CLUTHA.

Otago Witness, Issue 2103, 14 June 1894, Page 18

CLUTHA.

Wholesale Licenses Granted. — An Outsvoken Chairman. The annual meeting of the Clutha Licensing Committee waa held at the Courthouse, Balclutha, on F iday, and attended by Mr E. S. Hawkins, S M. (chairman), Messrs John Johnston, James Brugb, J. M'Coll Smith, A. Stead, Alexander Russell, John Gibson, J. Taj lor, and J. Scott. * APPLICATIONS. ' Applications for renewals of publicans' licenses were made by the following hotelkeepers : — Peter H. Blackley, Criterion Hotel, Clyde street, Balclutha ; Roderick M'Kenzie, Farmers' Arms Hotel, Balclutha ; Maurice F. Coghlan, Crown Hotel, Balclutha; William Simmonda, Commercial Hotel^apanui ; C. F. Dunnett, Railway Hotel, Kelso ; F. W. C. M'Kay, Railway Hotel, Herriot ; Patrick M'Cann, Farmers' Club Hotel, Tapanui ; Sarah Officer, Royal Hotel, Kelso. chairman's remarks. The Chairman said : The report is presented by the police in the usual course on the different hotels in the district. Of course these reports are made rather with a view of dealing with the regranting of any licenses ; but on this occasion prohibition having been carried in the district there can really be no questiod before the committee at all as to granting licenses. I don't know that there is any advantage in reading the reports under those circumstances. I do not know what applicants are here for publicans' licenses or accommodation licenses, but I have here applications from Simmonds, Dunnetfc, M'Cann, M'Kenzie, Sarah Officer, Maurice F. Coghlan, Blackley, and M'Kay. As to M'Corley's application, I got notice that it is withdrawn. Mr M'Corley wrote : "Aftercareful consideration, I have decided not to apply for a renewal of the license of the Railway Hotel." I don't know whether anyone represents any of these applicants, but I think, whether the applicants are here or not, the committee have no power to deal with their applications at all. The act declares that where a certain vote has been carried no license shall be granted. It is not a question whether it is in order or anything else, but we have no power to deal with the licenses, and publioans' or accommodation licenses cannot be granted. If the committee wish to see the reports there they are. (The chairman laid the police reports before the committee.) He then proceeded to say : As regards the wholesale licenses they are in an entirely different position The wholesale licenses are not a matter of prohibition at all. Prohibition does not in the slightest degree affect wholesale licenses, which may be applied for and granted entirely independent of that, and if application is made to the committee it will be by the exercise of their judicial discretion that they will say whether they will grant them or not. Do I understand that they are for the committee to deal with ? Mr Stewart: I appear for Mr M'Kenzie, who desires me to say, without any disrespect to the committee, that he feels that the committee have decided to refuse all licenses, and he has asked me to choose my own tribunal. The act gives power to apply either to the chairman, to the committee, or to two members of the commit 1 cc ; and he, therefore, wishes me to apply to you, as chairman. Mr Sinclair, of Tapanui, said : I appear for two applicants — Simmonds and Dunnett. My clients are decided on pretty well the same course ; but they originally applied in such a way that they can either put in applications to the committee or to the chairman. Their applications are alternative applications ; and on considering the matter we think in the whole circumstances of the case we will take the decision of the chairman in the matter, and not apply to the committee at all. The Chairman said he had a number of letters from members of the committee, all concurring in asking him not to take any action till the committee met. Mr Stead wrote : "It is rumoured that one of the publicans in Balclutha is about to apply for a wholesale license to sell liquor. Not haviDg a copy of the Licensing Act, I am not aware whether they apply to the Government, the chairman, or the committee for such a license. I sincerely trust that, if such a report be true, no action will be taken in the matter until the committee meet." He had letters from Mr M'Coll Smith, Mr Russell, and Mr Brugb. to the same effect. He had no intention of going behind the committee in any way in this matter, In fact, in the first

instance, when application was made to him, he said he thought the matter should stand over till the committee met, but the way tho matter was placed before him by learned counsel put it in a different position. They claimed that lie was bound as chairman to hear their applications, and to withdraw them from the committee altogether. Mr Sinclair : That is the position. The Chairman : You call upon me as chairman to hear the cases ? Mr Sinclair: That is exactly so, your Worship. The Chairman said of course he must decide the applications himself, but he would be glad to hear what the committee had to say before dealing with the applications. Mr Johnston expressed the opinion that it would be a monstrous thing to grant wholesale licenses in the Clutha district when the people had decided that there should bo no licenses. Mr M'Coll Smith "quite concurred in what Mr Johnston had said. Mr Brugh observed that he would like to know the law upon the point as to whether the granting of licenses depended upon the chairman or the committee. The Chairman said he Bimply asked the committee's views on the question of granting licenses because he felt that they were placed in a false position by the withdrawal of the applications, and by the election of the applicants to come before him. He, however, waß bound to say that if the applicants came before him he should be compelled to hear them. He had no choice in the matter. In answer to what Mr Johnston had said regarding the will of the people having been expressed, he must remind the committee that the .will of the people had not been expressed on wholesale licenses. Parliament had expressly withheld from the people the right to deal with such licenses, which were dealt with on an entirely different basis from the ordinary publicans' and accommodation licenses. So far from Parliament having given any indication that the people were at liberty to decide whether wholesale licenses were to be granted, it had gone in another direction ; because in one section of tho act it seemed to have made a provision in favour of the unfettered granting of wholesale licenses ; and whereas under the act of 1881 the chairman and the licencing committee could alone grant wholesale licenses, Parliament had extended a further alternative enabling two members of committee to grant such licenses. Therefore it was impossible for the, committee to assume that the people had expressed their opinion upon wholesale licenses, or that Parliament ever intended them to assume it. If Parliament intended to carry out a system of entire prohibition, Parliament must say so. He could not assume that Parliament intended to interfere with a trade unless it dstinctly said so. So far from Parliament saying so, it had explicitly said the contrary of that. Mr Gibson : That being so we cannot do any more as a committee than leave it to your Worship, do far as I am personally concerned, if the matter came before me I would give my decision against granting any licenses ; but seeing that the matter does not come before the committee, we have nothing further to do. Mr Taylor : I should certainly say, if the matter were left to me, that to grant wholesale licenses would be to, in a great measure, defeat the vote of the people. The people in my part of the district are decidedly averse to any such licenses being granted. If referred to me as a member of the committee I should decidedly refuse to grant any licenses. Mr Stead said he thought he was right in saying that every member of the committee was under the impression that the question of wholesale as well a3 other licenses was decided by the local option poll, and that the majority in the district were against wholesale licenses. The Chairman observed that he had to decide this question on the lines of the law. Whatever he did in the matter he did on his interpretation of the law. That was the only thing he could do. He was responsible for carrying out the law absolutely. Messrs Russell and Brugh both expressed themselves as being opposed to the granting of wholesale licenses, if they had power to deal with the applications. Mr Gibson asked if the applications could come before the chairman or the committee. The Chairman replied that the applicants could choose their tribunal. He could not force them to bring their applications before the committee. If they came before him and asked him to grant the licenses he saw no justification for saying he would not hear their applications. If he did not hear them they could go to the Supreme Court and get a mandamus and compel him to hear them. He, however, had no right to put them to the expense of compelling them to go to the Supreme Court. In dealing with the applications he should be bound by principles of law laid down by the Supreme Court, which principles, in his opinion, they would be guided by if the applications came before them. They were bound to act upon those principles, and not upon any preconceived principles at all. One of the committee asked if they were not bound to act upon the opinion of the electors P The Chairman replied in the negative. Unless the committee had anything further to say he would declare the sitting at an end, and would sit again at 2 o'clock to hear the applications. Mr Johnston : The people of the district are under the impression that no license really means no license. The Chairman : I am afraid I cannot alter the laws of Parliament. The laws of Parliament are made by the Legislature and not by the magistrate. Mr Stead : Are we not representing the people ? If so, our opinion ought to have a little weight, and if it is not exactly as the law has laid down the law wants remedying in many directions, and I hope it will be remedied in the future. The Chairman said when the law declared that the electors were to say whether there should be wholesale licenses or not then they must bow to it, but until it did so they must be bound by the law as it was at present. Before hearing the applications, he thought it was right that he should state why he had adopted the course he had taken. He himself was anxious that the committee should deal with these applications, but when the applicants very distinctly refused to go before the committee and required him as chairman to heat them, he had no doubt that they could by mandamus compel him to do so. That being so, he had no justification for refusing to undertake the duty ; and he must go further and say he ..was, after careful consideration, convinced that the applicants were thoroughly justified in tho course they had taken. He must also say that the committee had been put in a false poaition by the law itself, but he could not help that. Mr Stead : I think we should not let the matter rest here. I am representing the committee and the electors, and I beg to move — "That this committee protests againßt any licenses being granted in the district," so that our opinion may go forth to the public, and I am not afraid of my convictions, Mr Scott seconded the motion, whioh the chairman declared carried by the elected mem«

bers of tho committee, remarking that he, of course, could not vote for tho motion. The hearing of the applications for wholesalo licenses was then adjourned till the afternoon. FURTHER. REMARKS BY THE CHAIBMAN. The Chairman on taking his seat in tho court in the afternoon said : Before hearing the applications I think it right that I should state why I adopt the course lam taking. I was myself most anxious that the committee should deal with the applications, and when an informal application was made to me I at once intimated my opinion that the applications should be so dealt with. The applicants have, however, definitely refused to go before tho committee, and have required me, as chairman, to hear and adjudicate. I have no doubt that they can by mai\damus compel me to hear and adjudicate, and that being so I havo no justification for refusing to undertake the duty. But I must go further and add that I am, on careful consideration, convinced that they are justified in the course they are taking. The expression by the several members of the committee of their resolution not to grant any wholesale license without even hearing the applicants, and the resolution carried by tho votes of all the elected' members, alter I had pointed out to them that if the applicants came before them they would have to exercise a judicial discretion, is fatal to the possibility of assuming that tho committee would carry out the law. And as bearing on this I must observe that section 11 of "The Alcoholic Lfquors Sale Control Act 1893 " is a most remarkable ono. That section practically avows the principle that persons charged with the duty of a judicial function, of exercising a judicial discretion, yet may bo pure delegates of a majority of electors, deprived by pledges exacted from them by that majority of any judicial discretion whatever. •It is, I think, impossible to say that auy man can act with impartial judicial discretion who is is bound by pledges, and who not only before his election but after it, and even immediately before .and at the very sitting of tho committee, may have expressed the opinions of a passionate partisan on the very question on which he is called to adjudicate. This new principle, introduced now for the first time into our Legislature, is a warning to us of what might happen to the judicial bench if once it became the creature of electoral majorities. It may seem that lam making much of a comparatively small matter, but small beginnings often have great eudings. Mature age has not weakened in me the jealous love of that sweet and reasonable liberty which the British people conquered, not only for tho nation but for every individual. That liberty is founded on and guarded by the pure, unimpeachable administration of justice, the unattackable independence and impartiality of its administration. The eleventh section is a new departure, converting the judge into a delegate and partisan. I know that I incur serious responsibility in making these remarks, but with such convictions strong in me, with this remarkable section of the act before me, and occupying the position I do here as chairman of the committee, I feel that silence would be a crime. I desire to pay all possible respect to the protest of the committee, but I cannot violate the law. The law has protected wholesale licenses from the prohibitionists. Mr Justice Richmond's words are completely applicable to this. He says (at XI, N.Z C.A., page 251), ." Absolute prohibition, whether salutary or not, which is not a question for us, would be a severe restraint on personal liberty, and Mr Justice Denniston is doubtless right in saying that the presumption must always be strongly against the imposition of such restraints. The Legislature, should it ever desire to enact prohibition in any shape, will, it is to be expected, speak in plain terms." As to the question of the wholesale license, I have already stated to the committee tho separation of it from the publican's, the accommodation, and the bottle license. By section 71 of the act of 1881, then, the Legislature made the chairman one of the authorities to grant wholesale licenses. And as if to protect these licenses from arbitrary refusal, it made the committee also an authority to grant a license ; and by "The Alcoholic Liquors Sale Control Act 1893 " it made two members of the committee an authority to grant the license. By the Alcoholic Liquors Sale Control Act the Legislature gave a further guarantee against arbitrary action by appointing the stipendiary magistrate for a district the ex ojjieio chairman of the committee. But if I entertain the application it does not follow that lam compelled to grant it. I think that there is a discretion, and that I may fairly take as the charter of my discretion that discretion which is deferred for a committee by section 75 of the act of 1881. In leitt v. Quill (11 N Z.C.A., at p. 244) Mr Justice Richmond says Mr Justice Denniston had held that " the committee are to take into consideration the convenience of those who desire to drink, though a minority " ; and, again, that "they should consider whether such premises were required according to the reasonable wants of such of the residents as might desire to purchase 'liquor " ; and at page 246 he says: "All the three judges who sat on the appeal (in Isitt v. Taylor, 10 N.Z,L.R., 646) agreed generally with the exposition of the statute by Mr Justice Denniston " ; and, further on, Mr Justice Richmond says : "It is ' reasonable wants ' that are tp be considered" — that is to say, "wants to the supply of which no reasonable objection exists" (vol. xj, p. 246). Mr Justice Williams quotes (Isitt v. Quill, vol. xi, N.Z.C.A.,- at p. 255) the following words from the judgment of Lord Halsbury in Sharpe v. Wakefield as follows : — "An extensive power is confided to justices in their capacity as justices — to be exercised judicially ; and ' discretion ' means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice— not according to private opinion .... — according to law and not humour." And further on : "If they acted so as to attempt to repeal the law which permitted publichouses (wholesale licenses) to exist, that would be an evasion of the law." I propose now to hear every applicant and to decide to the best of my ability in accordance with the law as thus expounded by the highest court in this colony. WHOLESALE LICENSES. Wm. Simmonds, of Tapanui, applied for a wholesale license. Mr Sinclair, who appeared in support of the application, presented a memorial signed by 167 residents of Tapanui and the surrounding district in favour of the granting of the license. He also said that he could guarantee that the signatures were bona fide, and the applicant had carried on business for something like 20 years in Tapanui without a breach of the law being committed by him. Oat of the number who had signed the memorial at least 85 were heads of families, six were justioes of the peace. There was also a member of the Clutha County Council, a member of the Tuapeka County Council, the mayor of Tapanui, and four councillors of the borough. The signatures consisted of all sorts and conditions of men in the district, from the largest runholder down to the humble rabbiter and shepherd, not to mention the ordinary labourer,

besides professional men. That showed that, whatever the feeling of the district might be with regard to publicans', accommodation, and bottle licenses, it was very clear that the general public— at all event?, the male public of Tapanui — were not in favour of total pro-l-ibiliou. He could tell his Worship as a positive fact that in getting the memorial signed there were not above three men whom he asked to sigu who refused to do so. In the face of this the idea that people wanted total prohibition in the district was a fallacy. The applicant then went into the witness box and learned counsel wished to have him sworn before giving his evidence, whereupon tho Chairman said it was not necessary that ho should be sworn. Mr Hawkins said further that he was conducting the hearing with an amount of formality which was unusual in the case of a wholesale license, his object being that the public should be fully aware of everything that was done. He very much doubted whether he was in the position to administer an oath on that occasion. Mr Sinclair : As a justice of the peace ? The Chairman .- I am not Bitting as a justice of the peace. lam sitting as chairman of the committee. The applicant was about to give evidence as to the signatures, when the Chairman suggested that as Mr Sinclair had witnessed the signing of the memorial he should testify as to their genuineness. Mr Sinclair thereupon gave evidence to the effect that the signatures were all genuine. The Chairman then asked the applicant if he had ever had any complaints made against his house or had had bis license endorsed P The applicant replied that there was a complaint 18 years ago, but that there had not been one since. The Chairman said there was nothing in the act which made the applicant specify the actual place where he intended to carry on business. The wholesale license was a personal license, the only limitation being that the applicant must specify the place where the business was to be carried od, such as Tapanui, Kelso, or some other place. There was no provision in the act for transferring the business from house to house. That implied that a man might bring his business to any house. He did not have to apply for a renewal. At the Bime time he (the chairman) thought that it' the applicant was going to occupy a place as a hotel it would be a very questionable proceeding. Mr Sinclair : He is not going to do that. The Chairman said if the applicant were to have the wholesale license at his hot 1 the way would be opened for his getting liquor for his guests. Mr Sinclair said it was the intention of his client to have the wholesale license at a place separate from the hotel altogether. The Chairman assumed, that there was not the least intention of breaking the law, but he wanted it to be understood that the license was not to be for retail purposes. - Mr Sinclair: Certainly not. I can assure you that the new premises will be completely severed from the hotel. The Chairman : Another thing, I think that the wholesale license should not run till after the hotel license has expired. I should not allow them to be concurrent. Mr Sinclair: At the present time he has practically a wholesale license. The Chairman : He has a license in his hotel, but that is included in the other license. Mr Sinclair : Yes ; but there can be no temptation to use the wholesale license under those circumstances. The Chairman : That is true. I think the certificate may issue. Roderick M'Kenzie, of the Farmers' Arms, Balclutha, applied for a wholesale license. Mr Stewart appeared in support of the application, and presented a memorial signed by 112 persons in favour of its being granted. He said that of this number four were justices of the peace, two wore medical men, and three bank managers. Gfheu there were the chairman of the county council and a large number of farmers aud working people of all kinds. Nearly all those who signed the memorial were heads of families. The Applicant then gave evidence. Pie stated that he had been in his present place of business a year last August. Previous to that he was in Dunedin for five years. There had never been any complaints about tho way ho conducted his business. The Chairman asked where the wholesale license was to be carried on. Mr Stewart said that Mr M'Kenzie did intend to carry it on in his present premises, but now he would not do 60. The Chairman : I think it is very undesirable that any wholesale license should be granted to a man who is carrying on an accommodation license. I think that might be in opposition to some of the penal clauses of the act. Mr Stewart observed that there was nothing in the act with regard to the matter. The Chairman said he had no authority to ask for the name of the premises, but at tho same time he had a peculiar duty to perform, and he must exercise a good deal of care. Mr Stewart remarked that he did not think that there was any chance of his client infringing the law. PJvThe Chairman said he did not say there was, but he wished to make sure that he was granting the license for honest wholesale trade and that there was not going to be any dodging. Mr Stewart : Then Mr M'Kenzie will carry on the business outside the hotel altogether. The Chairman : Very well. Mr Stewart then called upon Constable Christie to give evidence. The latter said that there were four hotels and two bottle licenses in Balclutha before prohibition was carried. The hotels were fairly patronised by customers at present, who would have to go without liquor if thaj; license was not granted. The nearest hotel was at Stirling — three miles away, aud outside of the district altogether. Mr M'Kenzie conducted his house very well. It was a model house, and he kept strictly within the law. The Chairman : The certificate will issue, but the license must not be carried on in the accommodation house or auy building giving access thereto. F. C. Duunett applied for a wholesale license at Keleo. Mr Sinclair appeared in support of the application, and presented a memorial signed by 73 persons in favovr of the license being granted. Of his own personal knowledge he could say that the applicant had been a hotelkeeper at Kclso for close on 11 years, and there had never been an information laid against him for a breach of the law. With regard to the place wht-re the business was to be carried on, Mr Dunnett was at present a storekeeper as well as a hotelkeeper aud the wholesale business would be carried en in connection with the store. The memorial was signed by at least 26 heads of families four justices of the peace, and a couple of station managers. There were two hotel' licenses at present at Kelso. The other man started in business eight years ago burdened with debt. He wns dead now, but he had left hie widow well off.

The Chairman : A publican business is evidently profitable. Mr Sinclair : It has evidently been profitable at Kelso. The Chairman : It shows that there is a certain demand for spirits. Mr Sinclair : I think it is conclusive proof of the demand. The Chairman referring to the police report said : I see the report is " well and good." F. A Joseph, who was then called upon to give evidence, said that some time ago he had occasion to travel through the country, and stopped at all kinds of hotels. He had stayed several times at Mr Dunnctt's, and being a total abstainer, he took some interest in noticing how hotels were conducted as he travelled, and he could say that he considered that Mr Dunnett's was one of the best and most respectable that he had stopped at. The Chairman : The certificate may issue on the 30th June, the business to be carried on at the store. This concluded the business.