SINGLE MEN AS LICENSEES

New Zealand Times, Volume XXXII, Issue 7319, 24 December 1910, Page 1

SINGLE MEN AS LICENSEES

AN IMPORTANT POINT PRESENCE OP A WIPE DEEMED A NECESSITY. MAGISTRATES' POWERS QUESTIONED. A question of considerable interest and importance to hotel licensees was argued in the Supremo Court yesterday before his Honor" Air Justice Cooper, the point at is>uc being as to whether magistrates have the power to refuse certificates of fitness to -applicants for licenses who aro either unmarried or living apart from their wives.

Plaintiff was Frederick James and defendant Andrew Duncan Thomson, Stipendiary Magistrate. Plaintiff, a settler residing at Ekotahuna, and married, was desirous of obtaining a transfer of' the license of tho Telegraph Hotel at Otaki. , He applied to Air A. D. Thomson, S.M.. for a certificate of hU fitness to hold such a license. Defendant refused to give such certificate on tho ground* \(n) That plaintiff’s wife did not intend to go and reside with him at tho hotel; (b) that defendant had made it a rule to refuse a certificate of fitness (except in exceptional circumstance?) to -married men whose wives would not be resident at ; the hotel. Plaintiff stated that otherwise the magistrate was satisfied as to his character,, record and financial x>usition. He therefore claimed that the magistrate had exceeded lus j urbdiction in refusing a certificate, and asked the court to issue a mandamus ordering defendant to issue the necessary certificate.The defence said that,the license’ had previously been hold by a single man. The rosiiit was most unsatisfactory from a moral point of* view. Defendant considered it essential for the protection of female servants, and in order that the house might be properly conducted* that the licensee's wife, -should reside ' with him on the premises. On November 25th Airs Bright called on defendant and said Tie would, under no circumstances. reside in the hotel in Otaki. . Air T. Young appeared for plaintiff and Air 11. 11. Ostler for defendant.

NOT A QUESTION OF, CHARACTER. In opening the plaintiff's case Mr Young said that Bright had- lived for .many years in the Wairarapa, where ho had* been a .sawmiller, a. member of the Licensing bench-and a Justice oLthe Peace. ' A short'.; time' ago -he gave-up the sawmill, and not desiring to interfere with his son’s management of a farm he held, purchased a freehold property at Otaki.- He then applied to the magistrate for tho certificate but.was refused. Plaintiff had a good reputation and was of good character. K . His Honor : There is ‘ nothing against his character at ail. The refusal of the certificate by-tho magistrate was not on personal grounds, but simply because he thinks that a man ought not to carry on a hotel and live separated from his wife. If Mrs Bright had been'prepared to go and reside at. the hotel with her husband the magistrate would have granted the certificate. • • Mr Young said that the certificate was applied for under section 85 of the Licensing Act, which required applicants to produce a certificate of fitness. His Honor: What does fitness mean? Mr Young: It means personal fitness.

His Honor: Supposing a young unmarried man of twenty-one years of age applied for a certificate for a house in which there would be barmaids- and chamber-maids about? You say that if a man is competent to carry on the business he is entitled to a certificate? Mr Young: Ye?. I-must hold that 1 and ask that the magistrate be directed that if a man'is otherwise fit the license must be granted. Mr Bright is not legally separated from his wife. His*'Honor: But she says that she would not reside in the hotel under any circumstances. Now, if she would only go and live there for week ends INTERFERENCE WITH RIGHT. Mr Young: ‘'Yes/ 1 Counsel went on to say that the statute provided for transfers to "any person/’ with certain restrictions, but in.this case (he submitted) the magistrate had ' endeavoured to add to the clause that no license shall be granted to any xinmarried man or man "whose wife does not reside on the premises. This was an interference with, the right that Mr Bright had under the 1 statute.

His Honor: Ho has nodegal right, because he has not been previously licensed. ,

Coxinscl concurred, but urged that it roust not bo left to the magistrate to exercise his discretion according l to a whim or fad about the persons to be licensed. He had the highest regard for. Mr Thomson, but it might be that the latter was swayed by a ijorsonapopinion on matters of this sort.

His Honor: No doubt ho may conscientiously, lipid the opinion- thht n man who is married ought not to have a license unless the wife lives with him. Mr Young; 1 have no doubt .that-Mr Thomson docs hold that ox>inkm conscientiously. Counsel went on to urge that under the law it was no'ground for taking a license away if, after it-had been granted, a licensee's wife declined to live? -\yith him. Ifis Honor; The utmost. T- could possibly do is to refer the matter bade to the magistrate to’hear and. determine with an indication from me that the mere fact of a man's wife being imwilling to live in the hotel with him' is not of itself a sufficient ground for' refusal of a certificate.

Mr Young: Wo could not ask your Honor to do any moro than that.PERSONAL XMTNESS: TILE POINT. Counsel for the defendant, in opening, said that the practice iu New Zealand in administering the Licensing Act for a good many years had been to refuse certificates to men living apart from theirwives. Only that morning he had made inquiry' from the Inspector of Police in Wellington, and ascertained that there was not one single case of a license granted to a bachelor, tt was all a question of personal fitness. His Honor; A man may bo of very good character and yet utterly unfitted to run an hotel. .

Mr Ostler submitted' that the fallacy of the argument, put forward on behalf of tho nlaintiff was. that it had been assumed that because an applicant was of good fame and character- tho magistrate must-giant a certificate. But it. was clear that the magistrate had discretion vested in him* to say whether each applicant was a*fit and proper person to hold a license. It was a judicial discretion, and before theconrfc could interfere by mandamus it must! be satisfied, not only that the discretion wits not exercised properly, but tbatit was exercised iu such a way as to be quite un-

reasonable and quite lawful.' 1 He sub.mitted/that'the exercise of the discretion in this case was not only not unreasonable and unlawful, but. was eminently good and. .valid,, and quite within the jurisdiction, of the magistrate. The re-, strictioh imposed was one which hnd been found necessary in tho‘ administration of the licensing law, and was quite within the spirit of the law.) He submitted that the magistrate came to an honest, conclusion which was’ not against either the spirit or letter of tho law, Iwhich- distinctly threw upon‘the magistrate the duty of deciding .whether aii applicant was a-fit and properj person to be licensed. The magistrate , ing exercised his 'duty properly the present court, it was submitted, hatli no jurisdiction to issue a mandamus as asked. In the course of further argument, Mn Young urged theft magistrates and /the police must not be 1 allowed to . legislate l os they were doing : ; /• ’ THE EE:\h TEST. His Honor said that the real test was this: Supposing, a magistrate, .in [one district granted a certificate of .fitness to a man .separated'from his wife or to an unmarried man, and the magistrate in tho next-district said: "My ’opinion, differs altogether. I consider,- t-ha,t ; no hotel can be properly conducted, unless, a man has his wife with him. and T; refuse the: certificate." In such a case( the court could not interfere by man-, damns.

Mr. Young agreed- that this was, the position. ! /‘. • * • His Honor: Supposing I sent this back to the magistrate and said that he must not apply a general rule but determine a particular case, and if on that ; he came to the same decision as before, how could the court interfere then? I am 31 pt at all sure that .it’s not a good rulo for evoiy public-house-in which female servants’ are employed that the licensee must be. a married man with his wife living with. him. It is true that the Legislature has not excluded fit unmarried men from holding licenses, but in order that proper conditions ma3 r be preserved, Legislature has delegated, to a particular functionary the duty of. saying what constitutes fitness /ini those to whom licenses should be grant-*. ; cd. It is within the discretion of oj magistrate to say of .an applicant: "I consider him. to bo an unsuitable person to hold a license for this particular! house because he is .unmarried and there is a staff of females." Mr Young: But what if the magistrate says: "I consider him unfit tefchoid oj license because he, is unmarried, and I never grant licenses to unmarried, men"? All-we ask is that the matter go back to tho magistrate for Federation, -with, a direction to the effect that if a man’s wife is not residing with him. that by itself is not sufficient reason for refusing a certificate. - His'Honor.: Even supposing I agreed kavith- your argument, I would not bo prepared to give that direction. It would be quite sufficient reason for refusing if the house was one that required a .woman to bo at the head of it. GENITAL RULE OBJECTED TO. . Mr Youiig said the chief objection was to'the existence of a general rule on the matter. If the magistrate were informed. he must not have a general rule, there would probably be a different decision, for if there was any case ini which a man should get a license this was the one. for the applicant was about sixty rears of ago. His Honor remarked that the papers indicated that no general rule had applied in this case. If a licensing committee had granted a license to an unmarried'man, or to a man separated

•from Ills.wife, the court*could not quash that license, for it would be quite beyond iitß jurisdiction. . •. i Jtr Young, after further argument. Said that the plaintiff wanted! it;to go forth to magistrates that they could not make and hold the rule which they andl jhe police seemed to have made. • His Honor said he would have to look into the Act. and would reserve hit judgment until January Ith.