THE QUEEN v. JUSTICES OF SURREY. Robinson, Serjt., and Thesiger, shewed cause. (1) There is no right to appeal against proceedings under s. 21 of the Highway Act, 1864. An appeal, unlike a certiorari, does not exist of common right, and can therefore only be given by the clearly expressed intention of the legislature: Rex v. The Justices of Surrey (2 T. R. 504); Rex v. Hanson (4 B. & A. 519); Reg. v. Stock (8 Ad. & E. 405). No such intention appears in s. 21. The words "like proceedings" are ambiguous. They may or they may not include a right of appeal. If the whole statute of 1864 is examined, it seems reasonable that the former right of appeal should not exist in proceedings under s. 21. The persons who, under the Act of 1835, set in motion the justices who view the highway, were the inhabitants. Under the the quarter sessions shall, for the purpose of determining whether the highway intended to be stopped up is unnecessary, or whether the party appealing would be injured or aggrieved, impannel a jury." If the highway is unnecessary, or the party appealing would not be injured, then the quarter sessions shall dismiss such appeal, and make the order therein mentioned for stopping up such highway; but if the highway is not unnecessary, or the party appealing would be injured, then the quarter sessions shall allow such appeal, and shall not make such order. s. 90 provides for the costs of appeals. 8. 91:"If no such appeal is made, or being made shall be dismissed as aforesaid, then the justices at the quarter sessions shall make an order to stop up such unnecessary highway... and the proceedings thereupon shall be binding and conclusive on all persons whatsoever." 8. 21 of the Highway Act, 1864 (27 & 28 Vict. e. 101), enacts:-"When any highway board consider any highway unnecessary for public use, they may direct the district surveyor to apply to two justices to view the same, and thereupon the like proceedings shall be had as where application is made under the Highway Act, 1835, to procure the stopping up of any highway, save only that the order to be made thereupon, instead of directing the highway to be stopped up, shall direct that the same shall cease to be a highway which the parish is liable to repair, and the liability of the parish shall cease accordingly; and for the purpose of such proceedings under this enactment, such variation shall be made in any notice, certificate, or other matter preliminary to the making of such order, as the nature of the case may require; provided that if at any time thereafter upon application of any person interested in the maintenance of such highway... it appear to any court of general or quarter sessions that from any change of circumstances since the time of the making of any such order as aforesaid, under which the liability of the parish to repair such highway has ceased, the same has become of public use, and ought to be kept in repair by the parish, they may direct that the liability of the parish to repair the same shall revive from and after such day as they may name in their order, and such liability shall revive accordingly, as if the first-mentioned order had not been made. . . ." (1) In the Bail Court, before Hannen, J. This Act of 1864 it is the Highway Board. (2) It may well be that it was intended that the Highway Board should have greater powers than were given to the inhabitants by the Act of 1835. So also the order under s. 21 of the Act of 1864 is different from, and less important in its effects than, an order under the Act of 1835. Under s. 21 the order only directs that the highway shall cease to be a highway which the parish is liable to repair, and not as under the Act of 1835 that the highway shall be stopped up. Moreover, the latter part of s. 21 provides that a parish may again become liable to repair a highway after having ceased to be liable to do so. liability may be reimposed upon a parish by application to the quarter sessions. This shews that proceedings before the quarter sessions were not forgotten when s. 21 was drawn. So, also, by s. 38 of the Act of 1864, an appeal is expressly given in certain cases. When an appeal is expressly given in one place, it is probable that it would have been given in the same manner in any other part of the same statute where it was intended that there should be an appeal. The words "like proceedings" therefore apply only to the proceedings for stopping up the highway under s. 85 of the Act of 1835, and not to proceedings to prevent such stopping up under s. 88. Garth, Q.C., and Gates, in support of the rule. It is clear that the legislature intended that there should be an appeal under s. 21. The Highway Acts of 1835, 1862, and 1864, are incorporated together, and are to be read as one Act. (3) Therefore, the appeal given by s. 88 of the Act of 1835 is incorporated with the Act of 1864. The words "like proceedings " are large enough to include the proceedings on appeal, and it is therefore reasonable to suppose that they were intended to include such proceedings. There is no reason for thinking that the legislature intended that the decision of the Highway Board should be final and without appeal. There is nothing in the Acts of 1862 or 1864 to that effect. Although an order under s. 21 does not stop up a highway, yet by relieving the parish from liability to repair it, the highway may become impassable, and so in effect be stopped up. When the whole machinery provided by the Act of 1835 for stopping up a highway is examined, it is clear that what is called an appeal is not really an appeal, but a mode by which persons aggrieved may prevent the making of an order by the quarter sessions for the stopping up of a highway. The certificate of the justices has no operation except to give the (2) See ss. 9-11 of the Highway Act, 1862 (25 & 26 Vict. c. 61), which is incorporated with the Highway Act, 1864: see next note. (3) s. 42 of the Highway Act, 1862 (25 & 26 Vict. c. 61, and s. 2 of the Highway Act, 1864 (27 & 28 Vict. c. 101). THE QUEEN v. JUSTICES OF SURREY. quarter sessions jurisdiction to make an order. The justices have no power to hear any one against their certificate. What is called an appeal is an opposition, and the only means of opposition to the making of the order by the quarter sessions. To hold that this right of appeal does not exist, would be to alter the whole character of the proceedings, and not merely to prevent an appeal from proceedings complete in themselves. The latter part of s. 21 mentions proceedings before the quarter sessions, because it creates a new procedure adapted to new rights. The appeal is not mentioned in the earlier part of the section, because it is so obvious that it is included in the words "like proceedings." S. 38 of the Act of 1864 gives an appeal expressly, because there would have been no right of appeal at all in cases within that section without an enactment to that effect, and that appeal is confined to the matters specified in the section. HANNEN, J. I am of opinion that an appeal I will lie in this case. I think, therefore, that this rule must be made absolute for a mandamus to the justices of Surrey to hear these appeals. I agree with Mr. Thesiger that an appeal can only be given by the clearly expressed intention of the legislature. This must be ascertained by an examination of the whole of the enactment which is the subject of inquiry. It is not necessary that there should be any particular form of words, but it is essential that an intention to give an appeal should clearly appear. It is The question in this case arises upon s. 21 of the Highway Act, 1864, and the words of the section, which are relied on as giving an appeal, are as follows:-[The learned Judge read the first part of the section.] argued that the words "like proceedings' include all proceedings contained in s. 85 of the Highway Act, 1835, for the purpose of procuring the stopping up of a highway, and also include those proceedings designated by the general name of appeal to quarter sessions given by s. 88 of the Highway Act, 1835. I think this contention is well founded. The sentence in s. 21 next following that in which is contained the words "like proceedings" points out the change that is to be made in the order, viz., that the order "instead of directing the highway to be stopped up, shall direct that the same shall cease to be a highway which the parish is liable to repair." Now, the order which would formerly have been effective for stopping up a highway is an order which would be made by the quarter sessions under s. 91, and the provisions and proceedings which are provided for by s. 85 for the purpose of stopping up a highway are all proceedings which lead up to an order to be made in quarter sessions. If we look at ss. 86 and 87 of the Act of 1835 we find the word "order" loosely used in conjunction with "certificate;" yet when the meaning of s. 85 is examined, we see that there is no order by the two justices but only a certificate with a view to found the jurisdiction of the quarter sessions to make an order. This is clear from the peculiar way in which the rights of parties interested are to be protected. There is an elaborate machinery provided, and notices of the alteration of the highway are to be given for the purpose of affording information to the persons likely to be injured by the change. Yet s. 85 provides no means for enabling those persons to be heard before the justices who give the certificate, but it only seems to contemplate the fact that they shall have notice that the justices having been put in motion are about to give a certificate which is a condition essential to the order, and that when the certificate is given the remedy of any person aggrieved is by taking those proceedings which are called an appeal to the quarter sessions. There is no operative order until the order of quarter sessions is made under s. 91. Therefore, I think the words "like proceedings," &c., must have been intended by the legislature to include all proceedings up to the time of the making of the order of quarter sessions. This seems reasonable, as I cannot see why a person affected by a change in the liability to repair a highway, should be in a worse position than those who are affected by the stopping up or changing a highway, as if a carriage-way is altered into a bridle-way; any such change might be disadvantageous to the persons accustomed to use the way, and there is no reason why there should not be the same right of appeal in either case. I further find that there is an express provision in the latter part of s. 21, that any person interested in the maintenance of the highway may, after the making of an order under that section, apply to the quarter sessions that the liability of the parish may be revived. If the power of appeal to the quarter sessions does not exist on the original investigation, there is this singular anomaly, that a person affected by the original order would be conclusively bound by the certificate of the justices who viewed the highway without any means of calling in question the certificate, yet the same person is entitled to go to the quarter sessions and get a change made in the order. I see no reason for such an anomaly, and it would be avoided by holding that s. 21 includes in the words "like proceedings" all the proceedings up to the final order by the quarter sessions. The other sections which have been referred to require no further comment except s. 38, which undoubtedly deals with the subject of appeals. Although I had a different impres sion at first, I now think that this section does not touch the present question, which depends upon the extent of the proceedings under the Highway Act of 1835, which are included by the words "like proceedings" in 8. 21. THE QUEEN V. JUSTICES OF SURREY. The authorities that have been cited have not much bearing upon this question, because in all cases the intention of the legislature must depend to a great extent upon the particular object of the statute that has to be construed. I have come to the conclusion that the legislature intended to give an appeal in a case like the present. For these reasons Attorneys for prosecutor: J. & M. Pontifex. Nov. 25, 1869. } THE QUEEN v. THE JUSTICES OF THE WEST RIDING. [5 Q. B. 33.] Wine and Beerhouse Act, 1869 (32 & 33 Vict. By 9 Geo. 4, c. 61, s. 1, justices in every county, &c., are to hold a general annual licensing meeting between the 20th of August and the 14th of September; and, by s. 3, they are required to continue such meeting by adjournment to such days (during August and September) and places as they may deem most convenient for enabling persons to apply for a licence. By 32 & 33 Vict. c. 27, s. 4, no licence is to be granted without a certificate of justices. By s. 5 certificates are to be granted by the justices at the general annual licensing meeting held in pursuance of 9 Geo. 4, c. 61, or at some adjourn ment of such meeting. By s. 7 every person intending to apply for a certificate shall, twentyone days before he applies, give notice in writing of his intention, as in the section prescribed :Held, that the notice might be given twentyone days before, and the application made at, an adjourned meeting. At a general annual licensing meeting B. applied for a certificate for a certain house. It was proved that he had been convicted of misconduct in another house. The justices refused the certificate. At an adjourned meeting D. applied for a certificate for the first house :— Held, that the fact of the certificate having been refused to B. was no bar under s. 8 to the application by D. RULE, calling on the Justices of the West Riding of the county of York, to shew cause why a mandamus should not issue commanding them to enter continuances and hear the appeal of Thomas Drake against the decision of the justices at the adjourned general licensing meeting holden on the 17th of September, 1869, for the borough of Halifax, refusing the application of Drake for a certificate under the provisions of the Wine and Beerhouse Act, 1869 (32 & 33 Vict. c. 27). It appeared, from the affidavits, that on the 1st of May, 1869, a license, granted to Joseph Boocock under the Acts relating to the sale of beer and cider by retail, was in force for the sale by retail of beer in the Nag's Head Inn, in Halifax, to be consumed on the premises, and continued in force up to the 20th of August, 1869. On the 25th of June the justices, at a meeting, appointed the 20th of August for holding the general annual licensing meeting for the borough, of which due notice was given. On the 22nd of July Boocock gave a notice of his intention to apply, at the general annual licensing meeting, for a certificate to obtain a license to sell beer at the Nag's Head Inn. On the 20th of August Boocock appeared before the magistrates, and it was proved that in December, 1864, when occupying the West Riding Hotel, he was fined 51. for knowingly permitting prostitutes to assemble in his house. And in August, 1865, the spirit licence for the West Riding Hotel was refused. The justices, therefore, refused the certificate, on the ground that s. 8, sub-s. 3, of the Wine and Beerhouse Act, 1869 (32 & 33 Vict. c. 27) applied. Boocock did not appeal against this decision. At this meeting the justices adjourned such meeting to the 17th of September, 1869, of which due notice was given. On the 25th of August Thomas Drake gave notice, stating that he was the occupier of the Nag's Head, and that he intended to apply, at the adjourned sessions to be holden on the 17th of September, for a certificate to enable him to sell beer, copies of which notice were served on the constables and the overseers of the township, and were also posted on the church doors. On the 17th of September Drake attended before the justices, who refused to hear the application of any person whose certificate had been refused on the 20th of August, or any application in respect of any premises respecting which the certificate had been refused. Drake had not applied for a certificate on the 20th of August, nor had a certificate been ever refused on account of the Nag's Head being a house of a disorderly character, or for any other reason. Drake gave due notice of appeal to the quarter sessions held for the West Riding of the county of York, and on the 19th of October the appeal was heard, when it was admitted that the notices of the 25th of August THE QUEEN V. JUSTICES OF THE WEST RIDING. DRAKE'S CASE. had been served and posted in the manner required by the Wine and Beerhouse Act, 1869, s. 7, but it was objected that they were too late, and ought to have been given in the month of July, and ought to have expired before the 20th of August, and that any notice given of an intention to apply at the adjourned annual licensing meeting for a certificate under the Wine and Beerhouse Act, 1869, must be given twenty-one days before the day appointed for the general annual licensing meeting: for that the general annual licensing meeting and the adjourned annual licensing meeting were, in law, but one day. The justices decided that the notices of the 25th of August were too late, and dismissed the appeal with costs. (1) (1) 9 Geo. 4, c. 61, s. 1:-"In every division of every county and riding, and of every division of the county of Lincoln, and in every hundred of every county, not being within any such division, and in every liberty, division of every liberty, county of a city, county of a town, city, and town corporate, in that part of the United Kingdom called England, there shall be annually holden a special session of the justices of the peace (to be called the General Annual Licensing Meeting), for the purpose of granting licenses to persons keeping or being about to keep inns, alehouses, and victualling houses, to sell exciseable liquors by retail, to be drunk or consumed on the premises therein specified; and that such meetings shall be holden in the counties of Middlesex and Surrey within the first ten days of the month of March, and in every other county on some day between the twentieth day of August and the fourteenth of September inclusive; and that it shall be lawful for the justices acting in and for such county or place assembled at such meeting, or at any adjournment thereof, and not as hereinafter disqualified from acting, to grant licenses, for the purposes aforesaid, to such persons as they, the said justices, shall, in the execution of the powers herein contained, and in the exercise of their discretion, deem fit and proper." S 3:"It shall be lawful for the justices acting at the general annual licensing meeting, and they are hereby required, to continue such meeting by adjournment to such day or days, and to such place or places within the division or place for which such meeting shall be holden, as such justices may deem most convenient and sufficient for enabling persons keeping inns within such division or place to apply for such licence: Provided nevertheless, that the adjourned meeting to be holden next after such general annual licensing meeting shall not be so holden in or upon any of the five days next ensuing that on which such general annual licensing meeting shall have been holden as aforesaid; and that every adjournment of the said general annual licensing meeting shall be holden within the month of March in the counties of Middlesex and Surrey, and of August or September in every other county." 32 & 33 Vict. c. 27, s. 4 :-" From and after the fifteenth of July, 1869, no licence or renewal of a licence for the sale by retail of beer, cider, or wine, or any of such articles, under the provisions of any of the said recited Acts, shall (save as in this Act otherwise provided) be granted except upon the Waddy shewed cause. The question is, whether an application for a certificate under the Wine and Beerhouse Act, 1869, can, in the first instance, be made to the adjourned production and in pursuance of the authority of a certificate granted under this Act. Any licence granted or renewed in contravention of this enactment shall be void." S. 5" Certificates under this Act shall be granted by the justices assembled at the general annual licensing meeting held in pursuance of 9 Geo. 4, c. 61, or at some adjournment of such meeting held in pursuance of the said last-mentioned Act...” S. 7: Every person intending to apply to the justices for a certificate under this Act shall, twenty-one days at least before he applies, give notice in writing of his intention to one of the overseers of the parish, township, or place in which the house or shop in respect of which his application is to be made is situate, and to some constable or peace officer acting within such parish, township, or place, and shall in such notice set forth his name and address, and a description of the license or licenses for which he intends to apply, and of the situation of the house or shop in respect of which the application is to be made; and in the case of a house or shop not theretofore licensed for the sale by retail of beer, cider, or wine, such person shall also within the space of twenty-eight days before such application is made cause a like notice to be affixed and maintained between the hours of ten in the morning and five in the afternoon of two consecutive Sundays on the door of such house or shop, and on the principal door or one of the doors of the church or chapel of the parish or place in which such house or shop is situated, or if there be no such church or chapel on some other public and conspicuous place within such parish or place. Where application is made to the justices for the grant of a certificate under this Act by way of renewal only, notice in pursuance of this section shall not be requisite." S. 8. All the provisions of the said Act (9 Geo. 4, c. 61) as to the terms upon which, and the manner in which, and the persons by whom, grants of licences are to be made by the justices at the said general annual licensing meeting, and as to appeal from any act of any justice shall, so far as may be, have effect with regard to grants of certificates under this Act, subject to this qualification, that no application for a certificate under this Act in respect of a licence to sell by retail beer, cider, or wine not to be consumed on the premises, shall be refused, except upon one or more of the following grounds; viz. : 1. "That the applicant has failed to produce satisfactory evidence of good character. 2. "That the house or shop in respect of which a licence is sought, or any adjacent house or shop owned or occupied by the person applying for a licence, is of a disorderly character, or frequented by thieves, prostitutes, or persons of bad character. 3. "That the applicant having previously held a licence for the sale of wine, spirits, beer, or cider, the same has been forfeited for his misconduct, or that he has through misconduct been at any time previously adjudged disqualified from receiving any such licences, or from selling any of the said articles...." THE QUEEN V. JUSTICES OF THE WEST RIDING. DRAKE'S CASE. sessions. Under s. 1 of 9 Geo. 4, c. 61, the general annual licensing meeting must be held on some day between the 20th of August and the 14th of September; and, by s. 3, an adjourned meeting may be held on such day and at such places as the justices may deem most convenient. The general meeting and the adjourned meeting are in law one day, and the purpose of the adjourned meeting was merely to finish the business begun at the general meeting. Under s. 10 the notices of intention to apply for a licence must be given before the last day of July; hence the Act contemplates that the notices must be given in time for the general meeting, and therefore that the application must be made at that meeting. That section is not repealed, and s. 7 of the Act of 1869 must be construed with reference to it. Secondly. The justices, in refusing Boocock's application, have decided that no certificate ought to be granted for the Nag's Head. The matter is res judicata. Hannay, in support of rule. With regard to the matter being res judicata, Boocock's licence was refused on grounds personal to himself, and with reference to an offence committed in another house. The applicant has brought himself within s. 7 of the Wine and Beerhouse Act, 1869, and that is all he need do to be entitled to a certificate. From s. 3 of 9 Geo. 4, c. 61, it is clear that an original application may be made at the adjourned meeting; the words of the section are express. Section 7 of the Wine and Beerhouse Act, 1869 (32 & 33 Vict. c. 27), enacts that notice shall be given twenty-one days "before he applies," that must mean either before the general annual licensing meeting or before the adjourned meeting. If the legislature had intended that the application should be made twenty-one days before the general annual licensing meeting, it would have said so in express terms. The doctrine that a meeting of justices and its adjournment, are to be taken as being held on one day does not apply. It is clear that a special jurisdiction is conferred, which is to be exercised on two different days, and the meetings are quite independent of each other. BLACKBURN, J. I am of opinion that this rule must be made absolute. The 9 Geo. 4, c. 61, s. 1, provides that a meeting shall be held by justices of the peace on some day between the 20th of August and the 14th of September, but section 3 is that on which our decision must turn; it provides for the adjournment to such day and such places as such justices may deem most convenient and sufficient for enabling persons keeping inns within such division or place, to apply for such licence. The decision of the sessions is not consistent with the construction which must be put on this section. The justices may be acting for a division extending over several miles, and it would be very inconve nient if the justices were to compel an innkeeper living at the northern end of a division to apply to them when sitting near the southern end, and, consequently, the statute provides that he may wait until an adjourned meeting shall be held at a place nearer to him; for this reason, I think it was intended that the innkeeper should apply for a licence at the adjourned meeting, if that were held at a time and place more convenient to him. We have now to construe for the first time, the Wine and Beerhouse Act, 1869, which provides that every person intending to apply, shall, twentyone days at least before he applies, give notice in writing. I quite agree with what has been urged on behalf of the applicant, that if the legislature had intended the twenty-one days to refer to a period before the general annual licensing meeting only, and not to a period before the adjourned licensing meeting, nothing would have been easier than to say so; but under s. 5, certificates may be granted at the adjourned meeting, and no doubt, application may be made for them at it; therefore, by the words of s. 7, twenty-one days notice before the adjourned meeting will be sufficient. And when we look at s. 3 of 9 Geo. 4, c. 61, by which the later Act must be construed, we find that the adjourned meeting is to be held for enabling persons to apply for such licence, and therefore by this statute, the notice may be given twenty-one days (in this case it was given twenty-four days) before the adjourned meeting at which the application is to be made. By this construction, no hardship or inconvenience would be occasioned to any one, and it follows that the notice was in time, and that the quarter sessions were bound to hear the appeal. But a second objection was made that, as the application by Boocock for a certificate had been refused, and that refusal had not been appealed against, the fact that the "Nag's Head" ought not to be licensed had been finally decided, and had become res judicata: but this was a matter personal to Boocock, and does not affect the application which is in respect of the house; the doctrine as to res judicata therefore has no force. The merits of the case are for the sessions to decide, but they are bound to hear it, and the rule must be made absolute. MELLOR, J. I am of the same opinion. Section 5 provides that certificates shall be granted at the general annual licensing meeting, held in pursuance of 9 Geo. 4, c. 61, or at some adjournment of such meeting. The reference to this statute makes the matter very plain. On considering the reasons why an adjournment is allowed, it is clear that it is not like an ordinary adjournment of a court of quarter sessions, which operates only upon the disposal of the business actually before the court at the time, but that it is intended that fresh application may be made at the adjournment. The applicant in the present |