15th November.
JUDGMENT was delivered yesterday by Mr. J. Goodnow, U.S; Consul-General, in the case of MeNeill v. Dunning & Ca., the case being dismissed. It is, we are assured, the standing desire of Mr. Goodnow, as of all the members of the Consular Body, to uphold the authority of the Municipal Council, whenever possible, and it is therefore interesting to examine the grounds on which Mr, Goodnow felt himself obliged to dismiss this case, which, while Mr, MeNeill was the nominal plaintiff, was really brought by the Municipal Council, as guardians of the public purse.
The case was heard on the 25th of October last, and it was brought by Mr. Duncan MeNeill, legal adviser to the Municipal Council, who apeared in person, against Messrs.
unning & Ca,, storekeepers, represented by their counsel, Mr. C. R. Holcomb. The charge was that "on Tuesday, the 22nd day of October, 1901, Messrs, Dunning & Ca. at Shanghai, China, did sell to one Arthur Moore one bottle of whisky without a license, contrary to the provisions of Municipal By-Law No.
XXIV." A large number of technical objections were raised by the defendant's counsel; but proof was Drought of the sale of a bottle of whisky at Messrs. Dunning'& Co's store, and it appeared from the evidence of Mr. W. E. Leveson, the Acting Secretary of the Municipal Council, that Mr. Dunning's real objection was to the class of license which the Council wanted him to take. It appears that to Mr. Johnsford, the overseer of taxes, the classification of licenses is delegated, and he settles the amount of license fee which each storekeeper shall be called upon to pay. Mr. Dunning, as having a store in a prominent position in Shanghai, was put in the first class and asked to take out a first-class license, the fee on which is $40, To this he objected, and offered to take out a second-class license, the fee on which is $20. It would seem to most people that this was distinctly a case for arrangement between Mr. Dunning and the Secretary of the Council, which should not have been brought into Court at all. It would have been a very different thing if Mr. Dunning had repudiated the authority of the By-law altogether, ard had refused to take out a license at all.
American Consuls here, from the time of Mr. G. F. Seward, have been as a rule careful to uphold the powers of the Municipal Council as the popularly elected executive of a rear self-governing community, and if Mr, Goodnow proposed to uphold the defendant's objections, it seems to us regrettable that he did not in his judgment enunciate more! solid grounds for his decision. It is perfectly arguable that if there were technical flaws in the plaintiff's case, the judge had no option but to acknowledge that these flaws were fatal. Technicalities prevail too often in British Courts for us to condemn their recognition in this case. Mr. Goodnow holds that there was no evidence to show that the $3.15 paid by Moore, who bought the whisky, was not paid for the other things he bought at the same time. There was no proof that the shopman who sold Moore the things was an employee of Messrs. Dunning & Ca. There was no proof that the bottle contained whisky, and the word "whisky " was not on the bottle.
As evidence could have been brought of all these things, it is plain that Mr. Goodnow's decision does not in any way prejudice the question of the Council's right to tax storekeepers who sell Jiquors: and he pointed out how the Council should act if they want to get a license fee out of Messrs. Dunning. Under the British Licensing Act the steps taken by the Council were quite sufficient. In fact, it might have been specially drawn to render such decisions as that of yesterday impossible. Section 62 of that Act runs as follows "In proving the sale or consumption of intoxicating liquor: for the purpose of any proceedings relative to any offence under this Act, it shall not be necessary to show that any money actually passed or any intoxicating liquor was actually consumed, if the Court hearing the case be satisfied that a transaction in the nature of a sale actually takes place, or that any consumption of intoxicating liquor was about to take place; and proof of consumption, or intended consumption of intoxicating: liquor on premises to which a license under this Act is attached, by some person other than the occupier of or a servant in such premises, shall be evidence that such liquor was sold to the person consuming, or being about to consume, or carrying away the same by or on behalf of the holder of such license."
Tt was doubtless assumed by the prosecution that the American code contains similar provisions. Probably there is no general law on the subject; but we may safely assume that Messrs. Dunning & Ca. have no desire to evade the payment of a license fee: in fact, we have Mr. Leveson's statement that Mr.
Dunning said that he was prepared to pay for a secund-class license. We think it a pity that the case was brought into Court at al!, though we are convinced the Council only acted out of a bond-fide desire to carry out the intention of the ratepayers: we think it a pity that the case was thrown out on such very narrow techn cal grounds: and we are convinced that no reputable storekeepers, like Messrs. Dunning & Ca, would object to pay a reasonable license fee, if they understood that their competitors in business were being similarly treated. Our peculiar form of self-government is xpt to break down when it has to appeal to the various systems of law of so many different countries; it is better therefore that difficulties as they arise should be arranged by amicable discussion, as they generally can be. We have little doubt that this case of Messrs. Dunning & Ca. can be much better so arranged than by going to law.
Text read from the printed page and cleaned; old type leaves the occasional error.