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THE COURTS-TO-DAY., Issue 8002, 3 September 1889
SUPREME COURT-IN CHAMBERS. (Before His Honor Mr Justice Williams.) Reid v. Dey and Bain,— Summons by plaintiff for order to Registrar to take accounts herein (Mr Sinclair).—Accordingly. Be James Pullen, deceased,—Motion for probate (Mr J. A. Hislop).—Accordingly. SUPREME COURT-IN BANCO, (Before His Honor Mr Justice Williams.) Ward v. Berndtson.— In giving judgment in this case His Honor said that it was a proceeding by summons under section 121 of the District Courts Act, 1858, calling upon the Judge of the District Court at Invercargill and the respondents in proceedings in that Court to show cause why the District Court should not proceed to hear and determine an appeal from the Warden’s Court at Riverton, brought in the District Court by virtue of section £49 and the following sections of the Mining Act, 188 G. . . • The order would be made
absolute, and respondents must pay costs (IQ guineas) and disbursements.
Be Mary Paterson. His Honor de livered judgment as follows
As I intimated at the hearing, it is clear that the certificate for a license purported to bo granted by the Committee to Mrs Paterson is a certificate for a new publican’s license within the definition in the interpretation clause. The refusal of the Committee in June, 1883, to grant a renewal of the then existing license to Aitkcn, the licensee, and the consequent absolute determination of the license at tho end of that month, amount to an abolition of that license. The words “at any time previously ” used in tho definition of the term “new publican’s license” refer to the time of the granting of the new license, and not to the commencement of tho Act. If therefore there was—as ir\ the present case—a license in force when the Act came into operation, and such license was afterwards taken away or abolished, any fresh license granted in respect to the same premise) would, by the definition, be a new publican’s license. The license for tho premises having ceased to exist in 1883, a local option vote was token in the district in May, 1888, and the determination was that the number of publicans lie uses’ in the district should not be increased The question then is whether the Committee in June, 1889, could grant a new publican s license to Mr Paterson in spite of the determination of the ratepayers against the increase of licenses, Taat question depends upon the constriction of section 45 and the following sections. I do not think the Victorian Act, or tho Victorian cases, 'much assist to interpret our own Act, as the language of tho two Acts differs considerably. Section 45, apart from the exception contained in it provides that no new publican’s license, etc., shall be granted until the ratepayers have previously determined in manner therein before provided whether thenumber of such licenses may or may not be increase'!. The sections which follow provide that the do teimin'ation of the ratepayers is to be ascertained by a poll to bo taken in 1882, and every third year thereafter. If the majority of the votes “ are in favor that the number of licenses is not to be increased,” it is provided by section 49 that such shall be the determination. By section 50 every determination shall continue in force until another dete’mination shall subsequently havebeen made. The first determination of the ratepayers was in 1882, and ever after tbalt by the terras of section 50, there must have been a determination of the ratepayers in force one way or the other. I am of opinion that the effect of faction' 45 is simply to suspend the issue of new licenses until the ratepayers first come to a determination. That seems to be the natural and grammatical meaning of the language used, Section 45 standing alone does not pretend to regulate the issue of licenses after a determination has been come to. Beading, however, sections 45 to 50 inclusive together, there is quite sufficient indication of the intention of the Legisr lature that if the determination of the ratepayers is at any time against the increase of licenses, the Licensing Committee are absolutely bound by this determination. If any further indication of the intention of tho Legislature we-e necessary, it will be fonnd in section 11 of tho Act of 1882. If tlrs be the true construction of section 45 apart from the exception, then the meaning of the exception is plain—viz., that notwithstanding the prohibition in the section to grant a new license before tho ratepayers first come to a determination, yet that where there was a license ejfistiqg fa respect to any premises on the Ist of October, 1881,' a new license plight be granted in respect to Bnobpremisosheforptherafepajiprs Href
came to a determination. The Act came into force on the Ist of October, 1881, Section 46 provides that the poll of ratepayers is to be taken some time in 1882. By section 53 new licenses can only be granted at the annual licensing meeting in Juno, The poll of the ratepayers might not, by the terms of the Act, be necessarily taken till after the annual meeting in 1882 Furthermore, through neglect no poll might have been trken, and no ratepayer might have had sufficient enthusiasm to apply to the Court fo - a mandamus to compel the chairman to appoint a day for one. It might well happen that a license in force at the time the Act came into operation might be removed, taken away, or abolished, say before the annual licensing meeting in 1882, and before the first poll of ratepayers, If at the time of the annual licensing meeting there had been no poll of ratepayers it would have been competent for the Committee, by virtue of the exception in section 43, to grant a license for the premises which bad been so licensed, although such license was a new publican’s license as defined by the Act. The alternative interpretation is that all prenrses licensed on the Ist of October, 1881, may at any future time obtain a new license, notwithstanding the determination of the ratepayers that tho number of licenses is not to be in* creased. The license might thus be granted although the premises had ceased to be licensed for many years, and although the vote which determined that the number of licenses should not be increased had been taken when the premises wore not licensed. There uno roasou for supposing that tho Legislature meant to render tho local option vote to this extent nugatory. As Sir Robcit Stout pointed out, section 11, sub section 1, of tho Act of 1882 is inconsistent with this contention, lam therefore of opinion that tho Licensing Committee had no jmLdiction to grant a certificate entitling Mrs Paterson to a license, and that the writ must go in order that the certificate may be quashed. In answer to Mr Sim, His Honor said he did not think costs should be granted in such a case. RESIDENT MAGISTRATE’S COURT. (Before Messrs G. L. Denniston and F. Meenan, Justices.) P. Hay man and Co. v. William Rigney (Lawrence).—Claim, L 7 7s 6d, on a promissory note. Mr A. S. Adams for plaintiffs.—Judgment by dafault, Findlay and Co, v. James Edlie (Port Chalmers).—Claim, LG 13s Bd, on a judgment summons. Mr Sim for plaintiffs.— Defendant said that he had earned only L2 15s since the date of the judgment.—Mr Sim said that he would ask for an order calling on defendant to pay the debt by instalments of 10s per month ; if he failed to pay the instalments he could be brought up again oti a judgment summons for the Bench to inquire, before ordering imprisonment, as to whether he had the means. Plaintiffs had no wish to be hard on defendant, but thought he should try to pay something, and an order was granted in terms of Mr Sim’s request.
THE COURTS-TO-DAY., Issue 8002, 3 September 1889
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