THE CHALMERS LOCAL OPTION POLL.

Otago Daily Times, Issue 12649, 29 April 1903, Page 7

THE CHALMERS LOCAL OPTION POLL.

DECISION OF THE APPEAL COURT. 14. MAJORITY SUPPORT JUSTICE,; ;■■: "v -' Williams.. THE-.iPBTmoX CANNOT BE ' •'••» ' HEARD. '/ (Per United Press Assoouims.) WEEUNGTON, April 28. Thib morning the, Court of Appeal gave judgment in the Chalmers licensing case—' an appeal by Mr Graham, official assigneo trad, 'stipendiary magistrate,. and '.others against the" decision of Mr Justice Williams a; writ of prohibition, on the ap plication of J M,: Callaghan, to prevent Mr Graham hearing the petition against the validity of the Chalmers licensing poll, at which uo-license was carried. ' THE MAJORITY JTO&MENT. Tho Chief Justice read the judgment of himself'and Justices Conolly and Cooper qs 'follows;—

Tho question raised in this appeal is: TVhat is. the correct interpretation, of the words "the resident magistrate of such court," appearing in section 48 of "The Eegulation of Local' Elections Act, 1876? If "Tho Resident Magistrate's Act, 1867," ■which'was in existence when this (1876) act was passed, were still the law, there could have been little doubt as to who the E.M. was. "The Magistrate's Court Act, 1893," has, however, repealed "Tht Besident Magis-trate's-Act, 1867," and altered the law regarding magistrates.. Formerly magistrates were appointed magistrates in a particular district; now they are. magistrates for tho colony. There are two questions that arise—. (1). Whether any stipendiary magistrate has jurisdiction to hear a petition under tli3 Regulation of Local Elections Aot; (2) if not, whether Mr Graham does not erne within tho definition of " magistrate of such court" within the meaning of 'the fortyekhth section. The 1893 aot makes magistrates magistrates for the colony. Theie are, however, various provisions in the act . that clearly recognise a local 01 quasi-local jurisdiction. For example, section 12, where the words used are: " Such courts shall respectively' be held on such days, etc., as shall, be, deemed most ■ convenient by the magistrate thereof." Section 16, where the •words are: "At the request of a magistrate usually presiding in a court"; section 18, ■where the words aro: "Tho magistrate of the court"; also in sections 32, 37, 44, ,78, and 120. The Regulation of Local Elections lAct meant to give, and gives, jurisdiction to a particular magistrate. Ho is selected and defined as the resident magistrate' of the court in which the declaration equivalent to a petition is -filed. If there is, therefore, some stipendiary magistrate who can be balled tho magistrate of the court at Port Chalmers, in which the declaration was filed, that magistrate is the person pointed out by the act as the magistrate having jurisdiction 'to hear the petition. This was not disputed, but it-was said that there was now 1 under ''•'The Magistrate's Court Act, 1893," no 'particular magistrate that answered that description. All the magistrates of the colony, it was said, were magistrates of the Port Chalmers Court.

Wo are of opinion that tho court cannot ignore the various provisions in tho 1893 'act, in which there is a quasi-lccalisation of a magistrate. It is no answer to this to eay that the words have got into the act by inadvertence. They are there, and if'they?are there then tliey must operate to fulfil the manifest intention of the 1876 uCt that the magistrate usually exercising tho jurisdiction of tho court nt a particular place' is the magistrate that i 3 to hold tho inquiry. If section 16 had stood alone in the act, •we think it would have been sufficient to show that there was recognised a particular magistrate who was in a sense a magistrate "of such court" at Port Chalmors different from other magistrates. There, are, however, .many other sections that xecognis'e in a certain way the local acting of a magistrate. . We are therefore of opinion that tliere ara sections of tho act of 1893 that point out a particular 'magistrate as the magistrate whose duty it is to exercise the statutory jurisdiction of hearing the petition, and that ho is the person who "usually exorcises"' jurisdiction ,at Port Chalmers: It may bo that, if there were two magis ; tratcs equal in all respects in-the exercise of such jurisdiction, ■ the' principle laid down, in " Paley. on Convictions " would have applied.. . There may be eases ,in whioh two. magistrates usually sit and cxeroise jurisdiction in one court.

The next question is: Is this such a me\ The affidavit, in our opinion, show clearly ±hat though Mr Graham his presided in the Magistrate's Court at Port Chalmers,' he has only dono so occasionally. All that Mr Carew in his affidavit says is that "Mr! Graliani has «at in the Port Chalmers Court} and has exercised jurisdiction there on eions." Mr Carow does not contradict Mr Oallaghan's affidavit that such acting was $t. his (Mr Carew's)' request. ' That would bo under section 16. Ho says: "It, was dono by mutual arrangement"; that is, tve ajpposa, Mr Oarew consulted with Mr Graham before Mr Graham went there to excroiso his jurisdiction. It is not sugr gostcd that Mr Carew sat in Port Chalmers by arrangement with Mr Grahaii. The position, i shortly put, really is that Mr. Carew usually presides in the Port Ohalifterrs Court,' Mr Graham occasionally presides. Who, then, is the person fulfilling the designation of "tf'.o magistrate of such court"? In our opinion there can be only ono answer. It is Mr Carew. It was contended on behalf of, the appellants that as Mr Graham had been appointed ohairman of'tho Licensing Committee for 'the Chalmers district, he had beon recognised by the Government as of the Port Chalmers Court. His appointment is made under section 13 of "The Alcoholio Liquors 'Sale' Control Act Amendment, 189i>.'" That section provides that the chairman, ex officio of the Licensing Committee-, shall be such magistrate exercising jurisdiction in the district asthe Governor may from-time to time appoint on that behalf. Mr Graham's appointment, under this sec-: tion does not, in our opinion, do more than show that he is a magistrate exercising jurisdiction in the licensing district. The occasional excrciso of jurisdiction within tho licensing district is sufficient to give the qualification stated in, this section, but neither the occasional exercise of jurisdiction nor tho recognition by' tho Governor of Mr Graham &a such a magistrate is, in our opinion,' sufficeint to establish him as the magistrate, of -the Port .Chalmers Court. Section 48 of tliof.net of .1876 clearly designates the' magistratewho- is: to hold the illquiry as,-"the magistrate of' Such court," and as Mr Carew ia, in pur'opinion, that' magistrato,''the,'fact that Mr Graham has been 'recognised :by' the 'Governor as a magistrate •cxeiei.'ing jurisdiction,., in the licensing'district does not, we'think, establish that' he is also the " magistrate ,of the Port Chalmers Court." Wo'are therefore of opinion, that the appeal must be dismissed. ' ■ ••■ • '•- .: ' . •,

A question was raised-by Mr Maodonald about the.'hardship of the case. Wo recognise tho hardship, and, had. the matte not been to our minds clear, it might have been proper ift a doubtful case to have allowed tho inquiry to proceed. -Those who ' signed/the' declaration aro not to "blame in any way for what has ooqurred. Similar results;-however, hive not been, unknown under;-}ho statute .(Bastings v. Stratford, 18 N.Z.L.R.). This case; and others that havo como before; the- courts regarding both ' county, and/licensing elections.- point to the necossity-'of .the Regulation, of Local E!co- : tiom.-Act''being-amended,.-. The appeal should;.hi'our opinion, be dismissed; with costs on the lowest-Ecalo," and as from-a distancs.; .:.-•■ - ■ , JUSTICE DENNISTON'S IDEOISION.

Mr justice,Dsifiniston's judgment said: Tho question of what was intended by the word 3 '-'the-resident magistrate'' of such court niusi bo considered in the.light of tho provisions .of the Resident Magistrate's Act in' existence at the date of tho' Regulation of Locals Elections Act, The act of 1£67 provides for,; the aopointmc-nt of fit porsorfs Mio. sh'ill\be and bo allied resident miißist-ratcs. .By 6ection tt the Governor was authorised'from'.time to time, by proclamation in the 'Government Gazette, to constitute throughout the colony,- or any part thereof, .district') to bb called resident magistrates', districts, and to' appoint for

eaoh district a resident magistrate to exercise his oflice therein; who should hold oourts in and for such Jistricte at. suoh times and places as' should, lie deemed most convenient by the resident (magistrate, or as should from timo ;o time be appointed by the--Governor. When there' was extended jurisdiction, the Governor was authorised to appoint for such district "more than one resident magistrate, and it was' provided that in suoh eases each resident magistrate was to be deemed the resident magistrate of, the district. There was a provision that in case of tho non-attendance of the resident magistrate on aday appointed for a sitting," it should "be lawful 'for any other resident magistrate to net in his stead during such non-attendance. '[ There were, therefore, when tho Regulation of Local Elections Act was passed-, .separate districts,' in each of which a specially appointed magistrate alono hacT jurisdiction, and to whom the term "the resident magistrate of any court within such district" was speeifioially appropriated by statute. In some of such "districts there might be two or more of such magistrates with co-equal jurisdiction, duties, and authority ; and each by'statute was called the resident■ magistrate of every court in such district. No difficulty, was ever suggested, as to thenapportioning their joint work or oxcroieing tho various powers and duties entrusted to tho resident magistrates. By "Tho Magistrates' Court ,Aot, 1893," this territorial magistracy was abolished. By section 11 it is enacted that there shall be within the colony courts of record/possessing civil jurisdiction, to bo called Magistrate's Court. By section 13 the' Governor may by warrant under his hand- from time to timo appoint fit and proper persons to bo magistrate- within the colony, shall preside in such courts and who shall bo called stipendiary' magistrates, who shall_ exercise ordinary or extended or spocial jurisdiction, or all or any two of, three jurisdictions, as the Governor shall appoint in each case-. It. will bo seen that the very term " resident magistrate" is carefully abandoned. It seems to mo under that.act that'overy stipendiary magistrate a 'de jure a magistrate of every Magistrate's' Court in the colony. If any such magistrate woro on a day appointed for any sitting to take his seat of his own motion, say, on tho sudden disablement of tho magistrate usually presiding, would tho proceedings before him bo coram non judice? The only suggestion to that effect is contained in section 16, which, in my opinion, is certainly not capable of such a construction. It is obvious—indeed, it was. assumed by each side—that in tho adjusting of tho dotails of the act to the non-territorial systom somo discrepancy might bo expected. Section 16 19 tho only section in which the phrase "magistrate usually presiding in a court" is used. This would rather suggest that the provision wits mere directory to avoid confusion than mandatory or exclusive. There is no provision in tho act for the appointment of any magistrate to any district to tho exclusion of any otherthere would in practice- be individual magistrates do facto. A magistrate in individuaA courts or-groups of courts was,,of course, necessary and expected. Stipendiary magistrates are paid officials, subject in effect to the control of the Department of Justice. Suoh control is sufficient to sccuro one magistrate from interference from any other, but there is nothing to prevent the Department of Justice from requesting or instructing .'two or moro magkjrato? to act in the ,samo court or group of courts with equal jurisdiction, duties, and_ powers, leaving them to arrange their timo and places of sittings between or among themselves. Such instances exist at Auckland, Wanga-' nni, and in other places.

The position seems to mo very similar in this respect to that of judges of the Supreme Court; Before the Supreme Court Aot the judges were appointed to specific districts, in which also they (except under special eircunKt-anocs) had jurisdiction. In some cases two judges wore appointed to tho same district, hut in such caso each iudgo would bo -the judge of such district. 'Under "The Supremo Court Aot, 1882," these periodical appointments., were abolished. Every judge who is now appointed acts ao_ judge of every court in the colony. Practice judges are in fact resident in separate judicial districts, but this does not affect .their' jurisdiction or right to silt or act in any part.of tho colony. A Supremo Court judge who in practice takes, say, Wangimii sittings, is no more judge of that court than ifl his colleague. 'What, tlion, is the effect of section 48 of the aoi of 1876? It cannot bo said that it has ceased to be operative. I have before pointed out cases, provided for by tho act of 1867, in which "there aro two or more persons who are each by statute designated as " resident magistrate of. -the district," only one of whom can, of course, aot. Under the section "'resident magistrate of the court" must bo read as- one of the resident ma-gistrates of "the'court; that is, a magistrate of the court..' So now, as I have also pointed but.thoro may.be two or.more .stipendiary magistrates declared to be exorcising joint jurisdiction, in the rame courts. The words must be read as a etipendiaiy magisfeateof such court; that-is, of the court in which the petition ha 3 been filed.. Territorial jurisdiction has been abolished, awl a stipendiary magistrate has, I think, in the ease, do juro jurisdiction over every court. Any stipendiary magistrate who in fact in his official- capacity has, received tho petition, aissumes duty, and may act. Without going into this at length, it ecems to riio that the words include every stipendiary magistrate who can be' described as do facto a riipendiary magistrate of tho court in which the petition was filed. Now, Sir Graham undoubtedly received ln'fl commission wijth a, view to duty in the district in which Mr Carew in fact acts. He must have been detailed or assigned by his official ..superiors' for such duty.' There is no provision in tho act for one stipendiary magistrate being subordinate to or under the control of another. They are—apart from any question, of jurisdiction—of equal rank aild equal authority when in the same locality. The 'mere, extent to which one or other 'is in the habit of sitting in any court cannot, to my mind, make one more than the other " the magistrate of such court" in any* court in which-either does in fact sit. whether by special arrangemont or r.ot. Such oue, to my mind, is a magistrate of such court— that is, one of the magistrates of such court. Mr. Graham has been appointed by the Governor as .chairman ox officio of the -Licorisini.'.Cbmmittco of tho licensing district of Chalmers under section 19 of "The Licensing Act, 1895."- Such ox officio chairman is to bo such rtipendiarv magistrate exercising jurisdiction in such district as tho Governor may from timo to time appoint in that ...behalf.. The Governor—thai is, the authority'assigning and prescribing the duties and stations of magistrates—must •therefore; have considered Mr Graham as the stipendiary magistrate haying jurisdiction in the,;Chalmers licensing district." Dunedin is '-'not ; in that district, and it is therefore Mr Graham's Chalmers status and duties (if -•any) .whiph qualify him for the position. I'lio',, petition, under... section,4B, :is not 'dfrected'to any person. Itsimplyprays for an' inquiry,' and is filed in a court, .This done, the matter is in the liaiuln of the officers of-the court. If.lhen, wo find subsequently that the Prescribed steps were undertaken hy.a stipendiary magistrato who does in fact oit in such court, why is this court to count the number of his attendances, or to weigh the share he takes in .the.court's business as against that of some p'therimagisitrate, and to declare him .a usurper? In my opinion the appeal should 'b°e'allowed, with'costs;

JUSTICE EDWARDS'S DECISION. Judge, Edwards said: The third section of the Alcoholio Liquors Sale Act provides that no license of any description shall bo : granted or renewed until the' electors of ,the district have previously determined .whether the number of licenses existing in 'the district shall continue or shall be reduced, or whether-no -licenses. Shall be granted in the district. Tho fourth, fifth, sixth, and seventh sections provide for the taking of a .poll. Subsection 7 provides, if the result-of any licensing poll is disputed, that any 50 electors may require an inquiry to be heldj in the maimer provided by section 48 and subsequent sections of ' the Regulation of Local Elections Act, and that the matter in dispute shall be determined in the same manner/mutatis mutandis, as if the poll were an electoral poll. "Tho Resident Magistrates Act, 1867," provided for the creation of districts, and that it should be "lawful for the Governor to ■appoint for eaoh district the resident magistrate to .-exorcise his office therein. 1 ' The nineteenth section provides that the Resi-dent-Magistrate's Court for any district should havo jurisdiction only where the cause of action had arisen either wholly or in 6ome material point within the district in which tho aotion was brought, or the party sought to bo charged was residing or carrying on business, or was served with the process of court, within such 1 distriot. Tho jurisdiction given to the resident magistrates and to their courts by this act was therefore, puroly local. The eighth section of the aot of 1667 provided that when, the limit of jurisdiction of any Resident Magistrate's Court: should have been, extended by the Governor under the powers 'given to him by the twenty-first seotion of the act, it should bo lawful for the Governor, if he thought fit, "to aDpoint. for such district more than one resident magistrate; and in suo'i case each resident magistrate shall be deemed the resident magistrate of tho district." ' The act of 1867 was repealed by the act of iߧ3, and it '.8 in consequence of that rcneal that tie prosent difficulty 'has arisen. "The aot of 1893 provides that there

shall be within the colony courts of record ' possessing civil jurisdiction, to bo called Magistrates' Courts; that such courts shall bo held respectively on such days and at such times and places as shall bo doomed most convenient by tho magistrate thereof, or. at such places aa may from" timo to timo bo appointed by the Governor; that every action shall bo commenced' by an application by tho plaintiff to the elork of tho Magistrate's Court to enter the plaint in a book to be kept for that purposo; that such application shall be inado at the court oflice nearest to tho place at which tho cause _of action arose in whole or somo material part, or to tho plaoo where'the defendant or defendants first named in the summons (if there bo more than one), or in tho case of an absent defendant whero his attorney or agent resides or carries on his business; and that the magistrate or clerk of court may refuse to grant or issue any summons where tho application appears to have been made in tho wrong court, but that no objection shall be taken at the hearing or at any subsequent proceeding on the ground that the court Is not _ such nearest court. The thirteenth section provides that the Governor may appoint fit and proper persons to be magistrates within the colony, who shall bo called stipendiary magistrates,, and shall exercise ordinary or extended or special jurisdiction of the court, or as fhe Governor ; shall appoint, under these- provisions. Tho local jurisdiction of tho Magistrates' i Courts and of the magistrates, as it existed j under the act of 1867, was swept away. ■ Under that act tho resident magistrate and Resident Magistrate's Court had jurisdiction only in cases coming within section 19, and the jurisdiction of the resident magistrate was limited to the district to.which ho was appointed. If the part of tho colony were not included in any resident magistrate's district constituted under the act, then no resident magistrate had jurisdiction therein. Under tho act of 1893 therc # o,re no districts, and the whole colony is subject to the juris- , diction of the Magistrate's Court. Every j magistrate is a magistrate of the colony, .and has power to exercise the jurisdiction with which he is invested by his appointment in any part of tho colony. In this respect tho Magistrate's Court has been assimilated to the Supremo Court. There is but one court throughout the colony, and every magistrate of that court may exercise tho powers of that court, so far as his appointment warrants, throughout tho, colony. i

i\o uouot m a sense it was not icoorrect to speak of such magistrato as the magistrato of tho Magistrate's Court at a particular (place, but this is equally true of tho Supromo Court. Even in the statute wbero "the judge of the Supreme Court" is referred to, tho context may show that reference is to the judge who ordinarily presides in a particular district. No one could doubt that the reference in the Public Works Act of 1834, setting up a Compensation Court, was to the judge ordinarily or for the time being exercising jurisdictionwithin the particular district. Such judge is persona designata, and he, and he only, j ifl the president of the Compenration Court. The appellants here contend that as every magistrate is now a magistrate throughout the colony, and as consequently there is no ; person who comes within the words "resident magistrate of such court." that section .must now be read r.s referring to ovcry magistrate of tho Magistrate's Court throughout the colony, and that therefore every such magistrate has the jurisdiction con- j ferrod by the section. Alternatively they I contend if there are two magistrates, each of whom as occasion requires exercises jurisdiction at a particular place, each Of such magistrates has the jurisdiction conferred by section 48 of this act. I am unablo to agree with tho first of these propositions, hut in my opinion the second is well founded. There can bo no doubt that the application or petition under section 48 must bo filed in a Magistrate's Court within the district in which on election took place. All that is rendered necessary by the repeal of tho act of 1867 and tho substitution of tho act of 1893 is to strike out from section 48 of tho act of 1876 the word "resident," which has become insensible. Next has to bo considered how the words " the resident rcagis- | trato of such court" are now to bo read. There certainly'is now no "magistrate of ruck court," in tho sense in which those words aro used in section 48; that is to say, there is now no person having exclusive jurisdiction' as magistrate of such court. These words must therefore, in my opinion, bo read simply as " the magistrate." Again, striking out words which have.become in- ; sensible. But tlio words so read, taken in-j conjunction with tho prior refcrenco to " the i court,',' meaning the office of tho court at a particular place, still leave the magistrato referred to as a particular magistrate, or one. of t\yo or more particular magistrates, ill! this' respect the true construction of this section is, in my opinion, strictly ana- ■ logous to the construction' of the provisions ! of "Tho Public Works Act, 1894." Then who is "the magistrate"? In my opinion it is clear that " the magistrate" is the magistrate, who, in tho course, and as part, ; of his official duty presides in the court as j occasion requires; that if there is more than j one magistrate then "ithe magistrate" is • any one of siich magistrates, if there is j more than ono such magistrate. I do not think that " the magistrate" is necessarily . the magistrate who usually, or most fre- j quently. presides in tho court. His Honor went on to show how judges arranged to take oertain districts, or divido duties in,a district, and said the position was similar. Where two magistrates were in one centre any stipendiary magistrate (continued tho judgment) who, as part iof his official duty in accordance with depart- • mental arrangements from time to time as occasion requires, exercises jurisdiction at any plaoe, is, in my opinion, one of the magistrates of the Magistrate's Court at that place. If there is more than one such magistrate exercising jurisdiction at any plaoe, then it seems to mo that each of. them answers the description of "the magistrate" in section 48 of the Regulation of Local Eleotions Act, and that each of them is clothed with all tho powers given by that section for the purpose of the exerciso of their ordinary jurisdiction and powers. It would be impossible to hold tliat either of them was "the magistrate"

to tho exclusion of the other of them. It would bo equally impossible to hold that bceauso there are two magistrates the jurisdietion and powers given to "tho magistrate " cannot be exercised by cither of them, ,If this is so, why is not. each of them " the magistrate" for tho purposes of section 48 of tho Regulation of Local Elections Act? This case was specially provided for by section 8 of the act of 1867, which provided that whero there were two magistrates in any district cither of them could mate the inquiry. If that statute had remained in force tho controversy here could not have arisen. It appears to mo that this provision is carried on by section 6 of the act of 1893. If under the act of 1867 either of two magistrates under that act could havo held an inquiry, and thore are now two magistrates under the act of 1893 who stand to each other in tho fam9 relative positions as two magistrates '.lnde: tho act of 1267, it appears to mo that by virtue of section 6 of the act of 1893 the 48th section of tho act of 1876 must be read to refer to tho two magistrates appointed under the act of 1893, instead of to two magistrates appointed under the act of 1867. Further, apart from this special provision, it apoars to me the same result must follow upon general principles. When jurisdiction is given to" " the judge" or "the magistrate" at a particular place,and there are in fact two judges or two magistrates of the court named nt that place, it necessarily follows that jurisdiction is vested in each of them, and that it may be exercised as to any particular matter by the judgo or magistrate who first seizes himself of the matter by acting therein. This certainly is ■ tho caso with regard to matters within tho ordinary jurisdiction of tho tribunal, and I see no reason why it should not be the case with regard to the excrete of extraordinary jurisdiction. In practice it has been so treated by the Supreme Court. Under tho provisions of "The Public Works Act, 1894." to which I have already referred, "the judge of the Supreme Court is to be president of the Compensation Court. Tho same provision was contained in tho earlier ect of 1876, prior to the not of 1876, and ever since there havo been two judges in Wellington during the whole of that period. It has been assumed by tho judges and by the Bar that the jurisdiction conferred by the Public Works Act is conferred upon each of the judges, and that it may bo exercised by the jugde who.seizes himself of the matter by acting in it. Eor these reasons it follows, in my opinion, that if- there are two magistrates who in tho course of their official duties under departmental control from time to time preside in a. Magistrate's Coart in tho office of which a petition under section 48 of the Regulation of Local Elections Act is required to be filed, each of them is "the magistrate" within the meaning of that section, and it is quite immaterial whether or not, by arrangement between the magistrates, one of the.ni as a rule presides in the Magistrate's' Court at that place. If this is a correct interpretation of lie law it lies upon tho respondent, as plaintiff in the court below, to establish, that Mr Graham is not " the magistrate " at Port Chalmers within the statute—that is to say, it lies upon him to show that Mr Graham is not tho magistrate, who, in the course of his official duties under departmental control from time to time as occasion requires, nresides as matristrate in tho Magistrate's Court at Port Chalmers. Tho only evidence which plaintiff has adduced to 'establish this fact is bis own affidavit, supple-

' mentod by. that of his solicitor. Plaintiff, who docs not eho\v his eomco of knowledge, and who obviously can know little or nothing as to matters with reference bo which ho speaks, deposes that 'Mr .Graham is a 'magistrate' appointed under ."The Magistrate Court Act, 1893,"' but that ho has no'defined-duties as such magistrate, not having boea'appointed to the chargO of any district under the act. There are no districts under tho net. The assertion that Mr Graham has no duties as a magistrate is obviously merely inference from a prior erroneous statement, and is plainly baseless. Tho only paragraph winch has 'any bearing on tho matter is' one speaking of his career as presiding as the regular magistrate of tho court. 'This can mean no more than .that Mr Carew lias usually jiTosidcd in tho Magistrate's Court at Port Chalmers, which no one disputes. If the matter rested upon plaintiff's ■_ affidavit alono, it appears to mo, therei is' riot in those sufficient proof to justify prohibiting a magistrate from performing .a statutory duty—the more so in tho present caso that, if the prohibition stands, authorities show that that duty cannot now be performed by any other person, so • that if this strictly technical objection should prevail the rights of petitioners will be defeated. On the part of the appellants, the affidavit of Mr Carew has been filed, which, j in my opinion, displaces any reference that I misfit be shown from affidavits filed by the ! respondent. This affidavit appears .to mo < to establish that Mr Carew and Mr Graham ' are both magistrates, who reside. at Dunedin; that they both act rs of right in the exercise of their jurisdiction as such magistrates both at Dunedin and Port Chalmers, but that tho distribution of the work from timo to tiino is a matter of arrangement between them. The affidavit establishes not merely that Mr _ Graham is a magistrate who exercises jurisdiction at Port Chalmers, but also that lie. does so with tho sanction, or by the of the Department of • Justice. The section under which Mr ■ Graham has been appointed chairman ox officio of tho Chalmers Lioensing Committee empowers the Governor to appoint as such chairman only, tho stipendiary magistrate exorcising jurisdiction in. the district. Mr Graham did in fact exercise jurisdiction in the district, and there could bo no more effectual recognition of tho fact that ho did so with tho departmental sanction than his appointment as chairman of the Licensing i Committee... Mr Graham's appointment as ' magistrate gave him jurisdiction as magis-

trato throughout tho colony, subject only 1 to departmental control to tho sphere of the exercise his duties. And if, as is plain, lie exercised his at Port Chalmers with departmental sanction, it appears to me to be idle to suggest-that he did so merely as tho substitute for Mr Carew under the tenth section of tho act of 1393. If Mr Graham ■ aotcd as magistrate at Port Chalmers with the sanction or by the direction of the Department of Justice, Mr Carow could not in any way • interfere with his doing so. In my opinion, therefore, the appeal should bo allowed, j Counsel mentioned that thero had been an arrangement in tho court below as to 25 {ruineas of the costs which did not appear on the printed statement before the court. The Chief Justice a;lci>d how the court could know anything about a private arrangement; The order was produced, but tho matter was deferred till the next sitting of the court. ■ Counsel also mentioned the possibility of I an appeal to the Privy Council. The Chief Justice doubted if thero was any power to grant leave to appeal, and advised counsel to look up authorities for the next sitting, and tho matter could bo ■ mentioned again.