Macbeth and Others v. Ashley and Others [1874] UKHL 487
(Before Lord Chancellor Cairns , Lord Chelmsford , and Lord Selborne .)
11 SLR 487Macbeth and Others v. Ashley and Others.(Ante, vol. x, p. 513.)
Subject_ Licensing Acts (Scotland) 16 and 17 Vict. c. 67, § 11; 25 and 26 Vict. c. 35, § 2 — Hours of Closing — “Particular Locality within any County or District or Burgh.” Facts:Under 25 and 26 Vict. c. 35, the hours for opening and closing licensed houses are fixed at 8 a.m. and 11 p.m. Section 2 gives a discretionary power to the licensing magistrates to vary these hours “in any particular locality within any county or district or burgh requiring other hours for opening and closing.” The magistrates of a burgh defined by metes and bounds a certain part of the same, which included all the licensed houses therein, and passed a resolution that it was requisite that licensed houses in the particular locality thus defined should be closed at 10 p.m. This hour they inserted in the certificates. Held (affirming judgment of C. of S.) that the resolution was ultra vires of the magistrates, their discretionary power being to select a “particular locality,” whereas they had virtually applied the exceptional rule to the whole burgh, an evasion of the statute, and opposed, alike to the spirit and the letter thereof.in a small part of the burgh or county. But this view is not consistent with the existing statutes. The latest Act does not repeal the previous Acts, and the Forbes Mackenzie Act contains the enactment that the justices may in a particular locality alter the hours. If that statute had stood alone, there can he no doubt that the justices can have altered the hours as to all the houses within the county or burgh. [ Lord Selborne —I also observe that the statute says “in any particular locality requiring other hours.” I suppose the word “requiring” means, if the Justices in their discretion think fit to require?] The words are no doubt very vague. At the same time, there is no definition given, and therefore the word “locality” would naturally mean the whole locality—that is, the whole county or burgh. It cannot mean the locality of the particular inn or hotel. [ Lord Chelmsford —The words are vague in the Forbes Mackenzie Act, but the later Act was passed for the very purpose of definiug the words more clearly, and it says the justices may alter the hours in a “particular locality within any county or burgh,” excluding the notion of its meaning the whole county or burgh.] The last Act, does not repeal the previous one, and therefore that previous Act still holds good. [ The Lord Chancellor —Surely you cannot contend that the Legislature has given the justices power in each case to alter the hours as to the whole of their district, for, if so, they might alter the general law all over Scotland. Take the case of Edinburgh or Glasgow: do you say the Justices could alter the hours as to all the public-houses by merely describing the boundaries so as to include all the hotels, but leaving out a few places where there are no hotels? I can understand that there may he localities where they may alter the hours; as, for example, near a market, where perhaps farmers and country people come at an early hour and require refreshments; and the Lord President throws out a suggestion that the same reason may apply to miners coming up from a pit at an early hour. The locality mentioned by the Act must at least mean some area inside the burgh or county.] If the Legislature had plainly said so, that might have been arranged; but the enactment in the Forbes Mackenzie Act gives no clue to any restriction in point of area. [ Lord Selborne —But surely you must read the latest enactment, which does contain a restriction, as in substitution of the earlier enactment and as superseding it.] There seems no reason why that should be so. It would be much fairer that the justices should have power given them to alter the hours as to the whole of the public houses, than merely as to a part of them. Even as regards Rothesay, the Legislature might have thought it a wise thing to leave it to the magistrates to cause the public-houses to be closed earlier there. The Lord President says that what the magistrates have here done is something not authorised by the statute. But the question is, What is that which is authorised by the statute? If the case depended on the statute of 16 and 17 Vict., then the magistrates would have the power as to all the public-houses. Nothing is said even in the last Act as to how the justices are to discover what is the kind of particular locality as to which they may alter the hours. Nothing is said about market places, or mines, or the sea shore or anything else. All is vague. Here the magistrates have certainly kept within the letter of the law, for the locality they describe is within the burgh, though it includes all the public-houses. If the Legislature chooses to use language so vague as this, and if the magistrates have kept within the letter of the law, though perhaps not within its spirit, the Court must hesitate before it interferes with the course taken by the justices.This was an appeal from a judgment of the First Division of the Court of Session, as to the extent of the power of magistrates to vary the hours of opening and closing public-houses in Scotland.The Acts relating to public-houses in Scotland now in force are the Home-Drummond Act, (9 George IV.) the Forbes Mackenzie Act (16 and 17 Vict,, cap. 67) and the last Act, (25 and 26 Vict., cap. 35). By the first Act no time was defined for opening and closing public-houses. But in the Forbes Mackenzie Act there were certain forms of certificates which specified definite hours for opening and closing the houses, one of the conditions being that the publican should not open his house before 8 o'clock in the morning or after 11 o'clock at night of any day; and that on Sundays the house was to be shut the whole day, except to lodgers and bona fide travellers. There was, however, a proviso in both the two last Acts which gave the licensing magistrates a limited power of varying the hours of opening and closing in particular localities. This proviso, as it stands in the latest Act, is as follows:—“Provided always that in any particular locality within any county or district or burgh requiring other hours for opening and closing inns and hotels and public—houses than those specified in the forms of certificates in said schedule applicable thereto, it shall be lawful for such justices or magistrates respec tively to insert in such certificates such other hours, not being earlier that 6 of the clock or later than 8 of the clock for opening, or earlier than 9 of the clock or later than 11 o'clock in the evening for closing the same, as they shall think fit.” Accordingly, on the occasion of renewing the certificates, the hours of 8 a.m. and 10 p.m. for opening and closing were inserted. The limits of the burgh described in the resolution of the magistrates were so drawn as to include all the public houses and grocers' shops in the burgh. Though not including the whole of the area in the burgh, this resolution, or rather the proposal to alter the hours in the certificates in conformity therewith, was opposed by the various applicants for the certificates, who appealed to Quarter Sessions against it, but that Court dismissed the appeals, with costs.The hotel-keepers next raised the present action against the magistrates, contending that the resolution and the certificates founded thereon were illegal and unwarranted by statute, and seeking to reduce and rescind the same so far as regards the alteration of the hours of closing from 11 to 10 o'clock. The defenders replied that the resolution was legal, and within the statutory powers; and further, that such an action was excluded by express sections in the Act, which enacted that no warrant, order, judgment, or decision made by any quarter sessions, justice or justices of the peace, or magistrate, in any cause, prosecution, or complaint, or in any other matters under the authority of the said Acts, should be subject to any form of review or stay of execution on any ground or for any reason whatever. Further, that by section 35 every action or prosecution against any sheriff, justice or justices of the peace, magistrate, or judge, &c., should be commenced within two months after the cause of action. The magistrates passed their resolution on 15th April 1872, and the summons in the action was served on 15th June 1872.The Lord Ordinary ( Gifford ) held that the action was incompetent, and that the magistrates had acted within the powers given to them by the statute. He thought that it was enough that the area dealt with was only part of the burgh of Rothesay, and that it was immaterial that in point of fact all the public-houses were included in that part. But on reclaiming note against this interlocutor, the First Division were of a different opinion, and held that as the statute gave power only to the magistrates to vary the hours as to a particular locality within the burgh, they had in effec exceeded this power, and had altered the hours as to the whole of the burgh, and this they were not empowered to do. The Lord President, Lords Deas and Jerviswoode , joined in this judgment, while Lord Ardmillan hesitated, and was inclined to support the Lord Ordinary, though he did not formally differ from the majority of his Court.The Magistrates thereupon appealed to the House of Lords.Argued for the appellants, The question is whether the justices in a county or burgh in Scotland have power to alter the time of closing all the public-houses within their county or burgh, or can only alter the hours as to some of those houses. The Court below has proceeded on the theory that the Legislature intended to allow fifteen hours for the keeping open of houses, and that the magistrates had no power to reduce these hours, exceptPage: 488 ↓
Counsel for the respondents were not called upon.In delivering judgment:—
The Lord Chancellor —My Lords, the question, and the only question, to be determined in this case is, whether an order made by the Magistrates of the burgh of Rothesay was within the powers conferred upon them by the Act of Parliament under which they were proceeding, for if the order was within these powers, it was not for the Court of Session, and it is not for your Lordships, to examine into the discretion exercised by the Magistrates. The exercise of that discretion is entirely for them, and for them alone. My Lords, the question, in the view which I should submit of it to your Lordships, turns really upon one Act of Parliament—the 25 and 26 Vict. c. 35. It is true that before that Act, another Act, that of the 16 and 17 Vict., had been passed upon this subject; but if your Lordships will turn to the Act of the 16 and 17 Vict, you will observe that the form in which that enactment is couched is this—it gives in a schedule one form of certificate of licence to be granted to a hotel or public house, and in that form there occurs the condition that the house is not to be opened before eight o'clock in the morning, or to be kept open later than eleven o'clock at night; and then the 11th section of the Act provides, after declaring that the magistrates may grant a licence in the form to which I have referred, that “in localities requiring other hours for opening and closing public houses, &c. than those contained in the schedule, it shall be lawful for the justices or magistrates to insert in the schedule such other hours, not being earlier than six or later than eight o'clock in the morning for opening, or earlier than nine o'clock or later than eleven o'clock in the evening for closing the same.”The proviso therefore is a power given to alter or modify the particular form of licence which is contained in the schedule to that Act.But when your Lordships turn to the Act of the 25 and 26Vict., upon which I shall have immediately to comment, you will find that the form of certificate given by the earlier Act is entirely swept away and another form substituted for it. Therefore the proviso in the earlier Act, which was to operate upon the form of certificate given in that Act, of necessity comes to an end when the certificate given by the earlier Act is removed out of the way. It appears, therefore, to me sufficient to say that the certificate given in the earlier statute, being now at an end, and being a certificate which cannot be granted, the earlier statute itself is no longer to be considered.My Lords,I then turn to the later statute; but before considering the words of it, I will remind your Lordships of what has been done by the Magistrates of Rothesay in this case. They have made an order substituting a different hour—an earlier hour—for closing, for the hour which your Lordships will find contained in the later statute to which I have referred. They have done that, not for the whole burgh in point of form, but forPage: 489 ↓
Lord Chelmsford —My Lords, I am entirely of the same opinion. If this case depended uponPage: 490 ↓
This appears to me to be contrary not only to the spirit but to the very letter of the Act, because it is impossible to say that the limits which they have defined, which virtually comprehend the whole of the burgh, can be called “a particular locality within any county or district or burgh;” and I must say it appears to me something very like an attempt to evade the provisions of the Act of Parliament. Now the law will not allow that to be done indirectly which cannot lawfully be done directly; and therefore I have no doubt whatever that this was ultra vires of the magistrates of the burgh. I do not know whether it is at all important to consider the objection that the discretion of the magistrates can be exercised only when other hours than those named in the certificates are required for opening as well as closing public—houses. The words “opening and closing” give the power as to morning and evening both; and it may well be that a change as to opening might, from particular circumstances, be requisite, and not as to closing, or vice versa. And although the times for the opening and closing mentioned in the certificates comprehend a period of 15 hours, there is nothing to indicate that in any change to be made those should be the exact number of hours for which publicans are to be allowed to keep open their houses. I therefore agree with my noble and learned friend, that the interlocutors ought to be affirmed, and the appeal dismissed, with costs.Lord Selborne —My Lords, I am entirely of the same opinion, and I will add but little to what has been already said by those of your Lordships who have addressed the House. With respect to the reasons on which the learned Lord Ordinary, who took a different view, seems to have proceeded, and with which Lord Ardmillan appears to have been disposed to agree, though yielding to the authority of the majority of the Judges in the Inner House, they appear to me, my Lords, to turn upon a view which I think it would be somewhat dangerous to encourage at all in dealing with Acts of Parliament of this description. Because in the letter of the magistrates' order, less than the whole of the burgh is comprehended in point of territorial limits, their Lordships seem to have been inclined to think that the strict language of the Act was satisfied, and that the Court, under those circumstances, ought not to interfere with the discretion of the magistrates. Now, I cannot but think that in that view their Lordships lost sight of a distinction between what is called an evasion of an Act of Parliament, where the Act is in derogation—if I may so say—or in restriction of the legal rights and liberties of the subject, and where the Act confers for public purposes powers which would not otherwise exist. It has been said in this House and elsewhere that with regard to such statutes as the Mortmain Act, and others of that kind, which restrict previously existing legal powers, a man is at liberty to evade them if that means no more than to keep outside of them; but if you keep outside of an Act which creates for public purposes licensing powers in magistrates, it is manifest that you do not exercise the power at all. Now, in this case, without meaning at all to deny that it is confided to the discretion of the magistrates to determine what particular localities within their jurisdiction require other hours for opening and closing than those specified, yet it is quite obvious that such discretion as they have is not an arbitrary discretion to define, with or without reasons apparent to themselves, any localities they please, but—they must be such localities as they consider, in the honest and bona fide exercise of their own judgment, to require a difference to be made. The participle “requiring” is connected with the substantive “locality,” and therefore it must be a requirement arising out of the particular circumstances of the place. The magistrates must, in thePage: 491 ↓
Interlocutor affirmed, and appeal dismissed, with costs.Counsel for Appellants—Lord Advocate ( Gordon) Q.C., Solicitor-General ( Holker), Q.C., and W. A. 0. Paterson. Solicitors— Simson, Wakeford, & Simson. Edinburgh Agents— J. & A. Peddie, W.S.Counsel for Respondents— Southgate, Q.C., Kay, Q.C., and R. V. Campbell. Solicitors— Grahames & Wardlaw. Edinburgh Agent— A. Kirk Mackie, S.S.C.