Scottish Court of Session Decisions

This was an action at the instance of Mrs Marion Mann or Kerr, spirit merchant, Anchor Tavern, Glasgow, with consent of her husband, and her husband for his interest, against (1) Sir James David Marwick, LL.D., Town-Clerk of Glasgow; and (2) George Gray, Clerk of the Peace for the county of the city of Glasgow.

The following narrative of the facts in the case is taken from the opinion of the Lord Ordinary ( Kincairney):—“The pursuer Mrs Kerr seeks by this action to obtain a public-house certificate for the Anchor Tavern, 21 Argyle Street, Glasgow. Her position is somewhat embarrassing, but the facts are as simple as possible. An application by her for renewal of her public-house certificate for these premises was refused at the general half-yearly meeting for granting publicans' certificates held by the Magistrates of Glasgow on 11th April 1900. Against this deliverance she, as empowered by section 14 of the Home Drummond Act, appealed to the Quarter Sessions of the Peace. Her appeal was sustained on 9th May 1900, and a remit was made by the Justices ‘to the Town-Clerk of Glasgow to issue the necessary certificate under the Public-House Acts.’

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In order to enable the applicant to carry on her business she requires a double authority—(1) a certificate in the statutory form from the authority whose function it is to grant it, and (2) a licence from the Commissioners of Excise. Section 18 of the Home Drummond Act provides that no licence shall be granted to any person ‘unless such person shall have previously obtained from the Justices a certificate under this Act … and every licence granted by the Commissioners of Excise, or by any officer of Excise, contrary to this provision shall be null and void to all intents and purposes.’ Section 5 of the Public-Houses Acts Amendment Act 1862 (25 and 26 Vict. cap. 35) is to much the same effect, and also contains a clause of nullity. Hence it appears that she cannot get a licence unless she gets a certificate; and the statutory form of the certificate bears that it is conditional on the person in whose favour it is issued obtaining also a licence from the Excise. I understand that the Commissioners of Excise have declined to granta licence except on production of the certificate required by the statutes. Meantime, if she carries on her business she may became liable to penalties under section 30 of the Home Drummond Act and section 17 of the Act of 1862. There is no doubt that the judgment of the Justices at Quarter Sessions, sustaining her appeal, authoritatively affirmed her right to carry on her business at the Anchor Tavern. But that judgment has as yet been wholly unavailing, because she has never been able to obtain her certificate or licence.

She has applied to the Town-Clerk of Glasgow, and he has refused to issue a certificate, and a request to the Clerk of the Peace was met with a similar refusal. It is undoubtedly a startling defeat of justice. Of course both of these gentlemen desire only to obey the statutes under which they act. I understood from the bar that under similar circumstances the Town-Clerk of Glasgow was in use to grant a certificate, but that on closely examining the statutes he has come to the conclusion that they do not empower him to do so. His scruple is entitled to much respect, and I need not say that both gentlemen are acting in perfect bona fides. But none the less the position in which the pursuer finds herself involves a defeat of justice, and the result is so absurd, from a legal point of view, that it cannot be accepted if it be possible to avoid it.

The pursuer has therefore raised this action, and has called as defenders (1) the Town-Clerk, (2) the Clerk of the Peace, and (3 and 4) the preses of the two meetings, and she concludes that the two first defenders, or one or other of them, should be ordained to deliver to her a certificate. Defences have been lodged for the Town-Clerk and the Clerk of the Peace. Preliminary defences are stated, but so far as I remember nothing was said about them, and the question was argued whether the statutes admit of either the Magistrates or the Justices in Quarter Sessions granting a certificate, and on which of them, if on either, the duty falls.”

The pursuer pleaded, inter alia—“(1) The application of the pursuer Mrs Marion Mann or Kerr for a public-house certificate having been granted as condescended on, she is entitled to have said certificate made out and delivered to her.”

The sections of the Home Drummond Act relating to the question at issue are cited in the opinion of the Lord Ordinary, infra.

On 30th November 1900 the Lord Ordinary pronounced the following interlocutor:—“Sustains the first plea-in-law for the pursuers: Assoilzies the defender

George Gray from the conclusions of the summons, and decerns: Finds that the defender the Town-Clerk of Glasgow is the official whose duty it is as clerk to the Magistrates to deliver a certificate to the pursuer Mrs Marion Mann or Kerr: Find the pursuers and the defender George Gray respectively entitled to expenses against the defender Sir James Marwick as Town-Clerk of the city of Glasgow.”

Opinion.—[ After stating the facts]—“I have been referred to the Irish law, in which the difficulty is met very simply, and the duty is thrown on the Clerk of the Peace (23 and 24 Vict. cap. 35). The provisions in the English Acts seem hardly so plain; but there are no provisions of that kind in the Scotch statutes.

The Scotch statutes bearing on the question are the Home Drummond Act 1828 (9 Geo. IV., cap. 58), and the Public-Houses Acts Amendment Act 1862; but it depends chiefly on the Home Drummond Act, which is certainly expressed as regards the matter in hand in the most perplexing manner, the reason for which seems not far to seek.

The most important provisions are as follows:—By section 1 of the Home Drummond Act two general meetings of the magistrates of every royal burgh are appointed, to be called ‘the general half-yearly meetings for granting public-house certificates.’ The section relates to justices of the peace also, but I require to refer only to the magistrates. By section 7 it is provided that the magistrates may at these meetings grant such certificates to keep common inns, &c., as they think most convenient, within which excise liquors may under excise licences be sold in retail, and that such justices shall deliver to every person so authorised a written certificate, and the section concludes with the somewhat formidable and apparently unambiguous declaration, ‘and any certificate granted otherwise than at such meetings shall be void and of no effect.’ I think this clause gives rise to the chief difficulty in the case, because if enforced literally it would plainly make it impossible for either magistrates or justices to issue a certificate after an appeal, and so the statute would be defeated.

“Section 12 provides for the keeping of a book or register by the clerk of the magistrates containing the names of applicants for certificates with various particulars, and among others the manner in which the application is disposed of, and it provides

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that at the end of the meeting for each day a deliverance shall be written in the book, and then and there signed by the majority of the magistrates assembled, or the preses, and the section proceeds ‘And it shall not be lawful for the justices or magistrates at any adjourned meeting to alter anything which was done at any previous meeting in granting or refusing such certificates, and the clerk of such justices or magistrates shall make out a certificate’ in the form provided (which now is that given in the schedule to the Act of 1862). Allhough the Magistrates are required to sign these entries of their dates, yet it does not follow that the entries might not be modified afterwards. The magistrates, it is true, cannot recal their own deliverance, but it does not follow that the entry in the register cannot be altered. On the contrary, for example, section 28 provides that all convictions for breach of certificate shall be transmitted to the town-clerk, and that he shall enter them ‘in the book or register required to be kept by him’… ‘as aforesaid.’

Section 16 provides that if any town-clerk shall deliver a certificate ‘contrary to the deliverance in such book or register, or to any person not duly authorised to receive the same by the justices or magistrates assembled at such general or district meeting’… ‘or shall insert any untrue date in such certificate,’ he shall suffer a specified penalty.

Section 17 relates to the proceedings with the Excise, and provides that the magistrates and justices respectively shall transmit to the collector or supervisor of excise in the district ‘a list of all the persons who have obtained such certificates,’… ‘which list shall be made up from the books and registers hereinbefore appointed to be kept by such clerks respectively, and shall contain the same heads and titles, and shall be duly certified by the subscription of such clerks respectively.’

Then section 18, already noticed, prohibits the granting of a licence without the production of a certificate.

Section 27 requires the clerk of the peace and clerk of the royal burgh, when lawfully required,‘to make out from the books kept by them as aforesaid a duplicate ‘or counterpart of any certificate issued by them.’

These are all of the provisions in the Home Drummond Act which seem of consequence, and I do not think there is anything of much consequence affecting the argument materially in the Act of 1862, in which several of the provisions in the Home Drummond Act are modified or repeated, but I think there is nothing which need be here noticed as throwing light on this question.

It appears to me that all the sections to which I have referred relate to the magistrates where the magistrates are the persons who hold the meeting for disposing of applications for certificates, and where justices of the peace are referred to they are the justices who in the first instance deal with the applications and grant or refuse them. It is they who are to grant the certificates and authenticate the register, and the duty is thrown on them of transmitting to the proper officers of excise a list of the applicants who have received certificates.

There is not the faintest allusion from beginning to end to the Justices sitting in Quarter Sessions. Quarter Sessions are not mentioned, except in two sections to be immediately referred to, nor, so far as I have gone, is there the slightest appearance of difficulty. There is no conflict between one clause and another.

There are, however, two sections which refer to Quarter Sessions, section 25, which relates to convictions, and has no bearing on this question, and section 14, which confers a very general right of appeal to Quarter Sessions against any proceeding of any justices or magistrates assembled for granting certificates, and having conferred that right of appeal the section says no more. It leaves the Quarter Sessions to their own discretion. It gives no directions whatever, and imposes no limitations. This section makes all the difficulty.

Without this right of appeal the Act is consistent and complete. But when the right of appeal is given there is no provision at all for what may happen under it. Appeal from the certificating justices to Quarter Sessions was a novelty in this branch of the law. There was no statutory appeal or statutory double procedure of this kind given in the immediately previous statutes—44 Geo. III. c. 55, and 48 Geo. III. c. 143. There may have been a right of appeal at common law from Petty Sessions to Quarter Sessions in some branches of law, but not, I think, any statutory appeal in regard to certificates. Section 14 has all the appearance of an afterthought introduced with very little consideration after the details of the Act were adjusted, and I find that in point of fact there was no such clause in the bill when introduced into Parliament. It must have been added in the course of debate. All the provisions of the Act relate solely to the procedure before the magistrates or licensing justices. They seem to have no reference to procedure on appeal.

If that be so, I can find no termini habiles for deciding this case against the Clerk of the Peace. He might conveniently enough have been directed to issue certificates as in Ireland. But there is no direction of the kind in the Act. There is no duty of that kind thrown by the Act on the Clerk of the Peace, and I do not see how it can be implied. He could not make a certificate in accordance with the statutory schedule, and his certificate would not be such as the Commissioners of Excise would be bound to accept or would accept. It would not be a statutory certificate. I see no sufficient warrant for imposing on the Clerk of the Peace a duty which the statutes certainly do not impose, and I therefore think that he should be assoilzied.

Does it follow that the pursuer has no legal remedy? That can hardly be, seeing

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that the plain and certain intent of the Act would be thereby defeated. For there can be no doubt that it was the intention of the Act that a person in the position of the pursuer should receive a certificate and a licence, so that the statute must be construed so as to carry out that intention if it be at all possible. But I admit that the verbal difficulty which has pressed on the Town-Clerk is very great, but not, I think, wholly insuperable.

The chief puzzle, although not the only puzzle, is caused by the last sentence of the 7th section of the Home Drummond Act.

I repeat the words—‘Any certificate granted otherwise than at such meeting shall be void and of no effect.’ The words are absolute and unambiguous. They do not admit of construction properly so-called, but they may possibly admit of limitation. They can only be limited in effect by holding them limited in application. Read strictly, they would strike against all certificates granted after appeal, whether they were issued by Quarter Sessions or by the Magistrates. But it is impossible to hold that the statute conferred a right of appeal and at the same time declared positively that the appellant should take no benefit from it. I therefore think it legitimate to hold that these words do not apply at all to procedure before the Quarter Sessions on appeal, and that a certificate would not violate the statute although if issued in respect of a deliverance on appeal it bore the date of that deliverance.

There are, no doubt, other difficulties. It is true that the Town-Clerk, as he argues, can only (section 16) deliver a certificate in terms of the book or register kept by him as provided by section 12, and it is said that that book or register can only contain the deliverances of the licensing magistrates at their dates; and I rather think it is true that the certificate to be delivered by the Clerk must be in terms of the entry in the register; and, therefore, before the certificate demanded by the pursuer can be issued by the Town-Clerk the register must be corrected if it does not already embody the deliverance of the Quarter Sessions, so that ‘the deliverance’ in the register spoken of in section 16 will correspond with the certificate. And I think that to modify the register or book in that manner, that is by making on it such alteration as will give effect to the rulings of Quarter Sessions on appeal, must be in accordance with the Act. The prohibition in section 12 to alter anything that has been done at a previous meeting means that a resolution finally adopted shall not be altered, but it does not necessarily mean that an entry shall not be altered, that a blunder shall not be corrected, or that the entry of a wrong judgment put right by adequate authority shall not be rectified. For what is the book? I apprehend that it is not meant to be a record of the transactions of the Court, but a list of persons who have applied for certificates, and of those who have received certificates. It, or a copy of it, is to be sent to the officers of the Excise to enable them to know in whose favour licences are to be granted, and not surely in order to mislead them—not, for example, to represent that an applicant had received a certificate whose application had been refused at Quarter Sessions. I think that what the Act contemplates is, that the magistrates shall send reliable information on which the Excise authorities may safely act. No doubt it may often be difficult and sometimes impossible to do this within the time fixed by the Act. For (section 17) the list is to be sent within eight days after the date of the magistrates’ meetings, while under section 14 ten days are allowed for appeal, which only shows the curious disconnection which there is between this appeal clause and the other provisions of this bungled Act, and the necessity there is for working it with all the accommodation and freedom which its words will permit.

Some difficulty has been felt in regard to the form adopted by Quarter Sessions. It is said that there was no power to remit. I do not see the difficulty. It was proper and convenient (possibly not essential) that the Magistrates should be authentically informed that their deliverance had been overruled, and I do not see how that could be done more fitly than by a remit, which may generally be made by a court of review. Probably, however, it does not signify in this case, because I think the result would have been the same had there been no remit.

I feel, however, considerable difficulty in directing the Town-Clerk of Glasgow to deliver a certificate disconform, if it be so, to the register; while it is not clear that this process affords means for ordering the register to be rectified.

Perhaps the defender Sir James Marwick may be able to remove that difficulty. But if not, and if he proposes to submit this judgment to the Inner House, probably the best course will be to sustain the pursuer's first plea, assoilzie the defender George Gray, and find that the defender the Town-Clerk of Glasgow is the official whose duty it is as Clerk to the Magistrates to deliver a certificate to the pursuer, and allow the defender leave to appeal before pronouncing a decree in terms of the conclusions ordering delivery of the certificate.”

The defender Sir James Marwick reclaimed, and argued—There was no dispute here that the pursuer must obtain a certificate, and it was equally clear that the Home Drummond Act failed to specify who was to grant it. Practice had varied in the different burghs and counties of Scotland, in some cases the certificate being granted by the town-clerk, in others by the clerk to the peace. On a reasonable construction of the Act the clerk to the peace was the proper official. The magistrates, as a licensing body, formed a new court created by the Home Drummond Act, and therefore their officials had no powers except those expressly conferred. The Quarter Sessions, on the other hand, was an existing court with an established practice.— Mackenzie v. M'Dougall, December 11, 1874, 2 R., J.C., 12; Wilson v. M'Intosh Brothers,

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July 19, 1878, 5 R. 1097. It was unnecessary, in providing an appeal to an established court, to make it a matter of express provision that its officials should carry out the procedure necessitated by its decision. It was part of their ordinary duty to do so, and therefore it ought to fall to the clerk of the peace to grant the certificate in circumstances like the present.

Argued for the respondent Gray—The question was a new one, as in the only case in which it had been involved— Mackintosh v. Macpherson, December 3, 1834, 13 S. 124—no decision had been given. The Lord Ordinary had decided rightly. It was obvious that the pursuer must get a certificate; and as the Act had omitted to state who was to grant it, it fell to the Court to decide that point by considering who was the official to whom that duty naturally belonged. Such considerations pointed to the town-clerk, as the official of the licensing body.

The pursuer was represented at the hearing by counsel, but did not submit an independent argument.