WAIKOUAITI LICENSING CASE.

Otago Daily Times, Issue 13695, 11 September 1906, Page 6

WAIKOUAITI LICENSING CASE.

A REHEAHIN'G ORDERED. His Honor Mr Justice Cooper yesterday judgment in- tho case oi John Ouired v. Major Keddcll and others (the Waikouaiti Licensing Committee), in which plaintiff had applied to the court for a mandamus to compel tho committee to grant an accommodation license in respect .of a house ot Wiaitaknrua, within' the licensing district of Waikcuaiti, Mr.. Hosking and Mr Calvert appeared for plaintiff, and Mr Alexander S. Adams for defendants, with the exception of Major Kcddell,' the chairman of the committee:— His Honor's judgment was as fclknvs: — The' plaintiff is tho proprietor ■of an "accommodation house" at Waianakarua, in thi! Licensing District of Waikouaiti,. and known as the Railway Hotel. The defendants are the Licensing Committee for that district. The defendsinl, Major Keddcll, is tho chairman of tho committee. At the annual licensing meeting, held on tho oth June, 1906, the plaintiff applied for a renewal of his license, and his application was refused, the committee. being of opinion that, as reduction had been carried in the licensing dis- \ trict, it had jurisdiction to refuse on that ground the renewal of tho licenso tor tho , plaintiff's house. On the 25th June this court i ordered a mandamus to issue commanding 1 the coimuiltre-to hear and determine the application. The grounds on which the mandamus was granted appear iu the report of the caso Outrcd v. Keddell and others (8 GavJi.R,, pnge GS2). On tho 29th June, ItiOG, tho committee met to hear and determine the plaintiff's application, and oi its own motion objected to renew the license on the grounds:—l. That tho premises had not been maintained at the required standard. 2. That • tho promises wero cjit of repair. 3. That the rooms'were insufficiently furnished for public accommodation. 4. That the place of convenience was not i kept in a clean or wholesome state. An adjournment of the application was . then granted until the 11th July. On the 11th July the committeo again met. No evidence was heard in support of the objections taken by the committee. The plaintiff called and .examined on oath George Barclay, Neil Ross, James M'Queen, and Constable Rewell, who all slated that the premises were in good repair and were well furnished, and that the public convenience was clean and' wholesome. Tho plaintiff also gave evidence' to tho same effect. After the evidence had been taken, but beforo the committee had pronounced any decision, •- the chairman stated that -the elected members of the committee had a further objection to make—namely that the premises were.siluatcd within five miles of another house'for which a publican's license was held, and that the committee offered tho plaintiff a further adjournmeilt to meet this objection.' The chairman stated that ho did' not consider that , it was open te the committee to take this objection, The plaintiff declined any further adjournment. The committee then considered tho application for the renewal, and refused it, tho chairina.ii.stating that the grounds of refusal were tl) that the premises wero out of repair, and (2) (hat the premises wero situated within five miles of another house for '.which % publican's license was held. The chairman stated that ho did not agree with tho'decision, which ho stated was, in his opinion, in direct opposition to the evidence. I assume that he meant by -this that tho decision that tho houso was out of repair, was in direct opposition to the evidence as no evidenco was called on the question of'the distance of the house from the licensed publichouse referred to. The plaintiff has alleged that the finding that the premises weTe out of repair was a perverse finding; that it was not according to fact, and that the committeo did not honestly and in good faith exercise the., discretion conferred upon them by law. Major Keddell .has filed no defence, but has sworn an affidavit in support of the plaintiffs application for relief, but to which I think it is.unnecessary to refer. A statement of defence has been filed by the elected, members of tho'committee. In it they'state that beforo making the objections taken by them on the 29'.b,June. they had information as to the. matter of, these ' objections, and. were bona fido' of opinion, that they-would he. objections" to the granting' ?i ™„ I)l ? inliff V application; and that'on the 29th June they, personally inspected' the prennses, and informed themselves as to'the condition thereof, hut'they state (hat"they did no determine to grant or refuse the application upon any ground, until they hud ..i ""\ eTId <iuco and arguments on behalf o tho plaintiff. The joint affidavit of Messrs Muir and Kilpatrick, two of tho elected members of tho committee, filed on (he lat August instant, discloses that only four out of the five elected members of the committee inspected the house, and that the knowledge oi the fifth member was obtained from unsworn statements made to him bv the other, four gentlemen. The fifth member of the committee had not. up to the time the committee Tefused tho licenso on the 11th July personally visited and inspected the premises j As to the distance of the house from the other licensed publichouse no evidence was i cal.ed, but the committeo acted upon a statement made by one of them—the Rev. Mr Mlvor-that ho had measured the distance and found it less than five miles, and that ho in cempany. with Mr Muir. another member of the committee, had visited tho Survey Office at Duncdin and inspected the Governmaps,.and had obtained information Tr-pm a Mr Fynraorc, the Government draughtsman, that the scaled distance on the map between the two houses bv the nearest public road was less than five miles. Mr M Ivor' does not state how he himselfmeasured the road-whether ho chained the distance, or judged it by walking, or had any assistance in measuring it. Mr M'lvor and llr Muir communicated the result of their inquiries, and Mr M'lvor the result of his measurement, to the other members of the committee, and in refusing the license t,u this ground the elected member" neM on the information thus obtained. Since these proceedings have been instituted Mr Fvnmore has sworn an affidavit stating that the measurement by scaling tho plan iu the Survey Office is "Four miles 08 chains, as near as I can mako it." An affidavit as to the alleged want of repair of the premises has a.so been filed, made by a Mr M'Gill, who gives the result of an examination made by him, of the nouse on the 7th August. An answering' affidavit made bv a Mr George has been filed on behalf of the plaintiff. From these facts it is clear that the committee in refusing to renew the license, acted cntiroly upon tho knowledge of some of the members of the committee, unsupported by any sworn evidonco, and that tho sworn evidence given at tin hearing on the 11th July was directed only to the question' of the concition of the house, and that the witnesses unanimously affirmed, that the house was in good repair, llr Adams, who represented the elected members of the committee in th'o present proceeding, has contended that the committee had power under the licensing acts to ignore tho. sworn evidence, and to act on its own knowledge in determining whether or not a valid ground of objection to the renewal existed; and ho contends that section 63 of "lhp Licensing Act. 1831." gives a licensinpcomnntteo this right. This section enables a licensing committee of its own motion to take notice of any matter or thing which wou.d be an objection to the renewal of a icelise, although no notice of objection has been given to tho applicant. If the committee does so object, then it must inform the applicant of the nature of the objection, and, if requested so to do by the applicant, adjourn the further hearing ot the application for any period not less than seven days, and not exceeding 14 days, in order that the person affected'by any such matter of objection may have an opportunity of. replying to the same. Mr Adams contends • that thisprovision, which is unaffected by the later acts, means that, if the applicant has not answered to thn satisfaction of the committee the objections taken by: them, then that the committee may, though no evidence had been given, in support of the objection, rofusc the application, and he relies strongly upon the decision of Mr Justice Richmond inHamilton v, Fraser (5 N,Z.L,R„ 8.C.. I). The logical result of this contention is that, if one member of the committeo, or even a stranger to the proceedings, inform the committee that there is hn objection existing, to the granting of a renewal of an existing license, although Ihe information so given to tho committee may be given iu the street in the absence of tho party interested and without the s'ancliou of an oath, the committee may, having taken notico of the objection, without hearing any evidence to support the objection, and notwithstanding tho evidence called is that no such ground of objection in fact exists, nevertheless refuso the renewal of the license. In the present case the five elected members of the committee acted on unsworn information conveyed io the committee as a whole by four of tho members as regard the state of the repair of the house, and as. regards tho' distance of the house on unsworn information conveyed to them, by two. members. of the committee. Therefore, one member had not on either of tho grounds of objection any personal knowledge of the alleged, facts on which tho objections wero based, and three members had uo personal knowledge of the alleged fact upon which the second ground has been supported'. The committee undoubtedly may, under section 63, of its own motion tako notice of any matter which may bo properly taken as an objection to. and which may upon proof afford a. valid ground for, refusing the renewal, but that is a different thing to refusing the renewal without any proof of tbo actual existence of the facts on which the notice of objection is based, and the question is whether they can refuse the renewal without evidonco or oath of the alleged fncts. Section 78 oi "' The Licensing Act, 1881," and which is still in operation.and subsection. G of section 12 of the act of. 1893. give to a licensed person a right to'

a renewal r of • lais license; subject to any objections'which'" may Ifo validly taken and to the discretionary power vested in the committee to refuse the renewal ii any of such objections arc sustained. Section 84 provides that 'the Licensing Committeo shall not received any evidence with respect to any objection to " the renewal of a license- which is'not'given on oath. Section. 75' gave to (he Licensing Committee & discretion to refuse a license if in its opinion there, was no necessity for the houso in respect of which (he liconso was applied for, and subsection_ 5 of section 81 entitled a committee in its discretion to refuse the renewal of a license upon the sanio ground. It was upon these sections that the decision in Hamilton v. Fraser turned. Tho question whether there was a necessity for a licensed house was purely a matter of opinion in respect of which no criteria could be formulated; and in 'Hamilton v. Prase* this objection was taken by. the'committee, and the renewal refused without any evidence being, called in support of the committee's objection. Mr Justice Richmond said (page 12): "Looking to tho nature, of the question (or decision, it has not been shown or suggested, and I cannot see, what evidence the committee could bo expected to ca.ll for in order to eijable it to do its duty.'What crilerion ought it.to have applied? I asked this question and got no answer. The statute dees' not givo a oviierion, nor does it seem possible to invent any which would suit all cases and meet.all opinions." His Honor's statement introducing this passage is, however, of groat importance in Hie present ciep. He said: "It is further argued that the committee proceeded'without evidence. Had the committee taken for grunted some disputa.blo yet ascertained fact, in respecl'of which sworn testimony could have been procured, I should have thought this objection fatal." Mr Justice Richmond's viow, therefore, was that where an objection is taken by a eoiivmilieo in reforenco io. matters of objection within subsections 1, 2, 3, and 4 of section 81, which arc all matters of fact, then if the committee acted on Hs own molion and refused the renewal without hearing evidence in 'support of the objections taken by it; its determination woiiM bo bad; but whero tho mailer of objection' is mere matter of opinion, as it wis underr subsection 5, then evidence could not afford any criterion as e, basis for the determination by : the .committee, and tho" committeo could, without evidence, act on its own opinion founded on its own idea of the condition and requirements of the neighbourSection 73 of " The Licensing Act, 4881,".-is ncj longer operative as regards original grants, as no hew licenses can now be granted, and- the discretionary ,iower vested in committee's as regards renewals, whether under section 75 or section 81, has now been expressly limited to the objections which may be taken under subsections 1, 2, 3, and 4 of section 81, and which. may be shortly stated as (1) the character of the applicant; (2) the, state, of tho repair, furniture, and cleanliness of the house pd its conveniences and whether, tho house, is maintained at the statutory standard; (3) the conduct of the business of the house;rand (4) the performance or otherwise-of tho conditions on which the license was granted. Theso are all matters of fact, ascertainable by testimony, and are not matters of opinion, and fa"li within tho first branch of Mr Justice Richmond's observations; Hamilton v. 'Fraser is therefore an authority •'against and'not in favour of Mr AdarWs contention. Hewitt v. the Invoroargil! Licensing Committee (12 N.Z.L.R., S.C., 631) is an instance of a case where, under the present statutes, a committee may, without hearing "evidence, refuso to renew a license. Where reduction has been carried, then the' committee may, in determining which of the publican's licenses arc to be refused, act oii Its own knowledge; but Mi Justice Williams draws a, distinction similar to that drawn by Mr Justice Richmond in Hamilton v. Fraser. Which licenso is to go is a matter of opinion upon which his Honor said that the committee might satisfy itself, either from its own knowledge, or from hearing evidence, or in any other way! a.s to how the reductions may bo equitably made. In such a case, he added, the; duly imposed upon tho committee is a duty not to any. particular licence, but to the public at. large. He intimated, however, very clearly that if a license is objected to under subeections 1 to 4 of seotion 81 tho committee is bound to hew evidence in support of tho objeotlon, and then to decide whothcr or no the objeotion could be sustained. In.Pinnev 1,„9'1. Wa irau Licensing Committee (22 N.Z.L.R., S.C., 602), Denniston, J„ and Edwards, J., wow of opinion that subsection S of section 41 of "The Licensing Act,> 1831."' whioh provides that the committee shall hear and delorniino nil applications mid all objections on such evidenco as shall to it seem sufficient, whether the si me be strictly legal or not, does not onabi> the committee to accept as evidence stfcte-nonts not made on oath; 'and' Sir Justce lCd wards was also of ' opinion (hit section.6l did not give a com-' milteo power to deal with an application | upon its own motion without evidence, act- ' ing only on its own knowledge, and that even SHI did. the knowledge of some of''tho com- | mittee was not the knowledge, of the com- i mittee m a .whole. He, mid. that "if tho! committee acted upon its own knowledge'it must bo upon knowledge of existing facts, and to prove the knowledge it must be nccesisary to' prove tho facts." In Ehronfricd v. Kenny 04 N.Z.L.E., C.'A., 19; the committee, acting under section 63. had of rl 3 oivn motion objected to the condition of certain licensed premises,' and -had. re-fused to renew the licenses.. But it called and examined witnesses in support of its objeotion, a.nd the motion,for a mandamus was refused. Mr Justice Richmond said: "Nothing can be clearer than that if there was any evidence, and the committee has in good faith exercised its discretion, we cannot send it a writ of mandamus to' hoar tho ease over again"; and Mar Jtisiico Williams added, "If there was any evidonco ,it is (hopeless to, contend that the.committco was without jurisdiction. It is, I think, clear that if the committee had there refused the renewal of tho license upon its own knowledge only, unsupported by any 'evidence, that flic mandamus would have issued...So far, therefore, as judicial opinion has been expressed in this colony it has been against Mr Adams's contention, although the point' has riot up to the present time been directly decided. In England there" is not in tho Licensing Acts any provision similar to that contained in'section 63 of the net of 1881, but tho justices have nn implied power to take objections, and when they do so it must bo done in open court; and it is their duty not lo decido'there and then,.but to give notice to the appellant nnd adjourn the further hearing, and request him to attend and answer.the objection.—Reg. v. Farquhar (1874), L.R. 9, Q.B. 258; Rex v. Famham Justices (1902), 66, J.P.579; Rex v. Kingston Justices (1902), 86, L.T. 589. They may refuse oii.original application• for a license without' faking evidenco on oath ■ (Rex v. Far'nharn Justices, but not a. renewal (subsection 3 of section -42 of "Tho English Licensing Act, • 187$ ".}. Tho provision in.; our section 84 requiring them to take evidence.on oath'upon.■' an application for a renewal iB taken'from this subsection: In Jones v. Goodman (Times,' January, 1889), not'reportod in any law reports, but a/full note of which appears in Stone's "Justices' Hamuli" (19061 od;), p. 458, notice of objection had not been given- to an innkeeper, but tho owner happened to bo present at the annual licensing meeting and applied for the renewal of tho license as of course. The justices had somo conversation in an undcrtono with a policeman, and refused to renew the license. Tho Mayor said they understood the house had been closed for some time, the premises were .entirely unsuitable and insufficient for a publichouse, and thero was no occasion for o, publichouso at that spot; and ,ho added that thero were moro publichouscs in the town (ban were- required. Counsel for tho justices contended that it had been held in Sharpe v. Wakefield that justices had an absolute discretion to refuse to renew a license, and they were not bound to wait for notice of opposition or the motion of a third person to object to, the renewal. The Queen's Bench Division, however, held that it was a judicial discretion to bo exorcised judicially, and, without calling upon counsel for ilie applicant, held that giving justices absolute discretion did not mean absolute discretion to do just as they pleased. It meant a judicial discretion which could he maintained in a court of law to have been exercised upon legal grounds after legal hearing and investigation, and a rule for a mandamus to hear tho application' was made absolute. The discretion of a licensing committee in New Zealand is, since the passing of the acts of 1893 and 1895, much less limited-than that of justices in England, and is, as I have before stated, confined in respect of a renewal to tho grounds ot objection stated in subsections .1, 2, 3, and 4 of section 81 of " The Licensing Act, 1881." Jones v. GoodI mail is » case very similar to the present case, and notwithstanding tho fuller discretion vested in tho licensing justices in England the court granted.tho mandamus. The subsequent cases, of Boulter v. Justices of Kent (1897), A.C. 293, and Hex'v. Farnham Justices •do'not conflict with this decision. Boulter v. Justices of Kent is "explained by the Court of Appeal in Evans v. Conway Justices (1900), 2, Q.B. 221, as merely deciding that a licensing meeting is not a court of summary juris-

diction, and that an objector to the renewal of a license is not a party to the proceedings, and can not be condemned in costs, there being no lis in tho ordinary, sense of the term; but, as in no way deciding that a renewal of a licenso can be refused without evidence. In Evans's cases , tho Court of Appeal (A.' L. Smith, Vaughan ' Williams, and Homer L. J. J.) held that the quarter sessions could not refuse-tho renewal of the license without hearing evidence; aluj that, as regards licensing matters, it was a court with the incidents of a court as regards evidence and tho onus of proof. In that case the justices refused to renew a license, and the quarter session, upon an appeal which was a re-hearing of the application, sustained tho decision ot tho justices without receiving any evidence in support of the objection to tho renewal, and tho Court of Appeal allowed on this ground the appeal from the quarter sessions. In Raven v. Southampton Justices (1904), 1 K.B. 430, the justices refused a renewal or" a license, and tho only evidence they had before them was a. map 'of. the district showing the number and position o! the various publichouscs in tho district, and which map was sworn to by tho district surveyor. Lord A|vcrslone C.J. and Lawrence J. held that this was no evidence that the house was not required, and that the justices, in refusing to renew the license had not acted judicially. The English cases, therefore, strongly support the view that iu regard to renewals a licensing committee can onlv act on sworn evidence. The case of the Genera! Omnibus Co. y. Lowell (1901) 1 Ch. 135, is indirectly an aulhoritv for tho same proposition. Rule 4 of Order L of the Judicnte Act provides that a judge may inspect any property cr thing concerning wiiich any question arises; but the Court of Appeal, reversing Buckley J., held that a. judge could. )iot put the view in the place of sworn evideitce, and could not determine the case in favour of the plaintiff upon the view without evidenco in support of tho plaiptiff's case. Mr Adams has cited .three ,Vic(orian cases inwhich the justices acted without evidence, and iu which their decisions wero sustained. These cus.es—in ro Logan, G Argus Reports 253; Reg. v. Alley, 9 V.L.R, 19; 'and ex parte Spangenburg 8 V.L.R. (L) 123-aro all clearly distinguishable. In re Logan and ex parte Spangenburg were 'cases where the justices were asked'to approve of the transfer of a license. They had an absolute discretion to do so under tho Victorian'statute, and the .statute contained no provision requiriug them hefoio doing so to tako evidence. In re Logan, however, evidence was ,'n' fact given on oath by the police regarding the. nppli-. cant's character. The Justices acted on this) and also on the magistrate's statement, not on oath, concerning, his knowledge of the man. In Spangenburg the court held that tho magistrate could act on his own knowledge, and was not bound to. hear evidence. In England the justices may refuse to approve of a transfer and arc not bound to hear evidence. Paterson's "Licensing Acts" (1903), 15th cd„ p. 92, and section £9 % of "The Licensing Act, 1831," of this colony'givo to the Licensing Committee the same wide discretion iii approving of tho transferee as the Victorian act. Iu Reg. v. Alley tho application was for a new license, and tho justices refused the it. on a ground personal to the applicant without having evidence. But there is no provision iu the Victorian Act that uVn «n application for,a.new license the evidence must bo upon!oath, and it has been held in England that it need not be (Rev, V. Farnham, Justices). There is oneother case cited by Mr Adams to which I ought t6 refer. In Regina v. Field (64 L.J.M.C, 158, the Divisional Court) Wills and Lawrence, J.J., held that the justices in a proceeding under "Tho Sale of Food'and Drugs Act, 1875," could use their own knowledge and experience. Tho justices held that cocoa nibs were not cocoa,, and refused to state a case for the opinion of the court. Mr Justice Wills said that cveryono knew that cocoa riibs wcro not pure cocoa, and the court refused a mandamus requiring the justices to state a case. Nevertheless tho court held that the'justices were perhaps technically wrong iii not hewing evidence, but as it was an un : doubted- foci that cocoa nib 3 wore not pure, cocoa, no question of law arose. I do not think this, oase materially assists the present defendants. In. my opinion tho wight of judicial i authority both here and in England is stron'gly in tho direction that a licensing committee cannot refuse to renew a liconso 'upon ally of the objections set'"forth in subsections 1; 2, 3, and 4 of section 81 of the Licensing Act, in the -absence of sworii evidence to support such objections,-and in the present case I.am thereforo of opinion that the committee" has not judicially heard and determined the plaintiff's application for a renewal of his license. It is jiecessaxy in tho present case to decido tho question whether, assuming that, the premises are now within five miles distance \>y a public road of another licensed-home: the committeo has jurisdiction to grant a certificate of renewal of tho plaintiff's license. The accommodation license in respect of this house was granted originally at the annual licensing meeting held in Juno,. 1905. the license previously held having been a publican's license, the accommodation license being.'at the request of plaintiff, granted in June, 1905. There was another licensed house in cxistenoo at the time, for which a publican's 'license, was' held, and it is alleged that this last-men-tioned house, and which is still a licensed houso, is within five miles of the plaintiff's house. Section 32 of "The Licensing Act, 1881," prohibits tho granting of any accommodation license in respect of any premises situate within five miles by public road of any other premises for which either a publican's license or an accommodation license has already been granted and is in force at the time of the hearing of the application for tho licenso first, abovementioned. If, in' fact, when tho accommodation licenso was first granted te the applicant in June, 1903, it was within five miles distance by a publio ~road from another licensed house", the committee acting then had no jurisdiction to grant the accommodation license, and it could not by an erroneous finding of fact givo itself jurisdiction, (Rorke v, Errington, 7 H. of L. Cases, p. 617, p. 632). In' Birley v. M'Donald (4 N.Z.L.R., S.C.. 427).. Mr Juslice Williams is stated in the head note to have held that the fact that the premises for which an accommodation license is held are situate within five miles, by « publio road, of other premises" for which a -license has been granted does not raako the renewal of such licenso illegal. I do not think that the report completely bears out the' head note, and in my opinion the case is distinguishable from the present case, on 'two grounds. First; Tho facts stated in the case show tho accommodation license had been held for' many years, and bis Honor's judgment, is consistent with the assumption, which probably was,in fact the case, that when the accommodation licenso was first granted there were no licensed houses within five' miles of the plaintiff's house, and that thereforo the first grant was properly made. If this is. so, then it may be that the subsequent granting of other _ licenses within five niile3 of the house' originally licensed would not destroy the right of the holder of the earjier license to a renewal, seotion 32 being apparently limited to the first grant. But, in the present case, if in fact when the grant of the license was made in 1905 there w<vs a licensed houso within five miles the license was bad, and the certificate' could have been quashed on certiorari, (in roi Rocne, 7 N.Z.L.R., C.A., 206). Tho license, would bo in law » void licenso (Brooking v. Smith, 1 N.Z.L.R.. S.C., 388). Tho. application for a renewal in such a case would bl for, the renewal of a licenso which was a void license at tho time of its | grant and iii respect of a house concerning ' which the original disability still existed. The second ground on which Birley v. M'Donald may bo distinguished is that tho facts in (hat case indicate that the distance measured not by a public road but across a piece of water. In my opinion, therefore, Birley v. M'Donald does not govern tho present case. The plaintiff has moved for a certiorari to bring up and quash the refusal to-grant tho renewal, and bases this motion upon the statement of claim and the affidavits verifying it. I do not think certiorari is necessary, as in my opinion the committee has not yet judicially heard and determined tho application. If it j 9 necessary, in.ro' Seymour's application (ex parte Condio,' 22 VZ.L.R., 145) is nil authority in favour, of tins procedure. Regina v. Nicholson , (1899,' 2 Q. 8., 455) shows that in a propor case certiorari and mandamus cau be moved for in respect of the matter, and, as hero a forma! refusal to grant tho renewal is on record,' there can bo no objection to an order bein» made bringing up this TefuspJ for the piir° poso of being set aside, although' it'-appcars to bo that this is not strictly n/cesswiy. -II make tho order accordingly. I 'pn o'J, opinion' that I cannot grant a mandamus' ordering the committee to grant thokenewali Tho committeo has not yet, in\my'vipinSon judicially heard the application, (and/the authorities are conclusive that fhot maivwmits must be to hear and determine ihej a'Jplicai' lion. For the information of fccWfnitfeo it is desirable that I should defineS'ihofcmirse of procedure which it ought to'addpt|upon the hearing. It j s Itself theXpouieclor under the provisions of section 63 v te ' tho grant of the renewal of the license. Trbper notices have already been given or the objections taken, but the applicant must' We due notice of the meeting which the committee must hold upon ; -the mandamus now ordered. At the meeting (he evidenco in support of the objections must he taken beforo the plaintiff is called on tc adduco his evidence (subsection. 11, section 44). The committee has full' power to itself summon and examine onoath'such witnesses as it may think necessarjv.but the committee must support its. objections by ■, sworn evidence. When all the evidence in .support of

the objections lias boon given, Ihe pla'iiilifT '..is', entitled to adduce his 'evidence in reply. As far as possible tho eridente should bo directed to the condition of the hou'o' when the application for renewal was first made (Falconer v. Williams 14 KZ.L.K., 302);' but evidencetof the present condition of the house may he taken imd used for the purpose of guiding the committee in arriving at a just conclusion as to the condition of the house when tho application was . before tho committee. Tho committee is ' also entitled if it desires to do so' to visit and inspect the house for tho purpose of determining the value of the evidence. If an inspection is made it should bo by nil tho members of the committee. Tho condition of repair which the Licensing Acta require tho premises to be in at the time of making an application for a renewal of the license is a state of substantially good repair,, and if this condition is proved to exist tho.objection that the house is rait of repair ought not to be sustained. -The committee should not ' require a purely fanciful standard, but should judicially determine the matter of the objection as "reasonable men. ( I avoid expressing any opinion as to what may be gathered from the affidavits as the' true, condition of tho house. It is the-committco which has to find the facts, ?ipt this court. As regards tho question of distance, that is a, fact' capable of exact demonstration. This fact ought not to b? assumed by the-mere production oh a map and the scaling of the distance approximately shown by tho map. It is staled that the distance so scaled is approximately 4 miles and G3 chains, but it is riot possible as a rule to gel the true distances --.ween place and placo by t merely scaling the distance upon a country map. The actual distance should-.be. measured along tho road, and this can .bo done without difficulty. If the road is measured/.by. a reliable man, nud tho measurement is proved on oath at tho licensing meeting, and the distance is moved to be within the five-mile limit, then the jurisdiction of the committee to grant the renewal will, ill,in? opinion,' be ousted, and the renewal mii9t be refused. If the. distance is more than five miles, then, if the evidence as' to the repair of the premises is such as ought to satisfy reasonable men acting judicially that the bouso is }n a reasonably substantial state of rernir, the -renewal ought to be granted. I nni3t, in ( my opinion, order the members of the committee who have defended these proceedings to 'nay the costs. The practice is clearly settled that where there has been an unsuccessful resistance to an auplication for a nmndamii« tho party, resisting must pay the'plaintiffs costs, and the circumstances in this -ease are sin>','| nr to those in Reg, v. Hnrso f'2 X.7..L.8.5.C. 94) and Faber v. Fraser (i K.Z.L.R.S.C., ,129), in each of which cases, the,.committee was ordered to pay the plaintiff's costs. Mr Justice Johnston in tho one-case, apd Mr Justice Richmond in the'other,, holding that the fact that the committee was free from moral blame vis insufficient to (ako tho cases out of the general rule;. lii the former case against the present committee it did not resist the tiDiilicatioi!. 'and the mandamus was ordered without costs. In the uresent Case the e'ected members have e'remionslv contested t!ie proceedings throughout, and the ordinary rule must apply. A good deal was said in" argu'ment, im<l the opinion has been exoressorl iiDon affidavit, that tho elected members of the committee had determined from the outset not ■to grant'the apnlication of the plaintiff for n renewal of the license under any cirenm'tances.: The clceV> members of the committee have filed- affidavits denying this charge. I havo no reason to doubt the srood faith, of th» committee, and the order I make against them for cosls is onlv made by me broaupif'of' the rule of practice and because I think' it is very necessary tlmf there should be uniformity of decision in these matters. I admit tho words of lf> Jtftice Richmond, in. Fa her. v. Fraser, and applv them'to the nresont defendants: "For anything I.'know. the conclusions of fact on which; tlie committee arrived on the former occasion may turn out ,to be correct in substance. But it is. not ■ enough that a judicial body may have arrived at a just conclusion.- Every such body is bound to" tako rare'.that its mode of procedure shall be just. The just flung must be done in n just wav." The • refusal of .the committee to grant the renewal '-.of the olaintilf's laoplication must, be set_ aside.',-and. an order for a' mandamus must issue directing tho committee to meet and to hear and determine tho aiinlication.. The'elected,members of the committee must nay the costs of these procedings. which I fix at the;>U"-'of..£lo 10s-'and court fees and necessary.disbursements, (o be ascertained by the registrar. ..