SUPREME COURT.—IN BANCO.

Evening Star, Volume VII, Issue 1937, 21 July 1869, Page 2

SUPREME COURT.—IN BANCO.

This Day, (Before His Honor Mr Justice Ward.) MOTION TO QU-'SH A CONVICTION. Regina v. Marshall ani> another. — Mr Macassey moved for a rale nisi, calling upon Mr Fulton, 11. M., to show cause whv the conviction in this case should not be quashed. He said that the only question t > be decided Avas whether or not the Otago Licensing Ordinance was effectually repealed by the Dis 1 illation \ct of last session. The 125 th section of the latter Act referred to certain forms and schedules, and provide ! for the registration of brewers. After registration, and not until then, a license was issued. I hen came the question,— what purposes was the license intended to serve? The eighth schedule contained the form of registration ; and the ninth contained the form of certificate. The second part of the tenth schedule, which authorise ! the person regidered to carry on the bus ness of brewer, or to sell in quantities of not less than two gallons beer, ale, porter, or wine, made in the Colony; and this schedule, he (Mr Macassey) contended, disposed of the question. ' The statute ■ onferred on a brewer who had paid his license —although the payment only amounted to Ll—the ri.vhfc to sell not less ihan two gallons. So far, he apprehended, the statute operated to repeal he Provin ial Ordinance That contention was free from the slightest doubt. The Judge enquired if the last-mentioned section had been pointed out to the Resident Magistrate. Mr Macassey replied that it had ; but the Magistrate failed to see it in the light that it had been submitted. The I3sth section r ’ad as follows : —Every wine and spirit merchant, and every brewer, who shall have so registered his name as aforesaid, shall pay to the chief inspector of distilleries, or other person appointed by the Commissioner of Customs, to receive the same annually, a fee of one pound, all which fees shall be payable on the first day in every year not being a Sunday, and such registration as hereinbefore mentioned shall not he deemed to bo compl 1 1 nnt'l such fee shall have been duly paid to the said Chief Inspector of Dist lleries, or other person as aforesaid, who shall thereupon grant to such person registered as aforesaid a license in the form set forth in the Tenth Schedule to this Act. . . . . . And any person carrying on the business of a wine and spirit merchant or brewer aforesaid without such license, or after such license has been cancelled and annulled, or who shall refuse to produce such license when demanded as aforesaid, shall be liable to a penalty of not less than ten pounds i.or more than fifty pounds; provided that nothing herein contained mil

relieve any wine or >pirit merchant from any fees imposed under the provisions of any Provincial Act or Ordinance for regulating the sale of spirits. ” The Judi'e asked if any mention was made in the Act with reference to the sale of spirituous liquors by retail. Mr Macassey said there was mention made in some places. The proviso in the 136 th section clearly did not apply to brewers. By the omisdon of brewers from that portion of the section it was the apparent intention of the Legislature to take into their own li : nds the licensing of brewers ; and s > far the provincial ordinance had bee i repealed. By the 134;h section it would be seen that the s lling of beer was clearly contemplated He nee i hardly refer to authorities to show that where an offence was created by statute imposing one penalty, and asubsequentstatutehadbeen passed not altering the offence, but creating a smaller penalty, the operation of the first Act was repealed. The legislature provided for the issuing of a license, on payment of a license fee. which was totally different from the other Act. Under the Provincial Act the fines could not exceed LSO ; under the Distillation Act the fine could not be less t-.an LlO. In reply to a remark by the Judge— Mr Macassey observed that there was nothing said in the Act about public-houses. He apprehended that by the 130 th section the Legislature intended to leave the power of governing and regulating public houses in the hands of Provincial Legislatures. 'I he second objection was that the conviction was joint, for what was virtually a separate offence. Owing to the ungrammatical way in which the Legislature had expressed itself on the 42ud clause, he thought that the only way to give effect to it was by holding that the offence was a sepa- ate one. The Judge observed that, according to the interpretation clause, the words men or persons were meant to read as several persons or one person.

Mr Macassey said that that might apply if only one had been spoken of. Man might be taken to be men, or person or persona ; but the Legislature had apparently used the word to signify unity rather than more. His Honor would observe that, in the pro* viso of the 130 th section, it was expressly declared, that any person, &c. The third objection was, that the Provincial Ordinance had not been sufficiently referred to in the conviction. It should have stated the statute of which the defendants had been guilty of a breach. He apprehended that the same rule as applied to civil cases would apply here. If the Court could not take judicial notice of Provincial ordinances in civil cases, there was no reason why it should depart from it in a quasi criminal case, but, on the contrary, the Court should in cases of a quasi criminal character impose a strict adherence to the rules of procedure. The rub' nisi was granted. Cunningham v. Ure.— His Honor ordered the defeuda t to pay the costs of demurrer herein. Mr Macassey appeared for the plaintiff, and Mr Barton for the defendant. Burton v. Ellis. —Mr Macassey stated the rule nisi here had been abandoned. White v. M'Kellar.—This matter was adjourned for a week,

Campb ll and Another v. Alves. —Mr Macassey, on behalf of the defendant, moved that the rule for a writ of prohibition herein be made absolute, without costs. He intimated that the summons had been withdrawn by' the plaintiff. As under the rules the application could net be made until the next sitting day after the return of the writ, the matter was adjourned until Monday. The Court then adjourned.