H.C. or A. 1904. FOS, McLaveuuis v Fospery anv Orners. H.C. or A. 1904. — Sypney. September 8, 9. Griffith, C.J., Barton and O'Connor, JJ. HIGH COURT of proceedings in the action, by omittin; the description of the Full Court be amended by omitting the words « In Lunacy" in the title, with all necessa consequential amendments, wnd, a dismissed, ordering that ull proceeding in the action be stayed, and by directin that respondents pay the costs of proceed- ings before the Chief Judge in Equity and Full Court, and omitting direction that plaintiff pay those costs. Order varied affirmed. No costs of the appeal: Solicitor, for appellant, W. Morgan. Solicitor, for respondent, The Crown Solicitor of New' South Wales. [HIGH COURT OF AUSTRALIA. Low 6 PROMS ise tiem . APPELLANT; AND BONARIUS . ' E : q 3 . RESPOND ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. Barly Closing Act (N.S.W.), No. 38 of 1899, secs, 6, 7, 20, 21—Harly Ol (Amendment) Act, No. 81 of 1900, sec. 5—Closing time for shops—Shop which more than one business is carried on—Closed to the admission of the publ for purposes of trade—Question of fact. The Barly Closing Act provides that a shop, in which the mixed busine a fancy goods seller and news agent is carried on, must be closed on Wed at one o'clock p.m., the hour fixed for the closing of shops in which fane only are sold. OF AUSTRALIA. Barly Closing Act by not closing and keeping closed his shop at and after the mur fixed by the Act. 'The evidence showed that he placed a table across the pen door of his shop at the hour fixed for closing, thus barring the entrance, and afterwards, but before the hour fixed for closing news agents' shops, he sold the table some newspapers and other news agents' goods. 'The magistrate lismissed the information, on the ground that there was no proof that the defendant any goods which he was prohibited from selling after the hour stated. Held, that if the shop was not closed to the admission of the public for pur- oses of trade at one o'clock p.m., the fact that no fancy goods were sold in it after it hour, was immaterial, and that therefore the magistrate was wrong in dismiss- ing the information on the ground stated. Held, also, that it was a question of fact for the magistrate, on the evidence, hether the shop, considered as a single shop in which the mixed business was ied on, was or was not so closed. Order of Cohen, J., 21 N.S.W. W.N., 117, varied. Appear from the decision of Cohen, J., on a special case stated under the Justices Act, 1902. The appellant, Peter Low, a keeper of a shop in which he ied on the business of selling fancy goods as well as that of a newspaper seller and news agent, was charged by the respondent, ©. A. Bonarius, an inspector under the Early Closing Acts, with wing kept his shop open after the hour prescribed by the Karly Closing Act, 1899. The section under which proceedings were taken was see. 7, by which the keeper of any shop in any shopping district whose shop is not closed and kept closed for the remainder of the day at and after the closing time fixed under the Act for he closing of such a shop, is guilty of an offence against the Act. ees. 6 and 20, and the Schedules to the Act of 1899, fix the hours of closing for the different classes of shops, the hour for closing shops may be kept open until eight o'clock on week nights. The 'ormation was dismissed by the magistrate on the ground that 'The keeper of such a shop was charged with having committed a breach of H. C. or A. 1904. —— Low v, Bonaries. H.C. or A. costs, and remitted the case to the magistrate, with the following 1904, es Low v. Bonartvs. HIGH COURT (1904, expression of his opinion : "That the said stipendiary magistrate' determination is erroneous in point of law, and that he was not right in dismissing the information in the said case mentioned," | (21 NS.W,, W.N,, 17). The other material sections, with the facts and the proceedings, — appear from the judgment of Griffith, CJ. W. A. Walker and Bignold for the appellant. The appellant was charged with "not closing" and "keeping closed" his shop, after 1 p.m. The interpretation clause defines the word " close" as meaning "closed to the admission of the public for the purposes of trade." That does not mean that the news agency par of the shop must be closed, but only that the place must be close in such a way as to keep out the public from the fancy good business. In Smith v. Morrison, 17 N.S.W. W.N., 65, which th Judge followed, the evidence showed that the whole shop open, and there was nothing to show that, as a fancy goods sho it was closed to the admission of the public. It is a materi question for the magistrate to consider whether the fancy goods were actually exposed or offered for sale. (Grirrirx, C.J—You must contend that the appellant closed this shop in which he sold fancy goods and newspapers, and opened another which was a news agent's shop only.] That is a question of fact in each case, whether at the moment the shop is one in which the business of selling fancy goods is carried on. In this case the placing of the table across the door — really made a separate shop, in the same way as if there had bi a partition, and in that shop nothing but newspapers and other — articles sold by news agents were offered or exposed for sale. Kelynack for the respondent. The shop was not closed within — the meaning of the Act. The evidence shows that the fancy The magistrate found as a matter of fact that the shop was 0] but not for the purpose of selling prohibited goods. The purp is immaterial. The whole shop must be closed at the hour fi OF AUSTRALIA. ith v. Morrison, 17 N.S.W. W.N., 65. These cases were before amending Act of 1900, but are not affected by it. In the mount to a closing of the shop. If the shopkeeper wishes to ike advantage of the provisions by which he is allowed to con- tinue the news agent's business after the hour fixed for the closing of fancy goods shops, he must comply with the Act, and erect the necessary partition, so as to effectually shut off the fancy goods lepartment. The question here was a mixed one of law and fact Hoddinott v. Newton, Chambers & Co. Ltd., (1901) A.C., 49, at . 56, 68. [Grierir, C.J.—Apparently the admitted facts might or might amount to a closing. You ask the Court to say that as a ter of law they cannot do so. [Barton, J., referred to McCube vy. Jopling and Palmer's Travelling Cradle Ltd., (1904) 1 K.B., 222.) Tn Taylor v. Goodwin, 4 Q.B.D., 228, the Court treated the question whether a bicycle was a carriage, within the meaning of an Act dealing with furious driving in streets, as in part, at least, a question of law. The present case is somewhat analogous. The wt is asked to construe the word "closed " in the Statute, and say whether the placing of a barrier across the doorway amounts toa closing. (Grivrrrn, C.J.—The difficulty arises from the learned Judge having found, as a matter of law, that the shop was not "closed," ereas we are disposed to think that, under the circumstances, it may or may not have been "closed." His finding, practically, unounts to a direction to the magistrate to convict.] That is subject to the defendant calling evidence to contradict that already given. The magistrate should not have dismissed the case without calling upon the defendant. If the case goes to him he will be bound to rehear it, but he will not be compelled to convict the defendant unless the evidence for the prosecution is unanswered; Jn re Grover, 3 W.N., 52. If it is that the evidence in this case discloses no offence, the Act ill be rendered useless, and impossible to enforce. 1904. Low shop is open; Bonarius vy. Bellemy, 16 N.S.W. W.N., 200; H. ©. oF A. it case the placing of the table across the door did not po. vius, H.C. or A. 1904. —~ Low v. Bonarivs. September 9th. HIGH COURT [1904. Walker, in reply, referred to Turnbull v, Cocking, 21 A.LT., 55. Cur, adv. vult. Grirritu, C.J. This was an appeal from a decision of Cohen, J., on an appeal by way of special case stated by a stipendiary — magistrate under the Justices Act. The prosecution was under the Karly Closing Act 1899, and the charge was that the defendant "was the shopkeeper of a certain shop within the metropolitan shopping district, being a shop mentioned in Part IIL. of Schedule L to the said Act in which a trade was carried on. . not being a trade usually carried on in a news agent's shop, which was unlawfully not closed, and kept closed, for the remainder the day at and after the closing time deemed to be chosen for such day in respect of such shop, by or under Part I. of the said Act, that is to say, one o'clock after the hour of noon," &. T defendant was a seller of fancy goods, and carried on in the same shop the business of a seller of newspapers and news agent. TT! time appointed by law for the closing of faney goods shops was o1 o'clock in the afternoon on Wednesdays, the time for closing ney agents' shops being much later. Sec. 20 of the Harly Closing A 1899, provides that:—* Every shop mentioned in Schedule I." (whi includes news agents' shops), "in which is carried on any class trade not usually carried on in shops mentioned in the schedule, shall be closed at the closing time fixed by or under this Act for shops not mentioned in the schedule." The result of this provi is that this class of shop in which this mixed business is carri on, viz., that of a seller of fancy goods together with that of ane paper seller and news agent, had to be closed at one o'clock in th afternoon. That had been decided by Cohen, J., in a previous of Smith v. Morrison, 17 N.S.W. W.N., 65. Any other construction of sec. 20 would, practically, give no effect whatever to sees, 20 an 21of the Act. In the present case the appellant, at 1 p.m., the tim for closing mixed shops such as this, closed one of the two doors of the shop opening on the street, and put a table inside tl shop across the opening thus left, and there is evidence during the afternoon, he sold some newspapers to customers a the table. Those facts being in evidence before the magistrate, h OF AUSTRALIA. But that was not the question at all. If the shop is one in ich the mixed business described is carried on, and it is kept n, it does not matter for what purposes it is kept open. The 7 hibition in the Act is against keeping open a shop in which any iness other than those included in Schedule I. is carried on, e prosecutor appealed by way of special case stated under the ices Act, and the appeal was heard by Cohen, J. He held, onsideration. But the learned Judge went on to say : "Lam of ion that, as a matter of law, the shop was open for purposes of f the offence with which he was charged. Now that question e magistrate had not determined at all. He found only that the yp was not "open for the purpose of selling anything that" the defendant "was prohibited from selling after one o'clock that ay." That, asalready pointed out, was not the question he had todetermine. The question was whether the shop, being a mixed yp, Was or was not open. But, if the case goes back to the magistrate with the expression of opinion given by the learned Judge, the magistrate will be obliged to convict the defendant. It should go back to him simply with the intimation that he has determined it on an irrelevant point. _ The question whether a shop is " closed to the admi: public for purposes of trade," is a question of fact in each case. If it was not so closed, the defendant was guilty; if it was, he was guilty, and should have been discharged. The " admission the public" does not mean merely allowing them to come in through the door, because, by the definition in the Act, the word shop" includes a stall at which goods are sold, and that would e open if the public were allowed access to it for the purpose of trade. But the facts in this case seem to me ambiguous. It does sion of the of d that "there was no proof that the defendant had his shop 4. ©. oF A. 1904. = Low v Bonanivs. H.C. or A. 1904. ——, Low v. Bowanius. HIGH COURT [1904 not follow because a shop is one in which two kinds of business usually carried on, that a single business cannot lawfully be carri on in the same premises at another time. To give an illustration, at one o'clock the doors of the shop were closed, and a table placed upon the pavement in front, and newspapers put on it and sol there, that might very reasonably be held to be the opening of new shop on the footpath, and that might be so, whether the seller stood in or out of the shelter of the doorway. The question, i truth, in a case like this, is whether the shop, considered asa mixed shop, in which the business of selling fancy goods carried on, was in substance open to the admission, that is, # access, of the public for the purposes of trade; or whether, on the other hand, considered as such a shop, it was in substan closed to access, so as to be, for the time being, a mere newspaper shop or stall. That was a question of fact which the magistrate ought to have determined, and the case must therefore go back to him for its determination, with the expression of our opinion What conclusion he ought to come to under the cireumstances, it would not be desirable for us to say. The order, as it now stands, amounts practically to a direction to convict. The learned Judge should have said only that the magistrate was wrong in point law, and that the only point of fact which he had determined wi irrelevant. The order, therefore, should be amended so as read that the magistrate was wrong in di sing the case on ground stated by him. With that variation the order made the Judge should stand. mil Barton, J. and O'Connor, J. concurred. Order of the Supreme Court varied omitting the words "and that he: not right, und adding after the wo "mentioned," the words "on the grownd stated by him." The direction appellant puy the costs to be omitted. Order so varied affirmed. No costs of the appeal. C.L.R.| OF AUSTRALIA. 585, Solicitor, for the appellant, V. W. Montagu. ae oe a Solicitor, for the respondent, The Crown Solicitor of New South —— Wales. WE apey a. Fi % oy ic 1906) 4CLR_ panes Bowanivs. ite & (her {HIGH COURT OF AUSTRALIA.} ALFRED DEAKIN. . .. . APPELLANT; THOMAS PROUT WEBB (COMMISSIONER) j2, so. nove SSM rt ae 'SIR WILLIAM LYNE ein HA ldaegiee bly APPRULANT } 7a THOMAS PROUT WEBB (COMMISSIONER) OF TAXES) 4; RESPONDENT. ON APPEAL FROM THE SUPREME COURT OF VICTORIA. eeeetiee potoer of State—Limits inter se of Constitutional powers of Commonwealth H.C. or A. and State~Control of Commonwealth Ag Income Tax —Tasation of 1904. Tncome of Commonwealth Oficer—Income taxed after receipt ~Appeal to Privy = —— Council—Applieation for Certificate— Special reasons"—The Constitution, MELBOURNY, secs, 52 (ii.), 74, 106-109—Income Tax Act 1895 (Victoria) (No. 1374), secs. 2, a lari Ii, 7,9, 14; Income Tax Act 190) (Victoria) (No. 1758). ot The principle enunciated in D'Linden v. Pedder (ante p. 91, at p. 111), that 'when a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control, or interfere with, the free exercise of the lative or executive power of the Commonwealth, the attempt, unless expressly Barton ane connor, ney uithorized by the Constitution, is to that extent invalid and inoperative," e-aflirmed. An Income Tax Act of a State, in so far as it attempts to tax the salaries of officers of the Commonwealth, is within the above principle. Such an Act of a State is not taken out of the above principle by reason of he fact that the income tax is assessed on salary received during a preceding year.