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entirely separate code of legislation from such Excise Acts, impose no limitations on the class Revenue or Excise Acts; and (3) the Licence of premises in which liquor may be sold by retail, Duty payable by grocers is referred to in aor sold at all. If, on the other hand, the phrase saving clause (now repealed by the Finance Act“ under excise licences ” is read as being a mere of 1910) in section 11. Apart from the in- saving clause, as indicated above, to preserve the cidental references to Excise Licences specifi- full effect of the Excise legislation in regard to the cally dealt with in this article, these are the sale of liquor, every part of the section receives only references in this lengthy Act to any a full and significant meaning. The section Excise matters. Moreover, the whole scope of then means that the Licensing Court must the Licensing Act gives no countenance to such judicially exercise a discretion as to how many a view. While offences against the Licensing and what kind of Certificates for sale by retail Act may indirectly involve forfeiture of an they will grant, and what conditions they will Excise Licence (see, for instance, sections 43, insert in these permits (the necessity of exer46, 53, and 100), there is no reference in the cising judicially this discretion has been affirmed whole Act (except the saving clause in section in a series of decisions) ; but they may not 65, quoted above) to any offence against any limit sales to those for consumption off the Revenue or Excise Act or any Excise Licence premises. Every such Certificate shall, ipso
. In the forms of Certificates themselves in the jure, permit sale on the premises (and there is Second Schedule to the Act) there is no reference nothing in the whole Act to prevent sale off the to "retail,” either as regards the sales allowed premises provided the seller holds a Certificate); or as regards the kind of Excise Licence which but this permission to sell is not to affect the is to be also taken out. Moreover, even if the necessity of taking out any Excise Licence Certificate-holder fails to take out any Excise which may be required for the particular Licence, that neither invalidates the permission class of business carried on in the premises. to trade given by the Certificate nor involves Having exercised this discretion they then have any punishment under the Licensing Acts. conferred on them, by a proviso at the end of The direction to obtain an Excise Licence is the section, another discretion, to be similarly included among the mere provisos or conditions l'exercised, as to the granting of Grocer's Certifiof the Certificate, failure to observe which does cates ; but in this instance they are not allowed not involve invalidity of the Certificate, but to permit consumption on the premises. The only the imposition of a penalty under section object of the somewhat clumsy form of the 53 (which may, in the discretion of the convict- section is thus to prevent the Licensing Court ing Court, include forfeiture of the Certificate confining sales to grocers' shops on the one as a punishment); but, owing to the terms of hand, or to sales for consumption off the section 53 (which will be discussed later) failure premises on the other. They must not so to take out an Excise Licence does not even limit the liquor trade, on the one hand; and, involve any punishment, under the Licensing on the other hand, their jurisdiction is unlimited Act. It is left to the Excise authorities to deal over all sales by retail in the popular sense of with by means of an Excise penalty (now the term that is, sales to the public for conunder section 50 of the Finance Act of 1920). sumption. This interpretation of the section In this connection, it is relevant to note is perfectly consistent, and in full harmony, with that in some of the earlier Excise Acts, now every other provision of the Act. repealed by the 1910 Finance Act, some of the Apart from section 11, there are only duties were expressed to be imposed in respect three other phrases in the Act which might of the possession of a Justices Certificate (see, suggest that retail,
retail,” as used throughout for instance, 6 Geo. IV. cap. 81, section 2 ; and the Act, means the
as in Excise 16 & 17 Vict. cap. 67, section 8), thus making the Licences instead of its ordinary everyday Excise Licence a charge on the Justices' Certifi- meaning. The first is in section 36, which cate, rather than making the Certificate a mere enacts: “No such certificate as aforesaid shall administrative step in the obtaining of an entitle any person to keep an inn and hotel, or Excise Licence.
public-house, or to obtain AN EXCISE LICENCE But a more formidable objection to this TOR SELLING EXCISEABLE LIQUORS, BY RETAIL, limiting interpretation of " by retail ” in section to be drunk or consumed in any other house or 11 is that it would render the whole clause premises than the house and premises specified meaningless. The section would then read as in such certificate.” Here it is clear that the giving the Justices' Licensing Court power to words“ by retail ” qualify the word “selling, grant Certificates permitting the holders to keep which again relates to the “ excise licence,” and inns and hotels and public houses of that class this suggests that it is only a Retailer's Excise within which Excise Licences permit the sale of Licence which & Certificate holder would ever liquor by retail for consumption on the premises. require to possess in order to get the full benefit Now, there is no such class. Excise Licences, or of his Certificate. The meaning and object of
this section, however, are clear. Without such places where the word “retail ” occurs in a provision the holder of a Justices' Certificate the Act, it is used to modify an expresfor one set of premises might be held entitled sion which might apply to either a Certificate under section 43 to obtain from the Inland or an Excise Licence, namely, licensed Revenue an Excise Licence for any other to sell (as in sections 57 and 72). This premises, and thus the Justices' control over might be taken to imply that it is an premises might be evaded. On the other Excise Licence which determines the meanhand, no Certificate is required (under the ing of “retail ” in both. This expression scheme for utilising the machinery of the “licensed ” occurs frequently in the Act; the Excise Department to assist in preventing context, however, invariably indicates that evasions of this Act, in Part II. of this Act) the expression includes“ certificated,” while it to entitle anyone to obtain an Excise Wholesale never clearly implies that it also includes Dealer's Licence, and so it became necessary "licensed by the Excise," and in every case to insert the words“ by retail ” into this clause where it refers to retail sale the context in order to avoid its being held to prevent the expressly limits the application of the provision issue of an Excise Wholesale Dealer's Licence in question to Certificate-holders as such. That it to a Certificate holder for any other premises does include “certificated” is made abundantly except those to which his Certificate applied. clear by section 72, which creates the “ Black The necessity for such provisions is in itself a List," where the expressions" person holding significant illustration of the complete inde-a certificate" and licensed
persons pendence of the two systems or codes (the clearly used to describe the same persons in Temperance code under the Licensing Acts and the same capacities. the Revenue code under the Revenue and Excise In any other cases where the word retail Acts), by indicating the difficulties involved in occurs in the Act it is unaccompanied by any
) the attempt to utilise the latter in aid of reference to Excise matters, except in Part II. the former. The second phrase referred to which makes the necessary modifications of the is of the same nature. It is in section 53 Excise code, on the one hand to prevent it where it is enacted that “ in case any person being used to assist evasions of the system of holding such certificate, AND HAVING ANY EXCISE Certificating under the Licensing Act, and on LICENCE FOR THE SALE OF EXCISEABLE LIQUORS, the other hand to utilise its machinery for the to him in that behalf granted, shall offend against more effective enforcement of that system. The any of the terms and conditions contained in such corollary of this is particularly significant, certificate,” he shall be liable to certain penalties. namely, that in no instance where the matter This might suggest that the Excise Licence and is referred to in the Act is there any indicathe Certificate are so completely wrapped up in tion that the Excise Licence required to be each other that the possession of both is neces- taken out by a Certificate-holder must be a sary to give the Certificate any effect, and that " Retailer's one, or of one denomination consequently the meaning of "retail ” for both rather than another, or that a Retailer's one will be identical. But the true interpretation will suffice. of that clause appears to be this: If he has no It appears clear, therefore, that there is no Excise Licence, he will be liable to an Excise clear indication that the meaning of "sale by penalty under the Revenue and Excise Acts, retail,” as used throughout the Licensing Act, and it is not intended by this section to duplicate is to suffer any arbitrary limitation by any the statutory enactments under which he may artificial or specialised interpretation, by referbe prosecuted for a mere breach of the things ence to Excise matters. On the other hand which may competently be made conditions of the whole scope of the Act, fortified by the the Certificate, one of which is the possession of legal presumptions noted at the outset, indicate an Excise Licence. Consequently the qualify- that the expression is to be given its ordinary ing words as to an Excise Licence had to be popular meaning of sale to the general public introduced in order to make it clear that it is for consumption. In so far as any more specific only when he holds an Excise Licence, and so indication is to be gleaned from the statute it is not liable to an Excise penalty for trading lies only, first, in the frequently repeated use of without one, that he is to be liable to the addi-the expression " for consumption," suggesting tional penalties specified in this section. If he that stress is to be laid rather on the purpose holds no Excise Licence, the Excise penalty of the purchase than on the quantity; and, for that will suffice. This clause, of course, second, the use of the expression“ premises only relates to breaches of the terms of a where a bona fide wholesale business in exciseCertificate and has no direct bearing on able liquors is carried on," occurring in section “trafficking " without one, under section 65.41 (c). If the expressions “wholesale ” and The third phrase occurs in connection with the retail ” refer only to quantities, as they do use of the word licensed.” In certain in an Excise Licence, there would be no meaning
in the words bona fide as applied to “whole- supports the view as to the prima facie meaning sale” business. There could be no question of of the expression “retail” sale” expressed in bona fides. If the quantities sold were in fact this article
that is, its ordinary meaning. In above the amounts held to be retail they Treacher & Co. Ltd. v. Treacher (1874, W.N. 4) would be “wholesale," and the business would the question was as to the interpretation of an be a 6 wholesale one.
The expression, there- agreement by a former employee not to trade fore, would appear to have reference to whether in wines, spirits, beer, etc., so far as the same the business is genuinely one with other traders may be considered retail. It was held (per in the ordinary course of trade, or is one with Bacon, Vice-Chancellor) that, As a general the consuming public. This interpretation rule,' wholesale merchants dealt only with receives added weight from the fact that the persons who bought to sell again, whilst í retail? expression quoted is made by that clause the merchants dealt with consumers.' The former criterion of whether or not bye-laws as to the employee sold to consumers, and therefore kind of vessel in which the liquor is to be sold by decree was given against him. grocers are to apply to the particular premises. On the whole matter, therefore, there appears If they answer that definition, the bye-laws do to be little doubt that a person who in Scotland not apply. The kind of containing-vessel does sells exciseable liquors direct to the consuming not matter in mere bona fide inter-trade trans- public without holding a Justices' Certificate is actions, and it would be unnecessarily vexatious committing the offence of “trafficking " under to impose such restrictions on a grocer carrying section 65 of the Licensing (Scotland) Act, 1903, on a wholesale business as well as a retail one. and that it would be no defence to a prosecution This is the only occasion where the word under that section that his sales were confined
wholesale occurs in the Act (apart from a to the quantities authorised in an Excise Wholereference to “excise wholesale licenses” in sale Dealer's Licence, whether he actually the rubric to section 46, in Part II. of the Act) | possessed such an Excise Licence or not. and it is presumably intended to mean the exact counterpart of “retail.
There has been no decision of the Court which affects this problem ; but there are two decisions
THE M.P. of the English Courts which must be noticed, as at first sight they appear to be relevant and The present would seem rather an opportune contrary to the opinion here expressed. In time for offering some observations on this the cases of Fairclough v. Roberts (1890, 24 functionary, who perhaps fills the most honoured Q.B.D. 350) and R. v. Jenkins (1891, 61 L.J.M.C. of all our elective offices. From Land's End 57) the question of the meaning of "sale by to remote Shetland the country has gone retail ” in the English Licensing Acts, 1872-74, through another General Election with all its arose; but section 74 of the 1872 Act defined anxieties and excitements, its triumphs and the term as “sale in such quantities as is disappointments. Reflecting on the earliest declared to be retail by any Acts relating to the methods when the King in effect said, " Select sale of intoxicating liquors,” and the Beerhouse your ablest men and send them to us that Act, 1834, defined sale by "retail” in the same we may consider together and devise what is
“ sense as is apparently the intention of the best in the interests of the State," and the Act which now regulates the matter quoad Witenagemote or Council of Wise Men was the Excise (viz. the Finance (1909-10) Act, constituted, one is indeed struck with the rude 1910). It was in respect of these definitions clamour and contentions of modern methods, that it was held in both cases that sales in and with the formidable statutes which have quantities above the Excise “retail ” limits been
limits been deemed essential to safeguard the were not retail sales under these English electorate against bribery, corruption, and Licensing Acts; but, of course, these decisions other enormities. The budding M.P. has, can afford no help in interpreting the Scottish at the very outset and before he attains the Licensing Act, which contains no such defini- coveted honour, to be on his guard against tion, apart from other specialities of the Scottish infringements of the law by himself personally Licensing system and law. It is significant, as well as by his agents, fines being the penalty however, that in one of these cases a judicial for some delinquencies, while the nullification opinion was expressed regretting the necessity of the elections is the terrible result in others. for so deciding, and that, had there been no Still there has been no lack of candidates ; for such definition in the English Licensing Acts, payment of members,” so loudly clamoured
retail ” would have meant in them the meaning for by the Chartists of 1840, was conceded in ascribed to it under the Licensing (Scotland) 1911, and it would be idle to suppose that the Act by this article. There is, however, one £400 a year is not a powerful incentive. Prior decision of the English Chancery Court which to 1911 there was, it is true, never any lack of
public-spirited men who were prepared to give tendency on the part of the Legislature (or their their services gratis, but the ñultiplication of Bill draughtsmen) to take a statute applicable candidates with diverse political views is no to England and engraft upon or into it provisions doubt partly accounted for by the pecuniary applicable to Scotland. The laws and customs inducement.
of the countries are in many respects dissimilar, In addition to the salary—which in these yet this is not always taken into account, and days is not to be despised—there is often, it the measures so issued are hybrid and cumberis believed, pecuniary value in the dignity some, and to Scots practitioners often puzzling attaching to the office. For Members of and obscure. The Rents Restriction Acts have Parliament are generally regarded as responsible only to be mentioned in this connection to prove men and their services are in request as directors the utter stupidity of the system. As laws are on company
boards. Members also have a made to be obeyed and not broken, they should certain freedom from arrest, the period extend-be framed so that he that runs may read” ing " for forty days after prorogation and forty and be enlightened. But far from that being days before the next appointed meeting, but the case, the authorities at headquarters themprorogations are so arranged as to ensure a selves apparently considered that something continuance of the privilege.” This does not more was needed than the bare promulgation extend to criminal or quasi-criminal offences. of those Acts as they issued an explanatory Members also are exempted from serving on abstract which happily was helpful. Further, juries. Altogether the appointment is a as shewing the necessity for more or less condesideratum in many respects.
tinuous exposition, attention has only to be Assuming that the candidate for parlia- called to the laudable efforts to clear up. mentary honours has been successful and has difficulties put forth by some of our daily kept clear of the many pitfalls which beset him newspapers. Some, indeed, have gone the through deliberate mishandling of electoral length of making a specialty of answering by machinery, or through inadvertence, and can a skilled writer all sorts of enquiries, conunwrite the magic letters after his name, the true drums even, arising out of these Restriction question is, How is he to conduct himself in Acts, so abstruse and 'unintelligible have these Parliament ? Not surely in the interest of been found. himself or his party, but rather as will best 2. The quality of perspicuity is sadly lacking further the true interests of his country. If in other recent statutes. Mention has only that ideal were striven to be realised, the State to be made of the annual statutes passed for and people would immeasurably benefit. Yet Revenue purposes to establish this proposition. one reads with mixed feelings how a famous One would have thought that those Acts, which writer referred to the Members of Parliament are to tax-I had nearly written oppress the of his day as “talking asses” and suggested public, would have been couched in clear and their being cleared out (as were the members pellucid language capable of being readily in Cromwell's time) and the House of Commons understood by the common people. Not a bit locked up. It was a drastic judgment, but it of it. They invariably run to many sections, contained a solemn truth that more honest and these again have sometimes a dozen subparliamentary work might have been accom- sections which are further split up into subplished had there been less speechifying. It ordinate heads, followed by provisos of the does not follow that because a member is a most varying and qualifying character, that a a
, fluent speaker-an orator even—he is of greater Solon or Solomon would be needed to expiscate service to his country than another less gifted, the sense which lies, or is supposed to lie, in the but who has more insight and discrimination. enactment. It is all most crude and vexatious,
, The Commons are our real legislators, but, in while everything ought to be plain and easily recent times, it is not clear that their work apprehended. has been free from blunders or otherwise 3. Then the practical results are so deplorable. unexceptionable.
It was long matter of jest that any clever The making of the country's laws is a crown- lawyer could drive a carriage and six through ing honour, but to the novice, who takes his any Act of Parliament, meaning that he could seat for the first time, it may not probably be twist it any way to suit his case. Far from permitted to assist much in the adjustment being a jest now, that pithy, if exaggerated, of statutes. But if he is tractable, experience saying has become an actuality, for no one will teach him. To the legal profession through- exactly knows what is intended by parts of out Scotland it has long been patent that a the Acts until these have been subjected to vicious system prevails in the preparation and judicial acumen and determination. Then the adjustment of Scottish Acts, and several points inevitable happens : judges differ and the dismay be briefly noted.
cussion 'rages from Court to Court, till at the 1. Of late years there has been an increasing | last it is seen that a remedial statute is needed
to rectify the initial blundering. Think of Press Gallery staff of the “Times” at the House the worry and the expense of it all to the of Commons. He was called to the Bar when general public: it is enough to make a hero he was twenty-seven, and later became a
counsel to the Treasury at the North London In this department of parliamentary business Sessions. Subsequently he was appointed a
a alone, therefore, and it is of paramount import- junior counsel to the Treasury at the Old ance, there is abundant opportunity for willing Bailey, receiving promotion twenty-three years and capable members to do the country real ago to be a senior counsel of the Treasury. He and conspicuous service. It may be that few received his knighthood in 1918. He had been have the special aptitude or knowledge required a bencher of the Middle Temple for fourteen for the actual and brainy work itself, but then years, and had held the Recordership of there are the law officers and their assistants Colchester since 1911. who are paid (too highly paid, some think) to see the work skilfully done, and it is up to the ordinary member to urge upon those competent and responsible to make the English at least clear, simple, and intelligible. Why it should DECISIONS IN THE ENGLISH be thought necessary still to formulate our laws
COURTS. in a jargon of the early Georgian period is a mystery. One member cannot of course do
Gibson v. Reach. much, but a compact number united in a fervent desire for the simplification of our statute law REVENUE-ENTERTAINMENTS DUTY---WINDOW would soon create an atmosphere impossible LET FOR THE PURPOSE OF VIEWING A PROCESSION to ignore, and bring about a much-needed as
-FINANCE (NEW DUTIES) ACT, 1916 (6 GEO. V. well as a permanent and beneficent improve CAP. 11), SECTION 1 (2)—FINANCE ACT, 1922 (12 ment in legislation. Such an organised body, & 13 GEO. V. CAP. 17), SECTION 11 (A).—The now that there are at least a hundred lawyers in respondent let for payment to one W. V. a the House, is surely not a hopeless ambition, and window in the George Hotel, in Friargate, as members are paid and privileged as already Preston, for the period of the Guild Week from commented on, they should do something to 3rd to 9th September 1922 for the purpose of prove themselves worthy of their trust and viewing processions in connection with that their remuneration.
D. M. G. week. Held that the respondent was liable to
conviction for non-payment of entertainments
duty as the room and window. were a SHERIFF PRINCIPAL M'CLURE, K.C., has of entertainment ” within the meaning of the granted commissions as Honorary Sheriff-Sub- Finance (New Duties) Act, 1916, section 1 (2).stitutes to Mr Charles Gordon Masson, solicitor, K.B. Div. (Lord Hewart C.J., Sankey and Peterhead, and Provost Christie, Huntly, for Salter JJ.).--2nd November 1923. the Peterhead and Huntly districts respectively.
MR STODART MʻLAREN CHRYSTALL, M.A.,
Edell v. Dulieu.
AGRICULTURAL illness, was th second son of the late Rev. | HOLDING CONTRACT OF TENANCY-NOTICE TO A. J. Chrystall, Newhills United Free Church, QUIT-AGRICULTURAL HOLDINGS ACT, 1908 (8 near Aberdeen. Born at Auchterloss forty-five EDW. VII. CAP. 28), SECTION 48—AGRICULTURE years ago, and educated at Aberdeen Grammar ACT, 1920 (10 & 11 GEO. V. CAP. 76), SECTIONS 13 School, Mr Chrystall proceeded to Aberdeen AND 28.—The plaintiffs were the owners of a University, where he took his M.A. degree in farm which they demised to the defendant for 1903 and his B.L. degree the same year.
a term of either seven, fourteen, or twenty-one
years. By clause 15 of the lease it was proWE regret to record the death of Sir Richard vided that should either party wish to put an Muir, one of the best-known figures in legal end to the demise at the end of seven or fourteen circles, who had been senior Treasury counsel years, they or he might do so upon giving six at the Central Criminal Court, London, since months' notice in writing. The plaintiffs 1908.
wished to determine the lease at the end of the Sir Richard Muir, who was the son of the first seven years, and accordingly gave notice late Mr Richard Muir of Greenock, and who in writing to that effect. The notice was was born in 1857, first adopted journalism as a dated 15th February 1922, and the date to career after finishing his education at King's which it referred was 29th September 1922, College, London, and was engaged on the I which was slightly more than the six months