AUTOMATIC MACHINES.

Otago Daily Times, Issue 20743, 14 June 1929, Page 2

AUTOMATIC MACHINES.

LIGHTFOOT v. H. AND G. K. NEILL APPEAL DISMISSED. The following is the judgment of Mr Justice Smith in a case heard on May 22 in which George Henry Lightfoot, of Dunedin, inspector of factories, was the appellant, and Hugh and G. K. Neill, Ltd., the respondent:— This is an appeal on point of law from the decision of H. W. Bundle, S.M., Stipendiary Magistrate at Dunedin. Upon the hearing before the magistrate, it was proved or admitted that:—(l) The respondent carries on business in Dunedin as an optician and photographic supplier and has a shop at the corner of St Andrew and George streets in the said city. (2) On the Gth day of March, 1920, it was the owner or lessee of an automatic machine fixed on a telegraph pole in a public street at or near the Stock Ex change Building, Princes street, Dunedin, and at a distance of half a mile or more from its said shop at the corner of St. Andrew and George streets. (3) The said machine is so constructed that it will deliver photographic films of two sizes on the insertion of coins for the appropriate amounts. It was so situated that the public had access thereto at all hours of day or night. (4) On the said 6th day' of March, 1920, at 7.25 p.m. (being a time when the respondent’s said shop was required by the Shops and Offices Act, 19211923, to be closed) films were obtained from the said machine by purchasers who had -inserted the necessary coins therein (5) The' respondent’s said shop at the , corner of St. Andrew and George streets was at the said time closed. (6) The said machine was at the said time available and was intended by the respondent to be then available, for the purchase of. films by members of the public in the manner mentioned above.

The respondent was charged in respect of the automatic machine upon an information alleging that, being the occupier of a shop within the meaning of the Shops and Offices Act, 1921-1922, it did fail to close its shop at 6 p.m. on the 6th -day o)( March, 1929. The magistrate held that the facta were insufficient to support the information, and accordingly dismissed it. This appeal is brought from that determination. i

The Act appears to be principally designed to protect shop assistants in respect of their employment, and to that end it provides for the regulation of three kinds of trading;—(l) Trading in shops; (2) trading by hawkers or other persons by retail otherwise than in shops—section 36, and (3), the sale after hours, within a district of all goods comprised in a particular, trade—section 33. Mr Adams contended (1) that an automatic machine was itself a shop, and (2) if not, then that the respondent was an “ other person ” trading by retail other wise than in a shop. As to the first _ contention* the material part of the definition of “ shop ” contained in section 2 of the Act is in these terms;—" Shop means any building or place in which goods are kept, exposed, or offered for sale, or in which any part of the business of a shop is conducted.” Mr Adams contended that an automatic machine is a place in which goods are kept, exposed, or offered for sale. Each portion of the definition of “ shop ” depends upon the meaning of the words “ building or place in which.” In my opinion, the word “ place " should be construed according to the ejuadcm generis rule. That rule is no doubt to be applied with caution, but where a genus or category is specified in a Statute, and it followed by a general word or words of ambiguous import, then the ejusdem generis rule may be applied ns a* usetu! working canon,” to enable the court to arrive at the meaning of a particular enactment: Tillmanns and Co. v. s.s Knuteford. Ltd. (1908), 2 K.B. 385, and 1908, A.C. 406; Attorney-general v. Brown (1920). 1 K.B. 773; and Magnhild (b-S.) v. M'lntyre Bros, and Co. (1920), 3 K.B 321., Now the world "building” mdi.cates, in my opinion, the genus or category of' " place." In its ordinary acceptance, the world “ building,” used as a noun, signifies a structure which is capable of personal physical occupation. The word " place ” ought, I think, to bear a similar meaning. Otherwise the word “ build; in” would have no definite meaning, and it was presumably intended to have a definite meaning. This .view is strengthened by a consideration of -the other provisions of the Act. The latter part of the d; Million of " shop ” supports it by including and excluding only buildings or places which are all capable of personal physical occupation. Again, every shop is regarded by the Act as having an occupici wlu> is responsible for the observation vi the provisions of the Act, section 6n. An occupier is defined (inter aha) as being a person occupying any building, enclosure, or place used .or intended to be used as a shop or office. An office is defined as meaning a “ building but not as an "enclosure or place. re ’ ;pect, therefore, of the occupation or a shop, “ enclosure,” and “ place seem to bear similar meanings. Ine " place ” must be, I think, defined or limited in area, and must be capable of physical occupation at least by the occupier. The Act, of course, goes further, and contemplates that a building or place constituting a shop/is capable of physical occupation by shop assistants and customers. As to this, reference may be made to the definition of " shop assistant,” which includes the words “ whether such persona are at any time employed inside the shop or not”; to section 5, as ,amended by section 7 of the Amending I Act of 1927—“ attending to customers arI riving in the shop”; section 9 (b) and (c) referring to the doing of work in the shop' or elsewhere than in the shop; section 10—seating ; accommodation for i female assistants; section 12 —the occupier ‘ of a shop in which one or more shop assistants are employed: section 28—the closing of shops “ against, the admission .of the public”; section 36- —“ a separate entrance for each such class of business,” at least one entrance being contemplated; section 50—containing provisions for the sanitation of shop s and offices, and for the health and comfort of the workers; section 58—“ assistant being found in the ‘shop’”; section 62(e) —“an ostensible occupier”; and section 72i(c) —the locking of the shop “ except for the .admission and exit of the customer.” As, however, the Act contemplates that a building or place may be a shop if it has only an occupier without assistants, I do not go further than to say that in ray opinion the “building” referred to in the definition of “ shop ” must be a structure that is at least capable of physical occupation by an occupier and that the “ place ” must be a place which is defined or limited in its area, and which is capable of physical occupation by an occuper. Furthermore, in order to constitute such a building or place a “ shop,” eithei goods must be kept, exposed, or offered for sale therein, or part of the business of a shop must be conducted therein. This construction appears to me to be the fair and reasonable construction of the definition of " shop. In every case, the question whether a building or place is a shop must be determined upon a reasonable view of the facts. The present appeal is on a point of law only. On the facts, it is clear from the magistrates’ judgment that he did not regard the automatic machine in question, fixed to a telegraph pole in a public street half a mile away from the respondent’s shop in George street, as a building or place capable of physical occupation by an occupier. If the facts were before me, I should agree with that view. This finding is sufficient to dispose of the first _ contention that the respondent's machine is itself a shop. Mr Adams next contended that' if this machine be not a shop, section 36 applies. That section is in these terms; —" (36) ith respect to hawkers and other persons who carry on business by selling or offering goods for sale by retail otherwise than in a shop the fowowing provisions ehall apply:—(a) Every such person shall be deemed to be the occupier of a shop and every assistant employed by him in or about such business shall be deemed to be a shop assistant within the meaning of this Act. (b) Every such person shall bo deemed to keep a shop open whenever and wherever for the time being he is selling or offering goods for sale by retail or delivering such goods.” The section is headed " ns to hawkers.” The marginal note is " hawkers deemed to be occupiers." It is clear that neither the heading nor the marginal note can affect the interpretation of the Act— Acts Interpretation Act, 1924, section 5 Nevertheless, I am of the opinion that the ejusden generis rule previously referred to should be applied to determine the meaning of this section. The word “hawker” indicates the genus, of itinerant trader. In my opinion, the other persons referred to must be persons who are engaged in some form of itinerant trade. They must he wayfaring persons, otherwise the word , “hawker” would have no definite meaning. and it was presumably intended to

have a definite meaning. This view is strengthened by sub-section (b), which provides that every person shall be deemed to keep a shop open “ whenever and wherever for the time being he is selling or offering goods for sale by retail or delivering such goods.” A person who sells goods to the public by means of an automatic machine erected in a fixed position is not, in my opinion, an itinerant trader, and consequently he is not within the provisions of section 36. It is said that the construction which I have given to the Act will nullify to some extent the protection given to shop assistants, and will interfere with the intention of the Act to restrict retail trade during certain hours. If this be so, the plain position is, I think, that automatic machines were not in contemplation when the Statute was enacted. Notwithstanding this, the Act does apply in certain respects, and may apply in others, to trading by these machines.

It is clear, I think, that by means of an automatic machine, goods may be kept, exposed, or offered fpr -sale. Such machines erected in a ‘ building or place would constitute that place a shop. If the machines are erected within a shop and can be operated only from within the shop, then no difficulty arises. They will be effectually closed when the shop is closed. If they are part of a shop but can be operated from the outside of the shop, the shop can be actually closed for the protection of shop assistants as effectually as if the machine were not part of the shop. But there is no doubt that the machine itself could still carry on the sale.of goods after hours. The question then arises whether the Act is intended to prohibit such trade. Does the use of the machine prevent the shop from being “ closed ” pursuant to sections 14 and 31 of the Act? It may be contended that these sections must be read with section 28, which provides that: “ A shop shall be deemed not to be closed within the meaning of this Act if it is not locked or otherwise effectually closed against the admission of the public, or if the occupier or any of his assistants are engaged in the sale of goods, or in canvassing for orders, or delivering goods to customers.” It > may be further contended that admission to the shop signifies personal entry into the shop, and that the words “ engaged in the sale of goods or in canvassing for orders, or delivering goods to customers ” refer to human effort. It may also be contended that, as sections 14, 31, and 28 occur in a Statute imposing penalties and rendering unlawful acts which are not mala in se, section 28 is exhaustive. Alternatively, it may be contended that the word “ closed ” in the light of the interpretation placed in this judgment upon the means “ closed for the serving of customers,” _ If any of these suggested in- j terpretations be correct, then the operation _ of an automatic machine from the ) outside of a shop would not result in keeping that shop open, and automatic 1 machines could be used from the outside i of shops as much as on telegraph poles. If the word “closed” in section 14 and 31 is not to be so limited, - but is to be construed so as to mean that a shop is not closed when goods are sqJd from it by automatic means, then automatic machines may be used on some adjacent telegraph pole which is not part of the shop but not on the shop itself. If the first interpretation is followed, then the law in New Zealand would be established on the same basis as it has been established in England upon the construction of section 4 of the Shops Act, 1912, which requires a shop to be closed “ for the serving of customers”; Willesden Urban Council v.- Morgan (1915) 1 K. 8., 349. Such a construction . does net seem ,to interfere with the object i f the Act in restricting the employment of shop assistants. Sor far as the Act aims at restricting trade after hours, it would appear that this class of trade may be dealt with under section 33. That section enables the Minister of Labour, upon petjtion by a majority of the occupiers of the shops in a oarticular trade within a district to prohibit the sale in such district of all the goods, the sale of which is comprised in such trade, during such time as the shops in such tradi are required to be closed. This would include the sale of goods comprised in a trade from shops by automatic machines. As it is _ unnecessary for me to decide the questions, discussed in this paragraph, I do_ not do so. _ ’ Again, an automatic ma- . chine not being itself a shop, may be erected in such a way that it is not within a shop or part of a shop! That is the case here. In such a case, the nature of the possession of such a machine must be considered. If the possessor is . a shopkeeper, as in the present case, and uses his assistants to feed the machine, They have protection under section 9 (c) of the Act in respect of the time of their employment. If the possessor of such a machine is not himself a shopkeeper as here interpreted, then the Act makes no provision for the protection of any assistants he may employ, if such assistants need protection. If they ■ do, that is a matter for the Legislature, not for the court. On the other hand, the restriction of the trade done by such a machine, where the’ goods sold are comprised in a trade, appears to be possible under the provisions of section 33. A further question arised during the argument before me was the question of Sunday trading. That is a separate question. In that respect section 18 of the Police Offences Act, 1927, and the case of Spence v. Ravenscroft in the High Court of Australia (1J C.L.R. 349) would require consideration, if and -when ■ the question were raised. This appeal must be dismissed. As the appellant is a statutory officer, and as the proceedings have been brought in

a friendly manner to determine the local position, no order is made as to costs.