THE SYDENHAM LICENSING COMMITTEE.

Otago Daily Times, Issue 9140, 12 June 1891, Page 4

THE SYDENHAM LICENSING COMMITTEE.

(Per United Pbess Association.)

CmtiSTcnuncn, June 11,

Tho Sydenbam Licensing Committeo an- n nounced thoir decision this morning with regard a to applications for licenses. The Chairman ii said that the oircumstanoes under which the » committee acted were unusual, and he therefore deemed it necessary to indicato plainly on what basis they had proceeded. They had been I elected as a prohibition committee, and, under t tho impression that they were empowered to I refuse all licensee, they found themselves re- r Btrsiued from such aotion by Mr Justico Dennis- c ton's interpretation of the act. They felt no i option but to obey such an order until Buch t time as his Honor's order was reversed or con- t firmed by the Oourt of Appeal. Tho two points \ which they had given effect to were—(l) Nob i to refuse tho licenses applied for on the ground i only that the licenses are not required by a | majority of the ratepayers of Sydenbam, (2) 1 That, in considering whether Buch licenses are I required, they must consider whether they were < required according to the reasonable wants of the i residents who may desire to purchase liquor. ; The committeo had striven to act in recognition : of these directions; but it seemed that his Honor did not direct them to ignoro the desire of the ooramunity that no excessive drinking facilities should exist in thoir midst, and be did' not direct them to do more than allow provision for meeting the reasonable requirements of the residents where hotels are in close proximity to one another. The committee had taken this fact into consideration in dealing with the applications, and the chairman then announced that the decision of the committee was that they had refwed renewals of six out of the eight applications on the ground that the committee, of their own motion and after hearing the evidence, were of opinion that the premises were not required. With respect to the two remaining application?, the committee were inclined to grant them, but postponed a decision until Juno 22. Notice of applications for adjournments was given in the six cases absolutely refused. MR JUSTICE DENNISTON'S JUDGMENT. The following is the full text of the judgment delivered by Mr Justice Denniston in the Supreme Court, Christchurcb, in the case of Taylor v. Isitt and others, which involved the question of the validity of the election of the Sydenham Licensing Committee: — The plaintiffs in this action ask for an order declaring the election and proceedings under which the defendants claim to bs elected and to be the committee for the licensing district of Sydenham void, to prohibit them from carrying out an alleged illegal agreement to close all tho public houses in the said licensing district, and for a writ of certiorari removing the proceedings in connection with such election into this court.. The first point on which the proceedings ere founded is an extremely technical one. By section 5 of "The Licensing Act Amendment Act 1882," those provision* of the act which enact that the resident magistrates shall act as returning officers at elections under the act are repealed, and it is provided that the local body having jurisdiction throughout any licensing district Bhall appoint tho returning officer for such district, in manner provided by " The Regulation of Local Elections Act 1876." The section goes on to enact that 11 within licensing districts inside of counties as defined in the said act, where more local bodies than one have jurisdiction throughout tho districts, and within licensing districts outside of the counties aforesaid, where more local bodies than one have jurisdiction, the Governor shall appoint which of such local bodies shall, for the purposes of the said act, bo deemed to have authority throughout the licensing district, and shall make all necessary appointments and do all things required for the conduct of elections within the licensing district." The Sydenham licensing district is outside of a county. Within the district there are (besides the council ef the borough of Sydenham, with which borough the district is conterminous) three local bodies within the definition of " local bodies " in the Regulation of Local Elections Act. That is, they arc bodies elective, or partly elective, and empowered to levy rates, and to which the Regulation of Local Elections Act has been made to apply. These bodies are the the Christchurch Drainage Board, the Lyttelton Harbour Board, and the South Waimakariri Bivec Board. Each of these local bodies has jurisdiction (to use the words of the act) over a much larger area than that comprised in the Sydenham licensing district. Each has power to rate such district directly or indirectly, and each has duties limited to the particular and very special functions for which it was created. No one of them has anything to do with the general administration of the district. The whole of the plaintiffs' argument on this point obviously depends on the contention that" local body" in section sof " The Licensing Act Amendment Act 1882" mast be read as the same as " local body " as interpreted by section 2 of "The Regulation of Local Elections Act 1876." The latter act is incorporated (section 5) with the former. As a rule the same words must be read as having the same meaning throughout an act. But this rule is not invariable. I'he interpretation section of the Regulation of Local Elections Act provides that the words therein mentioned shall have the several meanings attached to them, "except where something in tho subject or context is repugnant to suoh meaning." The words " local body" are not used in any part of "The Licensing Act 1881." They occur for the first time in the Amending Act of 1882. The subject matter of both these acts is providing for licensing matters, inter alia, the creation of licensing districts, and provisions for licensing elections. The Regulation of Local Elections Act provides for holding elections for all elective bodies. In the acts providing for licensing districts provisions are made for making such districts, as far as possible and convenient, identical and conterminous with existing and future boroughs, wards of divided boroughs, ridings of counties, and road districts, and suoh other districts in parts of the colony not comprised within any of the foregoing as may seem fitting. Only the districts within or comprising boroughs, ridings of counties, and road districts are ordinary licensing districts. The others are special districts. It is only in ordinary districts that licensing committees, and consequently licensing elections, can exist. Every licensing district is assumed to have some conterminous local body with a valuation roll or rolls so separately existing as to coyer and no more than cover such licensing district. Thus by section 13, subsection 1, the electors are to be ratepayers of the district. In the interpretation section (section 4) " ratepayers' roll" means a roll of county electors or a burgess roll, or a ratepayers' roll entitling the electors, burgesses, and ratepayers within a borough, riding of a county or road board district respectively to vote at elections of members of a borough council, county council, or road board respectively. Subsection 4, section 13, provides that the election shall be conducted in the same manner as elections of members of borough or county councils or road boards are. Such conditions are made possible by the provisions, already cited, of section 6 of the Licensing Act. They obviously do not exist in tho case of the Christchurch Drainage Board, the Lyttelton Harbor Board, and the South Waimakariri River Board. There i 3 no conceivable reason for introducing into the licensing acts local bodies absolutely extraneous to the subject matter of the act, and in no way connected with the machinery for working it, while there are other local bodies, mentioned and described in and interwoven with the acts — which supply the machinery for the act — and with one or more of which every ordinary licensing district must be conterminous. It is, I think, obvious that the subject and context require that in section 5 of the act of 1882 the words " local bodies " mußt be read as limited to and meaning such lastmentioned local bodies. Any other construction would lead to patent absurdities. If a section, however small, of a local body within the interpretation clause of the Regulation of Local Elections Act, no matter how incongruous its functions, intruded into any licensing district outside a county—a condition of things which, with our multifarious local bodies, must apply to every licensing district—the Governor must go through the form of treating such local body as competing for the management of elections with the governing body with which by the act such licensing district is to be conterminous. A careful examination of the provisions in the act of 1882 supports, I think, this view. Subsection 1 of seotion 5 assumes one local body as having jurisdiction throughout a licensing district. As I have said there is hardly a district in New Zealand of which this can, on plaintiff's contention, ba said, Sub-section 2 is obviously intended to provide for cases where there may be more than one local body, of tho class referred to in the act of 1881, occupying one licensing district either separately or conjointly. Such a case is indicated in sub-section 5 of section 13 in the act of 1881, where it is provided " where any new district comprises within its limits more than one sub-division of a borough or county, having separate ratepayers' rolls in force therein, respectively, sach separate roil shall together form the district ratepayers' roll for ;the district." The wording of sub-section 2, section 1, act 1882, supports this. While it speaks, as to licensing districts inside of counties, of more local bodies than one having jurisdiction throughout such districts, when it speaks of licensing districts outside of counties it says where more local bodies than one have jurisdiction, omitting the word throughout. This is explainable because in the cases of districts inside counties there may be separate bodies each having jurisdiction throughout. Bat outside counties there can, in the cose of the local bodies mentioned in the Licensing Acts, be no such overlapping jurisdiction. There are other provisions in the act which are in the same direction, but I need not go into them. I think what I hsve indicated shows that in reference to the words "local bodies" in section 5 of " The Liceusing Act ISB2 " the subject and context are repugnant to giving them the meaning assigned to them in the interpretation section of the Regulation of Local Elections Act, and that they must be held to refer to the local bodies mentionid in section 6 of "The Licensing Act 1881." Having thus come to the j conclusion that there has been no irregularity in the appointment of the returning officer,

it is not neceosary for me to express any definite opinion as to whether the alleged irregularity is one which could bo dealt with in this court. lam inclined to the opinion that it was intended that every question as to the validity of an eleotion hold under the act should bo determined as therein provided, but the necessity of giving judgment in this matter at ati early date has prevented me from going fully into the very large number of cases oited in the argument on this point. As my judgment may bo reviewed, I think it right to say that if, as seems to be pretty clear, the court has a discretion as to granting or refusing a quo warranto, I should certainly, had I thought the plaintiffs had established the irregularity they relied on, have in this case exercised such discretion by refusing the writ. It is difficult to imagine any case moro purely technical and more wanting | in merits. It is not disputed that the returning officer haa been appointed, and the election conducted by the only body which could in fact have been selected for the purpose, had selection been necessary. He has held the oOioe and performed the duties for eight years. The plaintiffs' licenses were granted by a committee returned by him. The eleotion haa been held in due course as prescribed by the act, and there is no suggestion of any impropriety or irregularity. It would be an extraordinary and very unsatisfactorily result if the title of the committee could be successfully attacked on a techaicality unearthed as a last resource by the ingenuity of counsel. lam unable to attach any ■ weight to that part of the plaintiff's motion | which asks to have the eleotiou set aside and the defendants removed from office or prohibited from performing the functions for which they have been elected, because of what is called an illegal agreement between them and those who havo elected them. It is uot said that they are not in accord with their constituents, or that they propose to perform their judicial duties other than io. accordance with their own opinions, The elected and electors agree in their expressed determination to oppose and prevent the sale of liquor by every means which they consider lawful. If, as in the plaintiffs' assumption, they sharo in the erroneous opinion as to the proper interpretation of certain of the powers given under the act, it is, I think, absurd to contend that such an error invalidated their eleotion. No case has been cited, no case can be cited, for Buch a proposition. It is true, as alleged by the plaintiffs, that the defendants have in a sense a bias, a very pronounced bias, against the calling of those whose interests will be so largely in their hands. But this bias again is shared by their constituents. As pointed out by Mr Justice Richmond, in Hamilton v. Fraser and others, 5, N.Z.L R., 1., this is the inevitable result of leaving such questions, involving such strongly felt and hotly contested issues, to be decided by judges popularly elected. As said in that case, the question becomes a contest between the publicans and the temperance societies, a result, as the learned judge puts it, of necessity inconsistent to a great extent with the existence of a true judicial temper. But, he adds, it must be supposed that the Legislature in its wisdom has voluntarily incurred the risk of this in a choice of difficulties. There are, however, the further questions: Have the defendants intimated their intention of administering the act under a misconception of their powers under it? and, if so, can this court now interfere ? As to the first question, the first point is, How have they interpreted the act ? On this point they leave us in no doubt. Mr Isitt, one of the defendants, who calls himself—there can be no doubt rightly—the leader of the " prohibitionists," has in a very able, a very frank, aud a very straightforward affidavit stated the position of himself and his colleagues. They claim that the majority in any district has the right to determine whether any licensed house is necessary for the sale of liquor, and that independent and regardless of the wants and wishes of the minority, however large. Their views do not depend on the character and management of the individual houses. They are themselves prohibitionists, that is to say, they hold that the public sale of liquor should be prohibited absolutely, bb in itself an evil, and they claim, as I have said, the right under the act to give effeot to these views. They Bay—and I believe quite honestly—that they will hear and weigh arguments on the other side, but they would, I think, be the first to admit that practically the question is prejudged. That I am not overstating their views will, I think, be shown by the fact that Mr Isitt admits that when a candidate for the licensing district of the North-East Ward of Christchurch —the centre of the city— he intimated he would consent to grant licenses to two or three of the commercial houses in that ward, not as himself considering even that limited concession proper, but because he believed the majority of the ratepayers in the ward regarded some public houses as necessary. He speaks of prohibition as a local and not a national question. In their statement of defence the defendants say " they are prepared honestly and fairly to hear and determine the said applications of the plaintiffs, and any other applications that may be made, and if, notwithstanding the result of the said election, the plaintiffs or any of them are able to satisfy them that the said public houses or any of them aro required by the majority of the ratepayers and adult male and female residents of the said licensing district, and not merely by the plaintiffs themselves and those immediately and financially interested in the said public houses, or by a small portion of the community of Sydenham, the said defendants, will not arbitrarily, dishonestly, and unjustly refuse the said applications, or any of them." That amounts, of course, to a recognition of local option—that the question is to be decided by the views of a majority of the male and femalo residents of the district, whatever may be the wishes of the minority. Is this view of the powers and duties of licensing committees a correct one ? In my opinion it is not. Ido not think the act either was intended to give, or does give, the right to what is termed local prohibition. Apart from any restrictions contained in the licensing laws, there is nothing to make the purchase or sale of liquor an illegal act. The various Licensing Acts which have from time to time been passed have been passed for what may be called police purposes, and not — except incidentally — with the view of preventing any person from purchasing liquor should he desire to do so. Restraints on individual liberty are not to be imposed except in distinct and unambiguous language. The right claimed by the defendants is a serious interference with such liberty—it is the right of what may bo a bare majority to impose upon a minority the consequences of certain views of the majority as to the impropriety of drinking intoxicating liquor, and to take from them certain hitherto lawful rights to obtain what they desire and think for their benefit. It is, of course, open to a Legislature to give such powers to a majority; it has been done elsewhere, but one would expect such a new departure in liquor legislation to be enacted in plain terms, and as a substantative part of the act. That is certainly not the case here. The power of local prohibition in this colony,if it exists at all, exists by virtue of a few words at the close of section 62 of the act, a section which enumerates the grounds of objections to a grant of new licenses, and Bimilar words in section 81 as to renewals. The words are " The objections which may be taken to ths granting" (or renewal) "of a license maybe one or more of the following. .. . That the licensing thereof" (i.e., the premises) "is not required in the neighbourhood." These words must, of course, be read in connection with their context and subject matter "Required" is not an abstraction, its meaning must depend on the standpoint from which it is considered. In one sense a license is not required at all, men could exist without it, From the prohibitionist standpoint it is not only not required, but a positive evil. From what may be called the administrative and police standpoint the extent to which any license is required will depend upon the existing accommodation and upon the population, its extent, its character, its habits. I think, as I have already indicated, that the last is the proper point of view. It it important to notice that the " requirements " are to be those of the neighbourhood, not of the district, not of the majority. It would be strange if in a statute providing for regulating the sale of drink the requirements of those who in any neighbourhood winh to drink is to be determined by the wishes of those in the district who do not wish to drink. The question is to bB decided by an honest consideration—l will not say of the interests, for those I have no doubt the defendants honestly nud perhaps rightly believe they would be consulting by refusing tho licenses— but of the rights of the minority who may think different from them. These rights are, I thiuk, to have the necessity or otherwise of a public house in any neighbourhood determined in a judicial spirit, according to the circumstances, conditions, and facilities of its surroundings from tho standpoint of human nature, aa it iB not by the mandate of a majority on the abstract question of the impropriety of all public houses. There are other provisions in the act which support this view, as section 8, which provides that any place, even in existing licensing districts, may be appointed a special licensing district where, owing to a sudden increase of population or otherwise, the necessity for the immediate grant of public licenses exists. But the strongest argument from the statute itself is to be found in those sections (45 to 54) which provide for a limited local option—that is, for permitting the majority of ratepayers in each licensing district to pronounce absolutely and without reason given for or against any increase of licenses. It would seem an extraordinary thing to provide elaborate machinery for this purpose if coincident^ with it the same majority under another section of the act may be electing a committee with full powers to give effect to tho wishes of the majority, not only in refusing to increase tho number of house?, but in suppressing those which exist. It will, not be necessary for me to cite the English cases, which seem to me to support what I have just stated as to my view of the powers given to committees. They are all considered and commented on in Sharp v. Wakefield in the House of Lords, reported in The Times Law Report?, vol. vii, p. 389. I shall confine myself to one citation from tho judgment of Lord Chancellor Halsbury (page 390). " I do not feel, therefore, though the language of the Statute and the powers given by that language are so great and so unqualified, that the mischief or danger apprehended by the appellant is at all likely to arise. The Legisla- j ture has given credit to the magistrates for I exercising a judicial discretion that they will

fairly decide the quoßtions submitted to them, I and not by evasion attempt to repeal the law I which permits public houses to exist, or evade it by avoiding a plain exposition of the reasonß on which they act." "By evasion attempt to repeal the law which permits public houses to exist" seems to me exactly to describe the result of reading the act a3 the prohibitionist party desire to read it. I do not, of coarse, suggest that they are intentionally endeavouring to evade it, but such is, I think, the result. I do not think the fact that in this colony the committee ia elected directly by the ratepayers, and in England by the justifies in quarter sessions, alters the principle. There is one point suggested by Mr Isitt'u affidavit to which I think I should refer. It seems to be assumed that it is intended by the act that no licenses should be granted to any house "not needed" (to quote the affidavit) "for lodging accommodation or commercial convenience." There is nothing to that effect in the act. It is true that the Jaw h«s attached to every licensed house the burden oC providing a certain minimum public accommodation for lodging, but I do not find in the act any indication that houses may not be required in a neighbourhood simply to provide those who wish it with liquor. Ido not mean, of course, that these points and the character of the neighbourhood and of its residents are not elements to which full weight must be given in exercising the discretion entrusted to the committee, but rightly or wrongly, the Legislature has contemplated that people may require and be entitled to get drink who do not want lodging. Only the question should, I think, in this, rs in other points, not be looked at from the prohibitionist standpoint. There remains then only the question whether the court can interfere at this stage. On this point I find great difficulty. On the one hand, as I have said, the defendants are a duly elected committee, entitled to sit, to hear and to determine the plaintiffs' applications. What this court is asked to do is to restrain them from acting on a particular view of the law. No case has been cited in which a court has gone the length I am asked to go. All the cases have been those where the objection went to the jurisdiction— the right to sit at all. A couct h not, however, bound to hold its hand merely because there is no exact precedent to cover its action. It must act on general principles, according to the circumstances of each case presented to it. The circumstances cf the prestnt case are very unusual. The defendants have by their statement of defence, and by their affidavits, individually and collectively, intimated that they intend to deal with the defendant's applications for a renewal, on a construction of the statute which I have just said I think erroneous. If the defendants have been advised, and I presume they have been, that their view is the correct one, and if they are unconvinced, and I have no reason to suppose they will be convinced by my expositions of the law, then if I simply dismissed the motion they would not ba bound tt> follow what would amount to a mere judicial dictum, and one as to which they would be unable to obtain, as they have a right to, the opinion of a higher court. The most they could be expeoted in such circumstances to dc would be to state fairly the grounds on which they decided, leaving the plaintiffs again tc come to the court, causiDg fresh expense and delay. In the meantime irreparable injurj might—l do not say would, that must depend on defendants' discretion—be done to rights ol property, rights which this court is entitled tc protect. Under all the circumstances I thinfe the interests of both parties would be best con' suited by making an order ia terms of the opinion I have expressed. I think I shoulc make an order restraining the defendants frorr refusing the licenses of the premises of tbi plaintiffs or any of them, on the ground onlj that the licensing of such premises or any o! them is not required by the majority of th< ratepayers and adult male and female resident! of the Sydenham liconting-district. And de daring that in considering whether the licensini of such premises or any of them is required it the neighbourhood of such premises, they wil consider whether such premises are requirec according to the reasonable wants of such of th residents as may desire to purchase liquor. • : think this will raise the points on which . have decided, and enable_the defendants t( have, what I should myself very much de sire, this important and by no means elea question decided by the highest court in th colony. lam anxious to be understood as no desiring in any way to interfere with th discretion of the committee, except in so far a they claim to exercise their discretion on pro hibitionist lines. The very large, one may sa; the absolute, discretionary powers given t' committees will leave it open to the defendant very largely, if not altogether, to evade th leault of what I have previously stated as m; view of the act, either by (to use the words o the Lord Chancellor in Sharp v. Wakefield avoiding a plain exposition of the reasons o: which they act, or giving other reasons than th real one. Nor can I ignore the temptation t do this. The members of the committee are th chosen leaders of a party who are struggling t destroy or reduce what they—and all of usfeet to be a crying evil, a cancer in the bod politic. They believe prohibition to be th most powerful weapon against such evil. Th election on the present defined issue in favour o prohibition shows that they are backed by th public of their district. Closing the whol of the public houses in an important dia trict would be a moral as well as a physicß triumph for their cause. They have reac and probably been advised to read, th law other than I have read it, and will, a I have said, probably be unconvinced b my exposition of it. Under these eircum stances it is no light thing to be asked to hoi their hands in the moment of victory; nor eas to resist the temptation so to act as " To do great right, do a little wrong," to sink th enthusiasm of the party leader in the calmues and impartiality of the judge. So far the aotin of the committee has been straightforward an above board. I have had an opportunity o seeing and hearing them in other proceeding connected with this matter, and I have n reason to doubt that they will do their dut honestly. They will, I am sure, remember th often quoted words of Mr Justice Richmond- " It is certain that the cause of tempersnci holy though it ba, cannot be advanced by disre K»rd of the still more sacred claims of justice. As the defendants have succeeded in a substac tial part of the claim, which indeed oceupie most of the time at the hearing, I think ther should be no costs. Mr Oaygill asked for leave to appeal. His Honor said he had been largely guided i making the order by the hope that one or th other of the parties concerned would appeal as he was anxious, under the circumstance! that the judgment he had given should com under review of the full court. He wonld b glad to grant the leave asked for.