SUPREME COURT.

Otago Witness, Issue 2106, 5 July 1894, Page 28

SUPREME COURT.

IN BANCO.

Wednesday, July 4-. (Before his Honor Mr Justice Williams )

RE THE ALCOHOLIC LIQUORS SALE CONTROL ACT 1893 AND THE CERTIFICATE ISSUED TO RODERICK M'KENZIE FOR A WHOLESALE LICENSE. His Honor delivered judgment as follows :—: —

The case has substantially to be determined on the third and fifth grounds Bet out in the notice of motion. Mr Adams admitted at the hearing that he could not support the second ground. If the third and fifth grounds cannot be supported ■ it would be useless to grant a certiorari, even if the first ground were sustained, as in such an event it would be merely a matter of giving a fresh seven days' notice and obtaining a new license from the chairman. The fourth ground is general, and depends on the third and fifth grounds. The third ground is that at the time of hearing the application Mr Hawkins was not chairman of the Licensing Committee. Mr Adams relied on subsection 19 of section 7 of the act of 1893, which provides only that at every meeting of the Licensing Committee the magistrate, if present, is to be chairman thereof, but does not say he is to be chairman when there is no meeting. By subsection 1, however, of the same section he is to be a member of the committee. If, therefore, in the act there are numerous references to the chairman, and if duties are imposed upon the chairman to be exercised when the committee is not sitting, I should have thought that beyond doubt the references were made to. and the duties imposed upon, that member of the committee who, if present at the meeting, took the chair ex officio. The acts of 1893 and of 1881 must be read as one act. The provisions as to the chairman performing duties independently of the committee are in the act of ISSL. The act of 1893 does not, however, repeal these provisions, and indeed in subsection 7 of section 12 expressly refers to one of them, giving by that subsection powers to the members of the committee as well as to the chairman. Mr Adams contended that as by subsection 21 of section 13 of the act of 1881 provision had been made for the election of a chairman, who should hold office during the continuance of the period for which the committee was appointed, and that this had been repealed, and subsection 19, section 7. substituted, there was an indication of an intention of the Legislature that there should be no permanent chaitman. If, however, a person is appointed by the act, who at every meeting, if present, takes the chair ex officio, he is the permanent chairman. There can be no question that if the act refers to a chairman, and imposes duties on him when the committee is not sitting, that such person is the chairman referred to. The references must be to somebody, and there is no one else to whom they can relate. The third ground is therefowsuntenable. The fourth ground is that, by section 14 of the act of 1893, any increase in the number of licenses is forbidden ; that at the time of the act coming into operation there were no wholesale licenses in the district ; and that to grant a license in pursuance of the chairman's certificate would be to infringe this provision. The question depends upon whether, by the true construction of section 14, the general word "licenses" is limited so as to exclude wholesale licenses. The question of limiting general words in an act of Parliament was discussed ia the House of Lords in the recent case of Cox v. Hakes (15 App. Cae., 506). That case seems to have anjimportant bearing upon the present, and I- propose, thereforo, v shortly to consider it. By the 19th section of " The English Judicature Act 1873," it is enacted that " the Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment or order, save as hereinafter mentioned, of her Majesty's High Court of Justice, or of any judge or judges thereof." The section goes on to provide that for the purpose of the enforcement or any judgment or order made on any such appeal, the Court of Appeal shall have lall the power, authority, and jurisdiction given by the act to the High Court of Justice. The question in Cox v. Hakes was whether under the section an order of the High Court discharging a person from custody under a writ of habeas corpus could be appealed from. The Court of Appeal (Lord Esher, M.R., and Bowen and Fry, L J J.) held that it could (20 Q.8.D., 1). The House of Lords reversed that decision, and held that it could not. Two of the learned lords, however— Lord Morris and Lord Field,— dissented, and agreed with the decision of the Court of Appeal. The majorityLords Halsbury, Bramwell, and Herschell — were substantially agreed in their reasons for holding that the general words in the act must be limited so as to exclude an appeal from such au order. These reasons may be fairly summarised as follow : Up to the passing of the Judicature Act it was settled that the discharge from custody of a person on habeas corpus by a court of competent jurisdiction protected him from further proceedings. If the act has altered the law in this respect it has effected a grave constitutional change. You can, however, look at the whole of the act, and particularly at the very section which gives the right of appeal, in order to ascertain whether the general words were intended to cover or to exclude this particular case. So looking, you find that the only power given to the Court of Appeal to enforce its judgments is that conferred by section 19, and that this power is altogether inadequate to enforce a judgment on appeal to the effect that the person brought up on habeas corpus ought not to have been discharged. The High Court had no power, and the only power given to the Court of Appeal is that of the High Court. If it had been intended to make a grave constitutional change, it might be expected that the Legislature would have provided the machinery necessary for carrying it into effect, and from preventing the judgment of the Court of Appeal being futile. This the Legislature has not done, and to give a right of appeal to a court which in the particular case had no means of enforcing its judgment, if the appeal were allowed, involves an absurdity. From this the inference should be drawn that it was not the intention of the Legislature that the general words should cover the particular case. This, however, seems clear from the judgment— viz., that unless the House had been able to see that the Court of Appeal would have been powerless to enforce its order the general words would have been held to have covered the particular case notwithstanding the words were general, and tho matter involved was, to use the language of Lord Halsbury, one of supreme constitutional importance. As was said by Lord Herschell, at p. 528 : "It is not easy to exaggerate the magnitude of this change \ nevertheless, it must be admitted that if the language of the Legislature, interpreted according to the recognised canons of construction involves this result, your Lordships must frankly yield to it even if you should be satisfied that it was not in the contemplation of the Legislature." These last words are of importance, because they indicate clearly that you are to look for the intention of the Legislature in the expressions used by the Legislature. It is not enough for the court to form the opinion that if the attention of the Legislature had been called to the effect of the wording of a particular clause different language would have been used. As was said by Grove J. in llichards v. M'Bride (8 Q.B.D ,at p. 123) : " The draughtsman of the act may have male a mistake. If so, the remedy is for the Legislature to amend it." In the same case the same learned judge states the law to be as follows :—" The onus of showing that the words do not mean what they say lies heavily on the party who alkge3 it. He must, as Farke B. said in Beckev. Smith (2 M. and W., 195), advance something which clearly shows that the grammatical construction would be repugnant to the intention of the act or lead to some manifi st absurdity." No doubt, as was said by Jessel M. R. in Bentley v. Rotheram (4 CD., at p. 492), thpre is a rule applicable to acts of Parliament that you may control the plainest words by a reference to the context. But," he goes on to say, " you must have a context even more plain, or at least as plain— it comes to the same thing — as the words to be controlled." Section 14 stands by itself. It remains effective, whatever may be the result of the poll, as to retail licenses provided f> r in the succeeding sections, and is entirely independent of that result. The language of the section is general : " There shall not be granted any increase in the number of licenses* in any district." The word " license " in the interpretation clause is defined to mean, if the meaning be not Inconsistent with the context, •• Bpv

license for the sale of liquors granted under this act." Wholesale licenses are, therefore, covered by the language unless the context is shown to be inconsistent with such an interpretation. In other sections of the act the particular kinds of licenses intended to be affected are in general specified, or if they are not specified, and the general term "licenses" is used, it is easy to ascertain from the context whether and how far it is intended to be limited. The principles upon which the court must ascertain whether the words are controlled by the context have been already indicated in the cases cited. It is, I think, fairly certain that two classes of retail licenses— viz., "packet" and "conditional" licenses — are not included in the general words. Packet licenses are not, because the enactment is confined to licenses in the district, and a packet license is not a license in any particular district Conditional licenses are not, because they are occasional and casual, and no intelligent meaning could be given to the other provisions of the aection with respect to this class of license if the section were held to include it. Applying, therefore, the principles above indicated, it appears with reasonable clearness that these two kinds of retail licenses are not intended to be included in the general term. With respect, however, to wholesale licenses the case is different. I accept the suggestion that the word "licenses" at the beginning of tho section should, in accordance with the 4th section of " The Interpretation Act 1888," be construed distributively as referring to each kind of license. If that is so, the same word in the latter part of the section would be construed in the same way, and the power conferred on the committee would be that of granting, in the eventr mentioned, one additional license of each kind for every 700 persons of increased population. It was contended, as the power of granting additional licenses is given to the committee, and as wholesale licenses may be granted either by tho committee or by two members of it or by the chairman, that the section must refer to licenses which could only be granted by the committee, and not to those which need not necessarily be granted by them._ But if the committee have pewer given them in certain events to grant licenses generally, and there is a provision in the act that a particular kind of license may be granted by the committee or two members or the chairman, then the two provisions would properly be read together, and the license might be granted by either authority. In any case tbe above circumstance alone would not afford any conclusive indication that wholesale licenses were not intended to be included in the general term. The act itself seems rather to indicate an intention to restrict the sale of liquor. And it is hopeless to rely on some fancied policy of the act iv order to make out that the Legislature did not mean what it said. Once leave the words of the act and there is a real danger, lest, in determining what the policy of the act or any part of it is, one should be unconsciously influenced by one's personal opinion of whatthe policy ought to be "Id voluit quod dixit " is the safest rule to apply. To return to the particular section, the only other suggested intention not to include wholesale licenses is that the increase of them would be dependent on the increase of population, and that they would so be placed on the. same footing as the different kinds of retail licenses. Now, there is nothing intrinsically absurd in forbidding the increase of wholesale licenses, nor in making the number of them in the future dependent on the increase of population, the same as retail licenses— nothing, 1 mean, so absurd as that every man, whatever his opinions were, would at once own it to be absurd, as everyone would own it to be absurd to. give a right of appeal to a court which could not enforce its judgments. Nor does the inclusion of the wholesale license operate retrospectively, or interfere with vested rights so as to rai>e any presumption against a literal construction. The utmost that can be said is that the inclusion of wholesale licenses under the general provision is odd and unexpected. . To hold, however, because the language of a statute leads to results which may be considered odd, that the court should not give effect to the language, would introduce a canon of construction at once novel and inconvenient. lam of opinion that section 14 prohibits the granting of this license, and that the applicant is entitled to his writ.

Mr Adams said he presumed that coats would be against M'Kenzie. His Honor agreed, and allowed 10 guineas.