THE CLUTHA LICENSING CASE.

Clutha Leader, Volume XXI, Issue 1041, 6 July 1894, Page 5

THE CLUTHA LICENSING C ASE .

«. _ His Honor Mr Justice Williams gave judgment in this case on Wednesday as follows :— ' ' The case has substantially to be determined on the third and fifth grounds set out in. the notice of motion. Mr Adams admitted at the hearing that he could not support the second ground. If the third and fifth grounds cannot be supported it would be useless to grant a certiomri, even if the first ground were sustained, as in such an event it would he merely a matter of giving a fresh seven days' notice andobtaininganewlicense from the chairman. The fourth ground is general, and depends on the third and filth grounds. The third ground is that at the time of hearing the application Mr Hawkins was not chairman of the Licensing Committee. Mr Adams relied on subsection 19 of section 7 of the Act of 1893, which provides only that at every meeting of the Licensing Committee the magistrate if present is to be chairman thereof, but does not say he is to be chairman when there is no meeting. By subsection 1, however, of the same section he is to be a member of the Committee. . If, therefore, in the Act there are numerous references to the chairman, and if duties are imposed' upon the chairman to be exercised when the Committee is not sitting, I should have thought that beyond doubt the references were made to, and the duties imposed upon, that, member of the Committee who, if present at the meeting, took the chair ex ojicio. The Acts of 1893 and of 1881 must be read as one Act. The provisions as to the chairman performing duties independently of the Committee are in the Act of 1881. The Act of 1893 does not, however, repeal these provisions, and indeed in subsection 7 of section 12 expressly refers to one of them, giving by that subsection powers to the members of the Committee as well as to the chairman. Mr Adams contended that as by subsection 21 of section 13 of the Act of 1881 provision has been made for the election of a chairman, who should hold office during the continuance of the period for which the Committee was appointed, and that this had been repealed, and subsection 19 of section 7, substituted, there was an indication of an intention of the Legislature that there should be no permanent chairman. If, however, a person is appointed by the Act, who at every meeting, if present takes the chair ex qfficio, he is the permanent chairman. There can be no question that if the Act refers to a Chairman, and imposes duties on him when thp Committee is not sitting, that such person is the chairman referred to. The references must be to somebody, and there is no one else to whom they can relate. The third ground is therefore untenable. The fourth ground is that, by section 14 of the Act of 1893, any increase in the number of licenses is forbidden ; that at the time of the Act coming into operation there was no wholesale licenses in the district; and that to grant a license in pursuance of the chairman's certificate would be to infringe this provision. The question depends upon whether, by the true construction of section 14, the general word ' licenses ' is limited so as to exclude wholesale licenses. The question of limiting general words in an Act of Parliament was discussed in the House of Lords in the recent case of Cox v. Hakes, 15 App. Cas., 560. That case seems to have an important bearing upon the present, and I propose, therefore, shortly to consider it." His Honor having dealt with this case at some length proceeded : — " As was said by Grove J. in Richards v. M'Bride (8 Q.8.D., at p. 123) : — " The draughtsman of the Act may have made a mistake. If so, the remedy is for the Legislature to amend it." In the same case the same learned judge states the law to be as follows : — " The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must, as Parke B. said inßecke v. Smith (Q. M. and W., 195), advance something which clearly shows that the grammatical construction •would be repugnant to the intention of the Act or lead to some manifest absurdity," No doubt, as was said by Jessel M.E. in Bently v. Botheram (4 C. D., at p. 492), there is a rule applicable to Acts of Parliament that you may control the plainest words by a reference to the context. " But," he goes on to say, "you must have a context even more plain, or at least as plain — it comes to the same thing— as the words to be controlled." Section 14 stands by itself. It remains effective, whatever may be the result of the poll, as to retail licenses provided for in the succeeding sections and is entirely independent of that result. The language of the section is general : " There shall not be granted any increase in the number of licenses in .any district." The word "license." in. the interpretation clause is defined to mean, if the meaning be not inconsistent with the context, " any license for the sale of liquors granted under this Act." Wholesale licenses are, therefore, covered by. the language unless, the

context is shown to be inconsistent with such an interpretation. In other sections of the Act the particular kinds of licenses intended to be affected are in general specified, or if they are not specified and the general term " licenses " is used, it is easy to asceitain from the context whether and how far it is intended to be limited. The principles upon which the Coui't must ascertain whether the words are controlled >by the context have been already indicated in the cases cited. It is, I think, fairly certain that two classes. of retail licenses— viz., " packet " and " conditional" licenses are not included in the general words. Packet ' licenses are not, because the enactment is confined to licenses in the district, and a packet license is not a license in any particular district. Conditional licenses are not, because they are occasional and casual, and ' ho intelligent meaning could be given to the other provisions of the section with respect to this class of license if the section were held to include it. Applying, therefore, the principles above indicated, it appears with reasonable clearness that these two kinds •. of retail licenses are not intended to be included in the general term. With respect, however, to wholesale licenses the case is different. I accept the suggestion that the word "licenses" at the beginning of the section should, in accordance with the 4th section of the interpretation Act 1888, be construed distributively as referring to each kind of license. If that is so, the same word in the latter part of the section would be construed in . the same way, aud the power conferred' on the committee would be that of granting, in the events men- . tioned, one additional' license of each kind for every 700 persons of increased population. It was contended, as the power of granting additional licenses is given ,to the committee, and as wholesale licenses may be granted either by the committee or by two members of it or by the chairman, that the section must refer to licenses which could only be granted by the committee,' and not to those which need not necessarily be granted by them. But if the committee have power given them in certain events to grant licenses generally; and there is a provision in the Act that a particular kind of license may be granted by the committee or two members or the chairman, then the two provisions would properly be read together, and the license might be granted by either authority. In any case the above' circumstance alone would not afford any conclusive indication that wholesale licenses were not intended to be included in the general " term. The Act itself seems rather to indicate an intention to restrict the sale of liquor. And it is hopeless to rely on some fancied policy of the Act in order to make out that the Legislature did not mean what it said. Once leave the words of the Act and there is a real danger, lest in determining what the policy of the Act or any part of it is, one should be unconsciously influenced by one's personal opinion of what the policy ought to be. 'Id tolnit quod dixit ' is the safest rule to apply. To return to the particular section, the only other suggested indication of intention not to include wholesale licenses is that the increase of them would be dependent on the increase of population, and that they would so be placed on the sama footing as the different kinds of retail licenses. Now, there is nothing intrinsically absurd in forbidding the increase of wholesale licenses, nor in making the number of them in the future dependent on the increase of population, the same as retail licenses— nothing, I mean, so absurd as that every man, whatever his opinions were, would at once own it to be absurd, as everyone would own it to be absurd, to give a right of appeal to a court which could not enforce its judgments. Nor could the inclusion of wholesale license operate retrospectively, or interfere with vested rights so as to raise any presumption against a literal construction. The utmost that can be said is that the inclusion of wholesale licenses under the general provision is odd and unexpected. To hold, however, because the language of a statute leads to results which may be considered odd, that the Court should not give effect to the language, would introduce a canon of construction at once novel and inconvenient. I am of opinion that section 14 prohibits the granting of this license, and that the applicant is entitled to his writ." Mr Adams said that he presumed costs would be against M'Kenzie. His Honor agreed, and allowed 10 guineas.