073-NLR-NLR-V-07-BANDARANAYAKA-v.-SOYSA.pdf
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BANDAEA5JAYAKA. v. SOYSA. .
P. C., Colombo, 13,551.
Arrack—Ordinance No. 13 of 1891, s. 9—Rttail sale contrary to license—“ Sellarrack at the price of not less than Rs. 4.48 per imperial gallon. ”1»
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Upon a license to sell arrack by retail issued in terras of section 9 ofthe Ordinance No. 13 of 1891, it is not competent to the licensee to sellarrack at any other price than the one mentioned in tkfe license.
Jansz ®.• Gregoris, 4 N. L. R. 359,(overruled.
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° HIS was a prosecution under section 9 of the Ordinance No.13 of 1891 for selling arrack at the rate of Rs. 3 per gallon,
1903.
June 22.
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1003.whereas the licence authorized sale “ at the price oi not less
June 22. than Bs. 4.48 per gallon and at no' other price whatever.” The-— Police Magistrate refused process on the ground that according■ to Bonser, C.J. (in Jansz v. Ore gone. 4 N. L. R. 359), the words ofthe license as to the price denoted only the maximum price, and-that the licensee was at liberty under the Ordinance to sell atany lower price if he liked to do so.
The complainant appealed against that order. Mr. JusticeGrenier, before whom the case came on for hearing in due courseon the 4th June, 1903, reserved it for a Full Court, as his lordshipcould not agree with Jansz v. Qregoris (4 N. L. R. 359).
• Accordingly, this case was argued before Layard, C.J., Wendt, -J.,and Middleton, J., on 15th June, 1903.
H. J. C: Pereira find E. W. Jayawardene, for appellant.
Domhorst, K. C., and Pieris, for respondent.
Cur. adv. vult.
22nd June, 1903. Layard, C.J.—
The Assistant Government Agent charged the accused, whowere the renters of the arrack farm for the years 1901 and 1902,with breach of section 9 of the Ordinance No. 13 of 1891, in thatthey sold arrack contrary to the terms of the license issued to-them. That section provides that no person shall sell or disposeof hy retail any arrack without haying first obtained. a license asnear as is material to the form prescribed by the Ordinance, and italso provides that any person who shall sell or dispose of' anyarrack contrary to the tenor of the license granted by the Govern-ment Agent shall be liable on conviction to certain punishment.
The form of license prescribed by the Ordinance runs asfollows: —
‘‘ This is to certify that I,, the Government Agent
of the Province, do hereby license to sell
arrack and rum by retail. from the i day of . one
thousand Eight hundred, to the day of,
One thousand Eight hundred ,and , inclusive, at the tavern
Jlo. -», situated at , and at no other place, on
condition that the said, shall sell arrack and rum at the
price ofper imperial gallbn, and at no other price.”
In the present c&se the license, purporting to be signed by theGovernment- Agent of the Western Province, authorizes SolomonPeter Soysa, Francis James Mendis, and H. Francis Fernando»tosell arrack by retail at tavern Np. 8, situated at Maligawatta in
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Biyanwila, on condition that they “ shall sell arraCk at the price of 1903.not less than Bs. 4.48 per imperial gallon, and in proportion for any June 22‘less quantity, and at no other price whatsoever.” This license does Layard, C.J.not vary materially from the form prescribed in the Ordinanceand the license appears to me to fix the price for which thearrack must be sold, and to prohibit its sale at a less price. TheMagistrate, following the judgment of Chief Justice Bonser in the•case of Jansz v. Oregoris (4 N. L. B. 359), refused to issuepro,cess. He further pointed out that there had been delay inbringing the case, and that the d?ls^ had not been in his opinionsatisfactorily accounted for. It has been explained to us that thedelay was due to the renter desiring that no action should»betaken pending decision in another similar case. I think, underthe circumstances, the delay ought not to operate as a bar to further.proceedings in this case.
There remains, however, for the determination of .this Court thequestion whether we will follow the ruling of Chief Justice Bonserin the case above-mentioned. I would here mention that theMagistrate was perfectly right in following that decision, so muchso that, when this appeal came on first before my brother Grenier,he felt that sitting alone he was bound by the judgment, and soreserved the question for a Full Court. Chief Justice Bonser hasread the condition forming part of the license prescribed by theOrdinance as merely fixing the maximum price. The condition soread runs as follows: “the said lioensee shall sell arrack at theprice of Es. 4.50 per imperial gallon, and in proportion for any lessquantity, and at no other price whatsoever.’’ These words appearto me to admit of but one meaning; they fix the price at whicharrack is to be sold, and say it is to be sold at no other pricewhatsoever. I do not think I am at liberty to speculate on theintention of the Legislature and to depart from .the actual meaningof the words used by. the Legislature, which are unambiguous inthemselves. Chief Justice Bonser appears to me in his judgmentto have speculated on what the intention of the Legislature was.
To show how dangerous it is,to speculate in that way I would, withgreat deference to his judgment and opinion, state I arrive at anexactly opposite conclusion to what ,he does as to the intention ofthe Legislature. He asks in his judgment, “ Is there any roason inenacting that while a person may give away a glass of arrack fornothing, he may not sell it for a cent ?” I'think the answer to it isthat persons are not likely to give away arrafck indiscriminately inlarge quantities, whilst ’if they, are allowed to reduce the priceconsiderably they might sell large quantities at a profit, at a smallprice, and thus encourage arsack drinking to an extent which
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1903.June 22.
Layard, C.J.
■would lead to its abuse. I see no reason to think that the provisionwas inserted for the benefit of the consumer as suggested by ChiefJustice Bonser. It is true that the legislation goes back to 1844,and the Legislature at that day may have been familiar with theidea that it was the duty of Government to fix the maximum priceof commodities. However, if it was their intention to fix themaximum price as suggested, they were very unhappy in thechoice they made of words to express that intention. They couldhave easily said that the licensee “ shall not sell arrack at a priceexceeding Bs. 4.48 per imperial, gallon,” and there was no neces-sity for emphasizing the price fixed by adding ‘‘at no other pricewhatsoever.” Again, the Ordinance with which we are dealing waspassed in 1891, and though it is true that the form of licenseprescribed by that' Ordinance is almost identical with the oneprescribed by the Ordinance of 1844, it is not absolutely identical,and certainly there is no reason to think that the Legislature in 1891was governed by the idea that it was the duty of Government to fixthe price of arrack to prevent consumers being charged more thanthe Legislature thought was a fair price.
In my opinion, to depart from the actual meaning of the wordsused by the Legislature and to speculate on the intention of theLegislature and to construe them according to one’s own opinion ofwhat must have been passing through the minds of the personscomprising that body, is not to construe the Ordinance, but toalter it.
I would set aside the order of the Magistrate and remit thecase ■ to the Police Court to be proceeded with in due course oflaw.
Wendt, J.—
This is an appeal by the complainant, with the sanction of theAttorney-General, against an order of the Police Magistrate, who,after examining certain witnesses on ,behalf of the prosecution, inthe absence of the accused, refused to issue summons or proceedfurther with the charge. The ..complainant in his evidence said hecharged S. P. Soysa.and F. J. Mendis under section 9 of OrdinanceNo. 13 of 1891, in that they sold three bottles of arrack on the 31stDecember, 1902, at Biyhnwila at 50 cents a bottle, a rate less thanthat stipulated for *in the conditions of sale and in the licenseissued to them by the Government Agent. Soysa and Mendis,together with one H. F. Fernando, now dead, were the “ arrapkrenters ” for the Siyane and Hew(agam korales for the two years
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beginning 1st January, 1901, and they held a retail license dated31st December, 1901, in the following terms: —
“ This is to certify that I, George Merrick Fowler, GovernmentAgent for the Western Province, do hereby license Solomon PeterSoysa, Francis James Mendis, and Hettiakandage Francis Femando-to sell arrack by retail from the 1st day of January, One thousandnine hundred and two, .to the 31st day of December, one thousandnine hundred and two, inclusive, at .the tavern No. 8, situated atMillagahawatta in Biyanwila, and all no other place, on conditionthat the said Solomon Peter Soysa, Francis James Mendis, andH. Francis Fernando shall sell arrack at the price of not less thanRs. 4.48 per imperial gallon, and in proportion for any less quantity,and at no other price whatsoever.”
Evidence was given to show that on 31st December, whichwas the last day of the term during which the licensees wererenters, one Johannes Mendis sold to the witness Don Phillippuat the tavern named in the license three bottles of arrack(equivalent to half a gallon) for the sum of Re. 1.50. JohannesMendis was the usual salesman at that tavern. If he was theservant of the licensees, the license would protect him as wellas them.
The Magistrate felt himself bound by the decision of Bonser,C.J.-, in .the case of Jansz v. Gregoris (4 N. L. R., 359, 1 Br. 363),to hold that the license now in question differed materially fromthe form set out in the Ordinance, and that therefore the accusedcould not be convicted of selling contrary to its tenor. Certainlythe licence which Bonser, C.J., had under his consideration wassubstantially in the same terms as that now in question. In both
licenses the blank in the form after the words ” price of ” wasfilled up with the words ” not less than ” a specified sum, and theeffect of supplying the blank in the manner adopted in thepresent license is that no sale shall be made at a price which is notless than Rs. 4.48 per gallon. The Chief Justice was of opinionthat the price intended by the Ordinance to be inserted in the blankwas a maximum price; that the licensee was at liberty under theOrdinance to sell at any lower price, if he chose, and that there-fore a license which forbade him so4 to do departed materially fromthe form scheduled in .the Ordinance. With unfeigned respect’for the opinion of Sir Winfield Bonser, I think he did not give theirproper weight to the words of the Ordinance In the words ofLord Campbell, C.J., in Queen v. Skeen (28>L. J. M. G., at p. 94)“ where by the use of clear and unequivocal language, capable ofohly one construction, anything is enacted by the Legislature, wemust enforce it, although in oiir own opinion it may be absurd or
1903.June 22.
Wendt, J.
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1903. mischievous. ’ ’ In the present instance, the language of the Ordi-June 22. nanoe ig unequivocal and admits of but one meaning. The licenseeWendt, J. is to sell at the price of so much, and at no other price whatsoever.
There is nothing whatever in the Ordinance itself which entitlesus to read this as though the Legislature had said “no greaterprice and to imply therefore that the arrack might be sold at anyless price.
The interpretation we are now reviewing was . adopted in
opposition to the plain meaning of the words, because the Chief
Justice was of opinion that the Legislature had specified a price in
accordance with the idea then generally entertained that it was
the duty of Government to fix the price of commodities in the
interests of the consumer, in order to prevent his being charged
an unreasonable price therefor, and that the Legislature was not
actuated by .the desire to suppress drunkenness by keeping the
price of intoxicating liquors high. His lordship’s attention was
not drawn to the older legislation on the subject, or I venture to
think he would have arrived at a different conclusion. So far•*
back as the year 1818 two regulations were passed (Nos. 3 and 4of. that year) “ for the more effectual security of the revenuederived from .the retail of arrack and toddy ” in the Sinhalese andMalabar districts respectively, and in the latter enactment occursthe provision (section 8) that “ no wine or spirits, save and exceptgenuine arrack of good quality and proof, shall be sold by retailat a lower rate than nine rixdoilars per gallon ” under a penalty.These enactments (the earliest in British times which deal withthe subjects generally) also recognize the existence of a similarrestriction in the case of arrack, for they lay down that the renteror licensed retailer of arrack may be required by the collector ofthe district to take over the stock of a deceased possessor of arrack“ at a rate of 20 per cent, under the authorized retail price.” Thisla.tter provision is repealed in the enactments of 1819 and 1820,and there is a somewhat similar section (section 49) in theOrdinance No. 10 of 1844, which is now in force. If, with theprovisions of the regulations of 1818 before me, I were to inquirewhat the object of the Legislature was in naming a fixed price, Ishould say that it was to prevent the sale of arrack below that price;tlfat itf was a minimum, not a maximum price. The reason/ why the statutes therhselves do not fix the maximum retailprice of arrack is, I suppose, that that is done in the conditionsof sale under which the “ renter ” purchases the farm. Inthe case before us a copy of the conditions has been produced,and they provide (article 7) that “ arrack shall be sold byretail at the places and taverns Enumerated in the list A at a
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price not less than Es. 4.48 per gallon, or a proportionate' pricefor any quantity les6 than a gallon, and similarljOm the case oltoddy.
It seems clear to my mind therefore that the policy of theLegislature has been, while having due regard to the profits of therenter, who contributes so largely to the revenue, to keep theprice of arrack high and thereby to prevent the spread of drunken-ness. And the wisdom of the limitation on the price will beapparent on a consideration of what usually happens upon achange of renters, such as was pbdut to take place when thealleged offence was committed. The renter has- a large stock inhand, which it will be unlawful to him to possess or sell after bis“rent ” terminates. If the incoming renter agrees to take it overall is well, but if otherwise the temptation is strong for theoutgoing renter to get rid of his stuff at almost any price. As thewholesale market value of arrack at the distillery is only a rupeeor two per gallon, it is plain that even a sale much below theauthorized price will leave a profit. The fact that the renter is“ selling off ’’ soon gets abroad, and the villagers flook to lay in astock of cheap arrack, and there is an outburst of drunkennessand its attendant evils. It is this selling off below the authorizedprice that the accused are alleged here to have been guilty of, thelicensees at this tavern being the renters themselves.
In my opinion, the license now before Us does not depart fromthe form attached to the Ordinance in forbidding sales at less thanRs. 4.48 per gallon.
The Magistrate appears not to have noticed that, if the accusedcould not be convicted of selling contrary to their license byreason that the license was not a license under the Ordinance,
. they might yet be guilty of selling without a license. I soheld in P. C., Galle No. 19,000, on 1st June, 1903, where theGovernment Agent had inserted in the license' certain conditionsunwarranted by the Ordinance. This point was not open inJansz v. Gregoris, because there was no such charges againstthe accused, but it is open here, as no charge has yet beenformulated.
I think the case should be remitted to the Magistrate to beproceeded with in due course.
Grenier, A.J.—
Both my lord and my brother* Wendt hav3 dealt so fully withthe question involved in this appeal that there is hardly anythingthat I can add. The words used in the Ordinance and the license
1909.June 22.
Wemdt, 3.
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1003.are freefrom all ambiguity,and there isno material difference
June 22. . betweenthem. The test Iwould applyin interpreting these
Gbpnm®,words isthis: “ What is themeaning theyconvey to the ordinary
A.J.mind ? "It is possible, of course, by theintroduction and skilful
use of comparative terms, to invest these words, as indeed thewords of most statutes, with more than one meaning, subtle andotherwise; but such a course would certainly be in opposition toand total disregard of well-known canons of construction, theobject of which is to simplify and explain rather than to mystifyand render obscure. When, for instance, any person of ordinaryintelligence is asked to sell a certain article for not less than tworupees, and at no other price whatsoever, will he not at onceunderstand that it is an absolute direction to him, whatever maybe the intention of the person giving the direction or his reasonfor mentioning this sum—not to sell at any other price but the onespecified. As this Court has had occasion so often to say, there isno magic in words, which must be given their plain and obviousmeaning.
Now, as to the reason why the Legislature has fixed a certainprice for a gallon of arrack, opinions will naturally differ in theabsence of any express declaration. Whether arrack is to beregarded as a commodity, the price of which must be regulatedby statute in the interests of the consumers, or as an intoxicantwhich is the cause of crime in this country, and the sale of whichmust, therefore, be restricted by a high price being placed on it,is a purely speculative matter, and must be viewed entirely apartfroin the question of right interpretation. As my lord hasremarked, it is not the duty of judicial tribunals to speculate onthe intention of the Legislature, and as to which was passing throughthe mind of the framers of the Ordinance in question. It is enoughthat we attach a plain meaning to plain words, and abandon allspeculation on the manifestly difficult question of intention. Iagree to the order proposed by the rest of the Court.
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