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Criticism of the Decisions.
There can be no doubt that the judgment of Lord Alness in Valentine v. Bell has been the parent of what, fortified by the weighty opinion of Lord Clyde, one may venture to suggest is an erroneous interpretation of the Act. The grounds of his opinion, if analysed, are seen to be of little cogency. He begins by saying that it would be absurd in one section to prohibit a sale and in the next section to permit it. But why? What is more usual and customary than to lay down a general rule and then to state the exceptions? In any case, the Legislature, having prohibited sale in Section 4, has explicitly been guilty of the absurdity of permitting it in Section 5 (a), which provides that "nothing in the foregoing provisions of this part of this Act shall be deemed to prohibit or restrict the sale or supply to . . . any person of intoxicating liquor in any licensed premises where he is residing." It is to be observed that the rubric to Section 5 is " Exemptions and saving provisions," and that in Section 4 the general prohibition of sale otherwise than during the permitted hours is made " subject to the provisions of this part of this Act." The general prohibition in Section 4 is subject to the exemptions of certain classes of transactions specified in Section 5. One class of exception is sale to a person resident in the licensed premises, and another is a sale to a person of liquor for off-consumption which he does not carry away but desires to be delivered to his address.
The Report of the Royal Commission on Licensing (England and Wales) exhibits the same erroneous reasoning. Commenting on the exemption of ordering and dispatch, the Report says : "It is not, of course, the sale itself but certain elements in the transaction which are exempted : and it appears to us that this provision is not so much an exemption as a declaratory provision which makes it clear that the ordering or dispatch of the liquor, which are mere steps in the transaction, can lawfully take place during non-permitted hours. . . Having first begged the whole question of interpretation by the "of course," the Report is compelled to assume that in describing the provision as an exemption the Legislature did not know what it was doing. But no sane person could assume that the ordering of intoxicating liquor was struck at by anything in the first four sections of the Act. A prohibition of the ordering of liquor would be manifestly absurd. To send a postcard asking a wine merchant to dispatch a bottle of whisky to one's address would be an offence not in itself, not according to the time at which the postcard was posted, but according to the time at which it reached the trader's establishment. There was no need, therefore, to exempt the ordering as an element of a transaction of sale from the provisions as to permitted hours, for there was not, and could not be, anything to suggest that it was prohibited. To give the words any sensible meaning at all, "the ordering of intoxicating liquor to be consumed off the premises, or the dispatch of the liquor so ordered," must be read not as referring disjunctively to two separate elements of a transaction, but as a description of a kind or class of transaction, of nature which in these days of telephones, mail-order systems, and cash-on-delivery facilities, is tending ever more largely to supersede the practice of personal attendance at the establishment of the retailer.
The Remedy.
The High Court decisions leave the off-licensed traders, and particularly those who conduct a substantial order and delivery business, as, for example, the great stores in London and the large provincial towns, in considerable doubt as to their legal position. They are told that the Act exempts order and dispatch from the provisions as to permitted hours, but that sale is not exempted, and the ingenuity of the learned Judges has been expended to show that every transaction in which liquor is ordered and dispatched is a transaction in of sale! The loophole described by Portia in Shylock's bond was creditable to her ingenuity, and in the circumstances of the case it served the cause of substanial justice. But in this matter of the application of permitted hours the reduction of the exemption of sales by order and dispatch to a nullity is much less laudable. The Legislature must have meant something by the exemption, and its history shows that what it was intended to continue and enlarge was the right to receive, accept and fulfil orders for liquor by the dispatch of the goods without reference to the permit hours, which even the Liquor Control Board had recognised as being reasonable and in no way inconsistent with the maintenance of the system of permitted hours and the accomplishment of its purposes.
The decision of the King's Bench Division on a case stated by magistrates is, of course, final, and unless the ruling of the High Court can be tested by an indirect proceeding by means of a friendly test action, alleviation of the present embarrassing situation must be sought in legislation. The most satisfactory course would seem to be to exclude off-licensed establishments from the operation of the permitted hours altogether and to make them subject to the provisions of the Shops Acts, 1912 to 1928. This would render impracticable such evasions as were practised by the promoters of "bottle parties" and "At homes," and would enable traders who sell for off-consumption only and, particularly, mixed traders in liquor and other commodities, to transact their business in a more convenient manner."
Brewers' Journal 1934, page 250.
