery of the goods, the whole- object of the statute was defeated.

Mr Neavo: The place to which the notice is sent is probably not the place to which tho goods are sent. Mr Fraser: That is eo, but there is ;i very good telegraphic syetam in this country. Mr Neave: Waimahaka is 100 miles from Cf.lchitha.

Mr Frajrer went on to say that in con-

struing a section such as this tho courts would invariably search out the scope and object of the statute. If the notice wae delayed it became valueless, because thero could bo no check at all. Large quantities of liquor could ba sent into a district—to a uummy possibly—and distributed in a suspicions manner, and tire polico would >■»•«•;? no notice whatever of llio occurrence, although tho statute had laid it down ac- a duty that the notice must be furnished. Li this caso thoro was an inexcusable delay of over thjee days. Mr Neavo replied, contending that tho cases showed that oven where the words "forthwith," "• instantly," and "immediately " were used, they had no fixed meaning, and hero, whoro thoro was no such word, the intent could not be to act at once, or the Legislature would have said eo. In giving judgment, his Honor said: The appellant sold and delivered the liquor on Saturday, tho 13th. Ho did not on that day furnish tho statement required by subsection (b) of section 147 to tho olerk of the Magistrate's Court. On Monday, the 15t.ii, therefore, end up to Tuesday, the 16th, no statement had been forwarded. If any person sells any liquor to or for delivery to a resident outside the district without furnishing a. statement to the clerk of the Magistrate's Court ho is guilty of an ofl'encc. It seems to me that on tho Monday, taking the literal wording of the act, tho appellant had been guilty of an offence. Ho had sold and delivered the liquor on the Saturday, and he had not given the requisite notice. If it were tho intention of the Legislature that the notice could be given after the sale and delivery tho act would have said so. Tho whole object of this provision of tho act is that immediately upon liquor being sent into a no-liocnso district there shall ba a record in that district in order that the police may know where the liquor is. In construing the act one" has cortainly to tako into consideration tho manifest intention of tho act. Taking, however, tho literal wording of tho act, the appellant in the present caso, on Monday, the 15th, and on Tuesday, the 16th, had been guilty of tho omission which the act makes an offence. He had sold and delivered the liouor, and had not, as the act requires, forwarded a statement to the clerk of tho Magistral's Court. In my opinion the magistrate was right, and the notica should be given simultaneously, or practically simultaneously, with the sale and delivery of tho liquor, in order that when the liquor arrives in the district tho police may have the information which the act contemplates they should havo for the purpose of preventing sly grog-6elling. Appeal dismissed; costs, fivb guineas.