Scottish Court of Session Decisions

This was an action at the instance of Peter Boag, hallkeeper, and John Mackie, hammerman, both residing at 30 Clyde Street, Anderston, Glasgow, against (1) William Curtis Teacher, a partner of the firm of William Teacher & Sons, wine and spirit merchants, Glasgow; (2) the Lord Provost, and Magistrates of the City and royal burgh of Glasgow; and (3) the Town-Clerk of the city and royal burgh of Glasgow, as such Town-Clerk, and as representing the Magistrates, in which the pursuer concluded ( Primo) for declarator that it was ultra vires of the Magistrates at an adjourned general half-yearly meeting for granting publicans' certificates, held by them on 13th April 1898 (1) to sist the defender William Curtis Teacher, a partner of the firm of William Teacher & Sons, as a party to the application lodged with the Town-Clerk by the deceased Adam Teacher, wine and spirit merchant, Glasgow, for renewal of a public-house certificate for premises at 55 and 57 Clyde Street, Anderston, Glasgow; (2) to authorise the Town-Clerk to receive on 13th April 1898 a supplementary application by William Curtis Teacher, a partuer of the firm of William Teacher & Sons, for renewal in his favour of the public-house certificate held by Adam Teacher at the time of his death; and (3) to direct public intimation thereof to be made by the Town-Clerk at least twice in the newspapers ten days previous to 28th April 1898; ( Secundo) for declarator that it was ultra vires of the Magistrates, at an adjourned general half-yearly meeting for granting publicans' certificates held by them on 28th April 1898, to grant the supplementary application of the defender William Curtis Teacher above mentioned: ( Tertio) for declarator that (1) the entry in the register of applications for the sale of exciseable liquors for the city and royal burgh of Glasgow kept by the Town-Clerk in terms of 9 Geo. IV. c. 58, and 16 and 17 Vict. c. 67, to the effect that said supplementary application had been received by him, and (2) the entry that it had been granted, were null and void: ( Quarto) for declarator that the public-house certificate issued by the Town-Clerk to the defender William Curtis Teacher in consequence of the said deliverance by the Magistrates was null and void: and ( Quinto) for interdict against the defender William Curtis Teacher trafficking in exciseable liquors in virtue of the said certificate: And further for reduction (1) of the entry in the register specifying that the supplementary application had been received; (2) of the entry in the register specifying that the defender William Curtis Teacher's application for renewal was granted; and (3) of the public-house certificate issued to the defender William Curtis Teacher.

The Magistrates had sisted “William Curtis Teacher, a partner of the firm of William Teacher & Sons,” as a party to an application originally lodged by “Adam Teacher … for William Teacher & Sons,” Adam Teacher having meantime died. The supplementary application above mentioned was made in name of “William Curtis Teacher,… a partner of William Teacher & Sons.” The public-house certificate sought to be reduced was granted to “William Curtis Teacher (trading under the firm of William Teacher & Sons).” It did not appear on the face of the certificate whether it was granted upon the original application of Adam Teacher or upon the supplementary application of William Curtis Teacher.

The Public-Houses Acts Amendment (Scotland) Act 1862 (25 and 26 Vict. c. 35) enacts as follows:—Section 1—“The magistrates of burghs shall meet for granting and renewing certificates for the sale of exciseable liquors within the bounds of such burghs upon the second Tuesday of April and the third Tuesday in October in each year; … and it shall be lawful for such magistrates and justices respectively to adjourn such meetings from time to time as they shall think fit during the period of one month next after the day of their first meeting, but no longer.” Section 4—“If any certificate shall be granted contrary to the terms and provisions of this Act, the same shall be null and void to all intents and purposes.” Section 8—“If any person shall be desirous of keeping an inn and hotel, public-house, shop, or premises for the sale therein of spirits, wine, beer, or other exciseable liquors, whether to be consumed on the premises or not, he shall, previous to the granting to him of a certificate for that purpose, or the renewal of any such certificate already granted, truly fill up an application for such certificate in the form contained in the first part of Schedule (B) to this Act annexed, and shall truly answer the several queries therein contained; … and every such application shall be filled up in a fair and legible hand, and shall be signed by the applicant or his agent thereunto authorised, and shall be lodged by the applicant with such clerk of the peace or town-clerk, as the case may be, fourteen days at least before the general meeting of the justices of the peace or magistrates for granting and renewing certificates.” Section 10—“The clerk of the peace of every county or district, and the town-clerk of every burgh shall, at least ten days before the general meeting of the justices of the peace or the magistrates, as the case may be, for the granting and renewal of certificates for the sale of exciseable liquors, make out and advertise, at least twice in one or more newspapers printed or generally circulated in the district, a complete list in the form, or as nearly as may be in the form, set forth in Schedule (C) to this Act annexed of all applications for certificates within their respective bounds for premises not at the time certificated, and of all applications by new tenants or occupants of premises at the time certificated, and also of all applications for renewal of certificates which have been transferred during the currency of the previous half-year.”

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The Home Drummond Act (9 Geo. IV. c. 58) enacts as follows:—Section 7—“At such general or district meetings, or at any adjournment thereof within the respective periods aforesaid, it shall be lawful for the said justices and magistrates respectively to grant certificates for the year next ensuing, commencing as after mentioned, to such and so many persons as the justices or magistrates then assembled at such general or district meeting, or the major part of them, shall think meet and convenient, to keep common inns, alehouses, or victualling—houses within which ale, beer, spirits, wine, and other exciseable liquors may, under Excise licences, be sold by retail, to be drunk or consumed in the premises within their respective counties, districts, or royal burghs.” Section 9— “Every such certificate as aforesaid shall be in force for one whole year commencing at the term of Whitsunday, or for six months from Martinmas respectively, according to the period of the year at which such certificate was granted, and no longer.” Section 11—“It shall be lawful for the justices or magistrates respectively assembled at any such general or district meeting as aforesaid, to make such regulations and rules as they shall think fit, not being inconsistent with the provisions of this Act, as to the manner of making such applications, as well for ascertaining the character of the applicants as whether it be expedient to grant such certificates in the places in which they are sought to be obtained, and also as to the mode of proceeding in transferring certificates as hereinafter mentioned.”

The facts sufficiently appear from the opinion of the Lord Ordinary ( Kincairney), who on 3rd November 1899 pronounced the following interlocutor:— “Finds that it was not ultra vires of the Magistrates of Glasgow to grant the certificate in favour of the defender William Curtis Teacher, as partner of the firm of William Teacher & Sons, which is sought to be reduced: Therefore repels the pleas-in-law for the pursuers, and assoilzies the defenders from the conclusions of the summons, and decerns: Finds the defenders entitled to expenses, of which allows accounts to be given in,” &c.

Opinion.—“At a general meeting held on 28th April 1898 the Magistrates of Glasgow granted a certificate to William Curtis Teacher, a partner of the firm of William Teacher & Sons, for behoof of that firm, for a public-house at 55 and 57 Clyde Street, Anderston, Glasgow, and the question now raised by this action of reduction, at the instance of parties whose title has been sustained, is substantially whether the certificate is valid or whether it was ultra vires of the Magistrates to grant it.

There are no disputed facts, and there is no reason why the case should not be now decided. The circumstances are very simple. The late Adam Teacher, a partner of the firm of William Teacher & Sons, held for that firm a certificate and licence for the public-house in question, which would in ordinary course expire at Whitsunday 1898, and if a renewal of that certificate and licence for the year from Whitsunday 1898 to Whitsunday 1899 was desired, it was necessary for Adam Teacher to make an application for a renewed certificate; and under section 8 of the Act 25 and 26 Victoria, cap. 35, it was necessary that the application should be lodged with the town-clerk ‘fourteen days at least before the general meeting of the Justices of the Peace or Magistrates for granting and renewing certificates.’ If he did not lodge his application within that time, his certificate and licence would be lost.

Accordingly Adam Teacher lodged an application on 28th March 1898, which was in name of Adam Teacher ‘for William Teacher & Sons,’ and was ‘for renewal in applicant's name.’

If Adam Teacher had lived until 12th April 1898 he would have got his licence, supposing the Magistrates to follow the usual course, because applications for renewed certificates are in several particulars favoured by the statutes, and are in practice granted more readily than applications for new certificates, the difference between these two forms of application being, that in the former cases the premises are licensed at the date of the application, and in the latter they are not. If that had happened, and if Adam Teacher had died afterwards, the benefit of the licence might have been retained until its natural expiry by means of an application under section 19 of the Home Drummond Act, which provides for the transfer of a certificate ‘to the executors, representatives, or disponees of’ a licensee dying while holding a certificate and licence.

But Adam Teacher died on 31st March 1898, just within the fourteen days prior to the statutory meeting; and William Teacher & Sons had to consider how the certificate could be renewed, and how they could keep open the shop after Whitsunday 1898. If he had died some days sooner an application might have been made under section 19 of the Home Drummond Act; and if a transfer were obtained then the transferee might have presented, fourteen days before the court-day, an application for a renewed certificate, just as the deceased might have done. But the difficulty was that it was impossible to comply with the 8th section of the Act of 1862 and lodge the application within the time required by that section.

A case occurred in England where in such circumstances a certificate was issued in name of the licensee who had died, but that was held incompetent and of no avail whatever— Cowles v. Gale, 1871, L.R., 7 Ch. 12.

I have been informed from the bar that in such circumstances there had been a practice to obtain the consent of the magistrates to a license by the Excise authorities, which these authorities were, on such consent, in use to issue. This practice is noticed in Purves' Scotch Licensing Acts, p. 33, and it came under the notice of the Court in Miller v. White, 18th July 1892,

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19 R. (J.C.) 104. That course was not followed in this case, because the Excise authorities, as I am informed, have come to think it illegal, and have refused to grant the licences.

The question therefore for William Teacher & Sons came to be, whether there there was any other remedy, or whether they were bound to submit to the loss of their licence and to close their doors for half-a-year at least at Whitsunday 1898. The present case refers only to one shop, but Teacher & Sons had several shops, and the question bore upon each of them, although I understand that their certificates have not been challenged in any other case.

The Magistrates apparently were willing to give their assistance, and the course followed was this:—On 12th April they adjourned consideration of the cause until the 13th, when by a majority they sisted the defender William Curtis Teacher as a party to the application of the deceased Adam Teacher; they also authorised the Town-Clerk to receive a supplementary application by William Curtis Teacher, directed public advertisement of it for ten days prior to 28th April, and adjourned the meeting to that day, when, on considering both applications on their merits, they granted them. I understand that William Curtis Teacher was a partner of the firm of William Teacher & Sons. That I understood to be admitted.

The question is, whether the procedure and the certificate granted as the result of it were outwith the powers of the Magistrates. As matters now stand, this is of little or no practical consequence, because the term of the certificate granted on 28th April 1898 expired half a year ago, and perhaps it may not signify much now whether it was a good or a bad certificate. If the defender holds a licence now, as I suppose he does, it must be in virtue of a renewed certificate issued in April 1899; and it is not clear that the pursuers could now take any practical benefit from success. The case has been somewhat delayed on account of the dependence of the case of Black v. Tennent, January 24, 1899, 1 Fraser 423, which involved several of the questions raised in this case. When the action was raised, however, the pursuers could qualify an interest, and the defenders did not maintain in argument that the action should be dismissed because the pursuers' interest had fallen. Both parties asked a judgment, and while I feel reluctant to decide an important and narrow question without practical necessity, I am disposed to think that I am not entitled to refuse to decide it.

Substantially and fundamentally the question seems to be, whether it was in the power of the Magistrates to grant this certificate in name of a party who was not an applicant for it; whether their powers were so rigorously limited that they could not grant the certificate to anyone but the applicant. The deviation from the prayer of the application was the slightest imaginable, yet the question remains, whether the statutes authorise it. The question is rather as to the power of the Magistrates than as to the procedure adopted. It is not a question of process. If it was wholly out of the power of the Magistrates to deviate even to this extent from the prayer of the application, I do not think it signifies by what ingenious devices they endeavoured to reach an illegal end. If it was within their power, then I do not think much objection could be taken to the procedure adopted— whether it was necessary or superfluous—and in any case I do not think that it could be competently challenged.

The question depends on the statutory powers of the magistrates to grant certificates. The powers are contained chiefly in the 7th section of the Home Drummond Act, and also in the 1st and 2nd sections of the Act of 1862. I have found these provisions far from distinct or clear; but the powers granted, especially as they are expressed in the 7th section of the Home Drummond Act, are of a very general kind Section 7 empowers the justices to grant certificates to such and so many persons as the justices or magistrates shall think meet. That wide power is not expressly narrowed by any other clauses of either Act, and therefore so far as concerns the clauses of the statutes conferring power, the power is abundant, and the question is, whether that power is inferentially restricted by the provisions as to the forms of applications, the date when they require to be lodged, and the advertisement of them by the town-clerk or clerk of the peace. The object of these requirements is no doubt to bring the names of the applicants before the public, and from these provisions the inference is drawn that the magistrates have no power to appoint anyone but the applicant whose name is thus advertised. But the power given to the magistrates is quite general, and this limitation sought to be put upon their power is inferential only. I am not persuaded that the magistrates are left wholly without discretion, and it seems possible to maintain that magistrates who grant a licence to the representative of an applicant who has died, truly grant the application, and that they do so without violation of the intention and policy of the Act if they take due means to inform the public of the proposed deviation from the application. It is provided (section 4 of the Act of 1862) that ‘if any certificate shall be granted contrary to the terms and provisions of this Act it shall be void to all intents and purposes.’ But a certificate granted in favour of the representative of a deceased applicant would not, in my judgment, be contrary to the terms and provisions of the Act.

But that is not precisely the point raised here, and I do not require to decide whether a certificate in favour of the representative of Adam Teacher would be good. I incline to think it would, but what the Magistrates did in this case seems to have been a narrower exercise of power than that would have been. They granted a certificate for behoof of the company for whom the application had been made, but substituted the

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name of a different nominee of or trustee for the company. I have not been able to bring myself to think that this act was in excess of an authority so comprehensively expressed as power to appoint such persons as the Magistrates thought meet, having reference to the provisions about applications and notice. I therefore am of opinion that it was not ultra vires of the Magistrates to grant the certificate now sought to be reduced.

If the substitution of a new representative of William Teacher & Sons in place of Adam, who had died, was not beyond the power of the Magistrates, I am not sure that it signifies much whether the methods they adopted were well chosen or not. I doubt whether any formal steps of process were necessary. I hesitate to apply the ordinary rules of process to a proceeding of this kind. I see, however, no incompetency in the sist, but I do not clearly see the necessity for it. It was argued that it was quite incompetent because it was said that the application lapsed and was wholly extinguished by the death of Adam Teacher, and reference was made to certain dicta in a case Cook v. Grey, December 3, 1891, 29 S.L.R. 247. The decision was about a totally different matter, and is not at all in point, and the dicta were upon a different matter also. They referred to the effect of the death of a licensee on his licence and certificate, but that is quite different from a question as to the effect of the death of an applicant for a licence. In ordinary questions of process the death of a pursuer or petitioner does not put an end to the process, and in such cases representatives are always sisted. I see no objection to following the analogy in this case of ordinary legal procedure, although I do not affirm the necessity for it. Further, it was argued that the supplementary application was incompetent because it was not lodged in the time prescribed by the 8th section of the statute; and the pursuers referred to a judgment of Lord Rutherfurd Clark in the case of M'Intyre v. Cameron and Macleish, July 14, 1876, in which a certificate was suspended because the application on which it was granted had not been timeously lodged. The case is not reported, but it is noted in Purves’ Licensing Laws, p. 24. I have been furnished with a print of the record, but no note of his Lordship's opinion has been found. That case, however, differs from this. There had been nothing to prevent timeous presentation of the application. It was only a case of neglect and bad practice. Here the applicants did their best, and it is possible that the Magistrates may have some power to dispense with the exact fulfilment of the statutory requirements in a case for which the statutes do not provide, and in order to avoid what might be held to be injustice or hardship. But I do not profess to decide that point. I prefer to hold that the supplementary application was unnecessary, and I am inclined to hold that the purpose of William Teacher & Sons might have been served by merely lodging a minute in the original application.”

The pursuer reclaimed, and argued—The question here was whether the Magistrates were entitled to make provision for a casus improvisus to meet a case of apparent hardship. They were not. The terms of the statutes must be complied with strictly and literally, and not merely substantially. The Magistrates could only validly exercise the powers conferred upon them if they did so in the ways and subject to the conditions as to procedure and otherwise laid down in the statutes. If the statutory requirements as to notice were not complied with they had no jurisdiction— Reg v. Nicolson [1899], 2 Q.B. 455; M'Intyre v. Cameron and Macleish, July 14, 1876 (not reported)— Dewar's Licensing Laws, p. 185. It was not enough to say that the procedure adopted was equivalent for all practical purposes to that required in the statutes— Laceby v. Lacon & Co. [1899], A. C. 229, per Lord Halsbury, L.C., at p. 229. Where a remedy was given by statute it was only available upon the statutory conditions— The Queen v. Armitage (1872), L.R., 7 Q.B. 773. Omissions in the statute could not be supplied by the action of the Magistrates. There was no provision in Scotland for the case of an applicant dying between the date when notice had to be given and the date of the general meeting. That contingency had been provided for in England by the Act 9 Geo. IV. c. 61, sec. 14. See Cowles v. Gale, 1871, L.R., 7 Ch. App. 12, per James, L.J., at p. 16. But in Scotland there was no corresponding enactment. In this case the certificate must have been granted either upon the supplementary application or upon the original application of Adam Teacher. In either case it was ultra vires of the Magistrates to grant it. The Magistrates were not entitled to entertain any application which was not lodged fourteen days before the general meeting—The Public-Houses Acts Amendment (Scotland) Act 1862, sec. 8—and which if a new application was not advertised ten days before the general meeting—The Public-Houses Acts Amendment (Scotland) Act 1862, sec. 10. It was quite impossible for the “supplementary application” to comply with either of these conditions, and the Magistrates were not entitled to consider it. The difficulty could not be got over by adjourning the meeting and ordering advertisement in the meantime. The adjourned meeting of 28th April was still in law the meeting of 12th April— The Queen v. Armstrong (1896), 65 L.J., Mag. Cas. 35. Notice or advertisement fourteen or ten days before the date upon which the certificate was granted at the adjourned meeting was not enough. The time for lodging applications and making advertisement could not be extended by adjourning the meeting. It might be that practically one period of fourteen days or ten days was as good as another, but that was irrelevant. The Magistrates were not entitled to be satisfied with equivalents. They were therefore acting ultra vires if they granted a certificate upon the supplementary application. On the other hand, if they proceeded upon the original

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application their action was equally illegal. Upon the death of a licence-holder his licence expired, and in strict law no-one after his death was entitled to carry on the business until he had got a transfer under sec. 19 of the Act 9 Geo. IV. c. 58. A licence was personal, and fell on the death of the grantee— Cook v. Gray, Dec. 3, 1891, 29 S.L.R. 247, per Lord President Robertson, at p. 249. In practice, no doubt, this rule was not strictly enforced, and the business was allowed to be carried on for a reasonable time without a licence. The Court had refused to convict the person carrying on the business under such circumstances— Rattray v. White, Dec. 18, 1891, 19 R. (J.C.) 23; Wylie v. Thom, July 4, 1889, 16 R. (J.C.) 90; but these Justiciary decisions proceeded upon the ground that the prosecutions were oppressive, and they were therefore irrelevant here. Quoad civilia such trafficking was illegal, there being no licence in force at the time— Cook v. Gray, cit. A firm could not hold a licence or certificate, or be recognised in any way by the licensing authorities— Clift v. Portobello Pier Co., Feb. 10, 1877, 4 R. 462. A certificate could only be granted to an individual. He was the holder of the certificate and licence, and the fact that he represented a firm or company made no difference. The position here therefore was that the licence granted to Adam Teacher expired when he died. The fact that it might have been transferred did not affect the question, because no transfer under section 19 was applied for. At the date of the general meeting, therefore, there was no licence in existence for the premises referred to in Adam Teacher's application, and no certificate for them could be granted to anyone except upon an application for a new certificate duly lodged and duly advertised. Adam Teacher's application was for a renewal of the certificate held by him as an individual in his own name. That application could not be granted for Adam Teacher was dead, and the Magistrates were not entitled upon that application to grant a renewal of the certificate formerly held by him to another member of his firm. They could only grant a certificate to William Curtis Teacher upon an application duly and timeously lodged and advertised as a new application. The fact that the former certificate had been held, and that its renewal was applied for by Adam Teacher, on behalf of his firm, did not entitle the Magistrates to allow William Curtis Teacher to be sisted as a party to an application made in name of Adam Teacher. There was nothing in the statutes which gave the slightest countenance to such procedure, and as the Magistrates' jurisdiction was strictly limited to carrying out the procedure authorised by the statutes, the course which they took with regard to this application was ultra vires, and the certificate which they granted upon it was null and void. If it was admitted that the substitution of the name of William Curtis Teacher in the original application required advertisement, that was fatal to the defenders' case for the reasons already stated with regard to the advertisement of the supplementary application. Counsel for the pursuers also referred to Sharp v. Wakefield [1891], A.C. 173; and Lundie v. Magistrates of Falkirk, October 31, 1890, 18 R. 60.

Argued for the defender Teacher—The pursuers only asked for a declarator as to the supplementary application and of the certificate as following thereon. Even if this were granted it would not avail them, as the supplementary application was not necessary. The original application as amended was quite sufficient. Notice of it had been given fourteen days before the general meeting, and it did not require advertisement. The certificate and licence held at the date of Adam Teacher's application was really held by the firm of William Teacher & Sons. It was their business which was carried on in the premises licensed. It was for a renewal of this licence that application was made. Adam Teacher's name was entered in the application merely as a nominee and trustee for his firm. The certificate was really applied for by and granted by the Magistrates to the firm, and was to be their property. The only alteration made upon the application was the substitution of the name of one partner of the firm in place of another. The Magistrates were entitled to allow that alteration to be made. If advertisement was necessary the alteration had been advertised; but this was not a new application. The former licence, which as already explained was really held by the firm, continued in force up to the date of the general meeting. By section 9 of the Home Drummond Act (9 Geo. IV., c. 58) the duration of the licence held by Adam Teacher for William Teacher & Sons was one whole year, ending Whitsunday 1898. It was the in variable practice to carry on the business of a deceased license-holder after his death. That was no offence against the Licensing Acts— Rattray v. White. cit.; Wylie v. Thom, cit. The fact that the licence formerly held by the deceased licence-holder could be transferred, and that the transfer only justified carrying on the business until the date when the licence would have expired in ordinary course, showed that the licence continued to exist until that date irrespective of the death of the holder. At most, what the Magistrates had done here was to make a new rule as to a matter of process. They were entitled to do so—Act 9 Geo. IV. c. 58, section 11.

Counsel watched the case for the Town-Clerk as representing the Magistrates, but did not address the Court.

At advising—