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SAMARAXOON v. CROOS el al.
P. C., Chilaw, 11,332.Selling arrack contrary to tenor of license■—Sale at a different place—Non-. liability of licensee^—Liability of sub-renter—Section 9 of OrdinanceNo. 13 of 1891,'
The accused, who were the purchasers of the monopoly ofretailing arrack in the Chilaw District for the year 1896, werecharged with “ having caused to be sold on their account by retail.“ at Rqjakadaluwa, instead of at Tingal-oya near the bridge,“ contrary to the tenor of the license bearing No. 29 of 1st July,“ 1896, and thereby having comn^tted aft offence punishable undersection 9 of sub-section 3 of Ordinance No. 13 of 1891.”
The accused proved that they had sold this particular tavern, to a third party, and that they were not aware of this' alleged-
infringement of the license'.-
– March. 30.
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Held, that the accuseds could not he convicted of the offencewith which they were changed.
Bonseb, C.J.—The principle appears to be that if a licensedperson delegates his authority to another and places him in com-plete charge of the premises, he substitutes that person for himself,and is liable for any breach of the licensing laws committed bythat person on the premises. It is unreasonable to stretch the lawfurther and make him responsible for anything which the delegatedperson may do in any other part of the Island.
Dornhorst, for appellants.
Dion, C.C., for respondent.
30th March, 1897. Bonseb, C.J.—
This is a reasonably clear case,' and I need not reserve myjudgment. The appellants are persons who purchased in 1896the monopoly of retailing arrack in the Chilaw District of theNorth-Western Province, and they are known as “ the licensed“ retail dealers.” The practice appears to be for the GovernmentAgent to put up for sale all the arrack taverns in a district atonce, and to sell the monopoly of retailing arrack in that districtto the highest bidder. A separate license is granted in respect ofeach tavern. The appellants received a license to retail arrackin the form C given in Schedule IV. to Ordinance No. 13 of 1891.Afterwards, in accordance with what I am told is the custom, theappellant put up the right to sell arrack at this tavern to publicauction, and it was bought by two men called Fernando, and theappellant thereupon handed over the license to the purchasersand signed a memorandum at the foot thereof in the followingterms :—“ In conformity with the foregoing license in our favour,“ we, John de Croos and C. M. de Croos, licensed retail dealers,hereby authorize Davith Fernando and Peter Fernando to sell by“ retail for us and for our benefit at the place aforesaid *****”. It appears that the Femandos were not satisfied with theamount of business they could do at this tavern at Tingal-oya.They therefore proceeded to open an unauthorized tavern ata place called Rajakadaluwa, in the neighbourhood of somecocoanut plantations, where they expected to get more customers.There is no evidence that this was done with the knowledge ofthe appellants. The appellants having sold the license, seemedto have washed their hands of tfie matter, and taken no fhrtherinterest in it. However, a complaint was lodged against theappellants in the Police Court of Chilaw that they “ did on lQth“ day of December, 1896, and on the” following days, cause to be
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“ sold on their account by retail at Rajakadaluwa, instead of at“ Tingal-oya near the bridge, contrary to the tenor of the license“ bearing No. 29 of 1st July, 1896, and thereby committed an offence“ punishable under section 9 of sub-section 3 of Ordinance No. 13“ of 1891. ” It will be noticed that it is not stated in this complaintwhat it is the appellants sold by retail—whether arrack, rum, gin,milk, or potatoes—it might be anything. However, I presumethe intention was to charge them with selling arrack. The sectionreferred to in the plaint forbids any person to sell by retail arrackwithout having first obtained a license for that purpose, or unlesshe is acting for, and by the authority or for the benefit of, and inconformity with, the license granted to the retail dealer, i.e., themonopolist. Now, that prohibition is not directed to the licensedretail dealer. The licensed retail dealer has a license from theGovernment Agent, and a licensed retail dealer cannot be said toact for himself. The prohibition is, therefore, directed to some-.body else. Then, sub-section 3 provides a penalty as the sanctionof that prohibition. It says that any person who shall sell orpermit to be sold on his account by retail arrack without theGovernment Agent’s license or contrary to the tenor thereof shallbe guilty of an offence and punished as therein mentioned. Now,it was argued that the licensed retail dealer must be responsiblefor the acts of the persons who actually manage the tavern, andto whom he has delegated his authority ; that the appellants haddelegated their authority to the Femandos, and, therefore, theymust be criminally responsible for their act in opening this tavernat Rajakadaluwa, and the case of Van Hagkt v. Fernando (2 N. L.
p. 249) was cited as an authority for that proposition. In myopinion this case is no authority for a proposition so wide as thatwhich the prosecution now seeks to establish. That case merelydecided that a licensee of a tavern was liable for breaches of theconditions of his license committed on the tavern premises. Theprinciple appears to be that if a licensed person delegates hisauthority to another and places him in complete charge of thepremises, he substitutes that person for himself, and is liable forany breach of the licensing laws committed by that person on thepremises. It would be unreasonable to stretch the law further,and make him responsible for anything which the delegatedperson may do in any other part of the Island. This seems to meto be very like the case where the owner of a London publichouse puts a manager in entire charge of it. He cannot by sodoing divest himself of responsibility for any breaches of thelicensing laws which take place in that public house; but if themanager were, without the knowledge of his owner, to establish
Mtr.eh 30.Bonbkb, C.J.
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1897. an illicit still in some other part of London, or to open an un-March 30. lic©xise<i booth for the sale of liquor at a racecourse, I cannotBonsbr, C.J. conceive that the owner would be held liable for that. NoEnglish case has been cited which, goes that length, and I declineto .extend the doctrine of constructive liability so far as that. I donot think the object of the Ordinance will be defeated by limitingthe doctrine of constructive liability in the way I have mentioned.For these reasons, I am of opinion that the appellants werewrongly convicted, and that the conviction should .be quashed andthe appellants acquitted.