PROHIBITION.

Lyttelton Times, Volume LXXV, Issue 9428, 1 June 1891, Page 3

PROHIBITION.

THE SYDENHAM LICENSING ELECTION.

PEOCEEDINGS IN THE SUPEEME COURT.

The argument on the motion for declaring the election of the Sydenham Licensing Committee void was resumed before his Honor, Mr Justice Deanisbon, in Banco, at 10 a.m. on Saturday. Mr Fisher, with him Mr Harper and Mr Stringer, appeared for the plaintiffs. Sir Eobart Stout, with' him Mr Caygill and Mr Widdowsou for the defendants.

There was a large attendance of spectators. ‘ Sir Eobert Stout said he wished to make a few supplementary remarks on the point aa to whether proceedings before the Magistrate ware excluded. The only thing which, under our Act, was excluded was the question of title of the Returning Officer :■ the Regulation of Local Elections Act provided for contesting the validity of an election on every other point. ■ All. that the .other side had setup was that there was no validity in the appointment of the Returning Officer.. Mr Fisher: We say there was no body to appoint him. Sir E. Stout said that he did not care for that; it only affected the validity of the appointment of the Eeturaing Officer. It did not matter whether the Eeturaing Officer was Returning Officer de jure, so long as he was Eeturaing Officer de facto ; if he was Eeturaing Officer de facto his acta could not be attacked. Section 87 of the English Municipal Election Act provided that the only manner of tasting the validity of an election thereunder was by petition; there was no provision for proceeding by quo warranto except in cases of disqualification after election. ■Ha cifeduPritohard v. the Mayor of Bangor, XIII., Appeal Gases, 241. The reason for. the law waa that it was a first principle of English law that a man’s title shall not be attacked indirectly. Now, these present proceedings were attacking the Eeturaing Officer’s title indirectly. Had the plaintiffs wished to attack the Eeturaing Officer’s title, they should have proceeded against him by quo warranto. On this point he cited the King v. Peacock, IY. Term Eeports, 684. This case went to show that a quo warranto should not be granted to attack a title which had been held undisputed for more than six years. The present Eeturaing Officer at Sydenham had held the office undisputed since ISS2, and, therefore, no quo warranto could be issued against his title. The Statute 32, George 111. chap. 58, repealed by .the Act or 1882 in England, laid down clearly that no corporate office should be attacked after it had been held for six years. The Statute I. Victoria, Chap. 78, Section 1, provided that no election of any person to any corporate office shall be liable to be questioned in respect of the want of title of the person before whom the election was held. The six years’ limit in respect of proceedings by quo warranto was recognised in Victoria. The principle, laid down so long ago as 1792 byLord Kenyon, was that, if it was wanted to attack a person in respect of title to his office, he must be attacked directly, and not collaterally. The English Statute was not so wide as our Act, but ha would challenge his learned friends to show a single case in England in which the want of title of.the Eeturaing Officer had been made a ground of attack. His second point was that the word “ jurisdiction,” in Sub-sections 1 and 2 of Section 5 of the Escalation of Local Elections Act, could only apply to a body having power to make laws in the district, and could not apply to a body such as a Eiver Board or Harbour Board. He quoted the definition of the word “ jurisdiction” from Webster’s dictionary, to show that one principal meaning was the power to make laws. “ Tb s Town Districts Act, ISSI,” Section 10, specially provided that the Town Board should exercise jurisdiction. No such authority was given to Harbour Boards. Section 415 of "The Municipal Corporations Act. 1836,” gave the Borough Councils power to make laws for the good rule and government of the Borough. The, Counties Act gave County Councils power to make bylaws for the good rule and government of the County. Section 126 of "The Eoad Boards Act, 1882,” gave the Road Boards similar legislative power. None of the other bodies mentioned had anything to do with the good government of the district. The Lyttelton Harbour Board had very little power in Sydenham at all, Sydenham only elected a member. The Eiver Board had only authority over water-courses. It had no jurisdiction in Sydenham, but it bad power to ask the Borough Council to levy rates for it, and the Borough elected a member. The Christchurch Drainage Board, according to the Act of 1875, had only power over drains and sewers. It had no jurisdiction, but had power to ask the Borough Council to levy rates for it. All the bodies just referred to, therefore, he would submit, had no jurisdiction in the Borough of Sydenham. Section G of " The Licensing Act, 1881,” showed that Borough Councils, County Councils and Eoad Boards were the only local bodies recognised under the Act. Section 60 of the same Act tended to show the same thing. His friend bad cited Grant on Corporations in regard to the title of the Eeturaing Officer. Esgiaa v. Cooper, IX. Adolphus and Ellis, 80, showed that the election could not be attacked on the ground of the title of the Returning Officer. Ho cited v. Bruin, IV. Adolphus and Ellis, p. 664. He submitted that the title of the Eeturniag Officer and the title of the person appointing the Eeturaing Officer were practically the same thing. He cited Eegina v. War re, JU.K. 0, Q.B. 210, and Eegina v. Cousins, same, 216, to show that if the right person had been elected, and no person who ought tolmvo beer, returned had bean kept out, a writ ec.dd itot issue against the election. 41- further submitted that asacsopted-tho.Jctstura.T-

iag Officer for several years, and had taken part in the election, .they were estopped from further proceedings. On that point he would cite Sex v, Slythe, VI., B. and C., 240. The plaintiffs , knew that Mr Allison had been appointed Eeturniag Officer .by the Borough Council. They were aware of all the facts; the only thing they did not know was the ingenious point raised since the election by the brewers. He cited Eox v. Salmon, IV. Term Eeports 222, Eex v. Clark, 1 East 46, and Eex v. Peacock, IV. Term Eeports 684. The question, of tho discretion of the Court in regard to the writ came up in Victoria, in Eegina v. Lawrence, 111. Australian Jurist. This was founded on the English case of Eex v. Parry, VI. Adolphus and Ellis, 120. It waa laid down in these cases that, however clear in point of law tho question may have been in regard to tho party’s right to hold his office, the Court had again and again refused to issue a rule. The Victorian Court had held that, where the election had fairly represented tho opinion of the ratepayers, they would exercise a wise discretion in refusing a rule asked for on account of an irregularity such as that in the present case. Short "On Mandamus and Quo Warranto ” gave numerous cases in which the writ had been refused under such circumstances. Several of the cases cited by Mr Harper were old cases, before the passing of the Acts of William TV. and Ist Victoria, and did not apply under the present state of the law. The case of Hardwick v. Brown waa decided before the passing of “ The Municipal Elections Act, 1872,” and waa not decided on quo warranto, Mr Harper said that that case want to the bottom of the matter, below the Eeturaing Officer. Sir E. Stout said that cue could not go below the Eeturaing Officer. That case referred merely to a question of a vacancy created by the bankruptcy of a member. The other cases cited had not the slightest bearing on the point mentioned, as they were older than the Acta of William IV. and Ist Victoria. There was nothing left -for him to deal with, but the question of bias. ■

His Honor said he did not attach much importance to the question of bias, except as to whether the Committee may have expressed its intention of acting on its own interpretation of tho law, whether that interpretation were right or not. Sir E. Stout submitted that the Legislature had pointed out a way for dealing with a matter in which a Licensing Committee acted improperly, and the Court had no common law right of dealing with a statutory officer appointed for a certain purpose. The only ways in which the plaintiffs could proceed were certiorari, to quash tho proceedings of the Committee, and mandamus, to compel it to hear and determine applications. As Mr Justice Eichmond had pointed out in Hamilton and Eraser, the law had allowed public opinion to declare itself by means of election, and having allowed this, it was quite open to the Committee to declare its opinion as to the number of publichouses required in the district.

His Honor said that the defendants were prohibitionists, who had said that they did not want publichonses anywhere, and the question was whether tho question of publichouses or no publichonses was to be decided on tbe will of the majority without reference to the wishes of tbe minority. He did not attach much importance to the statements of the plaintiffs aa to conspiring, and he would point out that the defendants, in their statement of defence, had said they would not refuse the licenses if they were satisfied that the majority of the ratepayers required them. The question was whether their interpretation of the law was right. Could not the Court restrain the defendants from a declared intention to act illegally ? Sir E. Stout submitted that it could not. The case was analogous to that of the removal of a trustee, because he announced his intention of acting in a certain manner. The Governor could remove tho Committee if they acted wrongly. As the Governor had the power of appointing Licensing Committees in case of none being elected, and under “ The Triennial Licensing Committees Act, 1889,” had also the power to remove any Committeeman for any reason whatever, the Court had no power to appoint anyone to fulfil the duties, of a Licensing Committee. All that the Court had power to do was to grant a mandamus compelling the Committee to hear a case, and if tho Committee proceeded judicially, no matter what its decision was, the Court could not interfere. His Honor said that supposing the Committee was acting on an entirely wrong view of the law, the Supreme Court could surely interfere. Sir E. Stout said that the Court could only interfere after the Committee had done something. There could be no certiorari, because the Supreme Court had no power to grant licenses itself. His Honor: lam quite with you there. Sir E. Stout said that, further, no mandamus could be issued against the Licensing Committee, because it had stated its willingness to consider the applications. His Honor: If an inferior judicial body is about to do an actionable wrong, has this Court no power of interfering until the act has been done ? Sir E. Stout said that there was a discretion to be exercised by tbe Licensing Committee as to whether licensed houses were wanted in the district or not. That discretion was vested in it by the electors and by the Legislature, and as long as it was willing to consider and to hear evidence on the applications brought before it tbe Supreme Court had no power to interfere. There was nothing to show that, because the Committee had announced its intention of acting in a certain manner, it would not change its opinion if it had reason for doing so. With regard to the question of the authority of diverse local bodies, he might remark that such a question aa was now raised had never been raised in New Zealand before.

His Honor: And it would never have been raised, but for this case. Sir E. Stout said that he had some more authorities to show that his view of the question of the authority to appoint the Returning Officer was correct. Ho cited Eegina v. Grimahaw, X. Q.B.E. 747. Mr Caygill submitted that the jurisdiction which would enable a local body to appoint a Eeturaing Officer must be such jurisdiction as would enable a local body to administer the Licensing Act, and such jurisdiction could only bo exercised by bodies in, whose constitution was incorporated the Registration of Local Elections Act. If tbe constitution of the body did not incorporate that Act, it could not appoint a Eeturaing Officer. The Drainage Board was not so constituted. The Harbour Board and Eiver Board were. But the appointment of a Returning Officer waa not tho whole of “administering the Licensing Act,” for there was also the receipt of licensing fees and the paying of expenses. Under " The Licensing Act, 1832,” revenue from licensing fees waa to go into the general fund of the local body. Now, in some licensing districts there was ao revenue from licenses, and yet there might be expenses under the Licensing Act, as, for instance, the taking of a local option poll. Such bodies as the Drainage Board had no authority to pay such expenses, and therefore could not be said to have power to administer the Licensing Act or to have any jurisdiction thereunder. With regard to the validity of the appointment of the Eeturaing Officer, he would submit that, under Sub-section 2 of Section 50 of the Local Elections Act, it was possible to raise the question of the validity of his appointment, but this must be done before the Resident Magistrate, and within fourteen days after the election. As this had not been done, tho plaintiffs were barred from questioning the validity of that appointment now, Tho Magistrate had power to inquire, not only in respect of irregularities in the election, but as to the whole election, and there was no distinction between its being void ah initio or void from any irregularity in its conduct. He would submit that ignorance of the law on the part of the plaintiffs would nos prevent them from being estopped through their iLthe^

had not been ignorant o£ the facts. On this point he cited Regina v. Mollison, Macassey’s - Reports, • 71. -In respect to the second part of the claim, ho would submit that if the Court was satisfied of the honesty and bona fides of tho defendants, there was no reason to interfere by restraining them at present, before they had an opportunity of hearing the applications and deciding on the evidence brought before them, and also before it could have an opportunity of ascertaining whether their view of the law was correct.

Mr Fisher, in reply, submitted that the Legislature must have considered the Drainage Board, and other similar bodies, as having jurisdiction throughout the Licensing District, under the Regulation of Local Elections Act. The functions of a local body might ba administrative or legislative. Sir R. Stout had said that the words of the Licensing Act must refer only to the Municipal unit; now, there could not bo two Municipal units having jurisdiction throughout a Licensing District. His Honor asked if it was not meant to apply to the case of a Licensing District comprising parts of, say, two Boroughs. Mr Fisher said that the two Borough Councils could not both have jurisdiction throughout the district. Mr Caygill had derived an argument from the fact of the payment of the licensing fees to the Municipal Councils and the payment of expenses under the Licensing Act by it out of its general fund. There was not much in this, as Section 6 of " The Licensing Act Amendment Act, 1882,” provided that the expenses of elections under the Act should be paid by the local body having jurisdiction throughout the Licensing District. This meant that if the Governor appointed a local body which did not receive the fees to administer the Act, that body should have power to appropriate its funds to pay the expenses of such administration. The Regulation of Local Elections Act could only come into force in a Licensing District, in which there was more than one local body having jurisdiction, by an order from the Governor stating which of these local bodies should exercise the jurisdiction given by the Act. In this case there was no local body which could appoint the Returning Officer, as none of the bodies having jurisdiction throughout the district had been appointed by the Governor to do so. The English "Municipal Elections Act of 1882 ” laid down that an election should not be invalidated on account of a defect of title in the Returning Officer.

Sir E. Stout; Bead on; you will soe it also gays want of title: Mr Fisher said that it was so ; the clause referred to absence of title. His Honor said that there could be nothing wider than want of title, from whatever cause it arose. Mr Fisher said that the Local Elections Act assumed the existence of a body under whose authority the election could be held. He took it that the position of this election was practically the same as that of a Parliamentary election held without the issue of a writ. His learned friend had said that the right of quo warranto had been taken away altogether. Sir E. Stout said that what he had said was that the right of quo warranto was taken away under the Eegulation of Local Elections Act, except in regard to disqualification arising after election. Mr Fisher submitted that as the irregularity in the present election could not be dealt with under the Act itself, it could be made the subject of a quo warranto . With-regard to his learned friend’s contention that no quo warranto could be issued after six years, “ Cole’s Criminal' Informations ” went to show that this referred to au office which the local authority had the power to give, and was limited to offices belonging to a city. Borough or town corporate. Now, this office of Eeturning Officer for the Licensing election did not fulfil that requirement, and there was no local body in Sydenham which could have legally conferred it. In reply to another point of his learned friend, he would say that the plaintiffs could not ha estopped by having voted at the election, because they were not aware of the irregularity. His learned friend ■ had also said that the issue of a writ was discretionary with the Court. That was true, but the discretion must be a sound, legal discretion. His Honor said that surely it could not be considered that if there was a discretion, it could be more wisely exercised than by refusing to recognise the claims of bodies which, as compared with the Borough Council, could not be said to have a shadow of a claim to initiate the election. The plaintiffs had acquiesced in the present arrangement for years, and now brought forward a highly technical question. Would they have brought it forward if they had known of it at the last election when their own men were returned P

Mr Fisher having briefly recapitulated his arguments. His Honor said that this was a case in which he would like a little time to consider his decision. He understood, however, that a meeting of the Committee was imminent, and would point out that the criminal sittings opened on Monday, so that he could not give judgment-for some days. Learned counsel agreed that the meeting of the Committee should be adjourned for a week in order to allow his Honor time to consider his decision.

His Honor said that, on that understanding, he would reserve judgment.

The Court then rose.