IMPORTANT TO PUBLICANS.

Evening Star, Issue 2865, 25 April 1872, Page 2

IMPORTANT TO PUBLICANS.

In the R.M. Court yesterday Mr Strode save judgment in the case of Baxter and Findlay v M ‘lntyre. This was a case which has been before the Court very frequently, and the particulars have been already published. The question involved was, whether the price of “ nobblers ” could be recovered. Mr Watt and Mr Strode were on the Bench, and the latter now gave judgment as follows ;

When I granted'a rehearing of this case. I stated my opinion to be in favor of Mr Stout’s contention; but having, since the argument of counsel at the re hearing, gone more fully and carefully into the whole matter, I have seen fit to modify the opinion I then expressed. We are both of opinion that the 12th section of the Act (24, George 11., chap. 40) commonly called “The Tippling Act,” is “applicable to the circumstances of the Colony ” (English Laws Act, 1858); for (to quote the preamble of the Act) it was enacted to restrain ‘ ‘ the immoderate drinking of spirituous liquors,’ and “to promote the health and morals ot the people and, moreover, it has generally been held to be so applicable from the foundation of the Colony to the present time, but as it is one of those laws which the Provincial Legislature has power to repeal, (Constitution Act, sec. 18), we are called on to determine —Firstly. Whether the s'2nd section of the Otago Licensing Ordinance of 1864, did repeal it; and secondly, if it did, whether the repeal Ordinance of 1864 hy the Licensing Ordinance. 1865, revived it. We find the rules) which should guide us to a correct decision thus laid down in Broom’s Legal Maxims, p. 28 A more ancient Statute will not be repealed by a more modern one, unless the two Statutes are manifestly repugnant, in which latte*" case, the earlier enactment v ill be impliedly modified or repealed, and implied repeals are not favored by the law. “Thernle,” (says Lord Hardwicke) “touch ing the repeal of laws, is, letter laws abr (/ate prior contrary laws, but subsequent Acts of Parliament in the affirmative giving new penalties, and instituting new methods of proceeding, do not (necessarily) repeal former penalties and methods of proceeding ordained by preceding Acts, without negative words. In order to repeal an existing enactment, a Statute must have either express words of repeal or must be contrary to, or consistent with, the provisions of the law said to be repealed, or at least mention must be made of that law. showing an intention of the framers of the latter Act of Parliament to repeal the former. Where both Acts are merely affirmative, and the substance such that both may stand together, the latter does not repeal the former, but they shall both have a concurrent efficacy. ” We may further assume the same of the converse ; that is, when both Acts are negative. But this will not help us, for thou ,hj the Act is undoubtely negative, tbc section in the Ordinance is so wanting in grammar, that it may be said to be both or neither. But we shall presently see that both enactments may stand together; that they arc not repugnant to, contrary to, nor inconsistent with each other.

Ist. Suppose a spirituous liquor sold for auy price less than tea shillings a gallon, say nine shillings, and that two gallons be sold on credit at one time, the requirements of the Ordinance would be satisfied, but because of the Act the seller would be unable to recover his debt, as the amount would be under twenty shillings. In such a case the Act would go beyond the Ordinance, but in the same direction, and in a line parallel to it.

2nd. Suppose the price to be above ten shillings, and let a gallon and a half be sold at, say, fifteen shillings, the Tippling Act would be complied with, but the sale would be illegal under the Ordinance. In this case the reverse occurs—the Ordinance goes beyond the Act; still they both go in the same direction and in parallel lines.

There remains but one other case to be supposed—that in which the price is ten shillings exactly : in every such case, the Act and the Ordinance would coincide. They would have concurrent efficacy, and either might be pleaded in answer to an action. It has been argued that the Act was impliedly repealed, because the Ordinance not only, like the Act, barred the recovery of the debt, but also declared the sale illegal. We cannot concur with the argument, for both enactments have the same object, namely, to restrain the sale upon credit of liquors in small quantiti s; the difference being that one measures the desirable minimum by its value, the other measures it by its cubical contents. And thus, though they would generally coincide in their action, each would in certain cases operate beyond the scope of the other. But tire Ordinance would not in all cases cover the provisions of the Act, and it can scarcely be contended that the Act was repealed in respect of those cases only in which the price of the liquor was ten shillings or more the gallon. With respect to the intent of the Legislature, it is clear that the framer of the Ordinance of 1864 had his attention directed to the prior legislation upon the subject, for three Ordinances of the Legislative Council of New Zealand and three Ordinances of the Provincial Council of Otago are specifically repealed, and it is fair to conclude that if there had been any intent to repeal tlie Tippling Act, it would have been included in the scehedule, but no mention whatever is made of it throughout the Ordinance. There is another objection to the implied repeal. The r l ippling Act applies to all persons, including holders of general, packet, and auctioneers’ licenses ; but the Ordinance in the section in question dealt only with the holders of general licenses, and with no other persons, and, therefore, if the contention of the repeal of the Act were right, it would not be a repeal with respect to any persons other than the holders of general licenses issued under the Ordinance of 1864 ; so, as there are now no holders of general licenses issued under the Ordinance of 1864, it follows that the partial repeal would Lave lapsed, inasmuch ag it has nobody and nothing now to act upon. For, it could not be held that a general license, issued under one enactment, was the same as a general license issued under another enactment, even were they not materially different. For the foregoing reasons we are of opinion—Firstly : That the 12th section of the Tippling Act was not in any wise repealed by the Licensing Opdfnance of 1864, Secondly ; If it were in anywise repealed, the repeal affected only the holders of general licenses under that Ordinance, and their customers as such. Thirdly : There being, now subsisting, no general licenses issued under the Orninance of 1864, there are now no persons exempt from the operation of the Act. Such being our decision, it is not necessary we should answer the question whether the Tippling Act, had it been repealed by the Ordinance of 1864, would have been revived by the repeal of that Ordinance' Bat since the question has been raised, and we have had to consider it, we may say—had our decision with respect to the first question been the other way—we should have said that the Act had not been revived by the repeal of the repealing Ordinance ; not, however, by reason of any operation of the Otago Interpretation Ordinance, 1866, see. C, for its operation was prospective, and it was not

in force when the Ordinance of 1864 was repealed, but by reason of the operation of the Interpretation Ordinance of the Legislative Council of New Zealand, passed in the year 1851. Judgment will therefore be, as in the first hearing, for the plaintiff, L 5 9s Bd, amount paid into Court.