until after the 1st January, 1916, and were therefore not the owner liable under the statute to make the return, or pay the assessment prescribed. For the respondent it was contended that the definition of 66 owner in The Diseases in Sheep Act of 1867 covered the case, and that by the contract of sale the appellants became the . owners, and were in possession of the sheep (by their drover and servant Regan) on or before the 1st January, 1916, and were therefore liable to pay the assessment. I think, having regard to the express terms of the contract, that the clear intention of the parties was that the property in the sheep should not pass, and it did not pass, to the appellants until the day of payment, which was the 7th January, 1916. There was no conduct of the parties, or circumstances of the case, to contradict the plain statement in the contract that the appellants, until payment, held the sheep "as agent only and in trust for the vendor as continuing owner." The Sale of Goods Act of 1896, s. 20; McEntire v. Crossley Bros. (1). The provision was inserted for the protection of the vendor, and though Regan, as appellants' drover, had possession of the sheep, he was, as it was expressly stated in the documents, pending payment by appellants, holding possession of them for the owners, the vendors. The assessment is payable by the sheep-owner for the number of sheep owned by him. The appellants were not the owners of the sheep, and I do not think the term "sheep-owner" can be extended by the definition given by the Statute to owner," (unless the context otherwise indicates, and I think it does not here), so as to hold the appellants, under the circumstances of this case, to have been persons in possession or charge of sheep within the meaning of the enactment. I think therefore the conviction should be quashed. SHAND J. I have had the opportunity of reading the judgments which have just been read by the learned Chief Justice and by my brother Chubb, and I am entirely in agreement with those judgments for the reasons given therein. LUKIN J.: I agree. F.C. CARDELL V. WINTEN AND WINTEN.Ex parte WINTEN AND WINTEN. Chubb J. Shand J. Lukin J. Order absolute, with costs. Solicitors for appellants: Chambers, McNab & McNab, for R. H. Dyball & Osborn, Roma. Solicitor for respondent: The Crown Solicitor. (1) [1895] A.C. 457, at p. 463. 1917. February 16. Chubb J. Lukin J. [IN THE FULL COURT.] BUCKLE v. COOK, Ex parte COOK. By-law-Local Authority-License for theatre-Discretion of Local By The Local Authorities Acts, 1902 to 1915, Local Authorities have power to make by-laws in respect of, inter alia, the following matters :-(i.) The situation, form, and construction of buildings, rooms, gardens, and other places, which are, or are intended to be used, kept, or let for theatres or cinematograph exhibitions or for other places of public amusement; (ii.) the licensing and inspection of such premises. The Local Authority of Toombul duly made a by-law, the first clause of which provided: No building, room, garden, or other place within the Shire shall be used, kept, or let for . a theatre cinematograph exhibition or any other public performance or amusement unless the conditions prescribed by this by-law and any statute in that behalf are complied with and it is licensed under this by-law." The other clauses of the by-law prescribed the fees payable for licenses, made rules for the conduct of the business on licensed premises, and required certain provision to be made for sanitation and safety. The appellant applied by letter to Local Authority of Toombul for a license for his premises as an open-air theatre, and enclosed the license fee. The Local Authority considered the application, decided to refuse the grant of a license, and notified the appellant of their refusal. A few days afterwards the appellant used his premises for a cinematograph exhibition, although no license had been obtained for their use for that purpose. He was convicted of an offence against Clause 1 of the By-law. Held (Lukin J. dissenting), that the by-law was valid; that the by-law invested the Local Authority with a discretionary power to grant or withhold a license. Semble, If appellant was entitled to a license which the Local Authority was wrongly withholding, mandamus would be his proper remedy. An order nisi for a prerogative writ of mandamus and an order nisi for a quashing order under The Justices Act of 1886 should be taken as separate proceedings. ORDER NISI FOR A QUASHING ORDER. The Local Authorities Act of 1902 empowers Local Authorities to make by-laws (vide Part IX.), in respect of the matters mentioned in the Fourth Schedule, which include, Subdivision 60, theatres, etc. (i.) The situation, form, and construction of buildings, rooms, gardens, and other places which are or or are intended to be used, kept, or let for theatres cinematograph exhibitions or for exhibitions for hire or profit or for other places of public amusement (ii) the licensing and inspection of such premises; (iii.) regulating the management thereof . .; and included subdivision 29 : the shall be granted ; (i.) Regulating the mode of application for licenses (ii) prescribing any conditions on which any licenses On 6th December, 1916, the appellant, Cook, applied by letter to that Local Authority for a license for certain premises as an open-air theatre, and he forwarded a cheque for the license fee. The application was considered, and the appellant was notified by letter that "the Council has decided to refuse to grant a license in this instance," adding that in refusing the license applied for the Council is very strongly supported by a large proportion of the residents and property owners in the locality. On 9th December, the appellant used the premises for a cinematograph exhibition, although no license had been obtained for such user. He was convicted on a complaint made by the Clerk of the Local Authority for having used a certain place within the Local Authority's area for a cinematograph exhibition. without having the place licensed for that purpose, and was fined. An order nisi was granted, calling on the Police Magistrate, the Clerk of the Local Authority, and the Local Authority, to show cause why the conviction should not be quashed, on the grounds (a) That the by-law was ultra vires in so far as it purports to prohibit the use of such a place for the purpose aforesaid. (b) If the by-law was intra vires the said Council is estopped by its conduct from prosecuting the appellant. (c) That on the evidence the appellant should not have been convicted on account of the reasonable excuse given by him for F.C. BUCKLE v. Cook, Ex parte Соок. F.C. doing the act complained of, and by reason also of a bona fide BUCKLE v. COOK, claim of right to do the act complained of. (d) That the Police Magistrate had no jurisdictiou to convict the appellant in the circumstances. An order nisi for a mandamus to the Local Authority to compel the grant of a license to the appellant was also obtained. In the order nisi for the quashing order the appellant included also the order nisi for a mandamus. But the court considered that this procedure was not correct (vide p. 152), and the appellant abandoning that part of the order nisi which related to mandamus, the case was argued and decided as a motion to make absolute the order nisi for a quashing order. Where Fourth A. D. Graham moved the order absolute. The by-law is ultra vires. It is a prohibition against carrying on a lawful business, because the by-law prohibits the use of the premises without a license, and it provides no method or means by which a license may be obtained, and confers no discretion to grant or refuse a license on the Shire Council. In all statutes where power is given to grant permits or licenses, some person is appointed and authorised to make the grant. Cf. Tobacco Act of 1894, s. 19; The Auctioneers Act of 1884, s. 14; Pawnbrokers Act of 1847, s. 3; The Hawkers and Pedlars Act of 1849, s. 4. The argument ex necessati rei only applies to ministerial acts. a power to prohibit is bestowed, it is expressly mentioned Schedule, Clauses 4, 6, 17, 27, 33, 34, 40, 41, 53, 58, and 60, sub-clause (iv.). A power to regulate places of entertainment, by requiring performance of conditions only, was intended. No discretionary power is given to grant or refuse; on compliance with the requirements of the by-laws regarding structural efficiency, provisions for safety and health, and on payment of the prescribed fee, the appellant was entitled to a license. These are conditions precedent, and were performed, and by refusing the license the Council were responsible for the breach of the by-laws, for appellant's liability depends on whether or not they performed their duty. Co-operative Brick Co. Proprietary Ltd. v. Mayor of City of Hawthorn (1). If the Council have, by the by-law, a power of uncontrolled and absolute discretion to grant or refuse the appellant's application, that amounts to a power to prohibit the appellant from continuing to carry on his (1) 1909, 9 C.L.R. 301. lawful calling. No such power to prohibit cinematograph exhibitions exists. Toronto City v. Virgo (1), Co-operative Brick Co. Proprietary Ltd. v. Mayor of City of Hawthorn (2), Rossi v. Edinburgh Corporation (3). Further, the Local Authority was responsible for the breach of duty, for by refusing the license they created the obligation for which the appellant was punished, and took advantage of their own wrong. Kerr v. Scott (4). Macgregor showed cause. Much of the argument is irrelevant. The Council do not assert any power to prohibit, but only a discretion, and if they bona fide exercised that discretion, their decision cannot be questioned. They have a power to license, and that involves a discretionary power to grant or withhold a license in the case of each application. There is a great difference between the exercise of a discretionary power and absolute prohibition. The argument of the appellant makes no distinction between a power to prohibit and a discretionary power to refuse or grant; one is absolute, the other is conditional. The very fact that in some cases a license may be granted disposes of the contention that the by-law in effect operates to prohibit. In form, the by-law is not prohibitive. The nature of a discretionary power is explained in Randall v. Northcote Corporation (5). He referred to R. v. Marshall (6), Lumley on By-laws, pp. 268, 269: Randall v. Northcote Corporation (5), per Higgins J. C.A.V. CHUBB J. The appellant was convicted by a Police Magistrate for a breach of a by-law of the Shire Council of Toombul, in using, for a cinematograph exhibition, a place within the Shire which was not licensed for that purpose. The Local Authorities Act of 1902, ss. 182 and 183 (i.), empowers Local Authorities, subject to the provisions of the Act, to make by-laws with respect to all or any of the matters mentioned in the Fourth Schedule to the Act, not contrary to the Act or any law in force in Queensland. By s. 183 (vi.), a by-law may provide for the issue or making of licenses, and for the payment of reasonable license fees. By s. 185 (iii.), the by-law, after its approval by the Governorin-Council, shall have the force of law in the area. It can only (1) [1896] A.C. 88. (2) 1909, 9 C.L.R. 301. (3) [1905] A.C. 21. (4) 1899, 9 Q.L.J. 193. (5) 1910, 11 C.L.R. 100, at p. 119. F.C. BUCKLE v. COOK, Ex parte COOK. Chubb J. |