The Early Closing Tangle.

Taranaki Daily News, Volume XLVII, Issue 787, 1 April 1905, Page 2

The Early Closing Tangle.

ARGUMENT BEFORE TiUfi Al'l'EAl, COl.'RT<

(Per Press Association.) WELLINGTON. March 81 " The long-looked-for test case searing on the early closing provision*! of "The Shops and Offices Act, 1904," the Inspector of Pectoris* appellant*, and Edwin ArUwrlCl " . ner, fancy gootto dtaler, of Newtown respondent, came this toon. A.l XZVa m FuU *"»* <SeS* All the judge* were on the bench. In this case respondent was charred before Dr. a. MeArUwr, S.lt.. with having on Nov. 19 last kept open his shop until 10 p.m., con. • trary to the Act. It wai admitted that he kept open Ida *„« anUl 10 p.m., and that for the purposes of the Information "it the shonta situated within the combined dtotriet of Wellington, duly constituted nnder the said Act," it ought, CndM the provisions of the Act, to farm been closed at 9. p.m. on Nov. |» The essential condition lies to tfa* quoted words, and the MagiatraU found that this element was missltsK, that is Uiut there was no eoeahseied district of Wellington attfcadato of the alleged offence. He therefor* dismissed the case. !Against this decision the Inspector of Factories appeals. y

Dr. Fmdlay appear* tar the ap* ptllnnt inspector, and Mr Slferrett for respondent. Appellant hold* tnut the Magistrate erred In deckling that the word* of section « ot the Shops and Office* Act ("Any shopkeeper in the combined dietrfcts of Auckland, Wellington Christchurch, and Dunedin," ete.> do not per se create a "combined dla. trict," and that; he erred In deciding) that no offence to created until the combined districts are gazetted' under subjection 8 of section 8 of the Act. The Magistrate held tbal the words of section S did not treat* "combined districts," that subsection 2 of section 8 was merely a definition of and' not a creation of a "combined district," and that m "combined district" dU not exist* 4 •ill gazettea", and notice of It been given in the terms of subsection 8 of section 8 (which had not been done when the case was brought). summed up the Issue In ttree questions, to which hjs ease is that an affirmative answer ihoutd be given : (1) Docs /The Shops and Offices Act, 1904," create per se « combined districts ? <2) Does II cre°V e , S 01 !. 80 . a district of which the City of Wellington to eon. •rtUuted a part ? (8) Js the laat mentioned coujWned district one of the combined district* referred to in section 8 1 The aim of the Act «ra* to create three classes of district*- '■ separate districts, ordinary com. btned districts, and apeclal combined districts. -The Shops and Soon Assistants Act, 1894" (Tho Hh*n* and Offices Act" of 1904 was to <*>» ttre substitution for the machlnew of that Act) provided in section § lor what was a combined district In , fart, though' it was not called sueh,'-f which had t«o same purposes as the ordinary combined district Iq tha 1904 Act. In the 1894 Act then was no provision for the gamtting of these districts. They arose and were created by virtue of the Act itself. For over tea jmnr this combination existed without the aid of gazetting to specify what combination it was. The 1894 Act contained a provision in the same word* ■■subsection 2of section 8 of the 1904 Act, with the exception of too word "combined.". Oaaettmg under aubsoction 8 of section 8 did not kt any way creatfc toe "combined dl*> ' fc-lcts," but wa* put In for merely evidentiary purposes. U was m*. sect on 2 of section 8 that created them, end it created per se a coavr bined district of which U» oh> of ' Wellington is a constitutional w**. The only question rctmtMmr nm whether section 8 sufficiently refer* red to the "combined district*" created in subsection 2 of aeothm 8. Mr Skerrett said the statute *** a penal one, and affected the liberty of the subject. It was the Court?*. duty, In-fore inflicting a penalty, to Ami -that it "was Imposed by expreaa lu*" 1 , 8, J" 1 * no **y fwpMcatioß. tt the Legislature chose to- create at penal offence, it must ascertain am) define beyond doubt all the Constituents of that offence. The Ant S^.f 0 " no "•°»Wned district" of . Wellington under section 8, and the Court need not go further. If ROM it would have to substitute lor "ifi in tho opening words of awcttaa a the words "which include the ojUaa of." Words were not to be Tt# " Into a penal statute. It xre» nan speculation as to •whether the Ltgnv lature meant In section 8 a ""combined district" limited to the city or J! c !!, lmilon or tartwUnff the city o# Wellington. Section 21 had aoth-. ing to do with any district cocaUtuted under the Act. The Xante- ~3 tsate had said subsection 2 bfisafrtion 8 was a mere dcuKitioa. Mr Justice Ohapma* conaManii the subsection was framed to meat eases of chains of boroughs round the metropolitan cltte*. as at Dunedin.

The Chief Juatic* told the for appellant concernta* aubaecUon: < a or section 8 wai that bo mow could bo put in tho Gazette notiea* than was In th* Act itaatf; <thera» fore it was suggested that mbM* ' sectsc-n a w«a evidential, Pr, Fjadlay, replying, ■»« • creatlvo subsection placed Wellington te a group :no other place could bt (ound for it. The word "Wellington" was used in the broad netuM of a metropolis embracing He quoted Hardcastlo to the . cfleefc that 'the difference between the strict and liberal interpretation hut almost disappeared, and that at*, tutes, penal or not, are conatnief substantially according to the MUM rules, that verbal nicety shall "w& exonerate parties clearly within their, * scope.

Kventually tho Court reaern*) JiWgwonl.