THE LICENSING QUESTION

Otago Witness, Issue 2623, 22 June 1904, Page 18

THE LICENSING QUESTION

THE BEU-CE HOTELS.

WHIT OP MANDAMUS REFUSED.

In the Suprema Court in Banco on the 14th fast, there was brought before Mr Justice Williams a motion, for a writ of mandamus Sirecting the- Bruce Licensing Committee to grant the license applied for at the recent meeting by Frederick Bastings in respect of t&o "White Horse Hotel, Milton, or, in the alternative, to hear and determine the application.

Mr ~W. A. Sim (instructed by Miss Ethel Benjamin and Mr Paterson) appeared for the plaintiff, Frederick Bastings, of Milton, hotelkeeper; Mr A. S. Adams, for James Adam, Archibald Dunlop, Henry i'razer, P. B. Fraser, rod P. M'Skimming (late members of the Bruce- Licensing Committee). Mr D. D, Macdonald appeared for another plaintiff.

Mr Adams asked permission to mention something before his friend began. There were previous decisions of the court upon the application for mandamus against ibis committee, and mandamus was issued. When the matter came before the committee in Milton stress-was laid" on. the statement that an ■undertaking given, by him. (Mr Adams) had been violated. He desired to say that the undertakings given by him were in the possession of his Honor; and he would add that every undertaking hg had ever given to these parties, as ■well as every undertaking he had ever given during his professional career, had been absolutely and scrupulously fulfilled. Hs now produced a. copy of the undertaking given, and ■would point out that the letter was 1 dated the 12th May, whilst the matter about which the statement was made co-u.d not have been remedied later than the 2nd May. so it was obvious that he was not to blame. Moreover, the matter was one in. which he had no instructions at all. He desired to thus defend himself from the aspersion cast upon him.

His Honor: The correspondence speaks for "ftself. There must have been some misunderstanding. But it cannot affect the merits of thus application.

Mr Adams said that he only asked the court's indulgence to show that neither himself nor the committee Had ever ignored anything affecting these proceedings. His Honor, after reading thiough the statements filed, said that tnere was not much difficulty about the facts. Mr Sim saiid his Honor would see from the statement of claim and the affidavits that the ground on which the Licensing Committee refused to deal with the applications wr.s under section 43, and thai the act of 1881 had not besn complied with. His Houor psked Mr Adams -if he was piepared to uphold the decision of the ccnitUittee under section 41 (that the piovisions of the section as to adveitising were mandatory, and that failure to advertise within the time deprived the committee of jurisdiction). Mr Adams replied that he tnought the committee misunderstood the section, and he v.vs

Be bel.o-cd

not prepared to argue t'. c rrr f the cornuxttoe arts-. ■ • - '.

Hx Sim said he tKu rcu .= n gS f — thut the committee was not bona fide, 'ihe only question to argue was whither ai.y G-d2i could be ■made in the s'lapc c£ a mandamus, and, pcsEib'y, theie wa3 also the qucsiic.t oi cosi= — whether, if his Honor grafted sn eder, an order should also be ni?'_!<* on the -subject of Dosts. He wou'd eontond th^t the co"i)2iittc-i_-ivas a continuous body, and that it had no

discretion but to grant a renewal of Mr Bast- ' mgs's license. The position was that it had ! already granted renewals, so that it was clear j no objections had been taken to the second ' renewal asked for; and it was clear, too, if i the committee were light in granting the first j renewal at was boiind to grant the second. ' He had no doubt the Governor would fill up - the vacancies on the committee by appointing j most of the other gentlemen who were unsuc- | cessful at the licensing election, and they did ; not hold such strong prohibitionist views as the j gentlemen who had just res-igned. The posi- j tion with regard to the committee was this : j The parties had bsen in communication with i the Governor about the appointment of sue- , cessors in terms of the act, and the last mes- j sage Miss Benjamin had received was that the matter was engaging attention, and would bs dealt With as eav'.y as possible. It might be taken for granted, then, that the Governor would appoint successors in accordance with the act. He submitted it was clearly necessary for the parties to come to the court to get the construction of the court on section 41. The new committee might have said :

" The old committee has decided that section 41 is a fatal objection to your applications, and until you get the opinion of the Supreme Court on the section we cannot deal with your applications." Of course, time was of (importance in the matter, as the existing licenses expired on the 30th June, and his Honor was about to proceed to Wellington.

His Honor remarked that section 40 said that the meeting " shall be held " on a certain day, and section 41 did not say that the meeting- which, by the previous section was imperatively to be held, should not be held.

Mr Sim said it was clear, if the views tlie committee took were right, it would be competent for the clerk of the committee to tun the district into a prohibition district surp'y by advertising the meeting one cloy late. Oa the question of whether the mandamus shou'd be to hear ?ncl determine or to grant, he submitted that his Honor's decision in Burleigh v. M'Donald (Nev. r Zealand La.w Reports. 4 Supreme Court, 427) was a direct authority. Il was clear that if the committee had hep.Td the applications at the time they would ha^e granted them. He subinitt:d that the effect of tha act was to niako the committee a continuous body, and, although these gerttlome.ii had resigned, the court could mv' 1 a mandamus, addressed to the Licensing Committee for the district ci Biucp. dirsoting Uiein either to grant the present application or at an; rate to hear and determine * it. It vrovld be tha duty ol the ir.c-inber-= for the time being to give effect to any such order. -The chairman was &till in office, but could v.ot act by himself. There rnu&t be at leaai; two other members •\ ith h'm, and if ilie Governor appointed only two other members the chsirm-.u. and those i wo members could deal with the maroamus. in thp ciso of Kegma r. the luayoc- arrl A.&sssgo 3 of licehester, Loal Campbell said: '• Tho further objection is made thot the mandatory part of the present wilt cannc f now bo obeyed, because the mayor, who made default, is no lorger in office. Bui the mandamus s directed to the mnyor and assessors ot the City of Eocliester; and there always are suili functionaries . although not a coiporation. they constitute a standing and perpetu?! tribunal \.'~bi-\ tho c;ty as much, as tlie Town _ Council : "i 1 II r-v at" :.ow competent to do v.hat cug'.i to lnvo bseu deno by the mayor and assessor of October last." iha Licensing Committee, he submitted wn a con + muou3 lubunal, and although it might be at the present moment no!, abo to ao'v, vet the court wou'd assume laat the Go. -error weii'd perform the du'y unposed on him by the pet of 1893 ancJ appoint ■■rcoctor? to theso pci tlr-meM, and a=! soon a? Ihal 'us clone 'ho Liccixci'ij.; C^iiuniUec v, ould

be in a position to move. Ho would, therefore, ask his Honor to issue a mandamus addressed to the chairman, ami members of the Licensing Committee, directing them to hold an adjourned meeting of the. licensing meeting of the 3rd of June and. at that meetiug either to grant the: application or to hear and determine it. The question of costs would depend on the tmi3 the resignation of the committee took effect. Their resignation could pot reach the hand? oif the Governor until "Wednesday last (Slh inst.), so that until that day there was no effectual resignation. The proceedings were taken oil the previous Tuesday afternoon ; they wers filed az 2 o'clock. In any ccse, even supposing the resignation was effectual before, he submitted the plaintiff was entitled to come to the court to obtain a determination of the point taken by the committee and establish conclusively that it was a bad poiut. How bad it was was shown by the fact that Mr Adams had not ventured to argue it.

Mr Adams said he did not propose to argue sections 40 and 41. All he was concerned 'o put before his Honor wa3 that the committee, having a decision of the court on a certain matter, thought it vra=3 applicable, and so made a mistake. The defendants were not members of the committee now, and therefore had no power to grant licenses if ordered. If there vero personal objectors at the meeting, their nghts had to be considered m the form of the order the court might think fit to make, because they, along with the applicants, were interested. The fallacy of his Insnd's argument was his suggestion that as the committee granted renewals on that day they were morally bound to give a second renewal. These renewals were granted for 1903, and there was that time in which proper objeciiors might have arisen though he did not say th it anything had arisen. There wa,?, hs mi ;ht say, a curious puzzle his friend might have to consider — namely, one of the licensees was convicted af selling without a license during that period, but if the license related back thm li 3 had a license in law at the time he was convicted of selling without a license. "With reference to the position of the personal defendants, the ease of Regina v. the Mayor and Assessors of Rochester was a plain case, but in that case it was clear the nev mayor had refused to act. He was befoiv the ccun and argued the question. The difficulty in the present case was that the eour* hrd not before it the persons who would be entitled to show cause, if cause could bs shown. That was really tho difficulty in his friend's wry As he (Mr Adam?) had said, his clients were' not interosted in showing; cause, because they had lesigned. With reference to that question, he submitted that the resignation did not depend for its effect upon personal deliveiy to the Governor, and it was not correct to say that it only took effect when it reached the Governor's hands. The statute in this caso did not require personal delivery to the Governor, and what was done was the pioper thing for the committee to do — namely, tho resignations m due form were delivered to the statutory member of the committee, the chairman, who telegraphed to the Governor the fact that he had the resignations in his hands arid caused duplicates to be forwarded to his Excellency. Could these members have withdrawn their resignations alter they had gone so far? He submitted they could not. Nothing further cou'J have bean done to make the resignations inoie complete than they were. Ifc was not disputed (hat notice of resignation was given to the other side verbally on the 6th and m writing on the 7th, before the writs were issued. The meeting of tlie committee, he would point out, took place on the 3rd ; the following day (Saturday) was a short day; and on Monday tho parties immediately interested had notice that tho committee had aesigned. li, aller

that they chose to take proceedings, then they could not be allowed to gain yny advantage m the way of costs by reason of a mere technical point that the resignations had not actual. y leached tha Governor's hands.

Air Sim replied.

His Honor gave decision m the following terms : I don't know whether it is worth while taking time to couscder. I have formed an opinion which seems to be a sound one. It can, if necessary, be reviewed immediately, which is better than holding the matter over further. The elective members of the Licensimg Committee, whether their resignation was effectual before or after the commencement of these proceedings, have effectually resigned now — of that there is no doubt. They ware entitled by statute to resign, and the effect of that resignation is to make them absolutely cease to be members of the Licensing Committee, and to have no authority, therefore, to assist in the grant.ng of licenses. To issue a mandamus, therefore, to them would be impossible: it would be to command them to do something which by law they have no power to do. Then it is suggested that although a mandamus would not go to these gent.ertjen personally, yet it would go to the Licensing Committee as a continuing body ; and Mr Sira cited in support of that contention the case of the Queen v. the Mayor and Assessors of Rochester. I think there is a fatal objection to that contention. The Governor has not at piesent exercised his power of appointing members of the Lic&usiaig Committee in place of the gentlemen who have resigned. At present the only member of the Licensing Committes is the official member, the stipendiary magistrate. Ha by himself can do nothing. Until the other members are appointed by the Governor the commr.ttee can do nothing. If proceedings are taken against members of a body, or a body, that body, or the members of at, have a right to defend themselves. I agree with Mr Adams's suggestion that the court has not now before it persons entitled to show cause against a mandamus. Until tlieie are persons who are entitled to show cause against a mandamus, it is prematuie to commence proceedings by mandamus, because there is nobody in existence who can answer those proceedings. Before a person can be compelled by mandamus to do anything he must, on the ordinary principles of justice, have an opportunity to show cause why he should not do it. If a mandamus were granted now the gentlemen who may hereafter be appointed would 1 not have such an opportunity. I think, therefore, the proceedings must fail. On the question of costs, I think that, lookirrg; at the action of the committee, it was *not at ail unreasonable that these proceedings should be started^ and although it would be quite possible to allow the plaintiffs their costs, I think it would be quite unreasonable to allow defendants theirs. The motion is therefore dismissed, without costs.

Mr Sim said he supposed it might be taken as bib Honor's opinion that the new committee, when appointed, would be entitled to proceed to hear and determine the applications.

His Honor Certainly. That has been, assumed throughout. It was the duty of the old body to hear and determine them, and I piesume it will be the duty of the new committee.

Mr Adams: It might depend on entirely new and different conditions.

His Honor: That may be. If a new committee were appointed I think it may fairly be saiid that in that case the authority of the Queen v. the Mayor and Assessors of Rochester would apply. It would be improper, however, to say more at present. £Ie Sun said an expiessiou of opiaioa on

the subject might obviate the necessity for further pioceedmgs.

His Honor said that all he coxild say was that, lopking at the authority named, it seemed! that the duty the old committee had would, fall upon the new committee, and they would be compelled to perform tliat duty. He woiild, however, be vciy sorry to decide that finally without argument.

In reply to Mr Adams, his Honor said judgment in the present case would cover all the> cases — 10 or 12 in number.

Seme miners from Charters Towers who recently made inquiries ra th& chance o£ securing employment at tho Thames were iiifc-rnipd ihat they would fare better if thty remained at Charters Towers.