Scottish Court of Session Decisions

By section 2 of the Public-Houses Acts Amendment (Scotland) Act 1862 (25 and 26 Vict. cap. 35) it is enacted that “the forms of certificates contained in Schedule (A) of the Act annexed (which prohibit the sale of liquors before 8 a.m. and after 11 p.m.) shall come in place of previous forms of certificates, “provided always that in any particular locality within any county or district or burgh requiring other hours for opening and closing inns and hotels and public-houses than those specified in the forms of certificates in said schedule applicable thereto, it shall be lawful for such justices or magistrates respectively to insert in such certificates such other hours, not being earlier than six of the clock or later than eight of the clock in the morning for opening, or earlier than nine of the clock or later than eleven of the clock in the evening for closing the same, as they shall think fit.”

The Licensing (Scotland) Act 1828 (9 Geo. IV. c. 58) (Home Drummond Act) enacts—sec. 14—“If any justice of the peace or proprietor or occupier of any house in respect whereof any such certificate shall be applied for, shall be dissatisfied with any proceeding of any justices or magistrates assembled for granting certificates

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as aforesaid, whether in granting or refusing or otherwise disposing of any such application, it shall be lawful to such justices of the peace, proprietor, or occupier to appeal therefrom to the next Quarter Sessions of the Peace for the county: Provided always that such appeal shall be lodged with the clerk of the peace within ten days after such proceeding, and provided such appellant, being a proprietor or occupier as aforesaid, shall find caution to abide such appeal and the expenses thereof, and shall give intimation of such appeal to the opposite party and to the justices of whose proceeding he complains.”

In June 1902 Archibald Cameron, Edward Cronin, Alexander Gray, James Ward, and Charles Marchant senior, all wine and spirit merchants in Broomielaw, Glasgow, raised an action against (1) the Magistrates of the royal burgh of Glasgow, (2) the Town-Clerk and Depute Town-Clerk of Glasgow, (3) the Justices of the Peace of the County of the City of Glasgow who attended and acted at a meeting of the Quarter Sessions of the Peace for said county held at Glasgow on 8th May 1902, (4) the remaining Justices of the Peace for the County of the City of Glasgow, (5) the Clerk of the Peace and the Depute Clerk of the Peace, County Buildings, Glasgow, and (6) the Chief-Constable and the Procurator-Fiscal of the said City.

The conclusions of the action were for reduction (1) of a resolution adopted by the Magistrates of Glasgow on 11th April 1902, in these terms, viz., “The Magistrates having in view the circumstances and requirements of the locality referred to as the Broomielaw area, and shown in blue on the map now submitted to the meeting, … thereupon, in virtue of the powers conferred on them by section 2 of the Public-Houses Acts Amendment (Scotland) Act 1862, resolved and hereby resolve that the said area is a particular locality within the burgh of Glasgow, under and within the meaning of said section, and further, the Magistrates resolved and hereby resolve that the hour, for closing to be inserted in the certificates granted for inns and hotels and public-houses in that particular locality shall be ten of the clock in the evening;” (2) of deliverances granting renewals of the pursuers' certificates; (3) of the certificates granted to the pursuers for the year from Whitsunday 1902 to Whitsunday 1903, which provided that the pursuers should not keep open house after ten; and (4) of judgments of the Quarter Sessions pronounced on 8th May 1902 “refusing to entertain, and dismissing as incompetent and illegal,” appeals taken by the pursuers against the resolution and the deliverances, and against the insertion of the said condition as to the hour of closing in the certificates granted to the pursuers.

The pursuers averred that they duly lodged applications under the Scottish Licensing Acts 1828 to 1897 for renewal of their then current public-house certificates to the general half-yearly meeting for granting and renewing such certificates, held at Glasgow on 8th April 1902; that their then current certificates permitted them to keep open and sell exciseable liquors between 8 a.m. and 11 p.m.; that at the meeting counsel were heard for the pursuers on the subject of forming Broomielaw into a particular locality for early closing purposes, and notwithstanding the objections of pursuers' counsel, counsel instructed by the Clerk of Court was heard on behalf of the Chief-Constable and the Procurator-Fiscal, who were both present; that the evidence of police officials was then taken, and thereafter, despite the objections of the pursuers' counsel, the evidence of objectors to certain specific licences; that at the close of this evidence the pursuers' counsel said he had been taken by surprise by the procedure, and asked an adjournment for a week in order to submit evidence in reply; that this was nimiously and oppressively refused by the Magistrates, who ordered the pursuers to lead any evidence they wished on 11th April; that evidence was led for them on that day, and after hearing counsel the Magistrates passed the resolution sought to be reduced; that on 22nd or 30th April the pursuers' applications for renewal of their certificates were granted at adjourned meetings; that the pursuers appealed against the alleged resolution and the restriction of hours in their certificates to the Quarter Sessions; that the Quarter Sessions met in Glasgow on 8th May 1902; that after hearing counsel for the pursuers, and also, notwithstanding the pursuers' objections, counsel for the Chief-Constable and the Procurator-Fiscal, the meeting dismissed the appeals as incompetent and illegal; and that thereafter the Town-Clerk, or his depute, issued public-house certificates to the pursuers, bearing that they were not to sell in their licensed premises before 8 a.m. or after 10 p.m.

The grounds of action stated on record by the pursuers were as follows:—(1) They averred that the Magistrates in resolving to turn the Broomielaw area into a particular locality exceeded their statutory powers, and acted illegally and irregularly. The area defined was not the parliamentary or the municipal area, but an arbitrary area, three-fourths of a mile in length and 350 yards in breadth, selected at their own discretion. To close public-houses in that area would simply incommode the resident population and divert business to public-houses a few feet outside the area. There were no particular circumstances differentiating the area from other parts of the centre of the city. The resolution had been passed, not in the bona fide execution of the Licensing Acts, but solely for the purpose of carrying out the views entertained by the makers individually, and by it the Magistrates had dealt unfairly and inequitably with the pursuers. (2) The pursuers further averred that the Magistrates had acted illegally and ultra vires in resolving that the pursuers should shut at 10 p.m. instead of 11 p.m. without inserting a corresponding earlier hour of opening in the morning. (3) The Magistrates on the bench at the licensing meeting had disqualified themselves from acting as judges

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by their proceedings. During six months before the meeting they had had private and official conferences among themselves and with the Magistrates of Aberdeen and Dundee, and had determined to delineate early closing areas in Glasgow. They had further resolved that counsel should be instructed to appear before them for the Chief-Constable and Procurator-Fiscal at the licensing meeting, and by so doing had deprived themselves of an opportunity of hearing an unbiased statement of facts from those officials as contemplated in the Licensing Acts. The Magistrates who voted for the resolution sought to be reduced had previously disqualified themselves from acting as judges and from forming an impartial judgment by employing and instructing counsel to appear and act before them against the present pursuers. The Magistrates who voted for the resolution at the licensing meeting also sat on the Bench in the Quarter Sessions and again heard counsel for the Chief-Constable and Procurator-Fiscal, who had really been instructed by themselves to oppose the pursuers' appeals. The Magistrates had thus disqualified themselves from forming an impartial judgment. (4) The pursuers lastly averred that the defenders third and fifth called had acted illegally and oppressively in refusing their appeals at the Quarter Sessions. These appeals were based on section 14 of the Licensing (Scotland) Act 1828 (the Home Drummond Act).

The pursuers pleaded—“(1) The pursuers are entitled to decree of reduction of the pretended resolution and the condition as to the closing at ten o'clock inserted in their certificates, as concluded for, in respect that (a) the whole proceedings of the said Magistrates, with regard to the said pretended resolution and the early closing condition were illegal, irregular, nimious, and oppressive; ( b) in any view, it was incompetent and illegal to compel the pursuers to close their licensed premises at ten o'clock at night without allowing them to open their said premises at seven o'clock in the morning, and to insert a condition as to closing at ten o'clock, in the pursuers' certificates; and (c) the Magistrates and Justices were not entitled to deal with the said area as a particular locality within the meaning of section 2 of the 1862 Act. (2) The pursuers are entitled to decree of reduction of the said deliverance or judgment of the Quarter Sessions in respect that ( a) the whole proceedings of and relating to the said pretended meeting of Quarter Sessions were illegal, irregular, nimious, and oppressive; (b) in any view, the Quarter Sessions were bound to have entertained the said appeals and to have heard and determined the same on their merits; and that in refusing to entertain and in dismissing said appeals the Quarter Sessions acted in excess of their statutory power and duty. (3) The pursuers are entitled to decree of reduction as concluded for, in respect that both at the meeting of Magistrates and the meeting of Quarter Sessions the Magistrates, who sat and adjudicated upon whether the said resolution should be adopted and the pursuers' appeals be dismissed, had employed and instructed counsel to conduct the proceedings against the pursuers. (4) In respect of the facts and circumstances condescended on, the pursuers are also entitled to other remedies sought by them in the remaining conclusions of the summons.”

Defences were lodged by the first and second defenders, who pleaded, inter alia—“(2) The pursuers' averments are irrelevant and insufficient to support the conclusions of the summons.”

On 27th November 1902 the Lord Ordinary ( Kincairney) pronounced the following interlocutor—“Finds (1) that the resolution of the Magistrates of Glasgow adopted on 11th April 1902, and sought to be reduced, was within the powers conferred by section 2 of the Act 25 and 26 Vict. cap. 35; (2) that there are no averments relevant to infer reduction of the said resolution on the ground of irregularity of procedure, or of partiality or bias on the part of the said Magistrates; (3) that the said resolution was not subject to review by the Quarter Sessions; (4) that the appeals to the Quarter Sessions against the licences granted to the pursuers were incompetent; (5) that there are no relevant grounds stated on record for the reduction of the said resolution or of the said licences: Therefore repels the pleas-in-law for the pursuers, assoilzies the defenders from the conclusions of the summons, and decerns,” &c.

Opinion.—… “The first and principal question in this case is whether the provision above quoted (25 and 26 Vict. cap. 35, sec. 2) authorises the resolution requiring hotels and public-houses in the Broomielaw to be closed at ten instead of eleven, or whether the resolution was ultra vires of the Magistrates.

The statute does not expressly authorise the adoption of any general resolution in reference to licensing, or the definition or designation of any particular locality by boundaries, but is confined to certificates and to the modification of previous statutory certificates. Whether it would be competent to justices or magistrates to carry out the provisions of the Act by applying them to a single certificate, or whether it would be competent to grant certificates with different hours applicable to different houses in the same vicinity, need not be considered. These questions have not arisen. The Magistrates have sought to carry out the Act in a different manner, namely, by designing a particular district in which the modifications of the former certificates permitted by the second section of the Act should have effect, and I am of opinion that this was undoubtedly a competent mode of carrying out the Act, and the only reasonable mode of doing so. The power to do so is not, it is true, expressly given, but may be legitimately inferred. The expression ‘particular locality’ seems to me to involve the fixing or definition of some particular area over which the powers of the Act were to be

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exercised. This section of the Act underwent very searching scrutiny in the case of the Magistrates of Rothesay, reported as Macbeth v. Ashley, June 20, 1873, 11 Macph. 708, and April 17, 1874, 1 R. (H.L.) 14; but it was never suggested that the Act could not be put into operation by means of laying out definite localities and applying the provisions of the section to these localities. Accordingly, I have no doubt that it was competent for the Magistrates, as licensing authority, to define a district or districts, and to grant certificates for the inns and public-houses in that district in the terms authorised by the section.

The pursuers founded on the case of Macbeth. In that case a resolution of the Magistrates purporting to define a particular locality was reduced as ultra vires. But the district defined was practically the whole burgh—at least it included all the public-houses—and that was held to be beyond the power conferred in the statute, and the district was held not to be a ‘particular locality within the burgh,’ because it was practically the whole burgh. The resolution was regarded as a fraud on the statute. But the judgment took for granted the competency of designing a district which was truly a part of the burgh; and apparently it would have denied all effect to the Act had it not done so. I do not see how it can be disputed that the area of the Broomielaw is a part of the burgh of Glasgow, and therefore I think that the case does not apply. Whether it is a district in which it is desirable to modify the ordinary rule as to closing at night, or whether the resolution was a wise or prudent one, is a different matter, with which I consider I am in no way concerned. These were points for the Magistrates.

It may be noticed that the judgment in the case of Rothesay ( Macbeth, supra) cannot now be repeated in reference to burghs like Rothesay, because by the Act 50 and 51 Vict. cap. 38, the form of certificate is altered, and now contains the provision that the licensee shall not keep open house before 8 a.m. ‘or after such hour at night not earlier than ten and not later than eleven, as the licensing authority may direct,’ but probably it would still be competent to divide a small burgh into different ‘localities.’ That Act, however, does not apply to towns of 50,000 inhabitants. Hence in this question about Glasgow the case of Rothesay may still be cited.

I am of opinion that it was not ultra vires of the Magistrates to define an area for the purpose of altering the hours in the certificate to be granted, and that there is no reason why that area should not be the area of the Broomielaw.

The pursuers contended that it was not within the power of the Magistrates to reduce the number of hours during which public-houses might lawfully be kept open, i.e., from fifteen to fourteen. It was contended that it was a great hardship to such shopkeepers to reduce their business day, and that if an hour was cut off in the morning or at night, an hour must be added at night or morning, and that if the public-house keepers were compelled to close at ten they ought to be authorised to open at seven. That argument was founded on an observation or suggestion, but certainly not an opinion, by Lord President Inglis in the case of Rothesay. There are observations of a contrary tendency in the opinion of Lord Chelmsford in the House of Lords. I am unable to find any warrant for the argument in the second section of the Act of 1862, or elsewhere in that Act, and I must reject it. It seems to follow that a resolution in terms of that adopted by the Magistrates on the 11th April 1902 was intra vires if adopted in a legal manner.

The pursuers further maintained that, even if the resolution should be held to be intra vires, it was vitiated and open to reduction on account of the manner in which it was adopted. The Magistrates were said to have prejudged the question before they heard the parties, and to have acted unjudicially and with bias; and various averments are made on this point which, if relevant, might require inquiry. But I am of opinion that they are not relevant.

Although it may be a point not perfectly settled whether justices of peace sitting as a licensing authority are, strictly speaking, acting as judges, and although in any case they have a large discretion, which it is their right and their duty to exercise, still it is their duty to exercise that discretion fairly and (as it is said) judicially. They must be without interest, and must hear parties with judicial impartiality. The mere risk of bias, it has been said, is enough to vitiate their conclusions, and there have been very important and striking decisions pronounced in England enforcing and illustrating that position, to some of which it may be sufficient to refer. See Sharp v. Wakefield [1891], A. C. 173; Rex v. Howard [1902], 2 K.B. 363, 373; Reg. v. Justices of Walsall, 1854, 24 L.T. 111; Reg. v. Sylvester, 1862, 31 L.J., Mag. Cases 93; Blaik v. Anderson, December 20, 1899, 7 S.L.T. 302; Rex v. Sunderland Justices [1901], 2 K.B. 357.

But in adopting the resolution in question the Magistrates were in a different position, and it is not clear that these principles can be strictly applied. I am disposed to think that in coming to that resolution the Magistrates were not acting in a judicial but in an administrative capacity. They were in no sense conducting a lis, and had no litigating parties before them, and it does not appear that they were bound by such rules as judges must follow in an ordinary court of justice or justices in a licensing court. They were not bound to conduct their inquiries according to the legal rules of evidence, but might competently investigate and gather information how and whence they could. It was enough that they should consider the subject impartially. It was, of course, right that they should consider it not only with an open but with a fully-informed mind. In this case they heard counsel both for the public-house keepers, to which

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no one objects, and also for the Procurator-Fiscal and Chief-Constable, which has been challenged, and which in some views seems rather an eccentric thing to do. But I can see nothing illegal or incompetent about it. They were not bound to hear counsel at all. But on the other hand I take it they were entitled to hear as many people (counsel or otherwise) as they chose. It might have been better not to have heard counsel for the Fiscal and Chief-Constable, and so to have avoided all appearance of partiality, but it was a matter entirely within their own discretion, and I think there is no relevant averment for the conclusion of reduction of the resolution on the ground of prejudgment or bias by the Magistrates.

If the resolution cannot be challenged, and if the document first called for cannot be reduced, it follows that the second and third documents cannot be reduced, and these include all that took place before the Magistrates.

The pursuers appealed to the Quarter Sessions, and they appealed separately against the resolution and against the certificates which had been granted but with the clause as to closing at ten, and it is averred that when the appeals came up at Quarter Sessions they were dismissed as incompetent and illegal. It appears from the certified excerpts, No 31 of process, that they were dismissed as incompetent. The addition of the word illegal is of no consequence.

My attention has been drawn to the fact that no defences have been lodged by the Justices assembled at Quarter Sessions nor by the Clerk of the Peace. No notice is taken of that circumstance by the pursuers on record. The defenders, who have lodged defences, are, at all events, entitled to support the resolution adopted by the Magistrates and the licences granted, and to maintain the incompetency of the appeals—and the first question is, whether these appeals were competent or not? I am of opinion that the appeals were incompetent.

There are two appeals to be considered—(1st) the appeal against the resolution, and (2nd) the appeal against the certificates.

With regard to the resolution, it appears to me that no appeal to Quarter Sessions is allowed against it. The right of appeal to Quarter Sessions is conferred by sec. 14 of the Home Drummond Act, 9 Geo. IV. c. 58; and it was not argued, so far as I understood, that there existed any right of appeal to Quarter Sessions except what was conferred by that section. Now, in that section, appeal to Quarter Sessions is allowed to any justice of the peace, proprietor or occupier of a house in respect of which a certificate is applied for, who shall be dissatisfied with any proceeding of any magistrates assembled for granting certificates, ‘whether in granting or refusing or otherwise disposing of any such application.’ In this clause there are to be noted—(1) the persons to whom the appeal is allowed, (2) the proceeding in which the appeal is to be taken. It may be open to question whether in this case the appellants to Quarter Sessions against the resolution fall within the words ‘proprietors or occupiers’; but supposing they do, I am unable to see how the resolution can be held to be a proceeding in disposing of an application for a certificate, and I am therefore of opinion that it is not a deliverance of the Justices against which an appeal is allowed. It is to be noticed that the power to adopt such a resolution was conferred after the date of the Home Drummond Act. The power, so far as concerns burghs, is conferred by sec. 2 of the Public-House Act on magistrates alone, and no reference is made to Quarter Sessions. It is true that the power seems conferred on magistrates as Licensing Authority, but a right of appeal to Quarter Sessions is not a necessary consequence. If the resolution be final, then it follows that the certificate in terms of the resolution is the statutory certificate for the ‘particular locality.’

The deliverance of Quarter Sessions dismissing as incompetent the appeals of the pursuers against the terms of the certificate remains to be considered. Now, if it be sound to say that a certificate in the terms of the resolution is, so long as the resolution remains in force, a statutory certificate, then the pursuers are in the position of holding certificates which have been granted, and not in the position of persons whose applications for certificates have been refused. There is, in fact, no refusal, and the pursuers are appellants against certificates granted. I am disposed to think that such an appeal is incompetent.

If the appeals were incompetent, the regularity or irregularity of the proceedings at Quarter Sessions becomes unimportant. But it has not appeared to me that any relevant ground for the reduction of these proceedings has been stated.

I am alive to the importance of the resolution complained of, which in some sense and some views involves hardship. But the only question is, whether it was within the discretion committed to the Magistrates, or was ultra vires? and I am of opinion that the defenders should have decree.”

The pursuers appealed, and argued—(1) The Magistrates' resolution defining the Broomielaw area as a particular area was ultra vires. No reasons had been assigned for fixing this area, which had no features distinctive from those of the locality of which it formed a part. The decision of the Magistrates in defining this area had been purely arbitrary, and was therefore illegal-Opinion of Lord Selborne in Macbeth v. Ashley, April 17, 1874, 1 R. (H.L.) 20, 11 S.L.R. 487. (2) The Magistrates had no power under section 2 of the 1862 Act to restrict the hours for selling exciseable liquors to 14 instead of 15. It would require a proviso of a different kind from this to allow the Magistrates to interfere with the number of hours allowed to public-house keepers to remain open—Opinion of Lord President Inglis in Ashley v. Magistrates of Rothesay, June 20, 1873, 11 Macph. 716, 10 S.L.R. 513. (3) The Magistrates were disqualified

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on account of their actings from judging the case with impartiality. They had had previous communings on the matter and had made up their minds beforehand. They also had employed counsel to represent one of the sides of the case. In adjudicating on licences, magistrates were not emancipated from the ordinary principles on which justice was administered— The Queen v. The London County Council [1892], 1 Q.B. 190—Opinion of A. L. Smith, J., 195. (4) An appeal to the Quarter Sessions was competent. The passing of the resolution and the granting of the certificates in terms thereof was a proceeding of magistrates assembled for granting certificates, and therefore appealable under section 14 of the Home Drummond Act. In the case of Ashley v. Magistrates of Rothesay, supra, such an appeal had been taken without objection.

Argued for the defenders and respondents—(1) The magistrates were authorised by the statute to define a particular locality within which to exercise the power conferred by the Act. They had heard evidence on the question and must be assumed to have acted bona fide and in the interests of the community. (2) There was nothing in the statute requiring the Magistrates to add an hour in the morning for each hour taken away at night, or vice versa. The statute had in view the requirements of the locality and it might be in the interests of the locality to limit the hours during which public-houses should remain open to fewer than 15. The opinion of Lord President Inglis in the case of Ashley, supra, founded on by the pursuer, was directly negatived by that of Lord Chelmsford in the same case on appeal in 1 R. (H.L.) 20, 11 S.L.R. at p. 490. (3) The Chief-Constable and Procurator-Fiscal had desired to be represented by counsel at the Licensing Court and Quarter Sessions as they knew that the pursuers were to have counsel of their own. The Magistrates thought it proper that they should be so represented, and their committee had authorised the employment of counsel so that the matter might be thoroughly discussed. In dealing with questions of licences the Magistrates were entitled to use their own local knowledge and to take any steps which in their discretion they considered would inform their minds on the point. In dealing with licences they were not strictly a judicial body— Rex v. Howard [1902], 2 K.B. 363, opinion of Collins, M.R. 375 and 376. (4) Section 2 of the Act of 1862 gave the justices or magistrates alone power to modifiy the statutory form of the licence. An appeal to the Quarter Sessions against either the resolution or against the certificate granted in the form authorised by the resolution was therefore incompetent.

At advising—