LAW REPORTS.

Dominion, Volume 1, Issue 36, 6 November 1907, Page 8

LAW REPORTS.

SUPREME COURT.

RESERVED. JUDGMENTS. A RESTAURANT HELD TO BE A . "SHOP." Mr. Justice Cooper delivered two very important" yesterday afternoon on appeals from decisions given by Dr. M'Arthur, S.M., in respect to charges laid under, the Shops and Offices Act. . Tho first case was that of — • INSPECTOR OF FACTORIES v. FAIRWAY AND. JONES. His .Honour said that respondent JFairway was tho proprietor of the "Silver Grid," and respondent Jones the proprietor of the Union Dining Rooms. The Magistrate had dismissed informations laid against them, alloging that they had employed male shop assistants for more than 52 hours m one week, contrary to sub-section (a) of section of the Act. . • • ' Two questions ,of law of great importance were, His Honour said, argued in the ap-peal:—-(1) Was a restaurant a shop within tho meaning of the Shops and Offices Acts 1904 and 1905 P (2) .If it was, did the recommendation of tho Board of Conciliation, 1 wliich fixes the maximum, number of hours in , respect of restaurants .at .65 hours in any one week, and which, in consequence of the omission of the employers to refer the disputo within tho statutory timo to' the Court of Arbitration for settlement, now operate as an industrial agreement, overrido the provisions of section 4 of tho Shops and Offices -Act 1904 ? , As to tho first question, His Honour said that "shop" was interpreted by section 2 of the Act as meaning .any building or place in »wliiph goods , were kept or exposed or offered for sale, or dn which any part of the business of the shop was conducted; but did not include a warehouso doing exclusively a wholesale business. If there were no other provision in tho Statute by which an extended meaning could he given to tho term "shop" it would, he thought, bo doubtful whether a restaurant or refreshment room, where . the meals wero consumed on tho premises, could be brought within this definition. It had been bold, however, that an interpretation clauso was "not to be taken as strictly defining what tho meaning of a word must bo under all circumstances.". A "shop assistant" was also defined ,in section 2, and section 4 -prohibited the omploymont of a ."shop assistant" in or about the business of a shop for more than 52 hours excluding meal times; Section 9 prescribed that all shops (except those specially, provided for in .later sections of the; Act) should bo closed on one working day of each week at tho hour of 1 p.m. 'Section .15 said that section 9 should bo subject to certain exemptions, including ono to tho effect that certain shops "wherein is ex-clusively-carried on any one or more of tho bufinesses of a fishmonger,' a-, fruiterer, a confectioner, a refreshment room keeper, a baker, or a bookstall-keeper on a railway station or wharf, the occupier shall not bo required to close his shop on any working day.' Provided that the'provisions of this subsection shall not affect the right of any shop assistant employed in any such excepted shop to a half holiday for the remainder of the day from 1 o'clock in tho afternoon of such working day in each'wick as tho occupier, in tho case of each shop assistant, thinks fit." A refreshment-room keeper was. defined in tho section to mean "a person wlios6~busiiiess.it 1 is to sell meals, but does not include an hotelkeeper." The Amendment Act 1905 repealed section 3 of the Act of 1904, a sectionWhich provided a statutory lionr for closing /'shops" within the four central districts of the Dominion; and enacted substituted provisions, among which was provision that in or about any shop iii which any pile or more of tho-trades, or businesses mentioned in the schedule'to' the Act wero/exclusively carried on, tho latest hour up to which a shop assistant might bo employed was the timo stated in the schedule, and among tho businesses mentioned in tho schedule was that of a "refrnshmcnt-room-kccpcr." Notwithstanding, therefore, that tho interpretation clauso did not in terms include witliin tho definition of a "shop" a restaurant or refreshment room, it was, in his-opinion, clear that the Legislature intended to do $o, and that upon the proper construction of tho Act restaurants or refreshment rooms were included, except whoro these businesses woro expressly exempted | from any particular clauso. It- did not affect the question whether the meals sold wero consumed on or off. the premises. Tho sale took place ( in each instance. It was a matter of common knowledge that the greater proportion- of tho business of a refreshniont room-keeper was the supply of meals to bo consumed on the promises, and to limit tho provisions of- tho Acts of 1904 and 1905 to restaurants where meals or refreshments wore purchased for consumption off tho promises would bo a reductio ad absurdum. The Ordinary mcanipg of the words "to sell meals" included clearly tho sale of tho meal for consumption in the rooms as well fts tho sale of food to bo taken away by tho purchaser and eaten elsewhere. In cach instance the meal was sold. The first question must, therefore, bo decidcd against tho respondents.

His Honour said>that tho second question depended upon the meaning and effect of sub-section 4' of section 4 of the Act of 1904. That sub-section was,as follows:—"This section shall operate subject to the provisions of this Act and to any award of the Arbitration Court." He could not see his way to modify the statomont'of the law which", as Presidont of the Court of Arbitration, he miido when delivering judgment in the' Auckland Tailorcsses' caso. In his opinion, it was impossible to hold that an industrial agreement was equivalent to an award of the Court. This special power to override the provisions of a statute had been entrusted only to tho Cpurt of Arbitration. There was a substantial reason why an industrial agreement could not overrido express statutory regulations in a particular industry. Tho present case was an instance. The recommendations of the Conciliation Board only applied to a limited number of the particular classes of omployers affected. Other employers, in tho same industry wore not bound. But'the. award bound everyone, and there was by the award uniformity throughout the industry. Ho was, therefore, of opinion that tho respondents were within section 4 of..the Shops and Offices Act, 1904, and that the special matter pleaded as an answer to tho' section could not in 'law justify the employment of tho shop assistants in tho piosont case beyond the statutory limit of fifty-two hours per week. In conclusion, His said that it had been contended by counsel for tho respondents that this result would produce great hardship. The wages stated iii tho recommendations wefo based upon a consideration of sixty-five hours per week. If tho employers could bo compelled' to pay theso wages for fifty-two hours' work, then'no doubt hardship aroso, but as, in his opinion,, tho effect of tho recommendations wfts that tho oxtonsion of tho hours of work from fifty-two per week to sixty-five per week wjis inoperative, a substantial part of the consideration for tho amount of tho weekly wage failed, and it was open to the respondents to have tho question of their liability to comply 'with tho recommendations tested in a competent Court: In tho present caso he could only administer the law, and ho hold that the respondents had committed a breach of section 4 of the Shops and Offices Act, 1904, and that the. recommendations of the Board of Conciliation were no answer to tho informations.

The appeal -must, His Honour said, bo allowed, ,and tho case remitted to the Stipendiary Magistrate with tho opinion of tho Court that.upon tlie.facts and circumstances stated in tho case tho respondents had' committed a breach of the Act, and that he ought to convict' thorn. No costs would bo allowed. Mr. Stout appeared for.appellant, and Mr. Myers for respondent. . PINNOCK V. THE INSPECTOR OF ■ • FACTORIES. CONVICTION AFFIRMED. . His Honour, in giving judgment in this case, said that appellant was convicted on an information alleging that ho was a restaurant keeper, and that in tho month' of August,

1907, ho omploycd certain, shop assistants, namely, Florence Morris, Mary Adrett, JNellio Hogan, Cora Staples,.and Ethel Randall, and failed to allow thorn a half-holiday for the remainder of the day from one o'clock ill the afternoon on any working day in the week ending' August 2-1, 1907, contrary to tho provisions of the Shops and Ofhccs Act, 1904, and its amendments. It was proved, His Honour .said, that appellant (who is the proprietor of the Trocadero Private Hotel) had a public diningroom in which lie supplied ineals to the public, charging a price for each meal. In this dining-room he employed seven waitresses, and there were other connected with this portion of his business; Occasionally he made up a lunch for customers who desire to take-the lunch away for consumption off the premises. Undoubtedly, he was carrying on as part of business tho business of a restaurant or refreshment room. It was also admitted that the girls mentioned in- the information were waitresses employed in the dining-room and that they had not received any half-holiday for the week referred to.

The questions" argued upon tho appeal were(l) Was that- portion of the defendant's establishment which ivas" used as. the public dining-room, a shop within the meaning of the Shops and' Offices Act, 1904, and its. amendments? (2) Were .the waitresses omploycd in the public dining-room shop assistants within the meaning of (3) As tho defendant combined with' lus business of a restaurant a private hotel, did tho provisions of section 15 of the Act exempt him from the operation of the' Act? In tho appeal, Aldridge v. Fairway and Jones, the Court had held that a restaurant or refreshment room was a shop within the provisions of section 4 of the Shops : and Offices <Act,j 190-1. Discussing the first point raised by counsel for tho appellant, viz., that, as his client kept a private hotel, he was exempted from section 15; His Honour said that, in his opinion, the' term hotelkeeper meant a licensed publican. The keeper of a restaurant or a restaurant combined with a lodging house wa§ not in the same posi-r tion jis an innkeeper. While he might,.under cortain circumstances, be liable at common law to somo of the incidents attaching to an innkeeper's business, ho did not come under tho same statutory liability or regulations as a licensed publican or hotelkeeper, and he was, generally speaking, under no obligation to serve meals or provido accommodation.

Tho other argument submitted in the support of the appear was, His Honour said, that as appellant combined with his business of restaurant or refreshment room keeper the business, of a privato lodginghouse keeper lie was outside the provisions of section 15> and was not, therefore, bound to givo the waitresses employed in his public dining-room any half-holiday. The Court was of opinion that the appellant was within the provisions, of tho section. A part of his business was tho keeping of a refreshment room. He did not carry on in combination with that refreshment room any other business which was within the trades restricted by tho Act. Therefore, so far as, section 15 was concorned and so far as the Arft was concerned he carried on exclusively the business of a refreshment room keeper. If any ono of the businesses ineutioned in that_ section wore' carried on exclusively, or combined only with ono or otlior of- tho businesses also mentioned in tho section, then the employer, was given the privilogo of nominating any ono' afternoon in the week for tho purpose of giving any ono. or moro of his assistants a\ half-holiday,' so long as in tho week~all tho assistants had, a half-holiday, although, not oil the,same day, and ho was entitled to keep his establishment open. But for tho special provisions of tho Act of 1904 and tho Amendment Act-j 1905, the half-holiday must have been given on a fixed day and the place would have to have bcoli closed on that day. To read the section as counsel "asked would result in this, that a fishmonger, n fruiterer, a confcctionor, or a baker could, by taking in lodgers, oscape from the liability to give his shop assistants a-half-holiday at all. The object of tho Statute was to givo, each, assistant ill. all tho excepted trades a half-holiday on some day in the weok optional to tho emnloyor, but to. take away that privilege, if lie combined with tho oxceptcd business some other business within the provisions :.of section 4 and outside the exceptions of section 15. It was not to givo the employer power to destroy the assistants' right to a half-holiday onco a week, by combining somo business not within the Act'with a business which was within the Act.

As the appellant carried on business of a refreshment room keener ho was liable to give each of those assistants who wero employed in that branch of his business a halfholiday on such dav in the*, case of each assistant in each weok as tho appellant might think fit. The, appeal would, therefore, ho dismissed and tlib conviction affirmed. Appellant must pay respondent £5 ss. costs,oh the appeal. '• ' . Mr. Herdman appeared for tho appellant, and Mr. Stout for the respondent.

PAHIATUA HORSE-STEALING CASE.

SENTENCED POSTPONED.

Boforo Mr. Justice Button yesterday morning, George McDonald, who had pleaded guilty at I'ahiatua to tho theft of a horse, saddle, and bridle, was set forward. Mr. Buddie asked that prisoner bo admitted to probation. McDonald had, ho said, been working,for a man named Cleery, who lent liirn the horse to go to Pahiatua.to meet somo men who were to assist him at bushfelling. Tho men did not turn up, and McDonald commenced drinking.. Subsequently, lie rode on to Woodville, but the! men were not there, and he drank so heavily that ho was brought beforo tho Court. Whilst he was under the influence of liquor h<3' sold the horse, saddle, and bridle. When ho came to his senses, and realised what he had dono, ho'arranged with a young man to despatch a telegram to his employer about tho matter. Counsel asked that prisoner should be admitted to probation, notwithstanding tho fact that he had been convicted for drunkenness.

His Honour said he did not think the Legislature had intended that a conviction for drunkenness or, say, a conviction for a breach of a bye-law should bo a bar to the} granting of; probation. Liko Nelson had dono oil a memorable occasion, ho would look at tho conviction with tho eve out of which he could not see.

/T i (continuing) said that prisoner would take out a prohibition order. When the caso was before tho magistrate McDonald's former employer hnd intimated that ho would take him back, and prisoner was anxious to resume work. ■ His Honour: Tho writing on this document does not appear to me to be that of a man* who afterwards had no recollection of what he had done.

Mr. Buddie: I .have seen writing equally as- good by drunken' men. ?'i M? no " r P°' n^et ' °"t' that the saddlo and bndlo did not belong to prisoner's employer: i Nf' sa 'd that the horse, saddle, and bridle were now in the possession of their rightful owners. "• Myers (Crown Prosecutor) informed the Court that lie had nothing to say. Honour said ho would defer judgment until this morning, so as to enable him to' further consider tho matter. IN CHAMBERS. Mr. Justice Cooper Jicld a sitting in Chambers yesterday morning. Probate was granted of tho wills of Eliza Marsh, Jno. Craig, Sophio Anderson, Michael Conners, Ann Eliza Jones, Patrick M'Gowan, and Ellen Holnor Waters. , , Letters of administration were granted in respect of tho estates of tho following deceased persons Margaret Mary Sangster, Jno. Keogh, Bridgot Voysey, Alex. Gray,'and Hilda -Winifred Pearco.

With reference to a potition for leavo to sell real property belonging to tflo estato of William Oldfield (decoased), an order was made postponing the salo. A motion to sottlo a decree in the case of Wood v. Joyce was held over until next sitting day. Monday, November 18, at .10.30 a.m., was fixod as "tho date for the public examination of Carlylo Sydney Froo, a bankrupt. A petition for leave to borrow on -real property belonging to the estate of Hcnriotte Saffe ([decoased) was held over until tho consent or-the benoficiaries had been obtained. A motion for les.ve. to Borve outside the

Dominion, a divorce writ and .'petition 'in the caso Muir v. Muir . was. granted;;.. ''' ' Argument was heard in respect , of ..an application to- extend a caveat. Hakaraia Te Whena, it would appear,, lodged a caveat in or about July last against any dealings"'with; certain lands in tho neighbourhood.of OtakiJ tho title of which is in the. name; of Mrs. Hanriah Bevan, a half caste. '. Recently a transfer of a portion was lodged for registration, .and it becamo necossary for Te Whena to take proceedings to prevent; his' caveat" from.lapsing. - Ho accordingly issued' a summons, for the purpose of extending the caveat in order to enable him to. tike steps'to-set aside the. certificate of title. The following objections were raised by counsel(l) That the. summons did not comply with ; the Supreme Court rules in noi stating the grounds upon which the application was made; (2) that no interpretation in Maori of tho summons was sorved upon -Mrs'.- Bevan, as ■ required by the Supremo Court rules;..(3) that the Court could not grant anj;. assistance to To Whena, as lib had'not,obtained any Order-in-Council, as.required by the Title to Land' Protection Act,, 1902; and'(4) that, in any event, on tho merits, Te Whena'was not entitled to any relief. His Honour temporarily, oxtended-the caveat in order- to' enable him to consider tho! questions.raised. .''Judgment on the points raised would, he.said,; be given' on Friday. Mr. F. 6. • Bolt'oii' appeared*'for ;To Whena, and Mr,.Myers fof'Mrs. Bevan.

IN BANCO,

QUESTIONS 1 UNDER' A WILL,

Argument in respect of a number of questions arising under.the '.will: of Eliza Herbert Gaisford, late of Oriiigi, hear Daiinevirke, was heard by iMrl Justice: Cooper yesterday morning. . ' The questions were ,rais'e3.' :by'the trustee for the" opinion of the 'Court, and\'are : as follows:— '

(1) Ought the plaintiff; asjexecutor to pay to Henry Gaisford (husband'of" deceased), wile is the guardian of. the .infants,;" John Gaisford and Edward Claude Gaisford, the whole or any (and, it any J,'what) proportion of the amount, of the respective legacies bequeathed to the said infants under' the will? ;>r» •,,'

(2) Does the provision- contained , in the will of the deceased expressing a desire arid request that tile defendants, Edward Claude Gaisford, John Basil Gaisford,-.and- Henry Russell Gaisford should respectively pay to the defendant, Muriel Mnry. Helen Gaisford, the annuities of £200, £100, • and, £100 respectively during her life, create a : trust in favour of Muriel M. H. Gaisford ? , If so, upon which legacies awl iijr -what manner should such annuities bo I .charged-or secured?

(3) Did the handing;,over of. a.; suni of£sooo by the testatrix-during her ,lifetime and before the'date of her making the will to the plaintiff with instructions:, to purchase therewith a property :for. the- defendant, Henry Herbert Russell Gaisford,'anlount' to an absolute gift to Henry Ri- Gaisford ? . If. so, is such gift- subject -to any conditions or trusts, and, if any,; what -conditions dr. trusts? If'not a gift, does; the said.sum of £5000 form part of tho: estate'of--the- testa?trix?

; (1) Was tho .appointment expressed-rto.be made by the testatrix Pursuant to the-iprb-visions of the will of; John i'Eurvis Russell (deceased) a valid exercise-of "the power-of appointment vested in her-'-so- 1 far, -as;.' it purported to • create a 'life -interest'' for! 'the' defendant,.Henry Russell•Gaisfordj.,with-re? mainder to -the defendants;'Williim Herbert, .Gaisford and Muriel M.'.H. * Gaisford"? -

'Mr. Gray; appeared for- George Oriiie .Bayley, of Otamauri,- near ' Hastings ;'(the vexecutor and trustee of- the- \vill) . Myers'for Henry 'Russell Gaisford; of : Oringi',- ;sheep farmer; Mr. Shat-j)"for' Muriel'- Mary- Helen Gaisford arid William HerbertGaisford, v of Oriiigi, sheep farmer;'' and •.Mr.i-Tripii- for Jolni! Basil Gaisford. and-''Mward " Claude Gaisford (infants) and Henry ,G. Gaisford (husband of the deceased).' After hearing argument, His Honour. intimated that ho, would take time to consider his judgment.'

So far,, no icases'-have beon.set'*down. for hearing'to-day.'.: l - '. •