LIQUOR IN KING COUNTRY.

Dominion, Volume 2, Issue 549, 2 July 1909, Page 6

LIQUOR IN KING COUNTRY.

ARE WHOLESALE LICENSES LEGAL? VIEWS OF ATTORNEY-GENERAL. ■ TEST CASE TO BE BROUGHT-. Inquiry was made from the AttorneyGeneral (Dr. Findlay) by a Dominion reporter 1 , yesterday in regard to the position of tho proposed proceedings in respect of tho grant of wholesale liconses in, tie King Country. Dr. Findlay explained that, upon full consideration, he was satisfied that the wholo question now turned upon whether tho land included within the proclamation was Native land at the time or the issue of the >' . proclamation, and he < bad instructed tho Crown Law Office to have this question eottled, as a preliminary to proceedings ■ beintf taken by way of cortiorari to quash tho lioenses already granted. By tho courtesy of Dr. Findlay, we are enabled to publish a copy of the memo, stating the view of the law ■upon which the Crown Law officers were instructed to proceed. It is as follows: — "(1) Licensing Committees have done two things—(a) granted wholesale licenses in ordinary, licensing districts where either con- ,, tmuanoe has been earned, or (what is the same thing), where none of tho proposals reepecting licenses have been carried by tho 'prescribed majority; ,v (b), granted wholesale licenses in Native areas , proclaimed under Section 292 of 'the licensing' Act, 1908. The question is whether the grant of such licenses u valid. ' ' • "(2) It ia too late now to contend that where the_ result of the licensing poll, in '• any ordinary licensing district, was that licenses ' wore to l continue as they wero. the grant'ofr new wholesale licenses is prohibited. The contrary was decided by tho Full Court (his ' Honour the Chief Justice alone dissenting) in re W. and G. /TurnbuD's application, 23 N.Z.L.R., 489, and that decision/ can only bo 'reversed, practically I speaking, by tho Privy Council. In districts where No-Licenso , 'has been carried it is quite clear, from the language of the Statute, that no licenses of any description (including, therefore, wholesalo'lieenscs), can be grante'd."(3) Aβ'to proclaimed' Native areas under Section 272, the facts generally seem to be - these:—Divers proclamations under Section 25 of the Licensing 'Act, 1881,-' have been" ' issued, declaring that in certain areas (presumably areas nf Native land) uo licenses should be granted It is abundantly clear that, if the statutory authority has been followed, tho prohibition extends to tho grant ' of all jicenses (including wholesale licenses). The difficulty is whether the statutory authority has been followed. , ' ( "There are, - 1 understand, 'two olasses of cases in which it has been suggested that it has not. They are: (a) Cases in which the area'comprised in the proclamation • has included, not only Native land, but land which, at the date of the proclamation, had been foldjjy the Natives to-(and vested in) the Crown, and which in some cases had'been disposed of by, the Crown to settlers under 'the Lands Act; (b) possibly cases in which tho area at the date of the proclamation was . Native land, but after the proclamation had **i ceased to be- Native land, and has become vested in the Crown or Europeans.' Section 272 of the Act of 1908 (and tho preceding legislation was in tho same words) provides as follows:—, The Governor, on 'tho application of tho owners of any aroa of . Native land ' on whioh no publican's license hal been hitherto granted, may, by proclamation , in the Gazette, declare that no license ' «' shall be granted within suoh area, and • it shall not be 'lawful for the Licensing \ ' Committee to issue any, license to take effect within any area so proclaimed." - "It is clear, from reading tho section, that tho area within which tho proclamation is to , operate is an area of 'Native land. , this must moan 'Native land' na defined by the Native Land Acts, or at tho very loast must mean lands owned by, Natives. If, thore- ', fore,' the proclamation includes lands, at tho time of ite issue vested in tho Crown,' it is clear that, as to lands bo vested, tho statu- ■ tory authority has been exercised. It is •I also quite clear that the Governor's author-" ity to issue tho proclamation k" a statutory - authority; and that, bo far as it exceeds the statutory authority.any proclamation issued ~u by-him is void. The result, therefore, is ; that tho proclamation is void as to any > area, not Native land, at the time of tho : , issue of>'the proclamation. The result is u , that, as to any area so wrongly included in v V ' a proclamatipn, the special prohibition oonj; tamed in_ Section 272 does not apply. If l> the area is within an ordinary licensing disj t trict (lα, an electoral district), the application for the license must bo determined - | by lie law which obtains in that district. I If within a Native licensing district it must tie granted by the'Special'tribunal created 'for the purpose (see Section, 5, pub-Section 8, Sections 65 to 69), it being remembered that a Native licensing district, may bo carved out of an ordinary licensing '' district. If within a special lioonsing'district (i.e., a, part of New Zealand outside ,of an electoral district), then it must be , granted by'the special tribunal oreated far , ' that purpose (Section 5, eub-Section 2, Sections 66't0'69). In'the class of cases men-; tioned in the second snb-paragraph (i.e.j where tho area proclaimed is Nativo land, but afterwards portions cease to be Nativo land), I am of opinion that~the proclamation still remains in force as to the whole of the ' area originally included. I do' not think that, , by any part of'the area ceasing to be , Native {and, such area ceases, ipso facto, to bo within the operation of the proclamation. • " "(4) I notice that somo Magistrates have acquitted when the charge has boon seßi ing within < a proclaimed Nativo area upon tho ground that the place of sale was not Nativo land It is true that the charge could not/ be sustained under Section 273, ■ r but it ie equally clear > that this charge could be sustained under Section 195. 'if necessary, tho information should havo been , " amended, but I doubt even tho necessity for this. s "(5) It is to bo noticed that Section 272 has outlived much of its 'usefulness. European \ Eettlement has spread through the extensive Native districts to which this section was intended to apply.' No doubt tho section may still be 'used to prevent a iioensod house being established near a pa or Maori settlement. ' "In tho view I havo takan of tho law, tho Survejor-Genoral should bo asked to definitely ascertain whethor the areas in question were Nativo land or not at tho time of Hhe proclamation. If they were not Nativo land at that time, then it is quite clear that no Court can disturb the grant of theso , licenses. If tho land within the proclamation was Nativo land at tho' date of the proclamation, then I think those licenses were granted illegally, oven if portions of such land have since ceased to bo Native land.— (Signed) J. G. Findlay."