Resident Magistrate's Court.

Clutha Leader, Volume I, Issue 9, 3 September 1874, Page 5

Resident Magistrate's Court.

BALCLUTHA, 26th AUGUST, 1874. (Before J. P. Maitland, Esq., R. M.) ASSAULT. Malcolm M'lnnes was charged, on the information of Thomas Muir, with assault, by striking him two blows on tbe face, at Kaitangata, on the sth inst. Defendant pleaded not guilty, but after evidence, his Worship held that an assault had been committed. Fined 20s, or seven days imprisonment, with L 4 16s 8d expenses. IIXTREATING A HORSE. Charles Hewitt and James Reid were charged by Sergeant Finnegan with having illtreated a horse in harness, yoked in a spring cart, at Balclutha, on the 11th inst., contrary to Section l of tbe Prevention ol Cruelty to Animals Ordinance, 1861. Upon the application ot Mr. Reid, who appeared for the defendants, the case was a journed for a week. SLY GROG SELLING. Police v. Lees. — /fnis case of sly . grog selling, which had [stood adjourned from the 12th inst., for the purpose of enabling counsel/ to argue the matter, now came on for hearing. There was no dispute as to the facts of the case. Tbe defendant, it appeared, had 'sold the s'iUing'fb worth of drinks to Sergeant Finnegan for the purpose of having the question inexpensively tested as to whether a bush license that be held, and which did not expire till December 1874, was or was n t a valid existing license, despite the Licencing Act, 1873. The following/ is tne substance of Mr. Taylor's argument. The license granted by the Superintendent is perfectly valid, notwithstanding [the Act of 1873. At the time it was granted, viz., 187-3, though the Licensing Act, 1873, had then come in force, yet the Ordinance of 1865, under which the present Ijc-mse was granted, was not rendered irojlerative by the Act, and the section relatiiog to bush licenses is not repugDant to \u»y of the provisions of the Act. Provincial Ordinances were, by the Constitution Act, only controlled by Acts of the Assembly— so far as they might be repugnant to them; in this case, the Lic< nsing Act expressly incorporated thia Ordinance along with it so fifr'as it was not repugnant to it. The case ot .Lindsay v. Walker, decided in Auckland by Chief Justice Arney, in this year, was in point, si far as it went In t.hort, the Chief Justice st ted : — The Act of 1873 provides for the proclamation of districts by the Governor ; for the appointnieur. by his Excellency of such Resident Magistrates as he should by warrant notify in the Government • Gazette,' for the purpose of earn ing that Act into effect; and for the constitution of Licensing- Courts, to be formed by the ltesident Ma/istrute, the Chairman of Petty Sessions of the District, and such Commissioners as shall be nominakd by his Excellency, by which Court certificates may be issued, authorising the issue of licenses to the grantees respectively : but by secfion 15, the lirst Licensing Court is holden on the lirst Tuesday of April next, and not before. We cannot attribute to the General Assembly the absurdity, not to say the wrongful intent, to punish a publican holding- a license under the Provincial Ordinance, in the penalty of LSO lor every glass of beer which he may hare sold under the authority ol such license, after the 2nd October, 18/3, unless sucli publican be furnished wi.h a license, which the same Begislature in the same statute makes it impossible for him to obtain until after the £ Ist April. 1574. C'ear.y, it could not be tlie intention of the Legislature to cancel or to render inoperative licenses which, at the time of passing the Act of 1873, continued in force under Provincial Ordinances, while the same Act incorporates those Ordinances with its own provisions. Those licenses, and the goodwills of extensive trades resting upon ihe same, were, and are valuable property in the hands of licensees ; recognised guarantees to the owners of premises for their remuneration, in respect of improvements and capital expended (sections 8 and 29 of the Ordinance of 18T1); and by section 30 they pass to the widow or next of kin of a deceased publican for their support, or may become, in tlie hands of his executors or administrators, assets available for his creditors. All these provisions are incorporated with the Act. of ,1873, and must be deemed to be so incorporated for the purpose — first, of preserving- in their Integrity the licenses which existed atthe time of the passing of the Licensing Act, 1871, and afterwards of continuing to support such licenses as may be henceforth issued under the authority of the latter statute Meanwhile the publican cannot be required to hold, for he has no means of obtaining a license under the Act of 1873, and therefore cannot be held liable to a penalty for selling a'cohoJic liquor without such license. The mode of legislation may be novel and inconvenient, but it is the duty of this Court, if possible, to collect and give full effect to the apparent will of the Legisature, and. upon the best consideration that I can give to the two enactments, I am of opinion that section 6 of the Act of 1873 does not of itself repeal or render Inoperative section i of the Auckland Licensing Ordinance, 1871. I think that unon a reasonable construction of the Act of 1872, the penaltiesenacted by section 6do not attach, and cannot be enforced until, at all events, after the third Tuesday in April following upon the passing of that Act. If this view be correct, section 4 of tbe Provincial Act of 1871 remained in force at the time when this offence was committed, and the defendant was convicted. If, therefore, the Auckland Provincial Ordmdnce were unaffected by tbe Act, the Licensing Ordinance here wa9 eqna.'lv ' the same. Clearly, n« bush license in 18 8 was obtainable under the Act, as the Licensing Curt vjas not called into existence until last April. The 13th sec.on. on of the Act of 1873, which was tbe only part of the statute directly bearing on tbe obtaining of such licenses, merely, the learned counsel contended, pointed out the mode and practice of procedure to be pursued by those who did not hold such a license, and desired to obtain one.^. That . secticn could not in any way impliedly invalidate an already existing license. There was no clause expressly making such licensts void. Lindsay v. Walker clearly showed that at tbe time tbe license to Lees was granted the Superintendent hid legal power to do co. No' doubt he conld not so grant now, oince tbe Licensing Court under the Act had been formed. But could an act, like the granting of a license which was originally valid became or be made invalid, except by express legislaive enactment? There was clearly none such here, Mr. Taylor submitted it could not. He asked the Court now by its decision to go even further than the decision in Lindsay v. Walker. The Chief Justice did not appear to have been called upon to decide that point, as the offence in that case took place before tbe meeting of the L censing Court, and it was not necessary. Here tbe offence alleged was subsequent: it was, therefore, the whole point in this case whether the Superintendent's license ceased to have any valid effect from the date of: tbat Court or not. The Chief Justice, in his decision, alluded to the period during which the Ordinances were not. rendered inoperative by the Act with s>me apparent , degree of doubt. He says — " At all events.'; until the meeting of the 14th April" (last). This Court, Mr. Taylor urged, might give a decision extending that of the Cnief Justice : there would be no pf estf/mption— ■ -

\ : T *■ : H wan not attempting to oitfer from it. In * n y ®p at y it this Court was of opinion the license was now invalid, this was a test case brought by arrangement with the police,' and with every facility offered them to try the supposed right; and a nominal fine, say Is, would meet the justice of tbe case: His Worship, in giving judgment, said that he was of opinion that the Chief dustice's decision went no further„thau that licenses granted before the Licensing Court. srst in April last were valid only up to that date, otherwise, if the Act did not then override them, it was difficult to understand why the learned Judge soould no' have fixed, the 30* hot June as the time, as it w§fs impossible for any license to legally exist under the Act of 1*73 until that date. Until now he had been of opinion that these licenses under the Ordinance^ granted since the Act came iv force, were altogether invalid, but the decision of the Chief Justice in Lindsay v. Walker established a different construction, and he should certainly pay great respect to the decision of so eminent an authority. The case, however, was a test one: the defendant had not ' retarded, but, on the contrary, assisted the police in deciding the legal point, and though he should punish future breaches severely, on this occasion he should hold the Superintendent's license now void, and inflict the nominal penalty of Is, and costs, 6s 6d. Mr. Taylor: Would your Worship state a case for the Supreme Court if necessary. His Worship : I will state a case readily. CIVIL CASES. Dunne v. Hogg.— Claim of L 9, balance of account for board and lodging.—Judgment by default for amount claimed with costs. Stewart v. Roberts.— Claim of L 6 13s 6d, alleged balance due for wages as shepherd. Mr. Taylor for plaintiff, and Mr. Reid for defendant. After "evidence, plaintiff was non suited, no costs being allowed. M-Donald v. Haigh. — Claim of LlO 4-*, for goods supplied. Mr. Reid for plaintiff. — Judgment by default for amount claimed with costs. Bower (Chairman of Hillend School Committee) v. Clark.-— Claim of 4-3 Bd, coal fees.*— The case was settled out of Court. Mr; Taylor for drfendant. Higgins v. M Fadden.— Claim of L 7 Be, for goods supplied. Mr. Reid for plaintiff. A set off waa lodged for L 8 12s 6J, and ultimately judgment was given for plaintiff for Ll and cjs.s.