PROHIBITION.

Lyttelton Times, Volume LXXV, Issue 9427, 30 May 1891, Page 6

PROHIBITION.

THE SYDENHAM LICENSING. ELECTION. PROCEEDINGS IN THE SUPREME COURT. The motion for an order declaring the election of the Sydenham Licensing Committee void came before Ida Honor Mr Justice Denuiston in Banco yesterday. The interest taken in the case was shown by a considerable attendance of the public, both publicans and prohibitionists baing strongly represented. Mr Fisher, with him Mr Harper and Mr Stringer, appeared in support of the motion.

Sir Robert Stout, with him Mr Caygill and Mr Widdowsou, appeared on behalf of the Committee to oppose. Hia Honor asked it there was any dispute as to the facts.

Mr Fisher said that there was not. Sir K. Stout said that there was no dispute as to the facts in the first part of the case, though there was some in regard to those in the second part. Mr Fisher said that as there was nothing material in the two affidavits mentioned, he would ask his Honor to look at Charles Louisscn’a affidavit, filed on May 19, and to make a note of the fact that the boundaries of the Borough were gazetted on Sept. 5, 1877, and those of the Sydenham Licensing district in 1882, and that they wero coterminous. Mr Louisson also stated that His Excellency the Governor had never declared which of the local bodies having jurisdiction within the Licensing District should make appointments and do all things required for the conduct of elections under the Licensing Act; and that no Returning Officer had been appointed under the said Act. William Carey Hill’s affidavit stated that on June 21,1882, Richmond Eeetham was gazetted Returning Officer for the Sydenham licensing district, and W. G. Walker, Clerk of the Sydenham Licensing Committee, and that neither of these appointments had been resigned or revoked. The minutes of the Sydenham Borough Council showed that, on Dec. 18, 1882, the Sydenham Borough Council passed a resolution to the effect that' Mr C. Allison, junr., be appointed Returning Officer for the Licensing District of Sydenham under the Licensing Act. There was no appointment under seal, and the record in the minute book was the only warrant of appointment. Mr Allison made the declaration as Returning Officer in January, 18S3. The plaintiffs were not aware of these irregularities till they were pointed out to them by their solicitor after the last election. They submitted that there had been, no election, either under “ The Licensing Act, 1883,” or “The Regulations of Local Elections Act, 1876.” Section 5 of “The licensing Act Amendment Act, 1882,” provided that the local body having jurisdiction throughout any licensing district should appoint the Returning Officer for licensing elections. It was also provided in the Act that where more local bodies than one had j urisdiction throughout licensing districts, the Governor should decide which should be the one to appoint a Returning Officer and make arrangements for licensing elections therein. The plaintiffs submitted that the Governor had not done this in the case of Sydenham, and that consequently any person acting as Returning Officer was doing that which he had no legal right to do. His Honor: Do you contend that the Governor might have appointed the Waimakarirl River Board or the Drainage Board to appoints Returning Officer for the licensing election ? Mr Fisher replied in the affirmative. By the Christchurch Drainage Act, 1875, the Drainage Board was authorised, under Section 50, to levy rates within the district, and therefore met the definition of a local body in the Regulation of Local Elections Act, as to its being a body having rating powers within the district. It also met the definition of a local body in another way, as it was an elective body. \ The Lyttelton Harbour Board was also; an elected body. The same thing aj/plied to the Waimakariri River Board, which was elected, and had rating powers as well. None of the local bodies could have had jurisdiction in reference to the licensing election until appointed by the Governor. Sub-section 2 of Section 13 of the “ Licensing Act, 1881,” provided that the Resident Magistrate shall , be Returning Officer for the licensing election. Mr Beefcham had been appointed under that sub-section, and the appointment by the Governor of a local body to have jurisdiction within the district was a condition necessary to deprive Mr Beethara of his office. His Honor pointed out that the section just referred to had been repealed. He did not see, therefore, how Mr Beetham could be said to hold office. Mr Fisher said that the Act which repealed the section provided that a local body should be appointed to conduct the election. This had not been done. It was immaterial for his purpose, however, whether Mr Beetham was Returning Officer, or whether there was none at all. The plaintiffs contended that there had been no election under the “ Regulation of Local Elections Act,” against which they could petition under that Act, and, consequently, were entitled to petition the Court for a writ of quo warranto. He submitted that Section 57 of the Act, providing that no writ of quo warranto should be issued in respect of an election under the Act, did not apply, as there had been no election under the Act. The plaintiffs could not have brought their action in the Resident Magistrate’s Court, as Section 59, under which such action would have to be brought, did not apply to the present case. If there was a void election, as they contended, all the safeguards provided by the “ Regulation of Local Elections Act ” would be removed. There was no local body which could appoint a Returning Officer under the Act, and consequently,all the safeguards for providing for the purity of the election would be removed. The Returning Officer would not be liable to any penalties no matter how much he disregarded the Act, Persons guilty of bribery, &e., in such a void election would not be liable to any penalties either. It would be within the range of possibility that one hundred votes might have been stuffed iuto the ballot-box, and no penalty oould attach thereto, because it was no election under either the Licensing Act or the Local Elections Act. Grant on Corporations, p. 204, showed that an election was void if held before a person not legally appointed to preside. The cases cited by Grant cited Regina v. White, 5 Adolphus and Ellis, p. 613, and Rex v, Poole, Casas in the time of Hardwicke, p. 24 and 27. Mr Fisher also cited Regina v. Backhouse 11., L.R.Q.B. p. 16. After the luncheon adjournment, Mr Fisher cited Frost v. the Mayor of Chester, 5 Ellis and Blackburn, p. 581. He referred to the “Regulation of Local Elections Act,” Sections 35 and 37, to show that the same judicial functions were given to the Returning Officer as mentioned in Regina v. Backhouse. He cited Regina v. Parkinson, 111. L.R., Q. 8., p. 11, which showed that the nominator of a candidate must be duly qualified, and argued that it was even more necessary that a Returning Officer should he properly qualified. His Honor said that the main point was whether the body appointing the Returning Officer had the right to do so. Mr Fisher said that the defendants said that the plaintiffs voted and acquiesced in the proceedings. He would submit that if the whole proceeding was a nullity there could be no acquiescence. The facts now brought out as to the irregularity were hidden and nob within the knowledge of anyone at the time of election. He cited Regina v. Northouae, I. L.R., Q.B-, p. 433. The contention of the defendants that a writ of quo warranto could not issue was, he submitted, met by the reply that there had been no election, and that the section taking away the right of proceeding by quo viarranio only applied to cages where Miere had boon an election. Ho cited ex p.-tric Bradiaagh, lIL, L.R. Q.E.8., ilia v. Olive, 27, L.J., Q. 8., p. 325, and Bank v. Willan, L.E., Privy Council. The second part of the plain-

tiff’s motion began with paragraph 10 of the statement of claim, which set forth that the defendants had unlawfully agreed with certain persona before the election, to refuse all applications for licenses. In support of this it would be necessary to refer to the affidavits filed. His Honor said ho did not see what necessity there was for this. The whole facta were before the public. Certain gentlemen had read the Act in a certain manner, and their supporters had done the same. They had come to the conclusion that public-houses were not necessary, and the majority of electors held the same view. Mr Fisher must first establish that that reading of the Act was wrong. It was absurd to apply the phrase “ illegal ” to their action in the sense of implying moral wrong. These gentlemen had acted perfectly straightforwardly throughout. Mr Fisher submitted that as the defendants’ view of the law was wrong, if they acted on that view they would be acting illegally.

His Honor: And would there be no locus penitentiae ? Mr Fisher said that there would not;

His Honor said that it would be just as right to tell a Resident Magistrate that bocause he laid down bad law in the esse of A and B, therefore be must be prohibited from deciding the similar case of C and D. The Court had no right to assume that a judicial body was about to go wrong—to go contrary to the law, Mr Fisher said that the Committee was going to go wrong—to introduce prohibition. There was no such thing in the Licensing Act, which, under Sections 45 to 64, only gave permission to the ratepayers to decide whether the number of licenses should be increased or not. That was the whole measure of local option given by the Act, and there was nothing in it which gave the constituency power to decrease the number of existing licenses by a direct vote. Yet this was the very thing which this Committee had asked the constituency to do; as they had asked the electors to vote for them in order that it might he done, and they did not profess to go in to do anything else than carry out the decision of the electors that no licenses should be renewed. Hia Honor said that the Committee had merely gone to the electors and expressed their own opinions, and said that if the electors Agreed with them they would elect them. He did not wish to touch the main strength of Mr Fisher’s argument, but he wo aid point out that the Committee had only done what any man having an idea or a “ fad ” of hia own might do, gone before the electors, stated their opinions and asked for election.

Mr Fisher submitted that the office of Licensing Committeeman was a judicial one.

His Honor said that, strictly speaking, all legislation was judicial. Mr Fisher replied that a man might be sent to Parliament holding views directly contrary to the law, in order to have the’ law altered. The main principle of his contention was that the Committee had read the Act upside down, and introduced prohibition into it, a thing which was not intended to have been introduced. The powers given to the Committees were the same as those of the English Justices on the same matter. He cited the case of Sharpo v. Wakefield, just decided in the House of Lords, to show that the discretion given to Justices should be exercised according to the dictates of reason and justice, and not according to private opinion. It was perfectly fair for these gentlemen to hold prohibition views, but if they took the Licensing Act, which was a regulating Act, and distorted it into a prohibition Act, they would be acting dishonestly and illegally. His Honor said that the Act said that a license might be cancelled if the house was not required in tbe neighbourhood, and these gentlemen read that to mean by the majority of the ratepayers in the district. Mr Fisher said that this was a wrong reading of the Act. He referred to Birch’s case, YH. N.Z.L.K. p. 206, as illustrating the New Zealand law on the subject. He would refer to Hansard, to show how certain clauses in the Licensing Act came to be put in. His Honor said that he doubted whether he could refer to Hansard, as the Bill alone could be looked at and not what took place in the House while the Bill was in progress. Mr Fisher said that if he could prove that Sir W. Fox tried to introduce a prohibition clause into the Bill, and it was rejected, it would show the intention of the framers of the Act.

His Honor said that he would be glad to look at Hansard if there was authority for it, but there was distinct authority the other way. He would take a note of the reference, however. Mr Fisher said that the reference was vol. xxxviii. of Mansard, p. 408. The plaintiffs submitted that the Court might by certiorari, remove the whole proceedings from the Licensing Committee into this Court. The Committee had declared that they were going to refuse all the licenses, and, therefore, had no jurisdiction. Hie Honor said that they had jurisdiction to sit.

Mr Fisher said that if the Committee were net going to administer the Act, but were going to administer the wishes of their constituents, the Prohibitionists, it was perfectly competent to remove the whole of the business from them by certiorari into this Court, and to appoint an officer to administer the Act,

His Honor said it was rather strong to say that he had power not only to prevent these gentlemen from acting, but also to appoint someone else. Mr Fisher cited Eegina v. the Southern Justices, 5 L.E..Q.8., and inre the Listowel Fishery, IS., Irish Eeports, C.L., p. 36. and in rs Eoach, VII. N.Z. L.E., p. 206, to establish the principle that the Supreme Court has power to remove the proceedings of a Licensing Committee into the Court, where the Committee had no jurisdiction. He also cited in re Hopkins, Ellis, Blackburn and Ellis, p. 100; Eegina v. Meyer, 1., Q.8.D., p. 173; Eegina v. Milledge, IV. Q.8.D.,; Eegina v. Palmer, 5 Ellis and Blackburn, p. 524. His Honor pointed out that it must be remembered that in refusing the licenses, the defendants would merely be giving effect to their own opinions. Mr Fisher said it was also the-opinion of those who elected them, and they would not have been elected if they had not expressed that opinion. He remarked that the judgment even of a Lord Chancellor of England had been set aside on the ground that bo had a bias in a certain case, through being a shareholder in the Company which was plaintiff. If that were done with an officer so high as the Lord Chancellor of England, with his full knowledge of the manner in which the law should be administered, how much more should the principle apply to persons of the class of those composing the Committee ? He cited Eegina v, the Commissioners of Cheltenham, 1., Q.8.D., p. 467. If the plaintiffs, knowing that the defendants were biassed, went and submitted their case to the Committee’s decision, it would be a great question whether they would not deprive themselves of the right to object to that decision. It was unreasonable that they should be left with no other alternative than to go before a biassed tribunal, and therefore they should have the right to remove the proceedings by certiorari. Ho cited Eex v. Lewis, 'Wolferston's Election Cases; ex parte Scott, 11. Victorian L.E., Law, p. 70; Regina v. Walsall Justices, lIL C.L.E.. p. 100; Eegina v. Silvester, XXXI. L.J., Magistrates' Cases, p. 93. There was, he said, plenty of authority to show that granting a license was a judicial act. In case the Court held that a writ of certiorari should not be issued, the plaintiffs would ask that the defendants misrht be restrained by injunction. Fia Honor : From doing what ? Mr Fisher: From dealing with the applications at all. His Honor thought that all that the Court could do was to compel the defendants to act judicially. Mr Fisher said that it was sought to prevent the defendants from doing an illegal act, which would render them liable to an action, as they bad said they were not going to administer the Act, but to carry out the wishes of the constituency. The Committee was bound to consider tha,

applications judicially, and if it were proved that the license were required by the majority of the people in the neighbourhood, they were bound to grant it; they were not to be influenced by the wishes of people in soma other neighbourhood. There were several cases to show that when a judicial officer went beyond his jurisdiction, knowingly, an action at law would lie against him. On this point he cited Hold v. Scott, XIX. L, J. Q. 8., p. 170; Beaucain v. Scott, 111. Campbell, p. 38S.

His Honor said that if he granted an injunction ho must assume that, because the defendants had said they were going to do a thing, therefore they will do it, even if it were proved to be illegal. Mr Fisher said that the object of an injunction was to prevent a wrong from being done. The plaintiffs had a right to a renewal of their licenses unless for certain causes. His Honor said that it seemed that he was asked to, as it were, lecture the defendants, and tell them that the Court had heard that they were going to do a wrong, and order them not to do it:

Mr Fisher said that the Court was asked to say the defendants were nob to commit an actionable wrong. With regard to the power of the Supreme Court to appoint some person to administer the Licensing Act in the district, Section 16 of the Supreme Court Act provided ample powers. It could not be that the whole licensing system of the Colony must fall to pieces on account of the action of some enthusiastic persons who might prefer to go to gaol rather than carry out the duties which they were elected to perform, i.e., to administer the Licensing Act. His Honor said that he was asked to take on himself the functions of a Licensing Committee.

Mr Fisher said there were authorities to show that the Court could appoint an officer to take the place of the ousted Committee.

Mr Harper said that he intended to confine himself to the question of the jurisdiction of the Supreme Court in regard to the point that nobody had been appointed to initiate the proceedings for the election. Section 57 of the Local Elections Act, which provided that no writ of quo warranto should issue to try the validity of an election under the Act, must be read with Section 50, which providsd certain specific causes for impugning elections. If the Governor had not appointed one of the local bodies to commence the proceedings of the election, there was in reality no election. There was no elective office in respect of which that Returning Officer could act. By analogy, if in a Parliamentary election the writ was not sent to a certain district, and the Returning Officer conducted an election without it, there would be, really, no election at all. He would not go over the ground of the validity of the Returning Officer’s appointment; because, if the election had been properly conducted in other respects, it might be heldtobe valid in spite of the invalidity of the appointment. The plaintiffs went further back than that, and contended that there was no properly constituted body to set the Returning Officer in motion. There were authorities to show that if a member of a public body, by bankruptcy or otherwise, became disqualified from sitting, the office held by him would not become void unless the body took such steps as were necessary to render it legally void. He would quote a. case where an alderman had become bankrupt, bankruptcy being a disqualification for his seat, but, according to the Act by which the office was created, it was necessary for the Corporation to make a formal declaration that the seat was vacant. This formality had not been observed before his successor was elected, and the Court held that there was no vacancy, that the successor had been illegally elected, and the original holder still held the seat.. He cited Aslatt v. Corporation of Southampton, xvi. Ch. Div. 143; Hardwick v. Brown, L.R. S' C.P., 406; King v. Smith, v. M. and S. 274; Regina v. Mayor of Leeds, vii. M. and E., 763; Regina v. Mayor of Winchester, same, 215; Regina v. Corporation of Bridgewater, iii. Douglas, p. 369. He submitted that the "bottom had been knocked out” of the whole proceedings, because the Governor had not appointed 1 a local body to appoint a returning officer. He submitted generally that the proceedings now being taken, so far as they related to the removal of the gentlemen now constituting the Committee, were rightly taken. There had been, in truth, no Licensing Committee since the Borough Council had appointed Mr Allison to act as Returning Officer. Sir R. Stout said that if there had been no Licensing Committee there' were no licenses.

Mr Stringer said chat all licenses granted previously had been expressly validated by the Act. , ~ _ Mr Harper pointed out that the Governor had power to appoint a Licensing Committee in cases where the ratepayers had failed to elect one. Mr Stringer was about to address the Court, when His Honor asked if it was usual for three counsel to address the Court. Although there were several plaintiffs, they were all suing on the same right. Mr Stringer said that he was not certain as to the practice, but his address would be very short. His Honor said he did not wish to establish a precedent. Did Sir Robert Stout object ? Sir Robert Stout said that he did not. He also would be very short, as he wished to leave Christchurch next day. His Honor said that Mr Stringer might proceed. He would be glad to have the third counsel’s assistance in such a case. Mr Stringer said that if the Drainage Board, River Board and Harbour Board were local bodies, under " The Regulation of Local Elections Act,” the Governor must select some body to conduct the election. No doubtithey were local bodies, as they were elected and had rating powers; therefore the Governor should have decided which should nominate the returning ' officer and conduct the election. Ho quoted sub-Section 13 of Section 3 of ,c The Licensing Act, 1881," to show that the Governor had been obliged to decide which of the Resident Magistrates in the district should conduct the _ election. As there were three or four Magistrates in the district at the time, one was actually selected. If that were the case with regard to Magistrates, it must be the same in respect to local bodies, now that they had taken the place of the Magistrates for this purpose of the Act. He contended that the Supreme Court had jursdiction in regard to the point. As the Governor had not appointed a local body, there might be two de facto Committees, elected by two elections, conducted by two Returning Officers, with equal qualifications. The present election was, therefore, under the Regulation of Local Elections Act, not an election at all. With reference to the estoppel through tho plaintiffs having voted in the election, it was distinctly laid down that there could be no estoppel unless the patties were aware of the informality, and had practically waived their objection. He submitted that every holder of a license was entitled to a renewal, subject to certain specified objections. On this point he cited Hamilton v. Eraser, V. Supreme Court Reports, p. 1, in which. Justice Richmond said that the holder of a license was prima facie entitled to a renewal, the proof being that objectors to the granting of such license had to begin their objections before the publican was called on to answer. Mr Isitt, who was tho recognised leader of tho prohibitionist party, bad stated in his affidavit that they had determined that the licenses were not wanted at all—not merely that they were not required in the neighbourhood. The Committee had shown that they intended not to take tho objections provided for in the Act—but to take a different class of objections altogether, and to make the Act, which was intended to be a regulating Act, into a Prohibition Act. In regard to the question of bias, ho cited Regina v. Parrant, 67, L.J,, Magistrates’ cases, p 17. In the present case there was a strong bias, which should incapacitate the defendants from sitting. Ho also cited Regina y. Allen, IT. New Zealand [Jurist, new series, p. 123, to show that where a candidate had been nominated by a person not qualified, to do go, thero

would be no election at all. With respec to future proceedings, the Act that where the electors failed to elect a|

Licensing Committee, the Governor had power to appoint ono. Sir E. Stout submitted first that "local' body” only meant borough. Section 1091 of the Licensing Act, 1881, laid down the class of local body which had to deal with ieenses. It provided that license fees' should be paid into the accounts of the borough. In the Licensing Amendment Act of 1882 the words “local body” were not defined. Sub-section 2of section sof that Act provided that where there wee more than one local body within a County the Governor should select which one should appoint the Returning Officer for licensing elections. There could be Town and Eoad Districts inside of Counties j outside of Counties there might be two boroughs included in one licensing district. He would submit that “having jurisdiction” meant having jurisdiction as the local municipal unit. Sack bodies as Drainage Boards were. never contemplated in reference to licensing matters; the only bodies contemplated in the Licensing Act were Boroughs,- Connties and Eoad Boards. The Loohl Elections Act was never intended to apply specifically to other than Boroughs, Connties and Eoad Districts. That the Aot was not intended to apply to Harbour Boards was shown by the fact that • clause in the Lyttelton Harbour Act waa necessary to make it apply to the Lyttel* ton Harbour Board. It applied to the Licensing Act, because it had been specifically made to apply. He quoted Section f of the Lyttelton Harbour Act, In IB7S the Lyttelton Harbour Act waa repealed, and in the General Harbours Act waa a clause incorporating the provision of the Local Elections Act. It had also been specifically made to apply to the Bives Boards. The Act did not contemplate more than one Eetuming Officer in the same district. He would submit that, for the purposes of the Licensing Act in Sydenham, the Sydenham Borough Council wasthe “local body” to appoint the Ee turning Officer. His second point was that, whether the Sydenham Borough Council waa the proper body or not, the Supreme- Court had no jurisdiction to entertain any objection to the election. Section 51 of the Regulations of Local Elections Act provided that no inquiry should be made! into any election except under that! section by petition. The title of returning* officer did not affect the validity of the! election if it had been fairly conducted, -j His Honor: Supposing the Walmakiriri Eiver Board had appointed a return*! ing officer for the licensing election, P , Sir E. Stout: It would not have affectedP the validity of the election. j His Honor: If a wrong body appoint** the returning officer, then, there ia ns| remedy P | Sir E. Stout: There is no remedy at all.' In Victoria there was on express provision that the invalidity of the appointment o£j a returning officer should not affect the] validity of an election. He cited Section] 143 of the Victorian Local Government] Act. Even if a person usurped the and the election was fairly conducted*!# would be valid.

His Honor: Supposing that the " mad in the street" were to put an advertise ment in the paper announcing an eleo? tion and conducted it, would it be valid? , Sir R. Stoat said that if John Allison were appointed Returning Officer, and! Thomas Allison, by mistake, assumed the! office, the election conducted by him would] be valid. He quoted the Victorian Corrupt! Practices Act, Section 60. The New Zeart 1 land Acts were almost identical with th»' Victorian Acts. He quoted from Rogers*) Vol. 11., p. 641, to show that in England*] an election under a usurping Returning! Officer, if conducted In due form, was held, by high authority to be valid. la Victoria it was held that an elec, tion was valid, even if there were no properly appointed Re turning Officer. He cited Tates v. Meeoh, IX. C.P., p. 6255? Regina v. the Mayor of Welshpool, 85 Law Times, p. 594; Howes v. Turner, I. OJP.D.*! p. 670. All these showed that the only' way m which an election could he got rid . of was by election petition. There was no) | power in this Court to test the validity a licensing election. Section 57 of the! Regulation of Local Elections Act provided that no writ of qua warranto should be! issued in respect of any election. The words of the English Act were not so] strong, and yet three judges had held that in England the old plan of quo warranto] had gone. It could only apply now to! cases in which a person became disqualified after his election. In Victoria the same] role prevailed, as was shown by the Queen v. Lawrence, HI. Australian Jurist rc ports, p. 46. In Gilchrist v. Woods,' 111. HJZ.L.E., Mr Justice Williams had 1 held that there was no proceeding by quo, warranto in an election case. The proper tribunal to hear the application against this election was the R.M. Court. Ho submitted that the Legislature had expressly prevented the title of the returning) officer from being attacked, and that the Court had no power whatever , to issue a> quo warranto in respect of a licensing, election.

Tho Court then adjourned .to 10 a.m«-to-day. •