LICENSING LAW.

Dominion, Volume 4, Issue 947, 14 October 1910, Page 9

LICENSING LAW.

GERALDINE HOTELS. NEW ASPECTS OF AN OLD CASE. •-■ STRANGE'POSSIBILITY. The Geraldine licensing case, -in tho form in .which it came before tho Court of Apjieal. yesterday, was expected to bo merely an affair, of reaffirmation of a previous judgment and granting leave to appeal;to the Privy' Council. Fresh: interest was, however, given to the whole matter by some remarks which fell froni the Chief Justice (Sir Robert. Stout).

The events which led up to yesterday's proceedings may be briefly stated. The' readjustment of'electoral boundaries prior to the'.: general election of 1908 led to a part of; the old Geraldine electorate,,,inwhich six. licensed houses existed,, being placed'within the Ashburtbn electorate,' in which No,-License was in force -as tho result of the previous- poll.. As in the new Ashburton; district thus formed the grant of licenses was prohibited throughout an area containing . more than half the population, the licensing poll in 1808. was taken- under Section 38 of the Licensing Act, 1908, .as if no licenses existed in the district. .The voting was as follows:—Restoration, 3071; non-restora-tion,'2Gll; total of valid -votes, 5G82.' There was, therefore, a considerable majority in favour of restoration,- but not the prescribed three-fifths. majority, and the returning officer made a declaration that restoration was not carried. At the subsequent annual - meeting' of the Ashburton Licensing: Committee renewals of the licenses referred to were refused, on the ground that, as; restoration: had not been carried by a three-fifths majority, the licenses lapsed at the end of the current term by virtue of Section 8'(c) of the Licensing Act, and the committee had no. jurisdiction to renew them. One of the licensees, ! Sarah Mulherh, applied to the Supreme Court for a mandamus to the , committee .to issue the license, and it .was agreed that tho 6hpuld abide by the issue. The case was, removed into - the Court of Appeal, and that tribunal (with Justices Williams, Dcrihistoh, Edwards, Cooper, and Chapman on the Bench) upheld the action of the committee, .deciding unanimously that the words "the result of such poll" in Section.'B (c) meant the' consequence of the, poll, and that as the result, was that no licenses be,restored in the dig-' trict; the. licenses,-lapsed upon the expiration .of their, current' term. Uudgnient was delivered on October 18, 1909, and leave was given to appeal to the Privy Council, but owing; to inadvertence and loss- of time in consulting counsel in London as to the prosjiects of successin the apj>eal,-the : necessary security was. not. lodged within the prescribed- period of. three months. ; ' The present case was, therefore, brought with,, a view : to obtaining fresh leave to.. appeal to the Privy Council. One. new point differentiated it from the previous .case. - It was submitted for the defence, that, if the license could' have,'-been' lawfully renewed-.in/1909, it would: have" expired'on Juno 30, 1910, and. :that''.:the; committee. could not grant' a hew/license;',., ■' '!'■,' v. ,'.;■' .-' :.'.,.

-iThe plaintiff was John Mnllan.of Qeraldine,-. hotelkeeper, and the defendants \yero;the members of,;-the Ashburtoh Licensing Committee (of which Mr.'V. G. Day,.//S.M.; is chairman), - and GeorgeHenry 'Mahni'' minister:of religion.,, an objector' to the renewal iof the licenses. ." ■ Mr.: ; ' j; ■■ -Hi' Hoskihg, I£C.; : and Mr. Jphanseh appeared for. the plaintiff, and Mr. A. S. Adams for 1 the ..defendants; '' ...On the Bench, with the Chief-Justice, were Justices Williams, Edwards, Cooper, and' Chapman. ■'/./ : ,/.--■'. .- ;> Asks for Verdict Against/-'Himself. ■•:Mr. Hosking said the whole object of the proceedings was to' obtain ; leave' 'toappeal to .the .Privy Council.: The.costs pfi the • previous proceedings had 'been ,paid to--the'-defendants,, and-' his 'clients expected to have to pay the costs of the present - proceedings, as judgment, would Jiave to be against >.them... Referring to the\.now point mentioned ..above, counsel.. submitted;;that' the/expiration-' of ' the yeaf/following the '/.'licensing' meeting' at; which' the license'-was applied ;for':..waß: not a bar to the. issue, of. the, mandamus,' 'if'-it could otherwise.be issued. -Section 73 of the -Licensing Act 'provided that. the first licenses granted, after a poll, carried jvith them a right ;pf renewal. ; ;-. ..-■:■

'The Chief Justice said that before a writ of mandamus' could be issued, it had to. be shownvthat, obedience: could, be rendered,to the .writ.-'--Conld/the corn-' , rnittee'' issue ' a license certificate ' for ' a period-that-was pastp:' -~- ■-, , "■After .soino. further remarks from..the.. "Bench: and Bar, Mr. Justico Edwards suggested' that ,as Mr.' Hosking was only asking for a: decision .against himself, the point-need not;be laboured.'. Mr. Adams said'ho. would raise ho ob- : jection to the granting of leave to appeal. ;; "Newand Startling 'Point.' justice said, it was not. necessary /for".''the Court "to consider/ whethor a.mandamus, if: the plaintiff were entitled .to one, could .bo/refused, on tho ground: that had been mentioned. The Court of Appeal had decided in Mulhern v.. Day—and their Honours were" bound by, its decision—that-on the merits of the caso the mandamus must be refused. He was'not on tho Bench on that-occasion, but he : would have come to the sam» conclusion, which was also supported' by the .previous '. decision in' Dempster v. •Cruiokshahk. Moreover, it had been stated by the ; Privy. Council that the Court; could go ' outside.; of the .woraiug: of a statute-and look /at the working" of

it, and,'in his opinion, if the Court of' Appeal had decided otherwise, a grave injustice' might have been done, li ,tu« law as interpreted by the Court of Appeal in Mulhern v. Day was given effect to, then at next.licensing- poll the issue as to whether licenses should be restored would bo put, and;if..there was the re-, quisite majority for restoration, then' the people affected .by this case, and the others in-the larger, portion of the AshLicensing District would get their licenses again. If, on the other hand, the contention of the plaintiff were given effect to, and licenses wore granted to the hotel-keepers- concerned, then at- the -next poll the question would bo whether the licenses ; ought to be continued' or /not, and: continuation was carried, then the only.hotels which could get licenses would be those in the Geraldine portion of the district-. Thosq in the other and larger portion of the district would not bo able ■' to. get licenses;; because ■ there, was no proposal at : tho poll for. an.'increase, of the number of licenses. They would never be able to get licenses any more, because the succeeding polls would always be on the question of • continuance of the then existing licenses. The result would be that the larger, portion of the district would be deprived for ever of all chance of having licensed hotels. That would be •a complete .destruction of the principle of local option. The issue of restoration —if. tho s plaintiff's contention' was correct —could never again be put, and the inconvenience would be far, greater in that event than if the decision of the Court of Appeal were acted upon. This point was not referred to when Mulhern v. Day was before tho Cour.t of Appeal. Possibly,"'Mr. Adams would have raised it, but he'was stripped in his argument. For the Privy Council, Mr. Justice Edwards, said he did not think the point referred to by the Chief Justice affected the .'matter, excepting that he (the speaker) thought there must be injustice in any decision oh the case, and that the greater injustice would'be that pointed'oiitrby tho Chief Justice. Further than that;* he had not considered the point. Mr.'Justico Chapman endorsed what, had been-said by Mr.-Justice Edwards. The Court, in accordance with its previous decision, dismissed the application for a writ, of mandamus. Costs were.fixed at 30 guineas'. Leave to appeal to the Privy Council was granted on'the usual terms.