Scottish Court of Session Decisions

The Licensing (Scotland) Act 1903 (3 Edw. VII, cap. 25), sections 13, 38 (1), and 107, are sufficiently quoted supra in the rubric.

George Quinn, Globe Hotel, Paisley, raised an action against Peter Eadie and others, the Magistrates of Paisley attending the Licensing Court for the burgh of Paisley, held on 14th April 1908, Francis Martin, town clerk of Paisley, and William Walker, burgh prosecutor in Paisley, for declarator “that the certificate granted on 14th April 1908 by the said Burgh Licensing Court in favour of the pursuer for an inn and hotel, for the said Globe Hotel, was not a ‘new certificate’ within the meaning of the Licensing (Scotland) Act 1903 (3 Edw. VII, cap. 25), and did not require confirmation by the said Court of Appeal, and that the said certificate made out by the defender second called and delivered by him to the pursuer in terms of the Act, is valid”; and “that the pursuer was and is entitled to traffic in exciseable liquors under said certificate in said hotel, and in terms of said Licensing Act.”

The pursuer pleaded, inter alia—“(2) The certificate granted in favour of the pursuer by the Licensing Court not being a ‘new certificate’ within the meaning of the Licensing (Scotland) Act 1903, the pursuer is entitled to decree of declarator in terms of the conclusions of the summons.”

The defender William Walker pleaded, inter alia—“(3) In respect the pursuer holds no valid certificate within the meaning of the Licensing (Scotland) Act 1903, this action is incompetent and should be dismissed. (4) The certificate granted to the pursuer by the Licensing Court not being valid without the confirmation of the Appeal Court, and such confirmation having been refused, this defender is entitled to absolvitor. (5) The certificate founded on by the pursuer being a ‘new certificate’ within the meaning of said Licensing Act, and as such requiring confirmation, and such confirmation not having been granted, this defender is entitled to absolvitor.” [Similar pleas were stated for the Magistrates and town clerk.]

The pursuer was proprietor of the Globe Hotel, Paisley, and up to 28th May 1908, he held what is described in the Licensing Act as a six-day certificate for his hotel, i.e., a certificate having the words “and travellers” deleted, which required him to keep his hotel closed during the whole of Sunday. On 30th March 1908 he presented two applications to the Licensing Court. The one application set forth—“That the applicant is desirous to obtain a Certificate for Licence for an inn and hotel at No. 92 High Street, in the burgh of Paisley and county of Renfrew, for the ensuing year, in terms of this Act, and refers to the answers which are truly made to the subjoined queries.” And in reply to the

Page: 826↓

query—“State whether it is a renewal of a certificate at present in applicant's name, or in that of another party, or renewal of a transferred certificate, or a certificate for a new house that applicant desires,” the answer was returned “certificate for a new house.” This application was subsequently advertised by the clerk to the Licensing Court as being one for a new certificate. The other application proceeded on the same narrative, with this exception, that following the words “inn and hotel” were the words “six-day certificate.” In answer to the query above quoted, the reply was “renewal of a certificate at present in applicant's name.” At the Licensing Court held at Paisley on 14th April 1908 the Court granted the former application and refused the latter. The applicant then applied to the Appeal Court for confirmation of the former application, and appealed against the refusal of the Magistrates to renew his six-day certificate, but at the Appeal Court on 28th May he withdrew the application and the appeal. The Appeal Court ruled that the withdrawal was incompetent, and refused confirmation and dismissed the appeal. Thereafter the pursuer was prosecuted at the instance of the burgh prosecutor for selling drink without a certificate, the theory of the prosecution being that the certificate granted on 14th April 1908 was a “new certificate,” and therefore invalid because it had not been confirmed by the Licensing Appeal Court. The Magistrate decided that the pursuer's certificate was valid and accordingly acquitted him. The prosecutor appealed to the High Court of Justiciary, and the pursuer then brought this action in the Court of Session for declarator as above set forth. The High Court of Justiciary sisted the appeal to await the decision in this action.

On 19th December 1908 the Lord Ordinary ( Skerrington) repelled the pleas-in-law stated for the pursuer, dismissed the action, and decerned.

Opinion.—[ After stating the circumstances in which the action was raised]—“If it had not been for the fact that the Licensing (Scotland) Act 1903 contains a somewhat puzzling definition of the phrase ‘new certificate,’ I should have thought it tolerably clear that a seven-day certificate could not be regarded as a renewal of a six-day certificate. As was said by Cockburn, C.-J., in Marwick v. Codlin, 1874, L.R., 9 Q.B. 509, p. 514, ‘A renewal of a licence is a repetition of an old one, and cannot include anything not contained in the old one.’ So, too, in Reg. v. Licensing Justices of Crewkerne, 1888, 21 Q.B. D. 85, p. 87, Lord (then L. J.) Lindley said—‘Now what is the meaning of applying for a renewal of a licence? It can only mean that the licence-holder is applying to renew that which is in existence and is on the point of expiring, which in the present case is a six-day and not a seven-day licence.’

The definition which creates the difficulty is contained in section 107 of the Act of 1903, which enacts that ‘… [ Quotes, v. sup. in rubric.]…’

It has been maintained that it follows from this definition that if an applicant for a certificate holds at the time of his application a certificate of any kind for the premises under the Licensing Act, the certificate which he receives is not a ‘new certificate’ but a renewal of the certificate previously granted, however different the two certificates may be. In this view a public-house or grocer's certificate might be converted into a hotel certificate without confirmation by the Appeal Court, and without the applicant being bound to lodge with his application plans showing that the premises contain the necessary sleeping accommodation. This contention was rejected by the High Court of Justiciary in the case of Weir v. Bryce, March 12, 1897, 24 R. (J.) 42, and the soundness of this decision was not impugned by the pursuer's counsel. He argued, however, that the Licensing Act recognises only three kinds of certificate, viz. (1), for hotels, (2) for public-houses, and (3) for grocers, and that every certificate is a renewal, provided it falls within the same class as the certificate previously held by the applicant. While I agree that the licences granted under the statute fall within one or other of these three classes, it is not the case that the statute recognises only three kinds of certificates. It is plain from sections 38 and 48 that it also recognises ‘six day’ and ‘early closing’ certificates. Further, it appears from section 37, and from the forms of certificates in the 6th schedule, that a certificate may authorise the sale either of beer and similar liquors, or of beer, &c., and wine, or of spirits and intoxicating liquors generally. It is difficult to see how a spirit licence can be regarded as a renewal of a beer licence, and the contrary was decided in the English case of Marwick v. Codlin above referred to. So too in the case of Reg. v. Crewkerne above referred to, it was decided that a seven-day licence was not a renewal of a six-day licence. Though the English statutes are not in exactly the same terms as the Scottish Act of 1903, I do not think that there is any material difference between them so far as the present question is concerned. In the case of Stevenson v. Hunter, March 20, 1903, 5 F. 761, the English decisions on this branch of the law were regarded as of high authority. The Court also attached importance to the fact that the now repealed Act of 1876 (39 and 40 Vict. cap. 26), which is substantially re-enacted in the Act of 1903, was intended to assimilate the law of Scotland relating to the granting of licences to sell intoxicating liquors to the law of England.

While I have come to the conclusion that the pursuer is not entitled to the declarator which he asks, I think it right to mention two considerations which militate in his favour and which gave me some difficulty. In the first place, it maybe said that my decision deprives the definition of ‘new certificate’ of all meaning and effect, as the result would have been exactly the same if the statute had contained no such definition and had left the Court to determine,

Page: 827↓

as best it might, whether a certificate was a new one or a renewal of one already granted. I think that probably the real object of the definition was to make it clear that a certificate cannot be held to have been renewed unless it was actually in force and being exercised at the time of the application for a further certificate, save only in the case where business has been suspended owing to the premises having been destroyed by unavoidable calamity. See Stevenson v. Hunter supra. In the second place, though section 38 of the Act of 1903 does not in so many words enact that a six-day certificate granted to an applicant who already holds a seven-day certificate shall be deemed to be a renewal, I think that this may be fairly implied. If I am right in this opinion it may be argued with some plausibility that it is a much more serious interference with public convenience to allow an innkeeper to evade his common law duty to accommodate travellers on Sundays than it is to remove a restriction in his certificate which prevents him from giving such accommodation. Accordingly it may be said that the whole question of Sunday trading is left by the statute to the Licensing Court, and does not require confirmation by the Appeal Court. It is, I think, a sufficient answer to this objection to point out that while the Act may be construed as having for some reason enacted that confirmation by the Appeal Court is unnecessary in a case where restrictions are imposed, it has not, either expressly or by necessary implication, made any such enactment in regard to cases where restrictions are removed.

“I accordingly dismiss the action with expenses.”

The pursuer reclaimed, and argued—(1) At the time of the pursuer's application the premises were certificated, and thus under section 107 of the Licensing (Scotland) Act 1903 (3 Edw. VII, cap. 25) the certificate granted by the Licensing Court was not a “new certificate,” and did not under section 13 require confirmation. The Act recognised only three forms of certificate—(1) for inns and hotels, (2) for public-houses, (3) for grocers. Weir v. Bryce, March 12, 1897, 24 R. (J.) 42, 34 S.L.R. 523, had no application, because not only was it before the 1903 Act, but also the certificates there in question fell into different categories. Marwick v. Codlin, 1874, L.R., 9 Q.B. 509, and The Queen v. Licensing Justices of Crewkerne, 21 Q.B.D. 85, were decided on English statutes and could not affect the interpretation of a Scottish Act subsequent to their date. In Marwick, moreover, what was attempted was to convert a beer-house licence into a public-house licence, and these in England were distinct categories. (2) It was true that in the form filled up by the pursuer he had stated that he desired “certificate for new house,” but this mis-description had prejudiced no one, and no one had appeared to object to the application.

Argued for the defenders (respondents)—The certificate granted on 14th April 1908 was correctly described by the applicant as and held by the Lord Ordinary to be a new certificate. The former certificate was a six-day certificate; this was a seven-day. The result of treating the latter as a renewal of the former would be that the Court of Appeal would not have an opportunity of considering the licence for Sunday in a case where the holder of a six-day licence for the year about to expire applied for, and was granted by the Licensing Court, a seven—day certificate for the succeeding year, for such holder would not require to get it confirmed by the Appeal Court. The reasoning in Marwick and The Queen v. Licensing Justices of Crewkerne ( cit. sup.) was applicable to the present case. The argument on the other side really came to this, that a six-day certificate was a seven-day certificate with a restriction; that was precisely the argument negatived in the last-mentioned case. There was no reason why a six-day licence should be regarded as a species of seven-day licence in Scotland more than in England. The six-day licence and early closing; were introduced in England by the Licensing Act 1872 (35 and 36 Vict. cap. 94), section 49, and the Licensing Act 1874 (37 and 38 Vict. cap. 49), sections 8 and 9, and that Act, section 32, contained a definition of “new licence.” The Inland Revenue Act 1880 (43 and 44 Vict. cap. 20), section 44, extended to Scotland the provisions as to six-day and early closing licences contained in section 49 of the Licensing Act 1872, and sections 7 and 8 of the Licensing Act of 1874. The Act of 1903 did not make any change in the meaning of six-day or early closing licences, and these terms had before its date known meanings. (2) In any case the pursuer had applied for a new certificate and his application had been advertised as such. He could not now maintain that the certificate did not require confirmation. Objectors might have appeared had they not thought that the matter would be considered by the Appeal Court.

At advising—