IMPORTANT LICENSING CASE.

Otago Witness, Issue 2728, 27 June 1906, Page 33

IMPORTANT LICENSING CASE.

- iCCOMMODATION IiHJESTSES A3TD TH2 iOCAL OPTION POLL. In {he Supreme 'Court on "Monday, before hi Honor Mr Justice Cooper, -tie case of Outre* ■». 'W-aikouarti Incensing Committee, motioi ''* for * mandamus, came -up for -argument Pltmiifi .son^h.'t inati3aintis to compel tbe Wai kouaiti Licensing Ccmaiitteß to '-renew hi! license fox the Railway Hotel acoonrmodatioi Jiouse at Waianafairna. Mr Calvert for th< plaxntiff ; Mr A. S. Adams for lie defendant committee. On Satarday Mr Adams, -wlo had previorisl? consentea to the order, wi^idrew las consenJ - pn an intimation that iis JJonor would prefei Jo hear argument on the point at issue, plain- . 'tiff's .claim being that accommodation licenses weue properly subject to reduction •under » local option vote. Mr Adams said that the defendants submitted to the judgment of the court. If any *rrpr liad been; made, it had been merely ah ercor <&. jxulgm^nt. The great question -was '• as.io Ihe mearuiig'of the term "■publican's license"' in section 8 (2) of ""The Licensing ' A.ci oi 1895."' Counsel reviewed tbe licensing - legislation of the CD'.orry with -regard to "thre ~ taait«r iil interpretartion^atsome iecgtb- ■ Jess tne term "publican's license" included • Accsjnrmodatiori licen^s, defendants must sabInit to an -order. Xt must be admitted ti4t, 1 while the definition of "publican's license" in section 4 of tbe act oi 1881 was strfnckartlT - wide to iuclnde accommodatioTi lioenses, tke two cla?se.s of licences differed -widely, and ' - were separately dealt -with in many clauses of the various acts. r &x difficulty lay in the fact that while under the local option provLaons of the act of 1881 and the act of 3803 publicans' licenses and -accommodation licenses were mentioned and voted -upon separately, in tbe act of 2685 -one proposal only was put to the electors, end the effect oi the reduction -vote appeared to be limited . by £he expression ■" pubficatfs license" in section 8 (2). If -the court held that tins term under ihat section bad tbe wider meaning given by. the interpretation of section 4 of <tbß met -of 1881, then an order could not be made. If. an the other hand, tlie court -was of the opinion that tbe term was limited to publican's licenses jib defined in sections 29 and 30 of the «ct of IBBL, lbe defendants lnnst .submit to an order.. In that case, the order should be one to bear and .determine ibe plaintiff's ' application for a renewal, artel not to grant ft renewal. In one «ase (Buley and M'Doiiald) Mr Justice Wjlliams issued a -mandamus io grant a license; 1.-vi that case bad been traversed, and was wrongly decidea. Ha: Calvert said that, on ihe authority of Buley and 34* Donald, the mandamus should be to grant the renewal. Sim Honor .said thai Mar Justice WilHams's decision in the cage "referred to lias since been traversed -adversely. Smce SirtUrday ne naS looked into ihs -*4cts,, and he nad -also bad , the' *ssi»tftnce -of Mr Adai&B, who bad put lbe matter ixom. both Ttery iairly 'before -the court. r Bis. Honor delivered judgment .as follows^ : ™« question as wielbesc, wiea -uiader «co-, tioo Z oi 'The Aloobslic Liquors -Sale Con- . trol Act Amendment Act' 1893.' the electors : 'of » district 3iaV« aetermlnedtiiat the nuuihtz of th* licensee in £he iiisbrict is to be ' xedncedi thtt determinatian ap&lies io accoin.Jnodation licenses. Subgeciion 2 of .section 8, paragraph a, of that act prescribes -thai vhsn « propoHai for JEEedtudion is carried <th* «om- . aniticß 'toUall, at their first annual meeting after the Jficen^iDg poll, lefluce mnnber of ,pUKHcan»**lioense3 by not less than S per -.caul mat matt *han US per -cent. <!t the total in the dirfnact at tbe time ' when Mia was taJcen, <xd«siv« «f licenses forfeited for breadues *f the law. In -&c proviap to that paragranh the word ' licenses' is used witicmt the -matd 'pnbUcjsns,' and *o also in paragraph b -of ihe same *übaection; but, xip&n the jordinarv principlee of construction it is. in 'my opinion, -clear thsA •the 'licenses' referred to in the provieo »nd in paragraph "b «re lin lteS to the aescriptioa of licenses referred to ">n paragraph a, para* graph a being the cardinal and governing proviaion. Therefore the question narrows itself to tbiß: C»n the words J publicans' licenses' used in paxagrapn. a be interpretefl «a extending to and including accommodation licenses? The interpretation of the -word license in section 4 of 'The Licensing Act, 1881,' as 'any license ior the sale *>f liquors granted under this act or any act heretofore m force,' and, thew&jre, -where the term license' is used in ikut act *r its amendments, such terra includes every description of 3icenSe, unless there ds «oioething in the context of the acts or any of their provisions ■wh»h 13 inconsiaient ssath tli* gener*! -deflni, i tion. The .came general -cueaning, subject to, ">e [same principle <fi limitation, is applied' to. the terras 'licensed premises' a-nd ' pre- ■ mi^s.' Bnt section 29 of the act of 1881 ' divodes -the general class of licenses into! teren particular classes — namely, publicans' licenses^ IStrn Zealand wine licenses, accom-' moSation licenses, bottle licenses, packet licenses, wholesale licenses, and condition' licenses. These particular classes of licenses airier each from the other in ie-V-•p«c£ io *fee -rights -conferred, the obligations imposed, and ike places in which the .rights .conferred may be exercised. . 'Accommodation licenses,' although more nearly -approximating the character of publicans' licenses than wine licenses, bottle licenses, packet licenses, who'esale licenses, -or conditional licenses, are .still different in substantial respects from publicans' licenses. The fee to he paid is differe»t, an obligation may be imposed upon the holder of »n accommodation license to repair «r k«p in repair any lOfcd or bridge in the vicinity ; the provisions ■\a respect to accommodation in section 38 of the uct of 1881 are limited to publicans' licenses, and are not essential t» aocomrcoda- ' tion licenses ; the hosdex -of an accommodation ' lioesnse may, under Bectaon 79, «pon oertoin • terms -obtain a. publican'B license instead of ■ an accommodation licen&s ; and there ib a preecribed distance of five miles <wWch .must exist ; betweeri an accommodation bouse and a-ny ■ other Kceneed premises which does not app'y to publicans' .licences, and there are other minor points of difference between ilie two ■ clftßaes. And. althongh thea:^ is a i-enera.! m- , terpretation in section iof th* renu license, - there is also « particul?j inteTpretation o? the term " publican^s license." The distinction be- ! ty^een the two classes was also sharply -empha- ' rised in section 479, ' The Licensing Act. 1881.' ' naA in 'The Alcoholic Liquors Sale Control ' i.ot, 1893/ separate questions in respect of jujpommoda'tion licenses being stated" for the • palling paper .to be used at the local option ; pc3L . These Hirrerences justified lus Honor the C3iief Justice -stating, in re "W. and G. ] ruffrthull end Co.'s amf.jccwcn. 23 I^.Z.L.JI ' 8.C., *S9, 9. 42G. tlistt'pub'ksns' licrnses and j Itccornnrodaitiori !ic6Kses were clearly two dis- ' tihet lands of licenses. The construction of s the provisions oi the act oi 1895 must, there- * fore, be considered in -tho light of the prior ' yxisting legisj«.tion. and this legislation ha 3 j uleserly and in Tinmistakat'e -terms distin- > jfniahed an accommodation license from a pub- ' jdoan's license. Turnitig, then, to the act of ' 1895, I find section 3 prescribing si noil in re- <

„ ferenee to all -licenses generally, a provisioi which in in re .W. and G. Turnbull and Co.'i ; application, already cited, a. majority of tin ! judges heCd only applied to all classes o: 1 licenses if the electors determined that n< licenses axe to be granted in tk. district. Ii '■» thai -case it was held that, notwithstanding tn< terms of question I — namely, that the nuuibe; of licenses axi-sting in the district is to con 5 tinoie, additional wholesale licenses eoulc I be granted. ICo .reference in section Bis ! ' iitade to who'esale licenses, yet the majoritj ol the court held that -wholesale licenses '_ -would only "be affected by the carrying oJ j tpiestion Ho. 3. If question ho. Bis earned t then the Legislature has, in subsection 3 -od , section 8. U3ed the emphatic words that ' ' thereafter no licenses of any description phall te granted therein until after anothei licensing pol! lias been taken.' Where, how- . ever, redaction only is carried., tl»en tbe con- . sequences are limited by equally express words ' to 'publicans' lic£HEeß.'_ The special question which in this case I hare ±o answer was not directly in issue in in m ~W\ and -G. TutbImil and Oo.'s application^ but it appears to me that the inclination of judicial opinion in that case was that the power to reduce could only be> exercised in respect of publicans* licensee Mr Justice Dennistoji thus ■expressed himself: < 'W3*en it is intended, in TEdiiction districts, to exclude from reduction not only wholesale licenses, but all Tetail licenses, ex'.*ept publicans', the words used 'aTe " publicanß' Ucenses." ' Mr Justice Conolly concurred in Mr Justice Benniston's judgment.^ Mr Justice Edwards said : 'It is im*material for this purpose -whether o-r sot acconnnodaiion licenses -corns within section 8, Enbsfcction 2, of the act of I^s— the reduction clause. I sun inclined to think that they do not, and there may be .solid reasons why 4hey do not.' -(23, K^li.R.. S.C.. 11i4.$ The Chief Justice -considered that -wholesale licences could not hs increased if <|ue*tion 1 (continuance) -vcas earned, and in that r«spsct dissented from the judgment of the majority of the couri; but I <Lo not find that he dissented from the evidenf opinion oi the other judges as to the effect of the reduction vote. On the contrary, he said: "Subsection 2 of -section 8 &ays, however, that if the .second proposition— lhat the innnberjs of licenses l»e reduced — is •carried, -only pnfolicins* licenses shall be Tednced' ■(p. 496). In my opinion, where you find a specific term ir> a statute, and enlarging that term will result in the destruction of a status .or an interest, the proper method of construction is to /confine the .effect of Use statutory provision to the particular interest .specified. Here the legislature ha 3 stated -what the *ffect of a Tednetion -w>ie is to be, and Ixaa limited that -effect to publicans' »liceHee&, and i can find .nothing in the Licensing Acts which 1 would justify the court in giving a, onore j *xtensive sefiect to tne yote for reduction than 1 .that spedfically mentioned in paragraph a. In my opinion, therefore, the mandamus .must issue to hear and -determine the application. As this is the first time the question has been zaised, and the question is of pnfolic importance, involving the construction of i jsomej what £Dnfused series oi statutes I do not I think it is a ■case in which any order for costs ! should be made." I