NEW ZEALAND WINE.

Dominion, Volume 3, Issue 849, 22 June 1910, Page 10

NEW ZEALAND WINE.

MUST NOT BE SOLD IN DRY AREAS. IMPORTANT JUDGMENT. THE TARARTJ'A VINEYARDS CASE. The Chief Justice (Sir Robert Stout) delivered yesterday an important judgment involving an interpretation of tho Licensing Act as to whether or not it is legal to sell New Zealand-made wine in no-license districts. Tho caso originated in tho Magistrate's Court at Mastorton, whero William George Lamb; a grower of grapes, and wino manufacturer, had been proceeded against for selling quantities of his wine in tho no-license district of Mastorton. The prosecution was instituted at his own request, in order that a ruling of tho Court might be obtained. The magistrate, Mr. C. C. Graham, dismissed the information, and the Crown appealed from this decision. At the hearing before the Chief Justice last Thursday, Mr. J. W. Salmond, Solicitor-General, with him Mr. H. H. Ostler, appeared.on behalf of Nathaniel Miller, sergeant of police, supporting tho appeal, and Mr. C. P. Skorrett, K.C., with him Mr. F. P. Kelly, appeared for Lamb, tho respondent. How Stands the Act 7 Tho Chief Justice, in his judgment yesterday, said that the appeal in this caso .raised an important question under the Licensing Act, 1908. This statute was a consolidation Act, but as had been pointed out in various decisions in this Court and in tho Court of Appeal, the Court had to deal with tho Act as it now stood and was not concerned to review previous legislation. It would be a waste of time to institute comparison with the former Acts. "How then," .continued his Honour, "stands tho Licensing Act, 19081; "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 tho licensing of brewers. This is provided for in the Beer Duty Act,, 191JS,- Section 6 of that statute authorising tho 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 tho interpretation of Section 146 of the Licensing Act, 1908, is very great. "The Licensing Act starts in Section 3 .with defining 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 (b) to any apothecary or chemist or druggist administering or soiling any spirituous, distilled or fermented liquors for medicinal purposes: (c) —and this is the sub-section, 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, tho produce of grapes, apples, pears, or other fruits respectively grown in New Zealand, and not to bo consumed on tho promises; nor (d) to any licensed auctioneer selling liquor at public auctions of not loss 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 tho Cook Islands Government Act.' "The words at the commencement of this section aro: Except as 'expressly provided in this Act.'. Tho use of such words necessarily implies l that there is something, in 1 the Act dealing with theso various exceptions. Can the Act bo read so as to give, effect to tho exceptions and also to show that these words aro not necessary and aro ■ useless ?- That' will no doubt depond on how tho word 'expressly'! is construed." Object of Certain Portions of the Act. After quoting cases bearing on this point, the Chief Justice continued: — ''Suppose Clause 3 and Sections 146 and 147 were in two separate statutes both affirmative, tho one declaring that Now Zealand wine could be sold, and tho other afterwards declaring that, in certain districts, no wine could bo sold, it is, I think, clear that tho special Act dealing with a particular place would over-rule the general enactment. Now Sections 146 and 147 were meant to do something more than provide for tho non-issue of licenses. If that only was their object, their enactment was tmnecessary, for Section 24, subsection (c) made ample provision for that nonissue of licenses. "What then was tho 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 11 of subsection (a), Section 146, aimed? It-cannot bo at people casually licensed, for these people could not sell. No licenses could bo issued as provided in subsection (c) of Section 24; and Section 185, which provides that "no person shall sell or expose for sale," etc., unless duly licensed, would cover all those who ventured to sell save the excepted persons mentioned in Section 3." "Special and Express Provisions." His Honour next pointed out that tho whole framework of the statute showed that the special express provisions ill Section 140 were to deal with persons other than those usually licensed to sell liquor, and, if so, those would bo thci persons .exempted in Clauso 3. If not, we would have this anomaly that auctioneers could sell liquor by auction in a No-License district, whilst hotelkoepors could not, and all the elaborate provisions as to sending liquor into a No-License district would be of no avail. That the Legislature, meant these as special and express provisions was apparent from more clauses than one in Sections 146 and 147. The enacting of' tho provisions regarding brewers and chemists were 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 over-rulo the English decisions quoted as to the meaning of "expressly," tho Legislature was right in its assumption. A referenco to the provisions contained ill tho Legislature Act, 1008, Subsection (a) of Section 271, showed that it was the intention of tho Legislature that a No-License district should bo placed in a different position from other districts. 'Jliore wero also sections in the Licensing Act which, in his opinion, expressly provided for a slate of things at variance with tho privileges givon to certain persons in Section 3. Crown's Appeal Allowed. "In my opinion," continued his Honour, "thero is ample evidence that this privilege to wine-sellers was not to exist in a No-License district, and neithei wine-sellers nor auctioneers call sell alcoholic liquors in a No-Licwiso district. [I was asked: Does Section 195 also over-rule Section 3? Tho answer is, I think, obvious, that Hint Section is dealing with persons who can be licensed—"No persons not (Inly licensed shall sell," etc. A wine-seller is not a person who must apply for a license, for Section 3 exempts him from tho need of being licensed. I may add that, if it wero necessary to refer to tho history of licensing legislation—but I do not think it is, nor do I think it wiso for Courts to spend their time in discussing tho law that was—the reference would not militate against the

conclusions I have arrived at, but would favour them." The appeal was allowed with seven guineas costs, and tho magistrate was directed to convict. Is Thero Power to Appeal? Mr. Skorrett asked for leave to appeal. ■ Tho Chief Justice said ho did not think thero was power to appeal in such a case. Mr. Salmond also questioned whether there was power to appeal. His Honour intimated that he would hear counsel on the question this morning.