Scottish Court of Session Decisions

The Licensing (Scotland) Act 1903 (3 Edw. VII, cap. 25), enacts, section 11—“At any general half-yearly meeting of a licensing court, or at any adjournment thereof, … it shall be lawful for the said court to grant certificates for the year or half-year next ensuing as the case may be … to such and so many persons as the court then assembled at such meeting shall think meet and convenient, to keep inns and hotels, or public-houses, within which exciseable liquors may, under Excise licences, be sold by retail, to be drunk or consumed in the premises, within the jurisdiction of such court.… Provided always that all such meetings shall be held with open doors, and that it shall not be competent to refuse the renewal of any certificate without hearing the party in support of the application for renewal in open court, if such party shall think fit to attend, and any certificate granted otherwise than at such meetings shall be void and of no effect.”

(1) Daniel Baillie and others, all retail wine and spirit merchants, and all carrying on business in Motherwell, (2) Joseph Blair and others, all licensed grocers carrying on business in Motherwell, and (3) William Duffy, hotel-keeper, Motherwell, pursuers, brought an action against (1) Andrew Wilson and others, the Licensing Court of the Burgh of Motherwell, (2) James Burns, town-clerk of Motherwell, (3) Archibald Colville and others, the Licensing Appeal Court for the Burgh of Motherwell, and (4) John T. T. Brown, Clerk of the Peace for the Middle Ward of Lanark, Hamilton, concluding as follows:—“Therefore ( first) the defenders ought and should be decerned and ordained by decree of the Lords of our Council and Session to exhibit and produce before our said Lords ( a) a pretended deliverance of the defenders first called at the Licensing Court held at Motherwell, dated 11th April 1916, and purporting to exclude the sale of spirits from all the licences granted at said meeting, and ( b) a pretended letter from the defender fourth named to the defender second-named, dated 3rd May 1916, and purporting to intimate in terms of section 30 of the said Licensing Act that appeals taken by the pursuers against the said

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deliverance of the defenders first-named were refused by the Court of Appeal, and ( c) a pretended minute dated 4th May 1916, purporting to record in the register kept under the authority of said Licensing Act that said appeals had been refused by the Court of Appeal, and the said pretended deliverance, letter, and minute, in so far as they purport to exclude the sale of spirits from the licences granted or to be granted to the pursuers for the year beginning 28th May 1916, ought and should be reduced by decree of our said Lords, and the pursuers reponed and restored there against in integrum; and further, it ought and should be found and declared by decree foresaid that it was illegal and ultra vires of the defenders first and third called to prohibit the sale by retail of spirits within the burgh of Motherwell by the pursuers during the year from Whitsunday 1916 until Whitsunday 1917; and ( second) it ought and should be found and declared by decree of the Lords of our Council and Session that the certificates for the sale of exciseable liquors in force for the year from 28th May 1916, granted by the defenders first called, and made out and issued by their said clerk, the defender second-called, to the pursuers severally, for their respective premises above mentioned, all of which certificates bear to be for ‘the sale of victuals and of wine, porter, ale, beer, cyder, or perry,’ or for ‘the sale of wine, porter, ale, beer, cyder, or perry,’ are and shall be valid and effectual to the pursuers for the whole of the current year, as if there had been inserted therein the word ‘spirits,’ and the words ‘or other exciseable liquors;’ and the defender second-called, as clerk foresaid, ought and should be decerned and ordained by decree foresaid ( a) to correct the foresaid certificates granted to the pursuers, severally and respectively, by inserting the words ‘spirits’ and the words ‘or other exciseable liquors,’ in terms of the forms of certificates for inns and hotels, for public-houses, and for grocers and provision dealers trading in exciseable liquors respectively, contained in the Sixth Schedule appended to the Licensing (Scotland) Act 1903, and duly authenticating and subscribing the said corrections; and ( b) to make and authenticate the necessary corrections consequent on the said corrections of the certificates in the register of licences kept for the said burgh; or otherwise ( third), as an alternative to the foregoing conclusion, it ought and should be found and declared by decree of our said Lords, that in granting all the foresaid-certificates in said terms, and in refusing to entertain the pursuers' applications for renewal, and in dismissing the pursuers' appeals there against, the defenders first-called, and the defenders third-called respectively, acted irregularly, illegally, and contrary to their statutory duties, to the hurt and prejudice of the several pursuers, and that the pursuers are entitled to obtain warrant and decree against the defenders first and third called to the effect of compelling the performance of their statutory duty to the pursuers; and it having been so found and declared, the defenders first and third called ought and should be decerned and ordained by decree of our said Lords, and should receive the warrant, authority, and remit of our said Lords, to hold a meeting or meetings within such short space of time as our said Lords may appoint, and thereat to entertain and hear the applications or appeals of the pursuers for renewal of their certificates, in accordance with statute, and also in accordance with such special directions as our said Lords may think fit to give.”

The pursuers pleaded—“2. The deliverances of the Licensing Court and the Licensing Appeal Court libelled being illegal and ultra vires, the documents libelled ought to be reduced as concluded for. 3. The defenders first called having acted irregularly and incompetently in refusing the pursuers' applications for renewal of their licences, without considering and hearing each of the pursuers upon the circumstances of his or her individual case, and the defenders third called having acted irregularly and incompetently in affirming the said refusal, the pursuers are entitled to decree in terms of the first conclusion of the summons. 4. The excision from the certificates of the pursuers and the whole licence-holders in the said burgh of the sale of spirits or other exciseable liquors, as condescended on, being beyond the statutory powers of the defenders first called, the pursuers are entitled to decree in terms of the second conclusion of the summons.”

The facts of the case appear from the opinion of the Lord Ordinary ( Ormidale), who on 18th July 1916 pronounced an interlocutor in the following terms:—“Sustains the second and fourth pleas-in-law for the pursuers: Reduces and decerns in terms of the reductive conclusion of the summons: Finds, decerns, and declares in terms of the second conclusion of the summons.”

Opinion.—“All the holders of certificates in the burgh of Motherwell, for public-houses, for grocers, and for inns and hotels, applied for renewal of their certificates to the Licensing Court of the burgh held on 11th April 1916. The members of that Court are the Provost and Magistrates of Motherwell. Up to that date all the licence-holders had had full certificates granted to them authorising them to sell spirits, wine, porter, ale, beer, cyder, and perry and other exciseable liquors.

On 11th April the Court intimated to each of the licence-holders in turn, all of them having been summoned to attend the Court with the exception of William Capes, whose application for a renewal of his licence in the name of John Granger was refused, that certificates were granted to them for the sale of wine, porter, ale, beer, cyder, and perry, but not for the sale of spirits. A licence was granted for John Granger in similar terms.

The licence-holders then appealed to the Licensing Appeal Court held on the 3rd May, and counsel were heard for them in support of their appeals. By the casting vote of the chairman the appeals were refused.

The present action was then raised

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against the members of the two Courts and their respective clerks, concluding in effect, first, for reduction of the deliverance of the Magistrates of 11th April and the writs which followed on the refusal of the appeals, and for declarator that it was illegal and ultra vires of the defenders to prohibit the sale by retail of spirits within the burgh of Motherwell during the year from Whitsunday 1916 to Whitsunday 1917; second, for an order on the clerk of the Licensing Court to insert the words ‘spirits’ and ‘other exciseable liquors’ in the certificates, and to make the appropriate corrections in the Register of Licences; or otherwise, third, as an alternative to the foregoing conclusion, for a remit to the defenders to hold a meeting, and thereat to entertain and hear the applications or appeals of the pursuers for renewal of their certificates. I refer to the summons for the full terms of the conclusions.

From the averments it appears that many of the pursuers are owners of their licensed premises, that many of them are tenants under leases with several years to run, at assessed rents varying from £45 to £190, and that several of them have been licence-holders in Motherwell for a very considerable number of years. No objections were intimated or taken by anyone at the Licensing Court on 11th April to the renewal of any of the certificates. After the first application had been called the Magistrates retired, and on their return intimated to the applicant that his certificate was granted for the sale of other liquors, but not for the sale of spirits. Each of the other applicants was called individually, and without again retiring the Magistrates made the same intimation to each.

It is admitted that the result of the proceedings in the Licensing Courts has been to withdraw from the whole licence-holders in the burgh of Motherwell authority to sell spirits. That, the pursuers say, is tantamount to a prohibition by the Magistrates of the sale of spirits for the space of one year within the whole licensing area, and for this, they maintain, there is no warrant whatever in the Statute of 1903. There is certainly no express authority to this far-reaching effect conferred upon the licensing tribunals. The defenders contend that while this may be so there is vested in them a discretionary power, if they deem it expedient, to refuse to grant any new licence or any renewal of an existing licence except in a restricted form excluding the right to sell spirits. This, they say, is clearly within their competency in the case of any particular applicant for a licence or for a renewal, and that being so it follows that it is also within their competency to deal in precisely the same way and at the same time with the certificates of each and every applicant for a new licence or for a renewal of a certificate. If they can so deal with the certificates piecemeal they maintain that they can also so deal with them wholesale, although the result of their proceedings may be to prevent the licence-holders from selling and the public from purchasing spirits within the whole licensing area. They challenged the pursuers to say what number, if they cannot deal with the whole certificates, they can so deal with at any particular Court—one certificate, or one-half of the whole certificates, or three-fourths, and so on. The answer to that challenge, it seems to me, falls to be given only if and when the particular circumstances figured arise. It is not the question in the present case. The same kind of argument was dealt with by the Lord Chancellor in MacBeth v. The Magistrates of Rothesay, 1 R. (H.L.) 14, 11 S.L.R. 487, and I take it that if the wholesale prohibition of spirits at one Court is ultra vires of the tribunal the indirect attainment of the same end will be no less so. Now, for the reasons I shall give later on, it does not appear to me to be necessary to decide this general question. I shall only say that as at present advised I am of opinion that the contention of the Solicitor-General is sound, and that nowhere within the four corners of the Act of 1903 is there to be found any warrant for a licensing court prohibiting the sale of spirits in the whole area subject to its jurisdiction. I assume that the motive of the Magistrates of Motherwell in refusing authority to any of the licence-holders in the burgh to sell spirits was a good one. It was not suggested that it was not, and it may be readily admitted that in the present circumstances many persons would maintain that it was a reasonable view to take that if all facilities for the purchase of spirits were removed it would be greatly to the advantage not only of Motherwell but of the country at large. But the Magistrates must proceed strictly according to the statute, and in the statute as I read it there is no warrant given, either directly or impliedly, to the Magistrates at their option to veto the sale of spirits within their jurisdiction. Such a power would require to be very clearly enacted. It seems to me not only foreign to but contradictory of the intendment of the statute. The purpose and the scope of the Act is truly to regulate the sale of exciseable liquors. The right of the public to be supplied with liquors and the right of members of the public to sell liquors, if only the statutory regulations thereanent are observed, seem to me to be recognised, and that in each licensing area. There is certainly no duty imposed on the licensing tribunals to see that each area is kept supplied with whisky and public-houses, but section 11, which enacts that it shall be lawful for the Licensing Court to grant certificates for the year to such and so many persons as the Court shall think meet and convenient, appears to me to mean that if there are persons duly qualified according to the statute applying for licences a duty is imposed on the Court to grant certificates to some at least of the applicants. It may have a very wide discretion as to the number of persons to whom full certificates are to be granted, but there is no suggestion of a right to come to a resolution ab ante to grant no certificates at all for the sale of spirits. Accordingly, without dwelling longer on this point, my

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opinion is that while the Magistrates have a power to regulate and control of the fullest and most unrestricted character, they have no power wholly to prohibit the sale of spirits within their jurisdiction— Municipal Council of Toronto v. Virgo, [1896] AC 88; Rossi v. Magistrates of Edinburgh, (1903) 5 F. 480, 40 S.L.R. 375.

I prefer, however, to rest my decision on more technical grounds. The position of the defenders the Licensing Court is set out in answer 10—‘The Licensing Act imposes no duty on the Magistrates of making provision for the sale by retail in the town of Motherwell of spirits unless they consider it expedient to do so. The Magistrates in the exercise of their discretion under the said Licensing Act, and acting with due regard to the present interests and requirements of the public, deemed it in each of the cases inexpedient to grant a licence certificate in the form applied for, and granted instead a licence certificate in one of the other forms contained in the said sixth schedule to the said Act, under which no power to sell spirits is conferred.’ I take that to mean, and it was their contention, that they were entitled to issue and did issue the restricted certificates in virtue of the powers conferred by section 35 of the Act. Before examining that section, however, there has to be considered the contention of the defenders that in granting the certificates they did they granted renewals of the certificates applied for. It is maintained by the pursuers that they did not, that on the contrary they refused the renewals applied for, and that they refused them without hearing the parties in support of their applications, which it was incompetent for them to do. Section 11 deals with this matter.

In my opinion the documents handed to the applicants were not renewals of their certificates. It may be difficult to define in statutory terms exactly what these documents were if not renewals. The Solicitor-General was inclined at first to describe them as ‘new certificates,’ though he afterwards withdrew that description. Certainly it seems to me they were not ‘new certificates’ as that term is defined in the Act, section 107. Just as certainly they were not what the licence-holders applied to the Court to grant—that is to say, they were not renewals in terms of the certificates heretofore issued to and held by them. To the extent of the difference—and it was a very vital difference—the Court refused to grant the renewals applied for. In so doing the Court in my judgment in the sense of section 11 refused the renewal of the certificates. The certificates held by the applicants were what may be called the first alternative of the several forms of certificates prescribed by the statute. That was what the holders applied for a renewal of. They did not get it. In its place they got a certificate in the third alternative of the forms. They were not refused certificates, and the certificates granted were of the same class as those applied for. But a renewal of a certificate is, I take it, a repetition of the old certificate. It need not be, perhaps, verbatim the same, but the new must be in all essential particulars identical with the old. If that be so, then the applicants were refused the renewals of the certificates held by them for which they applied. It was not competent for the Court so to refuse the renewals without first hearing the parties in support of their applications in open Court. The pursuers were not so heard. It is said that they had an opportunity of being heard, and that it was their own fault if they did not speak. They were not invited to speak, and no indication was given that there was any necessity for their speaking. It was not even necessary for them to say that they desired renewal. They had already done so by lodging their applications, and there was no contradictor. Mere notification to attend the Court does not certainly indicate that an application is to be challenged. At most it is a warning that it may be. No doubt it was said with some force that it was not necessary for the applicants to be heard on this occasion, keeping in view the nature of the ground on which the Court had made up its mind to act, the ground, namely, of general expediency, having no relation to the circumstances of any particular application. But the words of the section are perfectly general. Accordingly it appears to me that the Magistrates went wrong in not hearing the pursuers before they refused to grant them renewals of their certificates. They exceeded their jurisdiction in so doing.

If the view I have just expressed is not well founded there falls to be considered the question whether the Magistrates were entitled under section 35 to grant restricted certificates instead of the full certificates which were applied for. What section 35 says is—‘It shall be lawful for a licensing court where they shall deem it inexpedient to grant to any person a certificate in the form applied for to grant him a certificate in any other of the forms contained in the sixth schedule annexed hereto.’

If the Magistrates are right in their construction of this section, then the statute provides nine different ‘forms.’ In my opinion it provides only three. The statutory forms are first mentioned in section 11, under which the certificate to be granted is to be ‘in such a form as hereinafter directed.’ That refers to section 34, which provides that the forms are to be those contained in the sixth schedule. The forms contained in the sixth schedule are described as (1) the form of certificates for inns and hotels, (2) the form of certificate for public-houses, and (3) the form of certificates for grocers, &c. Each of these three forms of certificate contains a clause which enumerates the particular liquors for the sale of which authority is given, and that clause is expressed in one of three alternative ways according to the sorts of liquors the grantee of the certificate is authorised to sell. These alternatives are not, as I read the statute, anywhere referred to as substantive forms; they are mere variations of the three forms which are themselves ascertained and determined by the purpose for which the certificate is sought, for an inn or hotel, for a public-house, or for a grocer. The proviso

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in section 37 seems to recognise this construction—‘Provided always that nothing herein contained shall be held to prevent the licensing court from granting a certificate in any of the forms in the sixth schedule annexed hereto for the sale by retail of’ wine, porter, ale, &c., or of porter, ale, &c., only. If the word ‘forms’ fell to be read as descriptive of and including the alternatives, making nine forms in all, then the words of the proviso from ‘for the sale by retail’ onwards would be quite superfluous. The form in which a certificate is to be applied for is a statutory form—section 14 and the first part of the fourth schedule. The application when duly filled up in accordance with the statutory directions will disclose which one of three forms of certificate is requested, viz., for an inn or hotel, or for a public-house, or for a grocer, and not which one of nine forms. The statutory register of applications, again, in the fifth schedule also treats the ‘forms’ of certificate as three in number. The matter of the alternatives was not before the Court in Quin v. Magistrates of Paisley, 1909 S.C. 1085, 46 S.L.R. 825. But the Lord President refers to ‘forms of certificate’ in language which appears to me very applicable to the present question. At page 1090 he says—‘There are only three forms of certificate under that Act’ ( i.e., the Act of 1903), ‘viz., a certificate for an inn or hotel, a certificate for a public-house, and a certificate granted to a dealer in groceries and provisions, and there is only one form of application to the Court embodying a request for one or other of these three forms of certificate.’ If this be the correct construction to place upon the word ‘form,’ then the power conferred on the Licensing Court by section 35 is to substitute for the form of certificate applied for as disclosed in the statutory application any other of three forms contained in the sixth schedule, e.g., a public-house certificate for an inn or hotel certificate. This was the view taken by the Court in Weir v. Bryce, (1897) 24 R. (J.) 42, 34 S.L.R. 523, when construing identical phraseology in the earlier Act of 1876. To give a restricted form of public-house certificate instead of a full certificate is not therefore to grant a certificate in another of the statutory forms; it is to grant a certificate in the identical form applied for, although not in the particular alternative that is sought.

Accordingly the Licensing Court in my opinion, in proceeding under section 35 to vary the certificates applied for, acted without statutory warrant, and so exceeded their jurisdiction.

Whether on the assumption that the Magistrates had, under section 35 or otherwise, a discretionary power to proceed as they did, they duly and fairly exercised their discretion, is a question into which, in the view I take and have just expressed, it is not necessary that I should go.

The Licensing Court having acted ultra vires, the affirmation of their proceedings by the Licensing Court of Appeal cannot cure the defect or prevent the remedies sought, if otherwise competent, being granted.

With regard to the order which ought to be pronounced, no assistance can be obtained from the English cases which were referred to. The Queen v. Farquhar, (1874) L. R., 9 Q. B. 258; The Queen v. Howard, (1889) 23 QBD 502; Rex v. Kingston Justices, (1902) 66 J.P. 547. In them relief was given to licence-holders by the Court of King's Bench by mandamus, a writ which is not known to our Courts, and the properties and functions of which appear to be somewhat technical.

I am not aware of any limitation on the authority of this Court, where an inferior tribunal has exceeded its jurisdiction and in so doing committed an illegality, itself to make an order for the correction of that illegality. As I understand the position of matters at the Licensing Court was this, that no objection was stated to the renewal of any of the certificates in question arising in any instance for reasons applicable to the premises or to the licence-holder. Expediency, it now appears, was the sole cause of the declinature to grant the renewals applied for, and it was in the exercise of that discretion said to be conferred by section 35, and only in the exercise of that discretion, that substitute certificates were granted in modified terms. I have held that under that section the Magistrates had no warrant for acting as they did. If that be so, then the renewals of the certificates ought to have been granted as applied for in unrestricted terms, and I see no reason why this Court should not by its order operate the result which should have been reached by the Licensing Court.

The case of Ashley v. Magistrates of Rothesay, 11 Macph. 708, 10 S.L.R. 513, affords a guide as to the order which should be pronounced in the circumstances. There is not here, as there was in that case, a general resolution by the Magistrates which falls to be set aside. What the pursuers ask to be reduced are the writs instructing the deliverance of the Licensing Court of 11th April 1916 and its affirmation by the Appeal Court, so far as these purport to exclude the sale of spirits from the certificates granted to the pursuers. That seems to me an appropriate order to grant. The second conclusion of the summons is for an order on the clerk of the Licensing Court to insert in the certificates such words as will give the licence-holder authority to sell spirits or other exciseable liquors in addition to the liquors already enumerated in the certificates, and to make the necessary corrections in the register of licences. Keeping in view what was done in Ashley's case, that also, in my opinion, is a competent order to make in the circumstances.

The conclusion for declarator that it was ultra vires of the defenders to prohibit the sale of spirits within the burgh of Motherwell was, inter alia, added by way of amendment, and my attention was not called to it at the debate, but there do not appear to me to be any averments relevant to support it. Whatever may have been

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the result of the procedure followed by the Magistrates, they did not pronounce or profess to pronounce any such prohibitory order.

I shall sustain the second and fourth pleas-in-law for the pursuers, and grant decree in terms of the reductive and second conclusions of the summons.”

The defenders reclaimed, and argued—The Lord Ordinary was wrong, and his interlocutor should be recalled; the defenders acted within their statutory powers in refusing to grant any licences for the sale of spirits. Their powers were derived from the Licensing (Scotland) Act 1903 (3 Edw. VII, cap. 25). Their functions were not judicial but administrative. They were not bound to grant but might grant certificates to such and so many persons as they considered meet and convenient—section 11. If they considered it meet and convenient to grant no certificates, they were entitled to take that course. Further, they had power to substitute for the certificate applied for a certificate in a different form—sections 35 and 37 and Schedule 6. That was what they had done. Their action was not invalidated by the fact that they had done in all cases what they could validly do in one or more. M'Beth v. Ashley, 1873, 11 Macph. 708, 10 S.L.R. 513, 1 R. (H.L.) 14, 11 S. L.R. 487, was not in point, for in that case the magistrates were given power to make a particular locality an exception to a general rule, whereas they used that power to make a rule and apply it to all licensed premises within their jurisdiction. But here there was no general rule; the defenders were entitled to grant or refuse, and to substitute one form of certificate for another, according as they considered meet and convenient. The repeated exercise of that discretion in a particular way could not be held, as was held in Ashley's case ( cit.) to be a fraud on the statute. The Municipal Council of Toronto v. Virgo, [1896] AC 88, was not in point, for in that case power to regulate a trade was given and was held not to warrant total prohibition; here the power was not one of regulation, for the defenders had power to refuse certificates. Black v. Magistrates of Grangemouth, 1907 S.C. 218, 44 S.L.R. 185, was contrasted with Ashley's case ( cit.), and showed that so long as the defenders did not commit a fraud on the Act their proceedings could not be impugned. In order to make the action of the defenders ultra vires they must have acted in excess of their statutory jurisdiction— Lundie v. Magistrates of Falkirk, 1890, 18 R. 60, 28 S.L.R. 72. Here the statutory jurisdiction had not been exceeded; the certificates they granted were under the Act, section 1, and they acted as they considered meet and convenient—section 11. They might refuse all applications for certificates— e.g., if all the applicants were unsuitable. Hence the objection of the pursuers could not be to the universality of the result arrived at, but only to the method of arriving at that result. Rossi v. Magistrates of Edinburgh, 1903, 5 F. 480, 40 S.L.R. 375, 7 F. (H.L.) 85, 42 S.L.R. 79, was not in point, for it related to the importation of restrictions not authorised by the statute into certificates granted under it. Reference was also made to Green v. Leith, 1896, 23 R. (J.) 50, 33 S.L.R. 260; Wilson v. Rust and Wilson v. Mackenzie, 1896, 23 R. (J.) 56, 33 S. L. R. 421. (2) The procedure adopted by the defenders was unimpeachable. The defenders had not heard the pursuers, but they were under no obligation to hear them unless they had refused the renewal of their certificates—section 11. Here there was no refusal to renew; the pursuers each obtained the same class of certificate as he had previously held—e.g., a hotel-keeper was given his hotel licence, a publican his public-house licence, and a licensed grocer his licensed grocer's licence. No doubt the licences had been varied, but there was no statutory provision that the pursuers were entitled to a hearing on a question of variation. An application for a certificate was either an application for a new certificate in the sense of section 107, or for a renewal of a certificate—Schedule 4. The applications here were for renewals of certificates, and none of the applications had been refused. Had the defenders been bound to hear the pursuers on a question of variation, provision would have been expressly made therefor in section 11. A certificate was renewed though it was not in exactly the same words as it had been before— Quinn v. Magistrates of Paisley, 1909 S.C. 1085, per Lord Pres. Dunedin, p. 1090, 46 S.L.R. 825. A right to a hearing could not be rested on a common law equity in this case, for the pursuers had no vested right, and the defenders were an administrative not a judicial body. There was no need to give notice of any objection to the granting of the certificates, for objection could be taken by the members of the Licensing Court themselves without notice—section 20. It could not be said that each case had not been dealt with separately, and the defenders were quite entitled to consider each case ab ante in private, and on calling it to refuse it. (3) In granting the certificates, including therein the right to sell spirits, the Lord Ordinary had exceeded his jurisdiction. He had no power to grant licences, and non constat that all the pursuers would be granted full or any certificate by the Licensing Court. A jurisdiction still remained in that Court even if its prior actings were invalid— Moss's Empires, Limited v. Walker, 1916, 54 S.L.R. 12. On that point Ashley's case ( cit.) was distinguished, for the Licensing Court had completely discharged its functions.

Argued for the pursuers (respondents)—The Lord Ordinary was right, and his interlocutor should be adhered to. (1) The defenders had in effect totally prohibited the sale of spirits within their jurisdiction per aversionem. The logical result of the argument for the defenders was that if the statutory procedure was followed the Licensing (Scotland) Act 1903 must be held to have conferred power on the defenders to prohibit totally the sale of spirits—indeed of all exciseable liquor. That could never be said to have been the object and purpose of the Act. The sale of liquor was a lawful trade, and the object of the Licensing Act 1903 and

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the earlier Acts was to control the prosecution of that trade by the granting of licences—section 1. No doubt if each individual applicant for a licence was an unsuitable person, then on an individual consideration of each case the defenders might in each case refuse the licence, but what the defenders had done here was, not to refuse each licence on its merits, but to refuse all in gross. The pursuers were all the licence-holders in Motherwell, and they had all been treated in the mass. The result was in effect a total prohibition. If the Act had enabled the defenders to achieve that result the long-continued agitation in favour of local option, the Temperance (Scotland) Act 1913 (3 and 4 Geo. V, cap. 33), and the establishment and powers of the Liquor Control Board were not required. Thus the defenders had exercised the very powers conferred upon the Liquor Control Board by the Defence of the Realm (Liquor Control) Regulations of 10th June 1915 (Supplement 4, p. 167), and had gone further, for the exercise of these powers was under that Act modified by a right to compensation, whereas the action of the defenders had produced the same result without compensation, and further, without hearing the parties affected. If the practical effect of the defenders' actions was total prohibition their actings could not stand— Ashley's case ( cit.), per Lord President Inglis at p. 715, and Lord Deas at p. 717. The defenders therefore had used their power to control as equivalent to a power to prohibit, which was ultra vires— Virgo's case ( cit). (2) The procedure in the Licensing Courts was illegal and irregular. All the applications were for renewal of certificates. The certificates had not been renewed, for renewal of a certificate meant its re-issue in identical terms to those in which it had been previously granted— Marwick v. Codlin, 1874, L.R., 9 Q.B. 509, per Cockburn, C.J., at p. 514; The Queen v. The Licensing Justices of Crewkerne, 1888, 21 Q.B.D 85—whereas here certificates had been granted which omitted a material part of the former certificates. Renewal of a certificate was not defined in the Licensing Act 1903 ( cit), but what was renewed was a subsisting certificate (section 18). Further, where the application was for renewal, as it was here, it was clearly implied in the statute the renewal would follow as a matter of course unless objected to, for unless required to attend the Court the applicant need not do so (section 18), and it was not competent to refuse a renewal without hearing the applicant in open Court (section 11). Here the applicants were required to attend the Licensing Court, but no objections to the renewal of any of their certificates were stated or heard, whereas the statute provided that objections to renewals must be lodged at least five days before the meeting of the court intimated to the applicant and heard at that court (section 19). Objections might be made by official persons without notice, but these also must be heard at the Licensing Court (section 20). Those provisions were intended to secure that the applicant for renewal should know of any objections to the renewal of his certificate and should have a chance to meet them. Here he was not informed of any objections, and was not in a position to meet any objections. Quinn's case ( cit.) was not in point. The only question decided was that of confirmation, which did not arise in the case of a renewal. Apart from the statute it was inequitable to deprive a man of his rights without hearing him in support thereof. (3) The remedy allowed by the Lord Ordinary was not only competent, but was the only available remedy in the circumstances. If there were no objections competently stated the applicants were entitled to a renewal, and the defenders could not refuse it. No objections were competently stated, and none could now be competently stated, and accordingly no jurisdiction was left in the defenders except to grant the licences, but they could not review themselves, and therefore could not grant the licences to which the pursuers were entitled, and accordingly the Lord Ordinary had granted the only proper and competent remedy. Ashley's case ( cit.) and Rossi's case ( cit.) were authorities for that course. Moss's Empires v. Walker ( cit.) was not in point.

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