1912 LEES v. LOVIE. Act, 1910. (1) In April, 1911, the clerk entered the club upon the register, dating the entry as of January 5, 1911, and at the same time wrote to the secretary of the club stating that in his opinion the club could not legally be re-registered, but his duties were merely ministerial. The premises of the club were the same premises as at the time when the club was struck off the register. On May 4, 1911, the appellant supplied intoxicating liquor to a member on the premises of the club, and was convicted and fined for so doing, the justices being of opinion that the Act did not permit the re-registration of a club which had been lawfully struck off the register, and that there had been no effective or lawful registration of the club within the Act. (1) 10 Edw. 7 & 1 Geo. 5, c. 24, s. 91: The secretary of every club which occupies a house or part of a house which is habitually used for the purposes of a club, and in which any intoxicating liquor is supplied to members or their guests, or any other premises which are habitually so used and in which any intoxicating liquor is so supplied, shall cause the club to be registered in manner provided by this Act." Sect. 93: "If any intoxicating liquor is supplied or sold to any member or guest on the premises of an unregistered club, the person supplying or selling the liquor . . . . shall be liable to imprisonment or to a fine . . . . Sect. 95, sub-s. 1: "Where a "(a) that the club has ceased to "(f) that the club occupies premises in respect of which, within twelve months next preceding the formation of the club, a justices' licence has been forfeited or the renewal of a justices' licence has been refused, or in respect of which an order has been made that they shall not be used for the purposes of a club." Sub-s. 4: "Where the Court make an order striking a club off the register the Court may, if they think fit, by that order further direct that the premises occupied by the club shall not be used for the purposes of any club which requires to be registered under this Act for a specified period, which may extend, in case of a first order, to twelve months, or, in case of a second or subsequent order, to five years: Sect. 110: "In this Act, unless the context otherwise requires,— "The expression 'unregistered club' means a club which requires to be registered under this Act, but is not so registered, or which has been struck off the register of olubs." Scott-Fox, K.C., and T. Cuthbertson, for the appellant. There is nothing at all in the provisions of the Licensing (Consolidation) Act, 1910, relating to clubs to indicate that a club which has been struck off the register may not again be registered. The provisions of s. 92, sub-s. 4, as to the registration of a "new" club apply to any club which is not when it applies for registration a club on the premises of which intoxicating liquor is supplied, and they apply to this club. Sect. 110, when it defines an "unregistered club" as being a club which has been struck off the register, means a club which has been struck off and has not been reinstated on the register. Among the grounds upon which a club may be struck off the register is the fact that the number of its members has become less than twenty-five, and it would be absurd to say that a club which has temporarily been so reduced in its membership and struck off for that reason may never again be registered although its membership may subsequently have largely increased. The intention of the Act as to disqualification is expressed by the provisions in sub-s. 4 of s. 95 as to the disqualification of club premises for a limited time, and there is nothing to shew an intention to disqualify a club from being re-registered. The provisions of that sub-section as to a second order seem to refer to a second order in respect of the same club, for a closing order can only be made as part of the order striking a club off the register, and that shews that a club may be registered a second time. This Danckwerts, K.C., and A. H. Bodkin, for the respondent. club was an "unregistered club" within the meaning of ss. 93 and 110 of the Act. When s. 110 says that the expression "unregistered club" means a club "which has been struck off the register of clubs " it plainly means that such a club is always an "unregistered club." If the contention of the appellant were right, it would be impossible ever to strike a club off the register effectively, for it could always register again at once and do so as often as it was ordered to be struck off. The result would be that, although an order might be made that the club should be struck off and that its premises should not be used for a club for a certain period, the club might go on using the same premises and when again ordered to be struck off for so doing re-register 1912 LEES v. LOVIE. 1912 LEES v. LOVIE. again at once. The provisions of ss. 92 and 93 as to the registration of new clubs clearly refer only to clubs which have not been before registered. The definition of "unregistered club" contained in s. 110 is to be read into s. 98 so that the latter section will read "if any intoxicating liquor is supplied or sold on the premises of an unregistered club or a club which has been struck off the register." If the contention of the appellant were right, the words in s. 110, "or which has been struck off the register," would be mere surplusage and have no meaning, for it would have been sufficient to say only "but is not so registered." The definition in s. 110 is inserted solely for the purposes of s. 93, and for that reason it specifies a club which has been struck off the register. Scott-Fox, K.C., replied. LORD ALVERSTONE C.J. This case is by no means free from difficulty, and the arguments on both sides are very evenly balanced, and it is impossible to deny that some rather strange results may follow whichever view we take. On the whole, however, I have come to the conclusion that this conviction was right and that the appeal fails. In the first place it must be remembered that there is an express finding in the case that this was the same club as that which had previously been struck off the register and occupied the same premises, so that no question arises here of what I may call a fresh organization. In my opinion the Act does not contemplate re-registration of a club that has been struck off. It is to be observed that registration is practically automatic, that is to say, when under s. 91 a club desires to become a registered club it has only to fulfil the conditions of s. 92. It seems to me that, when those conditions are fulfilled, the club automatically becomes a registered club. There is no officer who can exercise a discretion as to whether a club shall be registered or not if the conditions of s. 92 are complied with. Further, there is a discretion under s. 95, and the Court of summary jurisdiction has an absolute discretion whether it will strike a club off the register or refuse to do so. That to a certain extent answers what was a very strong argument for the appellant, that it would be ridiculous if a club, which has become unpopular for a time so that the membership has fallen below twenty-five, should be struck off and could not be registered again if it increased to a larger number. I think that under ordinary circumstances, if there was a prospect of the club getting back its required number of members, the magistrates would not strike it off. What we have really to decide is what is the conjoint meaning of s. 98 and s. 110. Sect. 93 creates the offence of supplying intoxicating liquor on the premises of an unregistered club, and s. 110 in its last clause contains these words: "The expression unregistered club' means a club which requires to be registered under this Act, but is not so registered, or which has been struck off the register of clubs." There is a good deal in the view suggested by Mr. Scott-Fox that probably the framer of that clause was not thinking of what would be the consequences if a club once struck off could never again become a registered club. But the words are, in my opinion, too strong for us to adopt any other construction; they are quite general, and I do not see why the first part should not apply to a club which has never been registered and the last part have been inserted with the view of preventing a club which has been struck off ever again becoming a registered club. It is a heavy punishment, no doubt, but having regard to the fact that there is no provision for re-registration, and that there is a statement that a club which has been struck off is an "unregistered club," and that the only section in which the question of unregistered clubs is of any importance is s. 93, on the whole I come to the conclusion that the respondent's contention is right, and that it was intended that if a club has so conducted itself that the justices have taken it off the register under s. 95 it is not to become a registered club again. The fact that the justices may add to an order striking the club off the register a provision that the premises shall not be used for a limited time for the purpose of any club requiring registration rather supports the same view, because if the club could get registered again directly and the magistrates do not make an order that the premises shall not be used, as they need not do, for a limited time, then the club can practically at once become a registered club again. Therefore, 1912 LEES v. LOVIE. Lord Alverstone VOL. II. 1912. 2 G 2 balancing the arguments on the one side and the other, I come to the conclusion that it was intended in the Acts of 1902 and 1910 to treat it as a punishment that the provisions of s. 93 against supplying intoxicating liquor on the premises of an unregistered club should apply to every club which has been struck off the register. It may have been thought that when a club has so conducted itself that the magistrates have thought fit to strike it off, it ought to be treated as a club which is an unregistered club for all time. Looking at the object of these provisions, which I gather from the Act itself, and the terms of the legislation, I think that when a club has been struck off there is no discretion as to registration, and that the Act intends that a club which has been struck off shall continue, as long as it is the same club, to be an unregistered club. The appeal must be dismissed. PICKFORD J. I am of the same opinion. I think that either construction gives rise to considerable difficulties and inconveniences, but I am much impressed by the fact that there is no provision for re-registration at all; it does not seem to be provided for in the Act. It seems to me that the action of the clerk to the justices in registering a club is merely ministerial. I do not think that he has any discretion or can consider whether he should register the club or whether he should not. Under those circumstances I cannot help thinking that, if it was intended that a club struck off should be re-registered, there would have been some provision providing conditions and circumstances under which it should be entitled to re-registration. It can hardly be supposed that the Act intended that a club which was struck off for what was an offence-because I think with one exception all the grounds for striking off in s. 95 are for offences of different descriptions-should be entitled to go the next week, or perhaps the next day, and as of right re-register itself. Without going through the other grounds with which my Lord has dealt, I agree that this appeal must be dismissed. AVORY J. I have felt the same difficulty in arriving at the conclusion that the judgments that have just been delivered |