"Tavern 2. "Tavern license" (c) shall mean a license for selling, (d) Taver bartering or trafficking by retail (e) in fermented, spirituous or other liquors, in quantities of less than one quart, (ƒ) assumed for the purposes of the Act to be intoxicating, and all combinations of drinkable liquids, which are intoxicating are placed on the same footing as spirituous and malt liquors : Harrison's Mun. Man., 892. (See Sec. 113.) (c) "License," means a writing or instrument granting permission or authority.-Worcester. "Licensed premises," as used in the English Licensing Acts, means premises open to the public for the sale of drink, under the provisions of the Act: Lester v. Torrens, 2 Q. B. D. 403. The licenses provided for here are: (1) Tavern Licenses; (2) Shop Licenses ; and (3) Wholesale Licenses; the nature of each being defined in the Act. A "tavern license" permits the sale of liquor by retail, which is defined to mean in quantities less than a quart, and the liquor sold to be drunk on the premises. The "shop license" is also a retail license, which permits the sale in quantities of not less than three half-pints, not to be drunk on the premises, and a license by wholesale, or "wholesale license" authorizing the sale of liquor in quantities of not less than five gallons at one time. A sale by a licensee of any less quantity than is authorized by his license, is a punishable offence; R. v. Faulkner, 26 U. C. R., 529; R. v. Denham, 35 U. C. R., 503. (d) The person who is the seller," is the person who keeps the shop or actually conducts the business of the place where the sale is transacted, even though he only sells the article on commission for another person living elsewhere and having no control over the shop or place: Templeman v. Trafford, 8 Q. B. D., 397. The definition of the verb "to sell," given by Worcester, is "to deliver, part with, or dispose of, for some equivalent in money; to exchange for money; to vend ;-correlative to buy, and distinguished from to barter, which implies an exchange of one commodity for another." To barter, is "to traffic by exchanging one commodity for another, to trade by exchange of goods in distinction from trading by the use of money." To traffic, is "to carry on commerce or trade; to buy and sell; to exchange; to barter." (e) Selling a bottle of brandy is selling by retail: R. v. Denham, 35 U. C. R., 503, and a sale of a bottle of gin, valued at sixty cents. is a sale by retail: R. v. Strachan, 20 C. P., 182. But the Statute here defines the meaning as "in quantities of less than one quart,” and a license is necessary in all cases for selling liquors. See sec. 49. A company under charter has no greater right to sell liquors than individuals can possess, nor is it exempt from any legislative control to which they are subject: Beer Company v. Massachusetts, 97 U. S., 25. It was held that if a person takes a part of a house, either in his own name or in the name of another person, and there personally, or by his agent, makes sales by retail, he carries on business there as a retailer of spirits, even though no spirits are actually stored on the premises, and even though the store was kept in another town: Stallard v. Marks, 3 Q. B. D., 412. (f) "The unit or standard measure of capacity from which all other measures of capacity, as well for liquids as for dry goods, shall be derived, shall be the gallon containing ten (10) Dominion Standard pounds weight of distilled water, weighed in air against brass weights, with the water and the air at the temperature of sixty-two degrees of Fahrenheit's thermometer, and with the barometer at thirty inches. The quart shall be one-fourth part of the gallon; the pint shall be one-eighth part of the gallon:" R. S. C., c. 104, s. 15. Where a drink was sold for ten cents, the Court held that the jury were Shop license." "License by wholesale." which may be drunk in the inn, (g) ale or beer-house, or other house of public entertainment in which the same liquor is sold. 3. "Shop license" shall mean a license for selling, bartering or trafficking by retail in such liquors in shops, stores, or places other than inns, ale or beer-houses, or other houses of public entertainment, in quantities not less than three half-pints at any one time, to any one person, and at the time of sale to be wholly removed and taken away, in quantities not less than three half-pints at a time. 4. "License by wholesale" or "Wholesale License" shall mean a license for selling, bartering or trafficking, by wholesale only (h) in such liquors in warehouses, stores, shops, authorized in finding that the quantity was less than a quart: Hamilton v. State, 103 Ind., 96; 38 Alb. L. J., 430. (g) An "inn" may be defined to be a house in which travellers, passengers, way-faring men and other like casual guests are accommodated with victuals and lodgings and whatever they reasonably desire for themselves and horses, at a reasonable price, when on their way: Thompson v. Laзy, 3 B. & Ald., 283; 1 Burn's, Just., Alehouse, 30th Ed., 64. A refreshment bar, though part of a duly licensed premises, is not an "inn :" R. v. Rymer, 2 Q. B. D., 136: Strauss v. County Hotel Co., 12 Q. B. D., 27 ; nor is an ordinary coffee-house: Doe v. Laming, 4 Camp., 73; nor is a boarding-house: Dansey v. Richardson, 3 E. & B., 144; but a London coffee house, where beds as well as provisions are provided, would seem to be an "inn:" Thompson v. Lacy, supra; see 1 Smith's L. C., 142; Add. on Con., 297, 298. An "alehouse" is a place where excisable liquors are sold by retail, to be drunk on the premises. The word is probably synonymous with "public house" and "tavern," which latter words were employed in London and Suburban Land Co. v. Field, 16 Ch. D., 645; Holt v. Collyer, 16 Ch. D., 718; see Stroud's Dict., 27. Worcester defines an "ale-house "to be" a house where ale and beer are sold," and a " tavern " to be "a public house where wine and liquors are sold and entertainments for a party are provided; "An inn," "tavern," "hotel" and "public house" are synonymous in this country, and while they entertain the travelling public, and receive compensation therefor, they do not lose their character, though they may not have the privilege of selling liquors: see Anderson's Dict., 1006. (h) The definition here given is quite clear enough, but in the U. S., a manufacturer of liquor selling in unbroken packages at his place of business to dealers, is not a "wholesale liquor dealer," liable to taxation, as other merchants: Taylor v. Vincent, 12 Lea., 282; S. C. 47 Am. Rep. 338; Pearce v. Com., 6 Ky. L. Rep. 113. The mere fact that a liquor dealer sold by the quart and in larger quantities, not drunk or intended to be drunk on the premises, is not enough to constitute him a "wholesale dealer:" State & Lowenhaught, 11 La., 13. As a general rule, "wholesale" merchants deal only with persons who buy to sell again, while "retail" merchants deal with consumers; per Bacon, V.C., Treacher v. Treacher, W. N. (1874), 4. or places other than inns, ale or beer-houses, (i) or other houses of public entertainment, in quantities not less than five gallons in each cask or vessel at any one time; and in any case where such selling by wholesale is in respect of bottled ale, porter, beer, wine or other fermented or spirituous liquor, each such sale shall be in quantities not less than one dozen bottles of at least three half-pints each, or two dozen bottles of at least three-fourths of one pint each, at any one time. R. S. O. 1877, c. 181, s. 2. half "Three half-pints" shall, where bottled liquor is sold, "Three be held to be equivalent to five quarter pints Imperial pints." measure. 44 V. c. 27, S. 23. "License 6. "License District" shall mean the City, County, District. Union of Counties, or Electoral District or Districts, (7) or any part of an Electoral District, or a union of parts of two or more Electoral Districts, as the Lieutenant-Governor in Council may by order direct. sub-divis 7. "Polling sub-division" shall mean the polling sub- "Polling division for the last general election for the District for the ion. Legislative Assembly in which the licensed premises or the premises for which a license is sought are situated. "License 8. "Inspector shall mean an Inspector of Licenses Inspector." appointed for a license district under this Act. 47 V. c. 34, S. I, part. Temper 9. "The Canada Temperance Act" shall extend to and "Canada include The Canada Temperance Act, 1878. 50 V. c. S. 9. 33, ance Act, 1878," meaning of License 3. There shall be a board of license commissioners (k) Board of to be composed of three persons, to be appointed by the CommisLieutenant-Governor for each city, county, union of coun (i) See Note (g) supra. sioners. (j) See the Act respecting "Territorial Divisions of Ontario," R. S. O., c. 5. See also Sec. 3 and notes thereto. (k) Any doubt as to the authority of the Legislature to create a board of License Commissioners, was settled in Hodge v. The Queen, 9 App. Cas. 117, in which it was held that the "Liquor License Act," was within the powers of the Legislative Assembly. See also cases cited in note to sec. 1. Powers of the commissioners. ties, electoral district, or license district, as the Lieutenant- c. 181, s. 3; 48 V. c. 43, s. 8, part. 4. The board of license commissioners (2) may (o) at any time before the 1st day of May in each year, pass reso (2) The word "shall" is imperative: Interpretation Act, R. S. O. 1887, c. 1, s. 8, ss. 2. The appointment of a board of license commissioners is imperative, but the Goverment may use its discretion in appointing the board for either of the divisions named, viz: for each city, county, union of counties, electoral district, or license district, as it may think fit. As a matter of fact there is a board of license commissioners appointed for each electoral district of the Province. A list of the license districts will be found in the appendix. The power of appointment by the Government, as in this Section provided, impliedly carries with it, in the absence of language to the contrary, the power of removal: Interpretation Act, R. S. O., c. 1, s. 8, ss. 26. (m) "Quorum" means the number of members of an administrative or judicial body whose presence is necessary for the acts of the body to be valid. The term is derived from "the justice of the quorum," the latter being the first word of the commission appointing the Justices of the Peace for a County, under 1 Ed. III st. 2, c. 16; the words of the commission running thus: " Quorum aliquem vestrum A. B. C. D., etc., unum esse volumus." A notice of action is necessary in an action for damage against a Board of License Commissioners acting under the Liquor License Act: Leeson v. License Com. of Dufferin, 19 O. R., 67. (n) The position of a License Commissioner is honorary and without remuneration, but the Inspector may be paid a salary for his services. 66 (0) In some cases it has been held that the word "may" is not used to give discretion, but to confer a power, the exercise of which depends upon the proof of the particular case out of which such power arises: MacDougall v. Patterson, 11 C. B., 755; Crake v. Powell, 2 El. & Bl., 210. But it has been said: Though dicta of eminent judges may be cited to the contrary, it must be the plainest conclusion of common sense that 'may' and such like phrases give in their ordinary meaning an enabling and discretionary power. "They are potential, and never (in themselves) significant of any obligation: per Ld. Selborne, Julius v. Bishop of Oxford, 5 App. Cas. 214, p. 235. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power;" and, therefore, where the point in question is not covered by authority, "it lies upon those who contend that an obligation exists to exercise this power to shew in the circumstances of the case something which, according to the principles I have mentioned, creates this obligation:" per Cairns L. C., Julius v. Bishop of Oxford, 5 App. Cas., 214, at p. 223. The Lord Chancellor also collects the principles referred to by him in that case into the following propositions: "Where a power is deposited with a public officer for the purpose of being used for the benefit of persons (1) who are specifically pointed out, and (2) with regard to whom a definition is supplied by the legis lutions for regulating and determining the matters following, that is to say: (p.) requisites for granting tavern and shop 1. For defining the conditions and qualifications requisite Defining to obtain tavern licenses for the retail within the municipality, of spirituous, fermented or other manufactured liquors, and also shop licenses for the sale by retail within the licenses. lature, of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised.' Enabling words are also construed as compulsory, whenever the object of the power is to effectuate a legal right: per Ld. Blackburn, S. C., 5 App. Cas., 214, at p. 244. Such words and phrases, therefore, group themselves into two classes: (1) an obligatory duty; and (2) a discretionary or enabling power. It is submitted that the power here given to the License Commissioners comes within the latter class, and that the exercise of it is entirely discretionary. By the R. S. O., 1887, c. 1, s. 8, sub. s. 2, the word "shall" is to be construed as imperative, and the word "may as permissive. As to the question of discretionary power, see Maxwell on Stats., pp. 100, 101; Macbeth v. Ashley, L. R. 2 Scotch App., 352, cited Sinclair's D. C. Act, 1884, p. 12, 13; and for cases in which the enabling words have been held to impose a discretionary or enabling power, see Stroud's Dict., 166; see also remarks in notes to section 18 post. (p) The powers of the Commissioners within the limits prescribed in this section are very ample. That they can create offences and annex penalties thereto is shewn in the case of Hodge v. The Queen, 9 App. Cas., 117. (ante p. 1). The expression "regulating and determining," appears to be used here to denote the making by resolution of rules and by-laws governing the subjects mentioned, which are: 1. The conditions and qualifications requisite to obtain licenses; 2. For limiting the number of taverns and shops; 3. For declaring a certain number of tavern licenses in cities and towns, may issue to persons exempted from having the accommodation required; 4. For regulating the taverns and shops to be licensed; and 5. For fixing and defining the duties, powers and privileges of the inspector of their district. The Board of License Commissioners thus formed and endowed is in the nature of a municipal body created and appointed under the authority of the Legislature, with power to pass under the name of resolutions what we know as by-laws, or rules governing matters of a merely local nature in the Province. Such powers are said to be similar to, though not identical in all respects with, the powers belonging to municipal institutions under previously existing laws passed by the local Parliaments. "The powers intended to be conferred are to make regulations in the nature of police or municipal regulations of a merely local character, for the good government of taverns, etc., licensed for the sale of liquors by retail, and such as are calculated to preserve in the municipality peace and public decency, and repress drunkenness and disorderly and riotous conduct:" Hodge v. The Queen, 9 App. Cas., 117. As to extent of police power see Minneapolis & St. Louis R'y Co. v. Beckwith, 9 S. C. Rep. (U. S.), 207. It seems, therefore, that the License Commissioners have the same power to make by-laws in relation to the licensing of taverns and in regard to licensed taverns as, under the Municipal Institutions Act of 1866 and other Municipal Acts of the late Province of Upper Canada, was possessed by Municipal Councils and Commissioners of Police, respectively: per Spragge, C. J., in Regina v. Hodge, 7 App. R. at p. 259. See note to sec. 1. The regulations of a municipal body, such as are here authorized, must not be inconsistent with the Acts creating it. Such Acts are its charter, hence all |