Dennis Hotels Pty Ltd v Victoria
[1960] HCA 10104 CLR 529
(Judgment by: Kitto J)
Dennis Hotels Pty Ltd
vVictoria
Judges:
Dixon CJ
McTiernan J
Fullagar J
Kitto JTaylor J
Menzies J
Windeyer J
Subject References:
Constitutional Law (Cth)
Duties of excise
Exclusive power of Commonwealth Parliament
Victualler's licence fee imposed under State law
Fee equal to six per cent of gross amount paid or payable for all liquor purchased for the licensed premises during the twelve months preceding application for renewal of licence
Temporary victualler's licence fee imposed under State law
Fee to include sum equal to six per cent of gross amount paid or payable for all liquor purchased for sale or disposal under such licence
Validity
The Constitution (63 & 64 Vict. c. 12), s. 90
Licensing Act 1958 (Vict.) (No. 6293), ss. 7, 19 (1) (a), (b).
Case References:
Parton v Milk Board (Vict) - [1949] HCA 67; (1949) 80 CLR 229
The Commonwealth and Commonwealth Oil Refineries v South Australia - [1926] HCA 47; (1926) 38 CLR 408
Matthews v Chicory Marketing Board (Vict) - (1938) 60 CLR 263
Meredith v Fitzgerald - [1948] HCA 11; (1948) 77 CLR 161
R v Caledonian Collieries - (1928) AC 358
Griffith v Constantine - [1954] HCA 80; (1954) 91 CLR 136
Browns Transport Pty Ltd v Kropp - [1958] HCA 49; (1958) 100 CLR 117
Peterswald v Bartley - [1904] HCA 21; (1904) 1 CLR 497
Crothers v Sheil - (1933) 49 CLR 399
Hartley v Walsh - [1937] HCA 34; (1937) 57 CLR 372
Hopper v Egg and Egg Pulp Marketing Board (Vict) - [1939] HCA 24; (1939) 61 CLR 665
Atlantic Smoke Shops Ltd v Conlon - (1943) AC 550
Brewers and Maltsters' Association of Ontario v Attorney-General for Ontario - (1897) AC 231
John Fairfax
&
Sons Ltd and Smith's Newspapers Ltd v New South Wales - (1927) 39 CLR 139
Browns Transport Pty Ltd v Kropp (1958) - [1958] HCA 49; 100 CLR 117
Hughes and Vale Pty Ltd v State of New South Wales - [1953] HCA 14; (1953) 87 CLR 49
Bank of Toronto v Lambe - (1887) 12 App Cas 575
Jones v Whittaker - (1870) LR 5
Attorney-General for British Columbia v Kingcome Navigation Company - (1934) AC 45
Bergin v Stack - [1953] HCA 53; (1953) 88 CLR 248
Meredith v Fitzgerald (1948) - [1948] HCA 11; 77 CLR 161
Attorney-General (NSW) v Homebush Flour Mills Ltd - [1937] HCA 3; (1937) 56 CLR 390
John Fairfax
&
Sons Ltd v New South Wales - [1927] HCA 3; (1927) 39 CLR 139
Henriksen v Grafton Hotel Ltd - [1942] 2 KB 184
Attorney-General for Manitoba v Attorney-General for Canada - (1925) AC 561
Brewers and Maltsters' Association of Ontario v Attorney-General for Ontario - (1897) AC 231
Sharpe v Wakefield - (1891) AC 173
Reg v Flintshire County Council County Licensing (Stage Plays) Committee Ex parte Barrett - (1957) 1 QB 350
Lancashire v Staffordshire Justices - (1857) 26 LJMC 171
Judgment date: 26 February 1960
Melbourne
Judgment by:
Kitto J
This is a demurrer to a statement of claim which seeks a declaration that the provisions of pars. (a) and (b) of sub-s. (1) of s. 19 of the Licensing Act 1928 (Vict.) were, prior to their repeal, invalid, and for the recovery of fees paid by the plaintiff thereunder. The impugned provisions purported to make fees payable for certain kinds of licences under the Act, namely victuallers' licences and temporary victuallers' licences, and according to the statement of claim the plaintiff, having held licences of these kinds at certain times, has been required to pay and has paid fees in respect of them in accordance with the section. The case made for the relief which is sought is that the fees were duties of excise, within the meaning of s. 90 of the Constitution of the Commonwealth, and that therefore their purported imposition by the Parliament of Victoria was void because s. 90 makes the power of the Parliament of the Commonwealth to impose duties of excise exclusive. (at p558)
2. By a line of decisions beginning with Peterswald v. Bartley [1904] HCA 21; (1904) 1 CLR 497 , it is established that although in the United Kingdom the word "excise" has come to be used as a convenient label for a mass of heterogeneous taxes collected by the excise administration, in the Australian Constitution the expression has a more precise meaning. The Court had occasion to consider this line of decisions in the recent case of Browns Transport Pty. Ltd. v. Kropp (1958) [1958] HCA 49; 100 CLR 117 , in which, after saying that the essential distinguishing feature of a duty of excise (in the relevant sense) is that it is a tax imposed "upon", or "in respect of" or "in relation to goods", a reference was given to a passage in the judgment of Dixon J. (as he then was) in Matthews v. Chicory Marketing Board (Vict.) [1938] HCA 38; (1938) 60 CLR 263 . His Honour there stated more fully what such expressions as the foregoing attempt to convey. He said that to be an excise, "The tax must bear a close relation to the production or manufacture, the sale or the consumption of goods and must be of such a nature as to affect them as the subjects of manufacture or production or as articles of commerce" (1938) 60 CLR, at p 304 . The reference to consumption must be considered as omitted now, in view of what his Honour said later in Parton v. Milk Board (Vict.) (1949) 80 CLR, at p 261 ; but with that qualification the correctness of the proposition seems to me to be demonstrated by his Honour's examination of the subject. The Court went on, in Browns Transport Case [1958] HCA 49; (1958) 100 CLR 117 , to reject a contention that the licence fee there in question was a duty of excise, holding that the exaction did not possess the distinguishing feature referred to, and remarking, by way of contrast, that it was "in truth . . . a fee payable as a condition of a right to carry on a business". Similarly, in an earlier case, Hughes and Vale Pty. Ltd. v. State of New South Wales [1953] HCA 14; (1953) 87 CLR 49 , Dixon C.J. held that a tonnage rate levied on a carrier was not a duty of excise, being not "a tax directly affecting commodities", but a tax "on the carrier because he carries goods by motor vehicle" (1953) 87 CLR, at p 75 . (at p559)
3. The contrast which these citations bring out is not simply between a tax which is and a tax which is not imposed by reference to commodities, or even by reference to a specified mass of commodities. What is insisted upon may, I think, be expressed by saying that a tax is not a duty of excise unless the criterion of liability is the taking of a step in a process of bringing goods into existence or to a consumable state, or passing them down the line which reaches from the earliest stage in production to the point of receipt by the consumer. Indeed, the fact which in general justifies the description of an excise duty as an indirect tax, in the sense of John Stuart Mill's dichotomy, is that when, in the ordinary case, excise duty becomes payable, it amounts to a statutory addition to the cost of a particular act or operation in the process of producing or distributing goods, so that in the costing of the goods in relation to which the act or operation is done, for the purpose of arriving at a selling price to be charged to the next recipient in the chain that leads to the ultimate consumer, the duty paid in respect of those goods may enter - and therefore, according to the natural course of business affairs, will enter - as a charge relating to those goods specifically. This, I apprehend, is what is meant by saying that an indirect tax "enters at once" (the italics are mine) "into the price of the taxed commodity" (1926) 38 CLR, at p 435 , as the Privy Council said of a customs duty in Bank of Toronto v. Lambe (1887) 12 App Cas 575, at p 583 , and by saying that such a tax is "intended" or "desired" or "expected" to be passed on (Mill's own words, adopted by the Privy Council in Bank of Toronto v. Lambe (1887) 12 App Cas, at p 582 ), or has "a general tendency" to be passed on (per Lord Warrington of Clyffe in R. v. Caledonian Collieries (1928) AC, at p 362 ). As Matthews v. Chicory Marketing Board (Vict.) [1938] HCA 38; (1938) 60 CLR 263 shows, it is not essential that in every case that may arise the act or process which attracts the tax shall succeed in its purpose: through some mischance it may happen that no goods issue from the activity to be passed down the line to the consumer, and therefore there may be no opportunity to pass the tax on. But the impost is nevertheless a duty of excise if it operates as a tax upon the taking of a step in a process of producing or distributing goods. (at p560)
4. To say so much is to exclude a tax which has no closer connexion with production or distribution than that it is exacted for the privilege of engaging in the process at all. The cases decided in this Court have been marked by much diversity of opinion on some points, but I think it may be taken as settled that a tax is not a duty of excise unless the criterion of liability is such as I have mentioned. (at p560)
5. The statutory provisions which must be considered in order to apply these considerations are provisions of the Act of 1928. They are no longer in force, for the whole of that Act as amended up to 1958 was repealed, and its provisions replaced, by the Licensing Act 1958 (Vict.). The latter received the Royal assent on the day on which the writ in this action was issued, but it did not come into force until 1st April 1959. It repeats without substantial alteration the material provisions of the repealed Act, and the section in it which replaces the former s. 19 has the same number. The question before us has been discussed in argument, and for convenience may be discussed here, by reference to the provisions which are now in operation. (at p561)
6. Section 19 is in Pt. II of the 1958 Act, headed "Licences and Fees Payable Thereon". The Part begins with s. 7, containing a list of no fewer than eleven descriptions of licences which may be granted under the Act, and it proceeds in ss. 8 to 18 to provide what is to be the effect of each kind of licence. Nine licences, including victuallers' licences, are to be in force to the end of the year for which they are granted. Two, including temporary victuallers' licences, may be granted for any specified period, not exceeding a stated maximum which in the case of temporary victuallers' licences is seven days: ss. 7, 9, 16. Each licence authorizes the licensee to sell liquor, subject to restrictions. In some cases the hours of sale are limited, in some cases the kinds of liquor that may be sold, and in all cases the places where it may be sold. Each licence except a temporary victualler's licence authorizes only the selling of liquor at particular premises or on board a particular vessel. A temporary victualler's licence authorizes only sales at functions of specified kinds, and the licensee must be either the holder of a victualler's licence or the lessee of a railway refreshment room for which a licence is in force: s. 9. (at p561)
7. Since the selling of liquor without a licence authorizing the sale is made by s. 154 an offence punishable by fine or imprisonment, the possession of a licence confers on the licensee the privilege of carrying on for a limited period a business which otherwise would be unlawful, and of carrying it on free of competition except such as may be offered by other licensees selling liquor at the places to which their licences apply and within the limits of the authority thereby granted. (at p561)
8. Sub-section (1) of s. 19 provides that fees shall be paid "for such licences respectively", and it proceeds to specify in eight lettered paragraphs what shall be the fees for the various classes of licences provided for in s. 7. A victualler's licence, a packet licence, and a railway refreshment room licence are covered by a general provision made by par. (a): the fee is to be six per cent of the gross amount paid or payable for all liquor which during the twelve months ended on the last day of June preceding the date of the application for the grant or renewal of the licence was purchased for the premises in respect of which the grant or renewal is sought. For a temporary victualler's licence or a temporary packet licence, par. (b) prescribes a fee of 1 pound for each day during which the licence is in force (in the case of a temporary victualler's licence this applies in respect of each place for which liquor will be sold), and a further fee equal to six per cent of the gross amount paid or payable for all liquor purchased for sale or disposal under the licence. (at p562)
9. The demurrer before us is directly concerned with those two paragraphs only; but as the problem with respect to them is to characterize the fees which they impose, it is proper to consider them in association with the remaining six. Briefly, these prescribe the following fees: for a spirit merchant's licence, 40 pounds per annum and (where the spirit merchant is not the holder of a grocer's licence) six per cent of the gross amount paid or payable by the licensee for all liquor sold or disposed of under the licence to unlicensed persons during the twelve months ended on 30th June preceding the application for the grant or renewal of the licence: par. (c); for a grocer's licence, six per cent of the gross amount paid or payable by the licensee for all liquor purchased by him (and not disposed of under the licence to another licensed person) during a similar period: par. (d); for an Australian wine licence, six per cent of the gross amount paid or payable by the licensee for all liquor purchased by him during a similar period: par. (e); for a brewer's licence, 10 pounds per annum and six per cent of the gross amount paid or payable to the licensee for all liquor sold or disposed of under the licence to unlicensed persons during a similar period: par. (g); for a vigneron's licence, 7 pounds 10s. 0d. per annum: par. (f); and for a billiard-table licence, 5 pounds per table per annum with a maximum of 40 pounds per annum: par. (h). (at p562)
10. It will be noticed that the vigneron's licence fee is of fixed amount. Clearly that is a fee payable as a condition of a right to carry on a a business; it is not imposed upon goods in the sense that has been explained, and it seems clearly enough not to be a duty of excise. The billiard-table licence fee is of an amount which varies, not by reference to anything done in producing or distributing goods, but by reference to the size of the business which the licence authorizes, as measured by means of a broad and easily-applied test. That, too, is clearly a fee payable as a condition of a right to carry on a business and is not a duty of excise. Each of the other fees provided for by s. 19, however, is of an amount which varies by reference to certain described purchases or sales of liquor, and to that extent has some relation to particular goods. There is also an obvious connexion in thought between the fee and other particular goods, namely the liquor which in the event is sold under the authority of the licence for which the fee is charged. Each of these forms of connexion must be considered in order to see whether it means (as the plaintiff contends) that the fee is charged "upon goods" (in the relevant sense of that expression) - whether the liquor pays the duty, to use the convenient and sufficiently accurate language of the judges in Jones v. Whittaker (1870) LR 5 QB 541, at p 544 - or whether it means, as the defendants contend, that, like the vigneron's licence fee and the billiard-table licence fee, it is charged only as a condition of carrying on a business. (at p563)
11. The matter cannot be disposed of in favour of the defendants simply by saying, though it is true, that in s. 19 the fees are described expressly as fees "for" the licences, and that in substance they constitute the payment which the licensee must make to the State in return for the authority which the licence gives him and the degree of freedom from competition which the operation of the Act in respect of other persons creates in his favour. No doubt even an exaction in the nature of a quid pro quo for a statutory licence to carry on a business might take the form of an excise duty: if, for example, s. 19 had imposed, as the payment to be made to the State for a victualler's licence, what in truth was a sales tax, so that a liability for the tax arose every time a sale of liquor was made under the licence, it would be an excise duty clearly enough. The fact which makes a licence fee not a duty of excise is not that the exaction is for the licence; it is that the exaction is only in respect of the business generally, and not in respect of any particular act done in the course of the business. But the relation of the licence fees now in question to the goods to be sold under the licence, consisting, as it does, merely in the fact that without the licence the sales would not be made, does not connect any part of the fee with any particular sale: on the contrary, it is simply the relation between a fee for a licence to carry on a business and the business itself. The fee is payable in full when the licence is taken out; and no right to a refund arises if the privilege which the licence gives is not fully availed of, as, for instance, if sales cease during the year in consequence of a forfeiture of the licence or some catastrophe to the premises. I put aside, therefore, the relation between the licence fee and the sales made under the licence. The more difficult problem is that which arises from the relation between the fee and the purchases or sales on which the amount of the fee is calculated. Let me go over the paragraphs of s. 19 (1) and identify the purchases or sales upon which the amount in each case is made to depend. (at p563)
12. The goods which the general provision in par. (a) selects consist of the whole of the liquor purchased in the year ended on the preceding 30th June for the premises or vessel to which the licence applies. Paragraph (c) selects the liquor purchased by the licensee (at any time) and sold or disposed of in the earlier year abovementioned "under such licence" - which means, presumably, under a similar licence for the same premises. Paragraph (d) selects the liquor purchased by the licensee in the earlier year abovementioned, again "under such licence". Paragraph (e) selects the liquor purchased by the licensee in that earlier year, without expressly mentioning the premises but with a clear enough implication that the purchases referred to are those of the licensee as licensee of the premises. And par. (g) selects the liquor sold by the licensee in that earlier year "under such licence". Paragraph (b) is exceptional, (as it has to be, having regard to the temporary character of the licences to which it applies), for it, alone of the paragraphs which fix fees by reference to liquor purchased or sold, does not base the fee upon the purchases or sales of a period which expired before the relevant grant or renewal of the licence. It selects the liquor purchased for sale or disposal under the licence; but the point to notice is that it takes no account of the time when the purchases are made: they may be made before the licence is granted. (at p564)
13. In no case except the lastmentioned do individual purchases or sales attract a liability. Take first the victualler's licence fee. No part of such a fee becomes payable at the time of a purchase of liquor for the victualler's premises, and no purchase of liquor for the premises necessarily results in any liability under the section on the part of the person making the purchase. If a particular licensed victualler buys liquor for his premises he does not, by doing so, make himself liable to pay one penny to the Crown. If he renews his licence after the ensuing 30th June, his doing so will involve him in a liability under the section, and past purchases, (which in the case supposed happen to have been his purchases) will be taken into account in working out the amount of his liability according to the statutory formula. But if he does not renew it, he will pay nothing under the section in respect of the purchases; and neither will anyone else who does not take a grant or renewal of a licence for the premises. If someone else does renew the licence, or gets a new licence for the premises, that person will pay the fee, and the fact that he had nothing to do with the purchases on which it is based will not matter. (at p564)
14. In these circumstances it seems to me very difficult indeed to say that the fee is, in the relevant sense, a tax on each purchase of a quantity of liquor, and therefore a tax on the liquor. Even taking one circumstance alone, the difficulty is, to my mind, insuperable; I mean the circumstance - and under pars. (c) (d), (e) and (g) it is the only relevant circumstance - that the person making each individual purchase does not by doing so become liable for the fee or any part of it. (at p565)
15. It is urged that when a licensed victualler buys liquor for his premises, he knows that if he is the applicant for the next renewal after the ensuing 30th June he will have to pay whatever fee is then exacted, and that unless the law is amended in the meantime the fee will be six per cent. In the most usual type of case, it is said, he will have, at the time of buying the liquor, the intention of renewing the licence when it expires, and will probably be in a position to do so. Consequently he will want to cover his contingent but probable liability, by including the six per cent in his selling price. (Whether in the practical working of the liquor trade that will be possible is another matter). Of course, if he does this it may turn out that he is simply putting an extra profit in his pocket, for it may be someone else who renews the licence and therefore has to pay the fee, someone who has received no benefit from the addition to the price. Still, the argument proceeds, it is permissible for the purpose of characterizing the fee to generalize from the case which will most often occur, and to say that the fee is of a kind which lends itself to being passed on (and is therefore to be classed at least as an indirect tax), because there is no relevant difference between including in a selling price a sum by way of provision for a contingent tax liability and including the amount of an actual tax liability incurred in the course of dealing with the goods. And to conclude from this that it is a duty of excise is a step which, according to the plaintiff, receives some support from the very fact that while the fee is proportioned to the purchase price of goods, the liability to pay it may not fall upon the person who makes the purchases; for such duties may be said in a sense "to be more concerned with the commodity in respect of which the taxation is imposed than with the particular person from whom the tax is exacted": Attorney-General for British Columbia v. Kingcome Navigation Company (1934) AC 45, at p 59 . (at p565)
16. This I think, puts the argument about as high as it can be put for the plaintiff, but it does not commend itself to me at any point. In particular, the fact that the person who becomes liable to pay the fee may have had nothing to do with the purchases by reference to which it is calculated, does not mean that the fee is concerned with the liquor purchased rather than with the person who has to pay. It means rather that the fee is concerned with the taking out or renewing of the licence, and therefore with the person who takes it out or renews it rather than with the person who made the purchases. The reason why the amount of the purchases in the last complete year is taken as the determinant of the quantum of the fee is not far to seek, and it is a reason which places the emphasis on the individual who is to pay the fee rather than on him whose purchases are taken as the variable factor in the ascertainment of it. Just as the billiard-table licence fee is based upon a readily ascertainable fact which gives some indication of the size of the particular business, so, for each of the other licences except the vigneron's licence there are readily available figures which give some idea of the comparative volumes of the individual businesses. (In the case of the vigneron's licence it well may be that no attempt to follow a similar course would be satisfactory or worthwhile). This is borne out by s. 21 (1) which provides that every applicant for the grant of a new licence shall at the time of the application furnish all particulars available to enable the Licensing Court to estimate the probable extent of the annual purchases of liquor for sale or disposal under licence. The figures for past transactions may, of course, not provide in every case, or perhaps in any case, an accurate indication of future business. But if you are going to lay down a formula for general application the figures of the most recently closed financial year are probably as convenient a guide as you can get. And the important point is that in so far as they are a guide to the probable volume of business in the near future they are a guide to the relative values, as between different businesses in the same class, of the advantages which licences will confer. True to the characterization which this suggests, the fees are not only described as fees "for" the licences; they are made payable by the persons who take out the licences and in respect of their doing so. The purchases have been made at earlier dates and when made were free of tax. They never are taxed. The fact that they were made is made relevant to the quantum of the fee which some person probably (though not certainly) will have to pay; but to have a bearing upon quantum is a very different thing from being taxed. Even if the purchases had not been made - for example if the licences were the first licences granted for the premises - the liability for the fee would still arise on the grant of the licences (see ss. 97 and 98), and the quantum would presumably have to be assessed as contemplated by ss. 20 (1) and 21 (1). To call in aid the passage quoted above from the Privy Council's judgment in Attorney-General for British Columbia v. Kingcome Navigation Company (1934) AC 35, at p 59 , is, I think, to miss the contrast which that judgment as a whole brings out. Their Lordships, if I follow them correctly, would not have held the fees in question in the present case to be indirect taxation. They would have said, I think, adapting language which they used (1934) AC, at p 57 , that the fees are imposed in respect of the privileges and advantages which the particular licensee enjoys by the operation of the Act, and that it is intended and desired that he should pay them, though it is possible for him, by making his own arrangements to that end, to pass the burden on in the sense of the political economists. In other words, the fees are taxes imposed not "in respect of commercial dealings" (1934) AC, at p 59 , but in respect of the acquisition of a right to engage in commercial dealings. They are imposed, not on goods, but on licences. Accordingly I would hold that the victuallers' licence fees are not duties of excise. (at p567)
17. As supporting this conclusion I may refer to the case of Reg. v. Lancashire (1857) 7 E1 & B1 839 [1857] EngR 600; (119 ER 1458) , which was followed in Jones v. Whittaker (1870) LR 5 QB 541 already referred to. It was an appeal against a conviction, under s. 18 of the Act 9 Geo. 4 c. 61, of selling "exciseable liquor" without being licensed so to do. The expression "exciseable liquor" was interpreted by s. 37 of the same Act to mean inter alia wine "charged with duty either by customs or excise". The appellant had sold wine made in the United Kingdom, and the question was whether such wine was, at the date of the sale, "exciseable". Two duties with respect to liquor made in the United Kingdom were in force at the passing of the Act. One, imposed by s. 2 of the Act 6 Geo. 4 c. 37, was called a duty of excise, and on any test it was such a duty, being made payable upon every 100 gallons of liquor made in any part of the United Kingdom, for sale, from certain ingredients. The other duty was imposed by s. 2 of the Act 6 Geo. 4 c. 81 under the description "The several Duties of Excise, or Rates or Sums of Money hereinafter following". It took the form of an annual sum "For and upon every Excise Licence to be taken out by any Maker, Manufacturer, Trader, Dealer, or Person hereinafter mentioned". The section set out a list of classes of persons described by reference to their trades, and specified a fee for each. The appellant came under the description "Every retailer of made wines", and as such was liable to a fixed duty of 1 pound 1s. 0d; but there were some classes of persons who were charged differently. Brewers of beer were charged on a sliding scale according to the number of barrels of beer brewed within the year ending 18th October previous to taking out the licence; maltsters on a sliding scale according to the number of quarters of malt within the year ending 5th July in each year; distillers on a sliding scale according to the rent or annual value at which their premises were rated; and manufacturers of tobacco and snuff on a sliding scale according to the rate of tobacco and snuffwork weighed within the year ending 5th July previous to taking out the licence. (It will be noticed how the fees payable by these four classes of persons were proportioned, not directly to the value of their licences, but to readily verifiable figures indicating the size of the business for which each licence was taken out). The duties under both Acts, c. 37 and c. 81 of 6 Geo. 4, were continued in force concurrently for some years; but, before the date of the offence charged, the firstmentioned duty was repealed by the Act 4 and 5 Wm. 4, c. 37. In this state of the law, the question arose whether made wines were still "exciseable liquors"; and the Queen's Bench (Lord Campbell C.J., Coleridge and Crompton JJ., Erle J. dissenting) held that they were not. The following passage from the judgment of Crompton J. rests the decision on the distinction which seems to me decisive in the present case: "Throughout the Acts there are two different duties imposed, one on certain liquors, and another on the licences to sell them. In the first Act (6 Geo. 4, c. 37) a duty of excise was imposed on the liquors, which thereby became exciseable liquors. In the same year, by stat. 6 Geo. 4, c. 81, another duty was imposed on another thing, though relating to the same liquors, which duty was a duty upon the licences to sell the liquors, which licences were to be granted by the excise. By stat. 9 Geo. 4, c. 61, another licence was to be taken out, namely, a licence to be granted by justices to any person keeping or about to keep inns & c. to sell exciseable liquors by retail to be drunk or consumed on the premises. By stat. 4 & 5 Wm. 4, c. 77, the duty on the liquors in question is repealed, but the necessity of taking out the excise licence mentioned in 6 Geo. 4, c. 81, is preserved, and so is the duty on such licence. The licence to be granted by justices is not mentioned: and I should suppose designedly so; because such licence is no longer necessary or applicable, the liquors in question being no longer exciseable liquors" (1857) 7 E1 & B1, at p 847 (119 ER, at p 1461) . (at p568)
18. I turn to the temporary victualler's licence fee - or rather, since the fixed fee of 1 pound is obviously not a duty of excise, to the "further fee" of six per cent on the gross amount of liquor purchased for sale or disposal under the licence. The reasons above given in reference to the victualler's licence fee appear to me to apply in substance here also. Had the purchasing of the liquor been made the criterion of the liability, the right conclusion might no doubt have been that this fee was different in character from each of the others. But par. (b) does not tax the purchasing of liquor. It measures the fee by reference to purchases some or all of which may already have been made when the licence is granted. What attracts the liability is the acceptance of the licence. The tax is not on the liquor; it is on the licence - on the obtaining of authority to sell and dispose of liquor generally at the relevant function. In my opinion it is not a duty of excise. (at p569)
19. For these reasons I would uphold the demurrer. (at p569)