LAW REPORT.

New Zealand Police Gazette, Volume XXXV, Issue 43, 2 November 1910, Page 474

LAW REPORT.

(“ N.Z. Law Reports,” Vol. xxix, page 873.) [S.C. In Banco. Wellington (Stout, C.J.)— l6th June,

21st June, 22nd June, 28tii June, 1910.] Miller v. Lamb.

Licensing Act —Offences Selling New Zealand Wine in a No-license District—The Licensing Act, 1908, Sections 3, 116 —Consolidated Statutes—-Construction —Application to Judge to withdraw Judgment, and to order the Case to be heard before the Full Court — Discretion—Ground upon which exercised — Refusal. The selling of New Zealand wine in a no-license district is prohibited by section 146 of the Licensing Act, 1908. The exemptions in subsections (c) and (d) of section 3 of the Licensing Act, 1908, do not apply to a no-license district.

The Licensing Aot, 1908, being a consolidated statute, is to be interpreted as it stands, and the prior legislation consolidated is not to be looked at except upon some special ground— e.g., ambiguity. Rex v. Hare (29 N.Z. L.R. 641) followed. Application to Judge to exercise his discretion and withdraw his judgment, and order a rehearing before the full Court refused upon the grounds 1, That the decision affected only one person ; 2, that it was in the nature of a criminal case; 3, that the presiding Judge had no doubt

as to the correctness of his decision. Appeal from a decision of G. C. Graham, Esq,, S.M., at Masterton, dismissing an information charging the respondent with having sold New Zealand wine in a no-license district contrary to section 146 of the Licensing Act, 1908. The respondent, who held a license under seotion 12 of the Distillation Act, 1908, had a vineyard in the Masterton nolicense district, and in the course of his business manufactured and sold his wine in the said district in the quantities and upon the conditions imposed by statute upon vendors of New Zealand wine. He claimed to be able to sell his wine in a no-license district under the provisions of section 3 (c) of the Licensing Act, 1908. The Magistrate upheld this contention.

Stout, G.J.:— The appeal in this case raises an important question under the Licensing Act, 1908. The statute was a consolidation Act ; but, as has been pointed out in various decisions in this Court and in the Court of Appeal, the Court has to deal with the Act as it now stands, and is not concerned to review previous legislation : See Paterson’s Freehold Gold-dredging Company v. Harvey (28 N.Z. L.R. 1008); Minister of Customs v. McParland (29 N.Z. L.R. 279); and Rex v. Hare

(29 N.Z. L.R. 641). There has been some conflict in the decisions of the English Courts as to how a consolidation Act should be viewed, but that has been mainly caused by the assumption that the Legislature did not intend in a consolidated Act to amend prior legislation : Compare, for example, per Chitty, J., in In re Budgets ([1894] 2 Ch. 557) and Williams v. Permanent Trustee Company of New South Wales ([1906] A.C. 249, at p. 253), where the Privy Council lays down this principle, that the Act must “ be read and construed as it was enacted.” This decision of the Privy Council, which is, of course, binding on this Court, followed the judgment of the English Court of Appeal in Thames Conservators v. Smeed, Dean, & Co. (66 L.J. Q.B. 716, at p. 723), and which, strange to say, the same Judge as in In re Budgett (Chitty, L.J.) said : “ The Act which we have to construe is a consolidating and amending Act. The general object of such Acts is to present the whole body of the statutory law on the subject in a complete form, repealing the former statutes. The principle of interpretation of a codifying Act is laid down by Lord Herschell in Bank of England v. Vagliano ([lß9l] A.C. 107, at pp. 144, 145; 60 L.J. Q.B. 145, at p. 164). A statute codifying the law is to be interpreted as it stands, and recourse is not to be had to the former law except upon some special ground, such, for instance, as an ambiguous provision.” This statement of his is not reconcilable with what is reported as being said by him in In re Budgett ( [1894] 2 Ch. 557, at page 561). Perhaps he had, on fuller consideration, come to the opinion he expresses in the later case. In construing any of our consolidated statutes we must take them as the final law declared by the Legislature, and it is a waste of time to institute comparisons with former Acts. Indeed, consolidation or codification —and they are practically the same, as Chitty, L.J., points out—would be a farcical proceeding if laymen or lawyers had to try and discover the law by perusing repealed statutes. There may, no, doubt, arise rare cases in which ambiguous expressions are used in statutes when the history of a law may be referred to ; but a resort to such a practice will be rarely necessary. How, then, stands the Licensing Act, 1908. It is called a Licensing Act, but it does not deal with all the law relating to the licensing of persons to sell intoxicating liquors. It is an Act to consolidate only “ certain enactments.” It leaves out the licensing of brewers. That is provided for in the Beer Duty Act, 1908, section 6 of that statute authorising the holder of a brewer’s license ‘‘to sell in quantities of not less than two gallons beer brewed in his brewery, without taking out a wholesale or other license under any other Act.” The importance, to my mind, of this provision in the interpretation of section 146 of the Licensing Act, 1908, is very great. The Licensing Act starts, in section 3, with limiting its scope. It says, shortly, “ Except as expressly provided in this Act, nothing in this Act shall apply ” (a) to the selling of spirituous or distilled perfume; (6) to any apothecary, or chemist, or druggist administering or selling any spirituous, distilled, or fermented liquors for medicinal purposes; and (c) —and this is the subsection that has to be dealt with in this appeal—“ to any person selling wine, cider, or perry in quantities of not less than two gallons at any one time, the produce of grapes, apples, pears, or other fruits respectively grown in New Zealand, and not to be consumed on the premises ” : nor (d) to any licensed auctioneer selling liquor at public auctions, of not less than five gallons at any one time ; nor (e) to sales in Bellamy’s; nor (f) to any military canteen ; nor (g) to the islands subject to the Cook Islands Government Act. The words at the commencement of this section are “except as expressly provided in this Act.” The use of such words necessarily implies that there is something in the Act dealing with these various exceptions. Gan the Act be read so as to give effect to the exceptions, and also to show that these words are not necessary but are useless ? That will, no doubt, depend on how the word “ expressly ” is construed. The cases cited in the argument and other authorities show that this word has been construed by the Courts ; and, if it is an ambiguous expression, recourse could, of course, be had to the history of the legislation. How, then, has the word “expressly” been construed? It was construed in Taylor and Another v. Nicholl (9 L.J. Ex. 78) in the interpretation of a statute that required that a warrant of judgment had to be signed by a defendant in the presence of an attorney “expressly named” by him. What took place was that the defendant said he had no attorney. The plaintiff’s attorney named one, and he consented. This was held to be a compliance with the statute. The word “ expressly ” was also considered in the case of the Commissioners of Inland Revenue v. Scott ([1892] 2 Q.B. 152) by the Court of Appeal in England. The statute provided that certain property which, or the income or profits thereof, should be legally appropriated and applied in any manner expressly prescribed by Act of Parliament was to be exempt from certain duties. An Act of Parliament provided that this property shall be

set out and allotted to the Mayor, &c., of York in trust for the freemen of the city residing in Botham Ward. These general words were held to conform to the phrase “in any manner expressly prescribed.” Then, there are numerous decisions on the statutes that have incorporated the Land Clauses Consolidation Act, 1845, to show that the use of general words will be an “express” variation of special provisions. I shall refer to a few only of these cases. In the Metropolitan District Railway Company v. Sharpe (5 App. Gas. 425) the words to be construed were “except where expressly varied.” Was there an express variation of the provisions of the incorporated statute ? It was held that these words meant only the enactment of a general provision inconsistent with that in the general statute. Lord Blackburn said, “ I do not think that because the words used in this Act are ‘ expressly varied ’ it is essentially necessary that there should be express words saying “ This particular seotion or provision shall not apply.” The decision of the case is not in point, as the House of Lords held that a provision in the original Act should stand which was not varied or dealt with—that is, the giving of costs.

The principle to be followed in interpreting the words “ expressly varied ” was, however, laid down. The Court of Queen’s Bench had previously affirmed the same principle, that the words “ expressly varied ” must go as far as this : that the Legislature intended to exclude an enactment which by an accident (not unlikely to occur in this mode of legislation) they have inadvertently incorporated oontrary to what they intended.” The Master of the Rolls in Weld v. South-western Railway Company (33 L.J. Ch. 142) said : “ I am of opinion, with respect to the words ‘ except as expressly varied by this Act,’ that ‘ expressly ’ does not mean in express terms; indeed, if that were so, there is no section that is in express words varied.” The same principle was approved in the Thames Conservators v. Smeed, Dean, and Co. (66 L.J. Q.B. 716, at p. 722); see also London, Chatham, and Dover Railway Company v. The Wandsworth Board of Works (L.R. 8 G.P. 185). Suppose section 3 and sections 146 and 147 were in two separate statutes both affirmative, the one declaring that New Zealand wine could be sold, and the other afterwards declaring that in certain districts no wine could be sold, it is, I think, clear that the special Act dealing with a particular place would overrule the general enactment: See O’Flaherty v. M’Dowell (6 H.L.C. 109, 165), Now, sections 146 and 147 were meant to do something more than provide for the non-issue of licenses. If that only was their object, their enactment was unnecessary, for section 24, subsection (c), made ample provision for the nonissue of licenses. What, then, was the object ? It was to declare that it shall not be lawful for any person, whomsoever, inter alia, to sell, expose, or keep for sale any liquor within such district. At whom, then, is paragraph (ii) of subsection (a), section 146 aimed ? It cannot be at people casually licensed, for these people could not sell. No licenses could be issued as provided in section (c) of section 24 ; and section 195 which provides that no person shall sell or expose for sale, &c., unless duly licensed, would cover all those who ventured to sell, save the excepted persons mentioned in section 3. It is a canon of construction that the whole Act must be looked at in construing any of its provisions, should there be any doubt about its meaning, and it is proper to consider other parts of the Act which may throw any light on the provision that is being considered : See Colquhoun v. Brooks (14 App. Cas. 493, at p. 506), per Lord Herschell. If, then, we note the whole framework of the statute, we must see that the special express provisions in section 146 are to deal with persons other than those usually licensed to sell liquor ; and, if so, these would be the persons exempted in clause 3. If not, we would have this anomaly: that auctioneers could sell liquor by auction in a no-license district, whilst hotelkeepers could not, and all the elaborate provisions as to sending liquor into a no-license district would be of no avail. That the Legistature meant these as special and express provisions is apparant from more clauses than one in sections 146 and 147. Take, for example, the question of the brewer. There is no clause in the Act making brewers liable to the Act and compelling them to take out a license under the Act. Their license is under a different statute (Beer Duty Act, 1908, section 6), and there is no provision as in section 3 that those licenses are to be held subject to any provision that may be found in the Licensing Act, as is the case with people selling New Zealand wine ; yet the Legislature thought it necessary to insert subsection (/). Why? The answer must be because if that clause had not been inserted they, though under a different statute, would have been barred from selling even to nonresidents. They are assumed to be barred from selling to residents. Then, again, the provision of paragraph (h) of subsection 1 of section 147 grants a privilege to chemists which but for that section it was assumed chemists did not possess. It restricts the privilege to duly registered pharmaceutical chemists, and the privilege is to dispense alcoholic

liquors, in medicinal quantities, for medicinal purposes, upon a certificate signed by a duly registered medical practitioner. The privilege granted by section 3 was “ to any apothecary, chemist, or druggist” to “administer or sell spirituous, distilled, or fermented liquors for medicinal purposes ” —a much wider privilege than paragraph (h) confers. The enactment of these two provisions regarding brewers and chemists are proof that the Legislature assumed that the provisions of sections 146 and 147 were “ express ” provisions in the meaning of section 3, and unless the Court was prepared to overrule the English decisions quoted as to the meaning of “ expressly” the Legislature was right in its assumption. The Court does not have to rely solely on the fact that these provisions conflict with and are at variance and inconsistent with the provisions of section 3. The Legislature has given proof of its intentions by the paragraphs referred to. A reference to the provisions contained in the Legislature Act, 1908, subsection ( e ) of section 271, which is a statute dealing with the same subject-matter as section 3, shows that it was the intention of the Legislature that a no-license district should be placed in a different position from other districts. There are also sections in the Licensing Act which, in my opinion, expressly provide for a state of things at variance with the privileges given to certain persons in seotion 3. Section 269, for example, shows that New Zealand wine-sellers could not sell to Maoris, and this though there is no direct reference to section 3. Sections 273 and 274 are similar sections. Accepting Mr. Skerrett’s contention as correct, that there must be some form of expression showing that section 3 is referred to —and this is going further than is necessary according to the English authorities already referred to—the form of expression in sections 146, 147, 269, 273, and 274 shows that section 3 must have been in contemplation of the Legislature when these sections were enacted. In my opinion, there is ample evidence that this privilege to wine-sellers was not to exist in a no-license district, and neither wine-sellers nor auctioneers can sell alcoholic liquors in a no-license district. It was asked ; Does section 195 also overrule section 3 ? And the answer is, I think, obvious that that section is dealing with persons who can be licensed. No persons not duly licensed shall sell, &c. A wine-seller is not a person who must apply for a license, for section 3 exempts him from the need of being licensed. I may add that if it were necessary to refer to the history of licensing legislation—but I do not think it is, nor do I think it wise for Courts to spend their time in discussing the law that was—the reference would not militate against the conclusions I have arrived at, but would favour them. In the Licensing Act of 1881 there was also a section 3 having the same provisions as subsections (a), (b), (c), ( d ), (e), (/). It did not have (p), as the Cook Islands were not annexed to New Zealand; and it did not have the words

“ except as expressly provided in the Act,” which begin section 3 in the 1908 Act. Why ? The answer must be that there was no provision for no-license districts in the 1881 Act. It was wholly and essentially a licensing law. The 1908 Act is a licensing law and a no-license-district law combined, and hence the need of the words “ except as expressly provided in this Act.” The Alcoholic Liquors Sale Control Act Amendment Act, 1895, had a section like section 146. It did not purport to be a mere amendment of the Licensing Act, and could it be contended that section 33 of this latter affirmative statute would not overrule the provision of section 3 in this prior Act. The two could not stand together in a no-license district, and the latter must therefore, as I have already pointed out, overrule the former. So far, then, as the history of the legislation is concerned, it confirms my opinion that the decision of the Magistrate was erroneous. Appeal must be allowed, with seven guineas costs, and Magistrate directed to convict. Counsel for the 'respondent asked for leave to appeal to the Court of Appeal. Cur. adv. vult. Stout, C.J. : I am of opinion that leave to appeal cannot be granted, as this is an appeal from a conviction by a Magistrate in a criminal matter: Ex parte Bouvy (No. 3) (18 N.Z. L.R. 608). Counsel then made application to His Honour to exercise his discretion, and withdraw his judgment, and order the case to be reheard before the full Court. Cur. adv, vult. Stout, C.J. I have come to the conclusion that I ought not to withdraw my judgment and allow the case to be heard before the full Court. Firstly, I have found only one case in the Dominion of a vineyard in a no-license district. This, therefore, is only a special case which affects only one person, and were I to grant what was asked I could not in any other case refuse either party a rehearing before the full Court. Secondly, suppose a man was convicted in a criminal case and sentenced to a term of imprisonment by the Magistrate or Justices, and I affirmed the sentence in this Court, I would be bound to follow the precedent established and allow him a rehearing if I granted it in this case. A third reason is that I have no doubts about the correctness of my decision ; and that has been made a ground, when appeals from inferior Courts come to the Supreme Court, to refuse leave to go further. If I had any doubt about it, I would have felt it my duty to have granted the application.

Application refused. Solicitors for the appellant: The Crown Law Office (Wellington). Solicitors for the respondent: Chapman, Skerrett, Wylie, & Tripp (Wellington).