Scottish Court of Session Decisions

This was an action at the instance of James Verdier Stevenson and George Neilson, the Chief-Constable and Procurator-Fiscal of Glasgow, against James Hunter, wine and spirit merchant, 157 Bellfield Street, Glasgow, and also against the Justices of the Peace for the county of the city of Glasgow, the Clerk of the Peace of the said county, and the Town Clerk of Glasgow. Hunter alone lodged defences. This action was taken as a test case among a number of others raising substantially the same question.

The conclusions of the action were (1) for reduction of a certificate granted to Hunter for the sale of exciseable liquors at 5 Tobago Street, Glasgow, from 15th May 1902, and (2) for interdict against Hunter keeping a public-house in said premises,

The material facts of the case, on which parties were substantially agreed, were as follows:—In April 1901 Hunter obtained from the Magistrates of Glasgow, acting as the licensing authority, a renewal of a certificate previously held by him for the sale of exciseable liquors in premises No. 5 Tobago Street. During the year 1901–2 these premises were rebuilt, so that when the rebuilding was completed the old premises were entirely demolished. The frontage was diminished from 32 to 27 feet, and the superficial area occupied by the premises was considerably increased. During the rebuilding operations Hunter continued to carry on business as a publican in the premises.

On 21st March 1902 Hunter presented an application for a renewal of his certificate, and on 24th March he presented an application for a new certificate for the same premises. Both these applications were refused by the Magistrates.

Hunter then appealed to the Justices of the Peace in Quarter Sessions against the refusal of his application for a renewal of his certificate. On 12th May 1902 the Justices, after hearing an objection to the competency of the appeal, repelled the objection and sustained the appeal, and granted a renewal of the certificate. In consequence of this decision Sir James D. Marwick, Town-Clerk of Glasgow, issued to Hunter the renewal certificate now sought to be reduced.

The pursuers pleaded, inter alia:—“(2) The premises 5 Tobago Street, Glasgow, as they existed in April 1901 having ceased to exist, it was not competent for the Magistrates of the City of Glasgow or the Justices in Quarter Sessions assembled to grant a renewal in April or May 1902 of the certificate for the said premises. (3) The defenders the Justices of the Peace having granted in May 1902 a renewal of the certificate granted to the defender James Hunter in 1901, acted ultra vires, and the certificate granted by them should be reduced.”

The defender pleaded, inter alia:—“(3) The action is incompetent. (7) The Justices of the Peace having heard and determined the defender's application according to law, their decision is not subject to review.”

The Publicans' Certificates (Scotland) Act 1876, the full title of which is “An Act to Assimilate the Law of Scotland relating to the Granting of Licenses to Sell Intoxicating Liquors to that of England,” enacts (section 5)—“Notwithstanding anything contained in section 14 of 9 Geo. IV. c. 58, or in any other enactment, no appeal shall lie to any justices of the peace assembled in Quarter-Sessions against any proceeding of any justices of the peace for any county, or Magistrates of any burgh, assembled for granting or renewing certificates for licenses for the sale of exciseable liquors, in refusing any application for a new certificate, but every such proceeding and refusal shall be final.”

The definition of a “new certificate” in section 4 is quoted in the rubric.

On 22nd November 1902 the Lord Ordinary ( Kyllachy) pronounced an interlocutor by which he assoilzied the compearing defender from the conclusions of the action.

Opinion.—“In these cases, of which the

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case of Hunter has been taken as representative, the Chief-Constable and Procurator-Fiscal of Glasgow seek to reduce certain licence certificates granted by the Quarter-Sessions last April, upon appeal from the Magistrates, by whom the licences had been refused. The ground of reduction is, that upon the just construction of the Licensing Statutes, and particularly the Act of 1876, known as Dr Cameron's Act, the whole of the licences in question were ‘new’ as distinguished from ‘renewed’ licences, and that as against a renewal of ‘new’ licences, the right of appeal to the Quarter-Sessions formerly existing was by the Act of 1876 taken away.

“I had the benefit of a very full argument, but I think it became in the end obvious that the question requiring to be decided was brought to a narrow point. In the first place, it appeared that as regards the facts the parties were not in dispute, at least they were sufficiently agreed to obviate the necessity of proof. In the next place, the defender's pleas to the pursuers' title to sue were not ultimately pressed. The pursuers, it was conceded, were to be taken as really representing the municipality, and it was not disputed that the municipality, if they had not a duty, had at least a sufficient interest to see that the Licensing Statutes were duly observed. In the third place, there was in the end no dispute that if the pursuers are right in their legal argument the question is not one of the right of this Court to review the Quarter-Sessions either on the facts or the law, but a question of the existence under the Statute of the right of appeal to Quarter-Sessions; that, of course, being a question depending on the view which this Court may take of the law applicable to the facts—that is to say, the facts admitted or proved in this action.

Premising so much, the facts which raise the point at issue may be stated thus:—The defender Hunter (taking his case as a type of the rest) held a public-house licence for premises occupied by him at 5 Tobago Street for the year from Whitsunday 1901 to Whitsunday 1902. During that year his landlord made extensive alterations on the licensed premises and neighbouring property, which alterations involved, as is admitted, a complete though gradual demolition of the licensed premises, and their complete though gradual renewal on a somewhat enlarged scale and extended site. The degree of the enlargement and the extensiveness of the alterations, external and internal, varies more or less in the different cases, but is not probably material. For the purposes of the pursuers' argument the important, and, as they contend, only essential fact, is that in all the cases the licensed premises were during the year practically demolished and practically rebuilt. On the other hand, for the purposes of the defenders' argument, the chiefly important fact (common to all the cases) is that although the premises were so demolished and rebuilt, there was no breach in the continuity of the occupation. The business continued to be carried on all through the period of transition, the interference and inconvenience being of course greater, but not different in kind, from what would have followed if the period of transition had been say five years instead of one.

The facts being these, what the pursuers contend is this:—

They admit that as the statutory enactments stood previous to the Act of 1876, they (the pursuers) could not have refused to recognise the rebuilt premises as continuing, notwithstanding their being rebuilt, to be duly licensed. In other words, a licence having been granted at Whitsunday 1901 applicable to the premises No. 5 Tobago Street, the defender could not have been prosecuted during the year which followed for illicit selling by reason simply of the premises having been reconstructed during the year. To have attempted such a prosecution would at once have brought the pursuers into conflict with the series of English decisions referred to at the discussion, which, whether binding or not on this Court, are yet as decisions upon the import of practically identical enactments decisions of high authority. Nay more, the pursuers were, I think, ultimately obliged to concede that even with the help of the Act of 1876 they could not have succeeded in such a prosecution, say against the present defender; and not only so, but that they could not have refused the defender the privileges (other than the right of appeal to the Quarter-Sessions), which admittedly still attach to applications for renewal as distinguished from applications for new certificates. With those privileges the Act of 1876 does not deal, and with regard to them makes no difference. What is contended, however, is that that Act does deal with the right of appeal to Quarter-Sessions, and that as regards that appeal it establishes a difference between new and old certificates, for which purpose its interpretation clause (section 4) defines new licences thus—‘“A new certificate” means a certificate granted by the competent authority for a licence for the sale of exciseable liquors to any person in respect of any premises which are not certificated at the time of the application for such grant, but shall not apply to the rebuilding of certificated premises which have been destroyed by fire, tempest, or other unforeseen and unavoidable calamity.’

It is on this section of the Act, and particularly the proviso at the end, that the pursuers' case was in the end rested, and must in my opinion necessarily rest.

Now, apart from the proviso which I have just read, I must observe, and I think it is obvious, that the section in question makes no difference in the law as it stood prior to 1876. In other words, there is not now any more than there was under the previous statutes any defined canon determining what shall be considered premises already licensed as distinguished from premises which have not been so. The question remains as before one of substantial identity, and with that it was well settled, at least in England, that even complete reconstruction is by no means irreconcilable.

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Everything therefore comes to turn on the effect of the proviso, and no doubt the proviso does by implication suggest that as the law stood—apart from the proviso—the rebuilding of licensed premises destroyed the license, and that the proviso was designed to redress that anomaly only in certain specified cases, viz., the destruction of the premises by fire, tempest, or other calamity.

But, in the first place, the contexst of the Act has to be considered, and also its title, and the latter is, it must be acknowledged, curiously expressed if the Act was designed to operate the restriction now suggested in the received definition of a new licence. For the title of the Act is this—‘An Act to assimilate the law of Scotland relating to the granting of licences to sell intoxicating liquors to the law of England.’ And, as has been already said, there is a uniform series of English decisions to the effect that where licence (or, I should rather say, certificate) has been granted for certain premises, the substantial identity of these premises is not to be held as destroyed by operations of the kind which are here in question.

In the next place, however, it is not, I think, a sound proposition that where a proviso is attached to an enacting or exegetical section of an Act of Parliament such a proviso falls necessarily to be construed on the principle of expressio unius est exclusio alterius. On that matter I had an impression during the argument that there was a good deal of authority, and at the close I was referred to a case in the House of Lords— West Derby Union v. Metropolitan Life Assurance Society [1897], L.R., App. Cases, 647. In that case, dealing with a similar argument as to the effect of a certain proviso, Lord Watson (page 652) makes the following general observation:—‘Now, that being so, what is the meaning of the proviso? I have not been able to satisfy my own mind that it can be read, or ought to be read, in the sense suggested by Rigby, L.J., which has met with the approval of my noble and learned friend the Lord Chancellor; but I am perfectly clear that if the language of the enacting part of the statute does not contain the provisions which are said to occur in it, you cannot derive these provisions by implication from a proviso. When one regards the natural history and object of provisos, and the manner in which they find their way into Acts of Parliament, I think your Lordships would be adopting a very dangerous and certainly unusual course if you were to import legislation from a proviso wholesale into the body of the statute, although I perfectly admit that there may be, and are, many cases in which the terms of an intelligible proviso may throw considerable light upon the ambiguous import of statutory words. I therefore concur in the judgment which has been moved.’ Lord Herschell (p. 655) says the same thing in greater detail, and Lords Shand and Davey concurred.

It seems to me that the reasoning thus expressed is conclusive of the present case. I am of opinion—following the principle of the English decisions to which I formerly referred—that in none of the cases before me was anything done by way of alteration or reconstruction sufficient to destroy the substantial identity of the premises. That being so, I hold that the defenders' premises were, at the dates of their several applications for renewal, premises already licensed in the sense of the statutes, and so entitled to the privileges attaching to such premises, including amongst others the right of appeal to Quarter Sessions.

The result is that the defenders will be assoilzied from the conclusions of the several actions, with, of course, expenses.”

The pursuers reclaimed, and argued—This was a case where the premises were completely demolished and rebuilt; there was nothing left of the old premises but the address. In such a case an application for a certificate was an application for a new certificate under the definition of that phrase given in section 4 of the Act of 1876 (quoted in rubric), and therefore there was no appeal to Quarter Sessions. The site was not licensed, the premises which had been licensed had ceased to exist, and they had not been destroyed by fire, tempest, or other calamity. It was a question of fact, which did not arise in this case, whether structural alterations amounted to such reconstruction as would make the old premises into new. Here there was no question of degree, the premises were entirely new when the reconstruction was finished— Craig v. Peebles, June 16, 1875, 2 R., J.C., 30, 12 S.L.R. 490; The Queen v. Raffles, 1876, 1 QBD 207.

Argued for the respondent—The general rule, under 9 Geo. IV. cap. 58, sec. 14, was that the decisions of the Magistrates were appealable to Quarter Sessions. It was for the pursuers to show that the present case fell under the exception to that rule, introduced by section 5 of the Act of 1876. This they only attempted to do by reading the proviso in the definition of “new certificate” in section 4 of that Act, as if it were a substantive enactment that all premises rebuilt were to be regarded for licensing purposes as new premises unless they had been rebuilt in consequence of destruction by fire, tempest, or other calamity. That was, as the Lord Ordinary's judgment clearly showed, an illegitimate inference from a proviso— West Derby Union Company v. Metropolitan Life Insurance Society (1897), A.C. 647, per Lord Watson, at p. 652. The Act of 1876 was, as the title above quoted showed, intended to assimilate the laws of Scotland and England as to licensing matters. In dealing with this statute therefore the English cases were especially authoritative, and they clearly established that an application made in the present circumstances was not an application for a new certificate— The Queen v. Justices of Hampshire, 1879, 44 J.P. Cases, 72; The Queen v. Albert Smith, 1866, 15 L.T. (N.S.) 178; Deer v. Bell, 1894, 64 L.J., Mag. Cases, 85; The Queen v. Raffles, 1876, 1 QBD 207. (2) The form of the action was incompetent,

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in respect that it concluded for reduction of the certificate without concluding for reduction of the resolution of the Justices in Quarter Sessions. It was the duty of the Town-Clerk to issue a certificate if the Justices in Quarter Sessions granted an application— Kerr v. Marwick and Gray, February 14, 1901, 3 F. 470, 38 S.L.R. 330. Even if decree of reduction in the present action was granted it would still be the duty of the Town-Clerk to issue a new certificate as long as the resolution of Quarter Sessions stood unreduced.

At advising—