GREY KIVER.

West Coast Times, Issue 134, 21 February 1866, Page 2

GREY RIVER.

HIGH WATER. Wednesday . . 1.20 a.m. .. 1.44 p.m

SHIPMENT OF GOODS COASTWISE

niPOETAXT CASE,

At ' tho sittings in Banco of the Supremo Court, Auckland, before his Honor Sir George Arney, Chief Justice, the following Customs case came before tho Court for argument on demurrer. 6TAFFOED, AS COMinSSIONEE OF CUSTOMS V.

His Honor tho Chief Justice delivered the following judgment -.—This is an action brought by the Commissioner of Customs to recover a penalty of £50, alleged to have been incurred by the defendant under the 26th section of the Customs Regulation Act, 18i>5, viz., by shipping certain goods to be carried coastwise, which goods were shipped without the permission of the Collector, and were not bo snipped in tho presence or with the authority of the proper officer of Customs. The

defendant pleads besides a general tr.ivei>c that the goods mentioned in tho declaration were shipped tit a time and place duly appointed or approved of for that purpose. To this pica there is a demurrer on the ground :—: — 1. That the shipping of goods at a time and place duly appointed for that purpose- doc 3 not dispense with tho necessity of having the permission of tho Collector, or presence or authority of tho proper officer of Customs fottheir shipment. 2. That goods shipped without the permission of the Collector, aud not shipped in the presence or with the authority of the proper officer of Customs, are forfeited to her Majesty and seizable, even though they be shipped at a time and place duly appointed for that purpose. The plea does not specify the particular time 'or place at which the defendant shipped his goods ; but upon the argument it was admitted by the defendant's counsel that the plea did not mean to allejre a time an d place specially appointed for the shipping of these goods; but that the "time" or shipment uas a time within the ordinary hours of business, and the " place" was one of the legal quaj3 or wharves for the lading and unlading of goods duly appointed by the Governor under section 10 of the Customs Act. And this seems to be the only reasonable construction of the plea, admitting, as it must admit, that the shipment was made without the authority of- the proper officer of Customs. Thus interpreted, I am opinion that the plea is no answer to this action.

Section 126 of the Customs Regulation Act, 1858, is as follows :—": — " If any goods shall, without tbe permission of the Collector be unshipped from any ship arriving coastwise or be shipped or water-borne to be shipped to be carried coastwise on Sundays or holidays or on any Saturday after the hour of 12 o'clock at noon or except in the presence or with the authority of the proper officer of Customs or pxcept at such thr.es and places os shall be duly appointed or approved for that purpose, the same shall be forfeited and the master of the ship shall forfeit the sum of fifty ponnds."

It is not denied, on behalf of the defendant, that the shipping of goods on a Sunday, on a holiday, or on a Saliuday, after 12 o'clock at noon, constitutes in each case a separate ground of forfeiture ; so that it would be no answer to a charge of shipping goods on a Sunday for a defendant to plead that he did not ship them after 12 o'clock at noon on Saturday. But it h contended for the defendant that, in the latter portion of the section, the conditions exacted by its different clauses are correlative tind eoznpensatory one of another, so that the performance of one condition 13 equivalent to or dispenses with the performance of either of the other conditions and saves the forfeiture. If this was the intention of die Legislature, it seems not to be so expressed. Prima facie the section seems to import five or perhaps six grounds of forfeiture, namely, the unshipping or shipping, as the case may bo, of goods (1) on a Sunday, (2) on a holiday, (3) on a Saturday afternoon, (4) without either the presence ox the authority of the officer, (5) not at a time and place (for both must be) duly either appointed or approved for the purpose. Sow, it is observable that where the Legislature intended the performance- of one condition to be equivalent to tb,e perfoi'inauee of another condition, the Legislature has so expressed itself. Tims, under the 4th euppoacJ. head, of forfeiture, if the goods be shipped with the authority cf the proper officer, they arc execpted from forfeiture under that head as fully as though they were shipped in his presence ; for both the presence and the authority are ranked under the same exception by the grammatical structure of the clause. So, uncl"r the last head of forfeit are, if the shipment be made at a. time and place duly approved, tho goods are excepled from forfeiture, although the time and place. may not be precisely those previously appointed under the Act. But the two heads of forfeiture appear to be distinct ; the proper attendance of a Customs oflicei' being required (o save forfeiture undci 1 one head, mid the proper time and place Loing require! under the other. The reading contended, fur by the defondfmt's counsel would nccosoitsite the "striking

out of the alternative particle " or " before the words " except in the presence," as also tlio second " except " before tlio words "at such lime," &c\ lint Ibis would alter the whole structure of the section, and convert the Litter half into a proviso qualifying the former half; and it would seem to follow, on such a reading of the section, that, even though goods were shipped on a Sunday, they v. oulj be ..■vct-plcd from forfeiture, provided they were fo shipped, at one of the lentil wharve« or quays. ,-Jityi^ this proposition, it was admit led coukbjabir

mainiainc

Section ]?'> contriins up wߣ4lrj&s&iSScZif-gf& f ' hibition, the pro!i,bit^^i«iiya^potfH -tjy^fne enactment of,4ii^,_i!^i^j9-"-'*^S£ t-Ijglif may be thrown upon, jfi^lirfimg-byp.teftiromce to oLher sections iw^a??JS(Klr^?'ihf"t.liß same Act. Seoi isr^ety^iifoo -jffimdec for the shipment of 0(h for exjift-latiuu on leg tl days, and at leg.il aces. Ib pvovi'les lh:it "no goods shall be

shipped, or, ' d c, on any Sunday or holiday, or without Iho permission of the Collector, after the hour 01 twelve o'clock at noon on Saturday, nor

from any place except some legal quay or wliaif or other place duly appointed for such puipose,

nor without the presence or authority of Hie proper officer of Customs, nor &c. — " and any goods shipped put off,' 1 &c , " contrary hereto, shall he forfeited." Section thirty -sever, which provides that goods shall be landed at legal times and places, is oven moro specific. In both of the last mentioned sections the clauses of prohibition are kept distinct from the clause imposing the penalty, and the sense is clear. But has the Legislature intended; by section 126, to prohibit the doing of those acts, the doing whereof it punishes by forfeiture and penalty, I think that the words of condition in that section must be construed as equivalent to the words of express prohibition conveyed through the negative " nor " in section 99, and that section 126 must (for the present purpose) be construed to mean that no goods shall, without the permission of tho Collector, be shipped to bo carried coastwise on Sundays, or holidoj's, &c, nor except in the presence or with the authority of the proper officer of the Customs, nor except at such times and places as shall be duly appointed or approvedforlhalpurposc: and any geocis shipped, &c, contrary hereto shall be forfeited . This reading appears to me to accord with the grammatical construction of the section, and with the general policy of the Act. For the Legislature has in various sections of this Act, and by a variety of precautionary stipulations, evinced a marked earnsstness to prevent irregularities in the coasting trade, and has at the same time given additional powers both to the Governor and to the Commissioner to make Mich regulations as may relieve the trader from hardship, and the trade from embarrassment. But I can not help thinking that if the construction set up by the defendant in this case were to prevail, great difficulties would he thrown in the vay of the officers of Customs in the discharge of their d uty, while some of the most important objects of the Act would be defeated.