against cannot recover the costs incurred by them from any other person, and in either of these cases the quarter sessions shall order the treasurer of the county or the treasurer of the borough having a separate Court of quarter sessions, as the case may be, to pay to the justices such sum as is sufficient to indemnify them from all costs and charges whatsoever to which they may have been put. The costs referred to in both those sections are the costs of the appeal to quarter sessions. The costs of the hearing of a special case stated by quarter sessions upon the appeal to them are not costs of the appeal to quarter sessions. When the case is before the quarter sessions the licensing justices are fulfilling a public duty in appearing upon the appeal, and are not in any sense parties, and the above sections provide for their costs in so appearing. But a special case stated by quarter sessions is no part of the appeal to quarter sessions. It is an independent appeal from the quarter sessions. to the High Court: s. 2 of the Supreme Court of Judicature (Procedure) Act, 1894 (57 & 58 Vict. c. 16); Kydd v. Liverpool Watch Committee (1), which is not affected upon this point by the reversal of the judgment in the House of Lords. (2) The nature and origin of the procedure by way of special case stated by quarter sessions are stated in Reg. v. Chantrell (3) and Walsall Overseers v. London and North Western Ry. Co. (4) The words in s. 32 of the Act of 1910, "all costs and charges whatsoever to which they may have been put," refer to the costs of "an appeal under this Act," that is to say, an appeal to quarter sessions, and not an appeal from quarter sessions. If the special case were part of the appeal to quarter sessions, the High Court would have no power to make an order as to costs, such costs being regulated by ss. 31 and 32 of the Licensing (Consolidation) Act, 1910. In Reg. v. Staffordshire Justices (5) no doubt the costs of rules for a certiorari and mandamus were ordered by the High Court to be included in the indemnity order which the quarter sessions had made in respect of the costs of the original appea (1) [1907] 2 K. B. 591, at pp. 604, 605. (2) [1908] A. C. 327. (3) (1875) L. R. 10 Q. B. 587. (4) (1878) 4 App. Cas. 30, at p.40. (5) Reported upon this point in 79 L. T. 142, at p. 145; 62 J. P. 741, at p. 743. 1912 REX v. SALFORD JUSTICES. to quarter sessions, but in that case the quarter sessions refused to include those costs in the indemnity order upon the ground that the costs must first be allowed by the High Court, and by HUNDRED Consent it was agreed that the issuing of the indemnity order should stand over until an application was made to the High Court. It was a consent order, and the point was not argued; but if anything was decided upon the application it was that the High Court and not the quarter sessions had power to order the costs to be included in the indemnity order. The present application is for a mandamus to the quarter sessions to include the costs of the special case in their indemnity order, which the quarter sessions have no power to do. Next, even if the costs of the special case are costs in the appeal to quarter sessions, these costs which the licensing justices desire to have included in the indemnity order under s. 32 are the costs of the successful licensee which the justices have paid under the order of this Court, and s. 32 does not apply to such costs. Notwithstanding the wide words of s. 29, sub-s. 4, of the Licensing (Consolidation) Act, 1910, there is no power to give a successful licensee his costs of an appeal against licensing justices Reg. v. London Justices (1); Reg. v. Staffordshire Justices (2); and that being so, there is no power to order these costs to be paid out of local funds. The quarter sessions were therefore right, and the rule for a mandamus should be discharged. Sanderson, K.C. (R. M. Montgomery with him), in support of the rule. Sect. 32 of the Licensing (Consolidation) Act, 1910, applies to these costs, and the Court of quarter sessions is bound to order the treasurer of the borough to pay the amount thereof to the licensing justices. That section deals with the case where the appeal is allowed, or where, though the appeal is dismissed or abandoned, the licensing justices cannot recover the costs incurred by them from any other person, and in either case the Court of quarter sessions shall order the treasurer of the county or borough, as the case may be, to pay to the justices "such sum as in the opinion of the Court is sufficient to indemnify them from all costs and charges whatsoever to which they may (1) 62 J. P. 517. (2) [1898] 2 Q. B. 231. 1912 REX SALFORD JUSTICES. have been put." These latter words are as wide as possible so as to include all costs and charges to which the licensing justices have been put even though they may not strictly be costs in the appeal to quarter sessions. The limitation in s. 31, "in con- HUNDRED sequence of his having served notice of his intention to appeal," is omitted in s. 32. The intention is that the licensing justices shall have a complete indemnity, as it would be unfair that licensing justices, who act in a public capacity, should be made to pay costs personally. In truth the statement by quarter sessions of a case for the opinion of the High Court is a step in the appeal to quarter sessions. It is an incident in that appeal. There is nothing in the judgment of the Court of Appeal in Kydd v. Liverpool Watch Committee (1) contrary to that view. Fletcher Moulton L.J. (2) in that case, speaking of the nature and origin of the procedure by special case stated by quarter sessions for the opinion of the Court, said that the decisions in Reg. v. Chantrell (3) and Walsall Overseers v. London and North Western Ry. Co. (4) shewed clearly that the procedure was not in the nature of an appeal, although in effect it was analogous thereto. It was founded on the consultative jurisdiction of the quarter sessions. Even if there is anything in the reasoning in that case inconsistent with the view that the procedure is not an independent appeal, but part of or an incident of the appeal to quarter sessions, reliance cannot safely be placed upon that reasoning because of the reversal of the decision in the House of Lords. (5) But whether or not the procedure by case stated is part of or an incident of the appeal to quarter sessions, the words of s. 32 are wide enough to cover this case. Further, the point is concluded by the order of this Court in Reg. v. Staffordshire Justices. (6) It was there decided that the Court of quarter sessions had power to include the costs of the licensing justices upon the rules for a certiorari and mandamus in the order for indemnity. The present is a stronger case. application for a certiorari or mandamus is an independent (1) [1907] 2 K. B. 591. (5) [1908] A. C. 327. An (6) 79 L. T. 142, at p. 145; 62 J. P. 741, at p. 743. 1912 REX application, asking the Court to interfere with the action of the quarter sessions, and is not in any way a step in the appeal to quarter sessions, whereas a case stated by quarter sessions is, the HUNDRED title of the case being the same as in the appeal. V. SALFORD JUSTICES. LORD ALVERSTONE C.J. This rule must be made absolute. Before I deal with the merits of the case I desire to point out that the origin of the difficulty is the order which this Court made upon the hearing of the special case in Cooke v. Cooper (1) that the justices for the borough of Bolton, who were the respondents, should pay the costs of the special case. The justices did not appear to argue the special case, and in ordinary circumstances we do not in such a case give costs against justices. I cannot now remember why we made that order. The cases of Reg. v. London Justices (2) and Reg. v. Staffordshire Justices (3) were not cited to us, and the only possible reason I can think of is that the justices raised the point before the Court of quarter sessions which led to the case being stated, and that therefore, acting under s. 2, sub-s. 3, of the Supreme Court of Judicature (Procedure) Act, 1894, we gave costs against them. I wish to guard against that case being referred to as an authority that this Court will in such a case give to a successful licensee as against justices the costs of a special case stated by quarter sessions in a licensing appeal. The question which we have to determine is whether the licensing justices are entitled to an order at quarter sessions upon the treasurer of the borough of Bolton under s. 32 of the Licensing (Consolidation) Act, 1910, to pay the costs of the special case which this Court ordered the licensing justices to pay, and which have been taxed at 58l. 19s. 6d., and any other costs to which the justices have been put. Sects. 31 and 32 of the Act of 1910 have not made any alteration in the law relating to this matter. It seems to me that the combined effect of s. 29 of the Alehouse Act, 1828, and s. 20 of the Licensing Act, 1902, which have been repealed, is now to be found in ss. 31 and 32 of the Act of 1910. The effect of those sections is (1) Ante, p. 248. (2) 62 J. P. 517. (3) [1898] 2 Q. B. 231. 1912 REX v. SALFORD JUSTICES. Lord Alverstone C.J. to give the licensing justices a complete indemnity. Sect. 32 is the material section in this case. That section provides that "Where an appeal under this Act is allowed, or where any such appeal is dismissed or abandoned and the licensing justices HUNDRED whose decision is appealed against cannot recover the costs incurred by them from any other person, the Court of quarter sessions shall order the treasurer of the county in which the licensing district for which the licensing justices act is situated, or, in the case of a licensing district being a borough having a separate Court of quarter sessions, the treasurer of the borough, to pay to the justices such sum as in the opinion of the Court is sufficient to indemnify them from all costs and charges whatsoever to which they may have been put." It is not denied that the justices have been put to these costs under an order of this Court which they were bound to obey, and, therefore, in my opinion these costs come within the comprehensive language of the section. There is authority for that conclusion in the case of Reg. v. Staffordshire Justices. (1) In that case there was an appeal to quarter sessions against the refusal by licensing justices to renew a licence, and the licensing justices appeared and opposed the appeal. The quarter sessions allowed the appeal and ordered the licensing justices to pay the costs, and refused them an indemnity under s. 29 of the Alehouse Act, 1828. The licensing justices obtained a rule for a certiorari to quash the order so far as it related to the costs and a rule for a mandamus to hear and determine the application for an indemnity, and a Divisional Court consisting of Wills and Channell JJ. made the rules absolute. (2) Some two months after that decision an application was made on behalf of the licensing justices to a Divisional Court consisting of Wright and Bigham JJ. for an order that the costs of the rules for a certiorari and mandamus should be included in the indemnity, and the Court made the order. (1) That is an authority directly in point. In my opinion the costs of a special case stated by quarter sessions in an appeal to them are more in the nature of costs in the appeal than the costs of a certiorari or mandamus (1) 79 L. T. 142, at p. 145; 62 J. P. 741, at p. 743. (2) [1898] 2 Q. B. 231; 79 L. T. 142; 62 J. P. 741 |