mail, by land or by water, selling drugs and medicines, and other works of necessity, and works of charity, only excepted)." The corresponding provisions of the English Act 29 Car. II. ch. 7, form part of sec. 1, and are as follows: "No tradesman, artificer, workman, labourer, or other person whatsoever, shall do or exercise any worldly labour, business, or work of their ordinary callings, upon the Lord's Day, or any part thereof (works of necessity and charity only excepted)." Then follows a penalty; and "that no person or persons whatsoever, shall publicly cry, shew forth, or expose to sale, any wares, merchandizes, fruit, herbs, goods, or chattels whatsoever, upon the Lord's Day, or any part thereof, upon pain that any person so offending, shall forfeit the same goods so cried or shewed forth, or exposed to sale." The more important differences to be noticed are: (a) While the English Act makes it an offence punishable by fine for a tradesman, etc., to pursue his ordinary calling upon the Lord's Day, the offering for sale of any goods on that day by any person whatsoever is punishable by the forfeiture of the goods. The Ontario Act makes it an offence punishable by fine for a merchant, etc., to sell goods or to pursue his ordinary calling. (b) The class of persons enumerated is wider, merchants and mechanics being included in the Ontario Act. (c) The exception is differently expressed. In the English Act it is "works of necessity and charity;" in our Act, "conveying travellers or Her Majesty's mail by land or by water, selling drugs and medicines and other works of necessity and works of charity." (d) The English Act does not condemn the purchaser; ours does. (e) The English Act is confined to the sale of chattels; ours deals with the sale of real estate also. (f) In the English Act there is an exception in favour of cook shops. In The Queen v. Silvester (1864), 33 L.J.M.C. 79, the Court of Queen's Bench determined that a farmer was not within the statute, Cockburn, C.J., saying: "The persons who are within this enactment may be divided into two classes, employers and employed. The only persons specifically named in the first class are 'tradesmen;' under the other are 'artificers, workmen, and labourers;' and then comes the general expression 'or any other person whatsoever;' but according to the usual canon of inter Middleton, J. 1911 REX V. WELLS. Middleton, J. 1911 REX v. WELLS. pretation these general terms are to be applied only to persons Upon precisely similar reasoning, it has been held that a barber is not within the Act. He is not a tradesman, nor is he an artificer, workman, or labourer, nor is he ejusdem generis with any of these so as to be included in the expression "any other person:" Palmer v. Snow, [1900] 1 Q.B. 725. Nor do I think the statute applies to an hotel-keeper or a restaurant-keeper. They are not "merchants or tradesmen" of the "employer" class; merchants and tradesmen are alone prohibited from selling goods and from exercising their ordinary calling. A merchant is one who buys and sells commodities as a business and for profit; who has a place of sale and stock of goods; and is generally a trader in a large way. The term "trader" is generally used in connection with a specialised mercantile business. The essential thing is the same in both cases, the purchase and sale of goods as a business. The goods bought in bulk are sold in retail, but, save for breaking bulk, are passed on unchanged to the customer. Although an hotel-keeper and a restaurant-keeper do purchase goods, and do sell goods, this is not the essential thing. The services they render to their guests are in the nature of "work and labour" rather than of the "sale of goods." So long as an inn-keeper confines his business to the true and legitimate business of an inn-keeper, I do not think he is within the Act. An inn-keeper may think it a matter of convenience to his guests and a source of profit to himself to become to some extent a merchant. In many, if not all, large hotels, there are stalls or stands where merchandise is sold. As to this, the inn-keeper has become a merchant or trader. He is, as to these adjuncts. to his inn-keeping, subject to all the laws applicable to merchants and traders, and enjoys no immunity because he is also an innkeeper. It may not always be easy to draw the line. As inn-keeper, it is his business to provide his guests with food, refreshment, and shelter. All that a guest, as guest, is entitled to demand and receive as "food and refreshment" he may supply, even though it involves a sale of goods; but the fact that the innkeeper is an inn-keeper must not be made the cloak for the sale of goods by the hotel-keeper in his ancillary mercantile business; and, â fortiori, will not authorise him to sell his merchandise to one who is not a guest. The inn-keeper must, at his peril, keep his collateral mercantile undertakings and tradings within the general law. The privilege of the hotel-keeper thus rests upon the fact that, quoad his own business, he is not within the Act at all, and not upon bringing his case within the exceptions. The keeper of a restaurant or victualling house is, for the same reason, in a similar position. A restaurant is defined as "a place where refreshments and meals are provided to order, especially one not connected with an hotel the dining-room of an hotel conducted on the European plan-an eating house or café." The restaurant-keeper may supply meals and refreshments. The refreshments may be either food or drink or both-and I can see no reason why he may not sell a cigar as an incident to a meal; but it is of the essence of his calling that what he sells is sold for consumption on the premises. He may on week days have an ancillary or collateral business as a merchant and trader, and sell, as merchandise, candy, cigars, etc., etc.; but, as to this, he is a merchant or trader and must obey the Sunday laws, which apply to all merchants and traders. He is none the less a merchant because he is also a restaurant - keeper. Duffell Curtis (1877), 35 L. T. R. 853, is L. T. R. 853, is consistent with this view. It seems there to have been assumed that the business of a refreshment-house would fall within the statute of Charles, but for the fact of a license, which took it out of the Act. The trading of which the appellant in that case was convicted was the selling of articles to be consumed 6-XXIV. O.L.R. V. Middleton, J. 1911 REX v. WELLS. Middleton, J. 1911 REX v. WELLS. elsewhere, which it was held was "not part of the calling of a refreshment house keeper," and the privilege of the license must not be extended so as to make the business an ordinary trading one in articles used for refreshment. In the Wells case (No. 1), this covers the matters argued. The cigars were sold by the accused as a merchant or tradesman, and not in the course of his business as keeper of a victuallinghouse or restaurant; and this was an offence against the Act. In the Wells case (No. 2), the lagerine was, as I understand the evidence, sold in bottles to be taken from the premises; and, if this be the fact, for the same reason this was an offence against the Act. If sold for consumption on the premises, then the sale was within the scope of the business of a restaurant-keeper, and there was no offence. As the Crown and the accused both ask me to determine the law on either aspect, I do so; but would otherwise find myself unable to answer the question owing to the ambiguity of the case. The Waldock case appears to me to be simple. The accused is the proprietor of a news-stand in the Imperial Hotel. He sells cigars as part of his ordinary calling. He is a merchant or tradesman; and the sale of the cigars was part of his ordinary calling, and is a violation of ch. 104. The Aldeen case is covered by the above. Aldeen was a restaurant-keeper, and sold candies as a merchant or tradesman, and not in the course of his business as a restaurant-keeper. The case of Samuel G. Roe was dismissed upon a different ground. He was a druggist and sold cigars to all comers on Sunday. He was acquitted upon the ground that a cigar is a drug. No doubt, tobacco has some medicinal properties, and may occasionally be used as a drug or medicine; but its normal use is as a luxury, more particularly when taken in the form of cigars. What the statute permits is the sale of "drugs and medicines," that is, of articles which are in fact sold as drugs or medicines; and it was never intended to permit the sale of ordinary food and luxuries by shewing, by an expert, that the thing sold or its main ingredient has some medicinal properties. Alcohol has some medicinal properties; but the proprietor of an ordinary bar does not regard his business as the sale of "drugs and medicines." There was no evidence upon which it could be found that these cigars were sold as a "drug or medicine:" State v. Ohmer (1888), 34 Mo. App. 115; Commonwealth v. Marzynski (1889), 149 Mass. 68; Penniston v. City of Newnan (1903), 117 Ga. 700. It was faintly suggested that a cigar was to some a necessity, and was, therefore, within the exception; and this aspect is discussed in some of the cases just cited, and also in Anonymous (1882), 12 Abb. N.C. 458. I think this whole discussion is based upon an erroneous view of the meaning of the statute; and, in addition, a luxury, even if much desired, is not the kind of "necessity" referred to. The exception is of "works of necessity and charity." These words were construed in Phillips v. Innes (1837), 4 Cl. & F. 234, by the Lords. "The necessity contemplated by the exception in the statute, was the necessity of the person who worked, and not of him who compelled the work." This is illustrated thus: "It was said in the Court below, that unless working persons who do not themselves shave their beards, were allowed to resort to the barbers' shops on Sundays, many decently disposed men would be prevented from frequenting places of worship, and from associating with their families or friends, from want of personal cleanliness. It might be as well said that that because a person could not decently resort to church, or associate with his family, unless he was decently clothed and fed, therefore the tailor's, and the butcher's, and the baker's shops should be kept open on Sunday for the convenience of such persons." In other words, what the Legislature has in mind is that the merchant or tradesman might in some case of necessity be compelled to practise his calling, but that must be his necessity, and not the desire or need of the purchaser, Circumstances might arise in which the merchant might, as an act of mercy toward the one in need, do that which would bring him within the Act; this necessity of the purchaser would justify the conduct of the merchant as an act of mercy. Middleton, J. 1911 REX v. WELLS |