F. C. BUCKLE v. Cook, Lukin J. It will be noted that No. 1 of sub-division No. 60 authorises the Ex parte Cook. making of by-laws in regard to the requirements for places intended to be used, which would authorise the making of bylaws for the doing of these matters before the granting of a license. By-laws of the Shire of Toombul were duly passed, confirmed, sealed, published, and approved, and under Schedule 4, sub-division No. 29 (supra), it was provided by Chapter No. 2, sub-clause 9, Every person who desires to obtain a license shall make an application in writing . accompanied by the fee prescribed. "; by sub-clause No. 10, "Every license granted under the by-law shall continue in force for twelve months renewed . and may thereafter "; by sub-clause 11, "A license be may be suspended for any period not exceeding three months, or of the by-laws. Provision is made requiring, before the grant of a license, that the applicants deposit security against damage that might be done to the property of the Council. The question of such a deposit does not arise in this case, but the by-law shows that where the by-laws intend to make a condition precedent to the grant of a license, or to give a right to refuse the license for non-compliance, they do so in express words. . And under Schedule IV., sub-division 60, subsecs. 1 and 2 (supra), the following by-law was made :-"No building or other place shall be used .. unless the conditions with respect thereto prescribed by this by-law and any statute in that behalf are complied with, and it is licensed under this by-law." It is to be noted here that this by-law only deals with buildings and places used that is, used under an existing license, and does not, as it might have done (see supra), deal with buildings and places intended to be used, which would apply to places for which a license is being sought. By-laws No. 2 to 10 of Chapter 12 deal with fees payable, the use, the hours of closing, the inspection, conformity to orders of authorised officers, the alteration of licensed premises, the construction of doors, etc., all matters not bearing on the present question. I have set these particulars out at greater length than may seem necessary, but I do so for the purpose of endeavouring to discover where, either in the statute or in the by-laws, a discretion is conferred on either the Local Authority, its Chairman, or its Clerk to grant this license, or whether it becomes a ministerial duty to issue the license in compliance with the by-laws. In other provisions of these by-laws, licenses and permits have to be obtained from the Local Authority or some prescribed person. In Chapter 6, Clause 15, of the Local Authority's by-laws, a permit must be obtained from the Council; in Chapter 6, Clause 16, from the Clerk; in Chapter 7, Clause 5, a license from the Council; in Chapter 9, Clause 24, a license from the Shire Clerk, upon instructions from the Chairman; in Chapter 9, Clause 41, "the Council may grant a license," notwithstanding objection; in Chapter 10, Clause 16, from the Shire Clerk; but no provision is made as to the person from whom the license is to be obtained, nor as to the person in whom this alleged discretion rests. It is said that the discretion necessarily arises from the word "license," which in itself, it is urged, connotes the free action and the assenting will of the person issuing the license. I think such a view is in direct conflict with the legislative intention as disclosed by the legislation on licensing generally, and with the practice thereunder both in England and in this State. The procurement of licenses of many different kinds has been provided for in many different ways. Sometimes it is provided that the prescribed authority, on the doing of some act, generally the payment of money or the presentation of some document, "shall issue" a license-e.g., the Treasurer shall issue the license under s. 51 of The Licensing Act of 1885 and s. 56 of the Act of 1912; under s. 14 of The Auctioneers Act of 1884; the creation of miners' rights, and business licenses under ss. 6 and 17 of The Gold Fields Act, 1874; ss. 11 and 13 of The Mining Act of 1898; and margarine licenses under s. 8 of The Margarine Act of 1910. Sometimes it is provided that a certain class of persons are required to obtain or must take out a license when, on payment of the license fee, the license is issued as a matter of course and of right, and cannot be refused, although no express provision is made that the authority "shall issue," as in the class mentioned above, no discretion whatever being given to the person authorised to issue them-e.g., fishing boat and fishing license, see ss. 12, 13, and 14 of The Fisheries Act of 1887, s. 14 of which provides that an employer may take out a license for his employee, and from F. C. BUCKLE v. Cook, Lukin J. F.C. BUCKLE v. Cook, Lukin J. time to time have the name of the employee changed; s. 19 of The Tobacco Act of 1894; s. 20 of The Game and Fisheries Acclimatisation Act of 1898. See also the provisions of the Edinburgh Corporation Act, set out in Rossi v. Edinburgh Corporation (1). Sometimes it is provided that a particular person or authority may grant or issue, but certain conditions precedent are provided for, so that the license need not be granted or issued unless those conditions are complied with-that is to say, the authority is limited in the power to reject to the particular conditions specified-e.g., see s. 35 of The Friendly Societies Act of 1894; the Registrar may license an applicant as a valuer or auditor upon being furnished with such evidence of competency as a Registrar may require; s. 4 of The Carriers Act of 1866 and s. 3 of the Act of 1874, whereby a license may be granted to a carrier by the Court of Petty Sessions, but it shall be optional before granting such license to require certain brakes; s. 3 of The Pawnbrokers Act, whereby a license may be granted by Justices if satisfied with character of applicant, which must be determined in open Court and is a judicial enquiry. Sometimes it is provided that a particular authority may, "if they or he see fit," or in his discretion, or subject to the conditions which they or he may deem fit, or other words conferring a wide discretion on the authority-e.g., The Hawkers and Pedlars Act of 1849, s. 4, it shall be lawful for the Justices, at their discretion, to grant a license, or reject or adjourn as they see fit; The Inebriates' Institution Act of 1896, s. 17, by which the Home Secretary may, subject to the conditions which he shall deem fit, grant a license; The Harbour Board Act of 1892, s. 72, Governor-in-Council may, in his discretion, grant and issue a license. Many other instances of a similar sort may be mentioned. For these examples of the different powers placed on authorities to restrict the carrying on of trades and businesses, I have drawn, with one exception-that of The Edinburgh Corporation Act (1)— from our own statutes. Similar instances may be taken from the English statutes. See Halsbury Laws of England, Vol. 24, pp. 627, 682. It is to be noted that neither under this Act nor under these by-laws is any discretionary power of any sort, in express words, (1) [1905] A.C. 21, at p. 22. F.C. BUCKLE v. Cook, Lukin J. given to grant the particular class of license involved in this case. Section 183, subsec. 6 (supra), enacts that a by-law may provide, Ex parte COOK. not for conferring a discretion to grant, or even for the granting, but only for the issue or the making of licenses and for the payment of license fees, and the Schedule to the Act dealing with licenses generally only refers to the mode of application, manner of making the grant, duration, and renewal, and does not carry the matter any further, nor does the by-law assist the respondents in their contention, the latter only providing for conditions to be observed, and for matters that may arise during the currency of a license. 66 We have now to consider the alleged right of the Local Authority to exercise absolute or uncontrolled discretion, and to refuse absolutely and unconditionally the defendant's license. We must start the consideration of this question by the recognition of the full right of the defendant to carry on his lawful business, and to enjoy his personal liberty and to make free use of his property, except so far as he is controlled by some law. All statute law and all derivative legislation by by-laws or regulations operate in diminution of this liberty, but the power of a subordinated legislative body to make such diminution only extends so far as the power is expressed or necessarily implied "-per Griffith C.J., Co-operative Brick Co. Pty. Ltd. v. Mayor of City of Hawthorn (1). See also Lord Davey, in Rossi v. Edinburgh Corporation (2), " You ought not by implication to extend the restriction in restraint of that particular trade further than the Legislature has sanctioned." I am of opinion that no possible interpretation of the powers conferred by the statute to make by-laws, and no provisions of the by-laws actually passed by the Local Authority (and the powers in order to be legal must come within both), warrant the contention that the Local Authority have any discretion in the matter or any power to refuse to issue to the defendant the license he seeks. The Local Authority has by passing the by-laws voluntarily taken upon itself the duty of licensing and inspecting, as well as regulating and controlling, and are entitled to receive the license fees imposed therefor, and have become charged, in my opinion, with the duty of granting those licenses so as to enable the defendant to carry on his lawful business when the conditions, if any, prescribed by the statute (1) 1909, 9 C.L.R. 301, at. p. 306. (2) [1905] A.C. 21, at p. 27. and the by-laws have been performed. Another argument, and a convincing one to my mind, of the unsoundness of the respondent Council's interpretation of their powers is that, if recognised, it would amount to a power to prohibit the defendant from carrying on his lawful trade. In considering this question, it is well to bear in mind the difference between the power to prohibit and prohibition. The former necessarily involves the exercise of a discretion which may result in a prohibition, and is therefore conditional; the latter necessarily excludes the exercise of a discretion, and is therefore absolute. The latter may be, but is not necessarily, a consequence of the former. The appellant's objection, as I understand it, is not that the respondents are wrongfully interpreting the by-laws so as to claim that they prohibit, but so as to claim that they give the respondent Council the right to exercise an absolute and uncontrolled discretion which involves a power to prohibit. It seems to me that a confusion arose in the argument before this Court in not fully bearing this distinction in mind. Counsel for the respondents seems to me to have ignored the real questionthe power to prohibit-and only sought to refute a supposed argument that his client's interpretation of the by-laws involved absolute prohibition. He urged that licenses might or might not be granted, and therefore there was no prohibition. Just But that only supports the real objection made by the appellants to the respondent's claim of a power to prohibit, for if the Local Authority may, in their absolute discretion, refuse, then the Local Authority has, indirectly perhaps, but none the less certainly, the power to prohibit, whether they exercise that power or not. The existence or non-existence of a power to prohibit does not depend on the extent to which the power may be exercised. The Council has decided to refuse to grant a license in this instance" is the stand the Local Authority has taken up, and if such a decision can rightly be given under the by-laws, then the by-laws are just as effective a way of prohibiting the appellant from carrying on his lawful business as any other. So. 66 If the Legislature had intended to confer the power to prohibit the carrying on of a business, it would, I think, have done so in express words, as it has done in other parts of the Fourth Schedule of the Act-e.g., Clause 4, sub-clause 1, Clause 4, sub-clause 1, "prohibiting or regulating"; Clause 6, sub-clause 8, prohibiting and 66 |