CHALMERS LICENSING POLL.

Otago Daily Times, Issue 12602, 4 March 1903, Page 7

CHALMERS LICENSING POLL.

:VICTOBY FOB THE PEOHIBI-' TIONISTS. In the Supreme Court'on Thursday last his Honor Mr Justice Williams heard an application for' prohibition to restrain Mr 0 Graham, S.M., from proceeding to hoar the Chalmers licensing petition on the ground that he liarl 110 jurisdiction to do so. • Mr A. 6. Adams appeared in support of the application, and Messrs J. H. liosking, A. C. , Hanlon, and D. D. Macdonhld (instructed- by Mr P. W. Platte) to oppose; • Yesterday his Honor forwarded to tho Registrar of tho Supreme Court in Dunedin (ilr G. A. King) his judgment, as follows : •Paragraph 0 of subsection 1 of section 7 of | The) Alcoholic Liquors Sale and Control-Act : Amendment Aot, 1835," provides that if, the ■ result .of any licensing poll is disputed, any 60 electors may require an inquiry to bo held in manner provided by soction 48 and tho sub- ; sequent sections of "Tho Begulation of Local Elections Act, 1876." Section 48 o£ that .net! provides foi the filing of a petition in " any ! Resident Magistrate's • Court in the district" I in which the election takes place, and-that | "the resident magistrate of such court" shnll ii old an inquiry as to the matter alleged in such polition.. The forty-ninth section provides that "suchinquiry shall,be commenced within 14 j days after such petition is filed, and the re'si-'j dent magistrate Bh'all give not less than seven j days' public notice of the time, of holding the same." At iho time the act of 1876 was passed " The Resident Magistrates Act, 1867," was in ] force. By that apt the colony was divided into Resident Magistrate Courts districts, and thero ■waß a resident magistrate in each district who bad jurisdiction in such district only. By section 8 of that act tho Governor in certain cases could appoint more than one resident magistrate for each, district, but in that event each such magistrate was to be considered "the resident magistrate" ot that district. In the above circumstances there, was no doubt who was " the ! resident magistrate of such court" mentioned in-section 48 of the act of 1876, to whom the jurisdiction given by that and the following soctions belonged, and upon whom the duties mentioned in those sections were imposed.'. In iho rare cases in which thero might have been more than one resident magistrate in a. district' either o[ them would have had jurisdiction, and could have been compelled by mandamus to cseroiso.it. But by "The Magistrates' Court Act, 1893," things were entirely altered. Magistrate's Courts were constituted, but without ariy territorial limit of jurisdiction, and stipendiary magistrates were appointed who could sit- in any court. In this altered state of thuiga there is no difficulty in "ascertaining ■whore, under section 48 of the act of 1876, the- petition is to be filed—viz., J in any ' Magistrate's Court office in the | olectoral district. The difficulty is to determine the petal to whom tho torm " the resident magistrate of such court" is now applicable. Such person, whoever he may be," is' th't onlyj peison who now has the jurisdiction given by section 48, and who must perform the duties prescribed by section 48 and the followin'g'.sections. Section 6 of " The Magistrates' CAurt'Act, 1893/' provides that where in an unrepealed act reference is made to any provisions of any act repealed by tho act of 1893, ot to any court, office, or officer established, constituted, or appointed under any repealed act," such' reference is to bo construed and eliall operate as if rn'ade to the act of 1693, or to th. of that act corresponding to • tho provisions referred to or to tho court, office, f oi; officer constituted or appointed under the oqt of .1893. Now, the act of 1876 refers to "the resident magistrate of such"court.'' J.'he ■ act of 1893 does - away with resU dent magistrates and constitutes other \ magistrates. The act of 1876 must therefore Dow bo read as if the words used were simply " tho magistrate of suehWrt," Do, then, these or any similar words occur in the act o£ 1893, and to what person do they refer? Section 12 of the apt of 1893 provides that "courts shall bo held at such times and places as shall bo ddemcd mo3t aravenient by the magistrate thereof." : SecHou 18 provides " that there 6hall. be for each court a clerk who shall be appointed by and hol'd office during the pleasure of the Governor; but the magistrate of the court, if he think St, may suspend tho clerk of such court from the exercise of his office until the Governor's pleasure shall be known." j.te act therefore contemplates that although there are no territorial limits to the jurisdiction oi any court, rad although any stipendiary magistrate may exercise jurisdiction anywhero in, the colony, yet that there may bo a magistrate who answers to the description of the magistrate, of; a,particular court. It is well known,, that although a magistrate is not by the statute assigned to a particular court, yet that,, as a fact, presumably by the. direction of the Department of Justice or by anangement with that department, it particular magistrate usually presides in each , court. That state of things is' rccogniscd by the act of 1P93. Section 18 I provides that any magistrate, at the request of I a-magistrate usually presiding in a court, may presido in his place, oi otherwise act in his; stead.. Section.32, ss. 2. also speaks oi tho. magistrate usually presiding in the court. I , think that the reference-in sections 12 and'lß' to,tho magistrate of the court is to the magistrate who usually presides in tho court, and that Iho powers conferred by those sections are conferred upon Buch magistrate, and not upon a magistrate who, at the request of or by arrangement with the magistrate usually presiding, presidesin bis stead. If "the magistrate of a court "in the act 'of 1893 refers to the magistrate usually presiding in that court, then the same meaning would bo now attributable to ft similar'expre3kion in Section 48 of the net of 1876. . If this interpretation be applied to the circumstances of the present ease it is clear that Mr Carow', and lot Mr Graham, is the magistrate on whom jurisdiction is conferred by section 48. Mr Carow actually presides at the court at Port Chalmers. Mr Graham only presides there occasionally at the request of or by arrangement with Mr Carcw. The jurisdiction given by section 48 is to a persona desigriata, who is constituted a special tribunal fut the purposes mentioned in that section. ,If the magistrate actually presiding iu the court js tho person indicated there is certainly :io power for hint to delegate to any other magistrate the special judicial authority thus given nun. No doubt it is possible to imagine cases where ii would be difficult, if not impossible, to Bay what particular magistrate was the magistrate referred to in sections 12 and'lß of the act of 1853, and therefore in section 48 of the act of 1876. If a jurisdiction is given only to a person defined, and no person can he found to whom the definition applies, then no one would have jurisdiction. In, such a case persons complaining of irregularities in a local election would have no remedy because the Legislature had not provided a tribunal to which thsy could Apply. If the conditions of ■ the act which provide for an appeal cannot bo or .are not complied with, the persons complaining can have no remedy, Jthough they did all that the act calls upon them to do, and the noncompliance with the conditions arose from circumstances entirely beyond their control. This .is well illustrated by the case ot Bastings v. Stratford (18 N.Z., fil3). 11l the present case thero is no difficulty in ascertaining who tho magistrate of the court at Port Chalmers is, and that he is Mr Carew and not Mr Graham. As was put by Mr Adams, it is out of the question to suppose, under the circumstances mentioned in the affidavits,that if Mr Graham had declined to act a mandamus would >3:ave gone to compel bim to do so. If a- mandamtlfl would not go to compel Mr Graham to act judicially in a matter because it was not his business, then foi the same reason a prohibition would go to restrain him from acting. The plaintiff is therefore entitled to a writ ot prohibition, with £15 costs, and disbursements to 1)9 paid by the defendants other thau Mr Grliham. . THE ADJOURNED INQUIRY. The adjourned inquiry iflto alleged informalities in the conduct of the licensing poll for the Chalmers district again came before Mr Graham, ,S.M., at Port Chalmers, yesterday morning. ■Mr Plaits (for the petitioners) said that in view of the proceedings im the Supreme Court he would" ask for » further adjournment of the inquiry till the 12th met. His Worship asked if any objection was raised on the other aide. "Mr'Platts replied that he understood the other cider was agreeable. ' His 'Worship said he was sorry they had again been called together urn necessarily, tut it could not he helped. Hi. hands were tied as long as the case was ponding before .his Honor Mr Justioe "Williams, and he. could-do no other than fall in with, the couamel's wishes and adjourn-the court until March 12. >