Poverty Bay Standard. Published Every Wednesday & Saturday SATURDAY, FEBRUARY 5, 1881.

Poverty Bay Standard, Volume IX, Issue 915, 5 February 1881, Page 3

Poverty Bay Standard.

Published Every Wednesday & Saturday SATURDAY, FEBRUARY 5, 1881.

“We shall sell to no man Justice or Right; “We shall deny to no man Justice or Right; “ We shall defer to no man Justice or Right."

The operation of the Tobacco Act of 1879, has demonstrated with what undue, severity our laws visit the people. A case has recently arisen in Wellington which has required the machinery of the Supreme Court to be put in motion, in order to show how mercilessly the Government require the full pound of flesh in satisfaction for breaches of the law, however trivial they may be. It appears that in December last, as reported in the New Zealand Times, Mr. Charles Martin, then proprietor of the Albion Hotel, was charged with having in his possession seven boxes of cigars, not stamped as required by “The Tobacco Act, 1879.” He was duly prosecuted for this offence, and the two Justices who heard the case decided that the charge was proven. But it was clearly established in the evidence adduced that Mr. Mabtin had bought the cigars as duty paid, from Mr. W. R. Waters ; that there had been no intention whatever on the part of either seller or buyer to defraud the revenue; and they were ignorant of the provisions of the Act, with reference to the necessity of the Customs brand being placed on all manufactured tobacco or cigars for sale and use —provisions which do not appear to have been published for the information of the public. Under these circumstances, the Justices did not themselves impose any fine, but suggested that as the de-, fendant had unwittingly committed merely a technical breach of the Act, a nominal penalty should be inflicted by the Government. At this point the trouble began. Counsel for the Crown declared that, according to the Act, the Justices must inflict the full penalty of £lOO, leaving to the Government the option of reducing it. The Justices, however, stoutly declared that they were not going to fine a man a sum of £lOO merely because he had £2 worth of cigars in his possession, on which duty had been paid, but which did not happen to have the Customs mark on them. The end of the business for the time was, that the Justices declared that they had found the case proved so far as the possession of the cigars was concerned, and that a breach of the Act had been committed, but that the question of fixing the amount of the penalty was one for the Government to decide. The case was then left in abeyance for a few weeks, but on Wednesday it was brought up in the Supreme Court, when an application was made for a mandamus to compel the Justices to give a decision, and inflict the penalty which the Crown demanded should be inflicted. Again, ML Hutchison, one of the Justices, protested most strenuously against being forced to give a decision which involved a grievous wrong. The Judges, however, told him that the Justices must act according to law whatever injustice was involved. The Judges were inexorable in their view, that if the law appointed a penalty of £lOO, the Justices must award it, leaving the Government, if they chbse, to reduce the amount afterWards. The mandamus was, therefore, granted and made absolute, so that Mr. Hutchison and Dr. Harding are to be compelled to do an act which they protest is unjust, tyrannical, and wrong in the highest degree.

While in a strict legal sense their Honors may possibly be right, and the Justices wrong, yet there is. an amount of injustice involved in the case, which requires to. be clearly placed before the public, t The clauses of the Tobacco Act, 1879,.relied upon by the prosecution in this case, are in effect as follows Clause 21 provides—“ Every package of tobacco imported into New Zealand shall, before being delivered from any place appointed for the examination of goods, or atty bonded warehouse, and after the duty has been paid there-

on, be stamped dr marked by an officer of Customs, in such manner as the regulations provide.” Clause 23 provides—“ Every person who, after Ist January, 1880, shall offer for sale, or have, in his'possession any manufactured tobacco'.which has not been stamped or marked in accordance with this Act, shall, for each sudh Offence, forfeit either treble the value of such tobacco, including the duty payable thereon, or a sum of £lOO, at the election of the Commissioner.”

That is the law. Let us see in what manner the Commissioner of Customs aiidithe Law Officer of the Crown has tried to make it an instrument of tyranny, oppresssion, and injustice. In a case where a man was innocently in possession of duty paid cigars of the value of £2, the Crown insisted upon the Justices imposing the full penalty of £lOO, giving some vague assurance that the fine might be reduced. It was never contemplated by the framers of the Act that in a case like that of Mr. Martin’s, in which the revenue had not been defrauded at all, anything more than a nominal penalty should be inflicted. This fine of £lOO is only intended to apply in the case of offences on a large scale, in which there is a clearly proved fraud inflicted upon the revenue. Indeed, the words of the Act are absolutely explicit in their directions as to the principle upon which the amount of the penalty should be based. The Act says: “ Fine the offender a sum three times the value of the tobacco, including the duty, seized.” In Mr Martin’s case, assuming the value of the cigars to be £2, the utmost extent of the fine inflicted should be about £7. Why, then, should the Commissioner and the counsel for the Crown have hectored and threatened the Justices to get them to make out a conviction imposing a fine of £100? Still further, why should they invoke the ponderous and costly machinery of the Supreme Court to compel those Justices to do an act which their consciences and natural sense of justice revolted against? We decidedly think that the two Justices deserve the highest, credit for the manly and independent stand which they made against inflicting a penalty enormously disproportionate to a merely nominal offence innocently committed. There is something radically wrong about these penalty-inflicting clauses of the Act. Why should the Commissioner have it in his discretion to fine any man innocent of evil intent either £6 or £lOO, just as his caprice may dictate ? Why should not the Justices, who try the case and hear the evidence, have the option, within certain limits, of fixing the amount of the penalty? Some glimmering of this view appeared to have dawned upon the mind of the Chief Justice when he said “that it possibly might have been some want of consideration on the part of the Legislature, this leaving the option of fixing the amount of the fine, to the Executive rather than to the Justices.” Decidedly the Commissioner possesses far too much arbitrary power under the Act, which will require to be modified in the clauses referred. to during next session of Parliament. This Martin case will serve a good purpose, if it only shows the injustice and absurdity of leaving to a permanent officer of the Crown the option of saying whether an offender should be fined £6 or £lOO, or, for that matter, £1 or £lOO, because the value of the cigars seized might, in any other case, be considerably less than £2. Another point is that counsel for the Crown demanded that Mr. Hutchison and Dr. Harding should pay costs for doing what they thought to be overwhelmingly right, and resisting what they regarded as being overwhelmingly wrong. Mr. Hutchison bluntly told the judge “that he would on no account pay costs,” and we hardly think that the Crown will venture to make any attempt to enforce such payment. In truth, Ihe Crown and the Commissioners and the authorities generally had better drop this Martin case altogether. The man was perfectly innocent of any intention to defraud the revenue, and his case is, therefore, one in which it would be advisable that either a nominal penalty or no penalty whatever should be imposed.