LICENSING EVIDENCE.

Hauraki Plains Gazette, Volume XXXVII, Issue 4990, 21 June 1926, Page 3

LICENSING EVIDENCE.

< provisions of the act. COMMITTEE’S INTERPRETATION. The following statement was made by Mr J. H. Salmon, S-M., chairman of the Licensing Committee, at its sitting in connection with the issuing of licenses in Ohinemuri on Friday : — “No-license was carried in the Ohinemuri Electoral District by the necessary majority of the electors of such district in 1908, 'and came into operation in 1909. On a local option poll taken In the district in November, 1925, restoration df licenses was carried. “This is the first occasion that restoration has been carried in any district in New Zealand, and the Committee is, therefore, without precedent or authority to guide it in construing the provisions of the Licensing Amendment Act, 1910, affecting local restoration. _____ “By section 11, sub-section 2, of the said Act the number of publican’s licenses which may now be granted in the district ‘shall not exceed one for every complete '5OO electors of the district at the date of the general election at. which the poll w.as taken, and shall not be less (if a sufficient number of such licenses are duly apL. plied for) tha,n one for every complete 1000 electors of the district at the date aforesaid.’ The Registrar of Electors for the district has sworn that ’ the number of electors of the district on the electoral roll at the date ’df the general election at which the poll was- taken w.as 7637. The actual number of publican’s licenses duly applied for is 13. We commence, therefore, with power to grant as many as 15 publican’s licenses in the district, and we are; bound to grant not less than seven publican’s 11censes..- ? “The Committee would, therefore, have had little difficulty in the matter, and having .an ample number of publicans’ licenses in hand, would not have been called upon to interpret the obscure provisions of section 11, sub-section 3, of the Amendment Act of 1910 if it. had not been for an application by Mary Blackley Montgomery for a publican's license in respect of new premises to be erected at Waitoa to be known as- the Waitoa Hotel- ‘ The Committee h.as had the advantage of hearing counsel on the question of the proper construction of the sub-section, and there is an extraordinary divergence of opinion on the subject. It is not surprising, therefore, to find an equal diversity df opinion amongst the members of the Committee. The sub-section is as follows :—

" 'ln determining applications for

such licenses the owners of premises Ct in respect of which 'a, publican’s license- was in existence at the. time of the coming into force df the last licensing poll in favour of local no- '■ license shall be given preference over appications by other persons, unless some, objection within the meaning of section 109 of the principal Act shall be established.’ “Tile several constructions contended for by counsel respectively may be f summarised under three- heads, : namely: (1) That there is no Ambiguity in the language of the subsection, and that the 'owners’ therein referred to means the present owners of such premises. (2) That there is .an ambiguity in the language, of the sub-section, and that the intention of the legislature is therefore to be sought : that, the word ‘owners’means the owners of licensed premises at the. time that no license was carried. (3) That the preference referred to in the sub-section attached to the owner in respect of the particular premises and only so long as he remained the. owner of such premises. (This, it will -be seen, is -a ; variation of the first contention.) “In effect there are, therefore, two constructions contended for, and the Committee has decided, by a majority which was arrive.fi at only on the casting vote of the chairman, to adopt the second construction. It is clear that the Legislature intended to give a preference to some persons, or class df persons, .and the provision may, therefore, be des'cribed as compensatory or remedial. “It is common ground, and it was not questioned in argument, that one of the immediate effects of a holicense vote on a local option poll is to depreciate the value of wha.t were licensed premises. If, then, we accept the view that the provision is compensatory* whom did the LegislaV ture intend to benefit ? Clearly it intended L make some compensation, and the simplest term df compensation it had power to make—since it would cost-the State nothing—to those, persons who had so recently suffered or were then actually suffering a loss by being unable to let their premises except at reduced rentals, or who, ha.ving been compelled to sell their premises, had probably sold at greatly reduced values, was to give to such owners a preferential right to licenses ih the event of restoration being carried at, the next or some succeeding poll. “The dominant word in the subsection is, we think, the word ‘own- ■* ers.’ The licensee is not mentionedThe reason why provision is not made in relief of the licensee, is clear when we examine, as we are entitled to examine, the other provisions of the - Act. Section 294 of the principal Act of 1908 had already provided (subsection 1) against hardship to a lessee in such a contingency by giving him a statutory right to determine his lease upon 14 days’ notice, or (sub-section 2) if he elected not to determine his lease he. might by similar notice electe to have the rent fixed by arbitration (notwithstanding the terms of his “The m.ajorityt hink that to adopt the view contended for on the first construction would met’,n that the Legislature intended those persons who should happen to be the owners if and when restoration should be carried to have a preference in obT taining licenses: that is to s:iy, that the Legislature in 1910, by this eom- . pe.nsatory provision, intended to conler .a benefit upon some unknown persons at some indefinite time in the

future —possibiy, in some cases, purely speculative purchasers who might have acquired the premises for a

smt’,ll sum

"If, then, we adopt the view that the Legislature by the provision in question intended to make compensatory provision for those owners who had suffered loss by reason of the result of the no-license vote, it is clear that the statutory right thus conferred is a persona) right. The class of persons there considered is a limited number of definite and ascertainable individuals. "It is true that the Act of .1908 defines ‘owner’ of licensed premises as being the person for the time being entitled to receive either on his own account or as mortgagee in possession the rent of such premises. This definition was hot referred to by counsel in their argument, though it may furnish one of the strongest arguments in favour of the first construction. We are. not satisfied, however, that the definition is conclusive on tlfe question of construction. It refers only to owners of licensed premises. Sub-section 3 refers only to ‘owners of premises.’ It is clear that the, present owners of premises in Ohinemuri are not the owners of licensed premises, though the. definition might be -applicable analogously. Assuming, however, that the definition is applicable, it does little more than say in effect that the ‘owner’ of licensed premises is the landlord for the time being, and we. would still have been faced with the same question as to whether it was the landlord of 1909 or the landlord of to-day that is contemplated by the sub-section.

“Having come to a conclusion (by a, majority) that it is that limited and definite class of persons, the owners of 1909, that is to be eiititle.fi to preference, several matters still remain to be considered.

“It appeals that a number of the owners at the time of the coming’ into force of the. last licensing poll in favour of no-license were incorporated companies. Under the Licensing Act an incorporated company cannot hold a license in its own name. Section B's contemplates only individual applicants. What, then, is the position under section 11, sub-sepiion 3, of the Amendment Act of 1910 when the owner of 1909 is an incorporated company and cannot make the .application ? In the present instance these companies have endeavoiire.fi to solve the difficulty by filing elections in favour of individual nominees, who have made application in the ordinary way.

“We think it is clear that the Legislature has not provided for this position. Sub-section 3 contemplates, we think, that the owner will apply. Thisi s to be implied from the fact that he is to be ‘given preference over applications by other persons..’ Moreover, it is ‘in determining applications’ that he is to be given such preference. Once it is established, however, that these corporate owners of 1909 have a preference under the sub-section similar to that of individual owners, the rule as to beneficial construction applies. We think that the practice adopted by these owners of election in favour of a nominee is not.* unreasona.ble, nor is it altogether without statutory sanction. Section 293 of the principal Act makes provision fora n owner or immediate landlord df premises in any case where a tenant neglects or refuses to make, due application for the grant or renew.al of a license, to make such application or to do whatever is necessary in his own na,me or hi the name of his nominee, or in the name of the defaulting tenant. There is, therefore, some statutory 'recognition of an interest df the owner df licensed premises in the license, and there is recognition of the principle of a nominee. We know that in practice numbers of licensed premises in tire larger, centres are owned by incorporated companies, and that in many cases the licensees are merely the nominees and serve,uts of the companies.

“There is still another point which it has been neccs ;ary to consider, and the question ari e.s specifically on at least one "application. Assuming, as a majority of 'the committee h.as assumed, that the preference granted by .the sub-section to the owner of 1909 is a personal statutory right, what is the position when that owner ha,s died in the meantime, and the widow of that owner is the applicant? Without entering upon the lengthy legal argument available on the point, it is sufficient to state tfraF the majority take the view that the personal right conferred by the statute would survive for the benefit of the estate, and that the executrix, who in this instance is the widow, is entitled to exea'cise the right to make the application.