IMPORTANT TO PUBLICANS.

Tuapeka Times, Volume V, Issue 222, 2 May 1872, Page 6

IMPORTANT TO PUBLICANS.

IntheE.M. Court on Thursday Mr Strode gave judgment in the case of Baxter and Findlay v M 'lntyre. This .was a case which has been before the Conrt very frequently, and the particulars have been already published. Ihe question invo'ved was, whether the price of "nobblers" cou'd 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, 1 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 ©f opinion that the 1 2th section of the Act (24, George 11., chap. 40) commonly called "The Tippling Act," is "applicable to the circumstances of the Colony " (Enylish Laws Act, 1858) ; for (to quote the preamble of the Act) it was enacted to restrain " the immoderate drinking of spirituous liquors," and "topromote the health and morals ot the people ;" and, moreover, it has generally been h? ld to be so applicable from the foundation of the Colony to the present time, but as it i 3 one of those laws which the Provincial Legislature''has power to repeal, (Constitution ] Act, sec. 18), we are called on to determine j — Firstly. Whether the 52nd section of the Otago Licensing Ordinance of 1884, did repeal it ; and secondly, if it did, whether the repeal Ordinance of 1864 by 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guide us to a correct decision thus laid down in Broom's Legal Maxims, p. 28 : - " A more ancient Statute will not be repealed by a more modern one, unless the two Statutes are manifestly repugnant, in which latte** case, the earlier enactment v ill be impliedly modified or repealed, and implied repeals are not favored by the law, "The rule," (says Lord Hardwicke) "touch ing the repeal of laws, is, later laws abr. gate prior contrary laws, but subsequent Acts of Parliament in the affirmative giving new penalties, and instituting new m:-tbod3 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have either express words of repea or must be contrary to, or consistent with, the provisions of the law said to be repealed, or at least mention must be made of that law.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 inteution 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 though the Act is undoubtely negative, the section in the Ordinance is so wanting in grammar, that it may be said to be bo:h or neither. But we shall presently see that both enactments may stand together ; that they are not repugnant to, contrary to, nor inconsistent with each other. Ist. Suppose a spirituous liquor sold for any price less than ten 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. Snpp-'se 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 Xct and the Ordinance would coincide. They would have concurrent efficacy, ami either might be pl-a-led 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 snactmeuts have the same object, namely, to restrain the sale upon credit of liq uors in small quantity 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 the 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

dear 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 the Tippling Act, it would have been included in the scehedule, but no mention whatever is made of it throughout tha Ordinance. There is another objection to the implied repeal. The Tippling Act applies to all per.-ons, 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 Keen? ea issued under the Ordinance of 1864, it follows that the partial repeal would have lapsed, inasmuch as 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 Ordinance of 18C4. Secondly t" 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 th? 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* But 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, sec. 6, 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 ( >rdinance 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.