BOTTLE LICENSES.

Otago Witness, Issue 2884, 30 June 1909, Page 57

BOTTLE LICENSES.

r «. JURISDICTION, OF THE COMMTTTEE. MR JUSTICE DENNISTON'S DECISION. AN IMPORTANT JUDGMENT. Mr Justice Denriiston was occupied in the Supreme Court on Monday with a mo- i tion in which Robert William Wilson, of ' Dunedin, grocer, applied for a mandamus ', Vo conapsl the Dunedin Licensing Committee to grant to him" a renewal of a' bottle ' licensa, or to hear and determine his Application for the license. } Mr Solomon, K.C., with him Mr Wood- j house, appeared in support, of £he motion ; Mr Adams, with him Mr Bedford, for the elected members of the." Licensing 1 Committee (Messrs G " Caldef,- S. C. Phillips. B. E. de ,X.3utour, J: A- and W. King). The chairman of the eomnlittee (Sir * Wii-ddowson, ' 5..M.) \Ca3 not repre- s sehted. ' •, • The 'plaintiff- alleged, inter alia, that he is the holder ■of -a -botfle license -within the meaning of ''The: Licensing Act^ 1881^-\ and that his application for a renewal came before the defendants' in June, JL9O9, when they refu&sd to hear"" and. determine it on the ground that they Jia<3 no jurisdiction in '■ -law to do so. Plaintiff therefore prayed j that a mandamus"' b"^ issued .ordering the , defendants— (a])* to grant the renewal of the said bottle license; or (b) in the alternative to hear and determine the said ap,- ; plication. .Plaintiff ajso asked that clpfend- i opts be ordered to pay EHe costs incidental to the case : . ' - Mr Adams said that no defence had b&sn filed, becausa_the question was purely one of law. While the elected members of the committee desired him to say that they submitted to any order the court made, they wished the matter argued. Mr -Solomon, in opening the proceedings, feaid the case ivas a test "one. One case ■ came before the ' Lieansing/ Bench at its j annual meeting, and after hearing discusr sion the bench concluded that in view of the provisions of "The Licensing Act, j 1908,"— <>ne of the consolidated statutes— j it had 'no jurisdiction to grant the application. It thereupon" refused lo hear it. I and it was agreed that the license- should ' stand in that position, "and that other similar applications should remain in abeyance until aftsr his Honor's decision in. -tne present, case. He trusted * that his Honor would give his judgment before the 30th of* June, otherwise there would be a hiatus, which he was sure-Ws Honor would avoid If it could bo avoided. The questions at- issue were twofold. The first question in the state of the law as at present in New Zealand was— Was it competent for a licensing bench to' renew ' bottle licenses which vrere in existence before the coming into operation., of the" statute? The seeonH question was: Assuming that it was, had" the Licensing Committee any discretion beyond the discretion j given by "section 81 of the original Licens- J mo- Act" of 1881. which corresponded with section 109 of the Licensing Act of 1908. Generally speaking, lie submitted >to the court that the law, so far as the competency of the Licensing Bench to grant these liencses was concerned, was left by the statute of 1808 in exactly the position in which «t was before that act was passed. His Honor: That is the theory of a coi.-'Mjlic'ati.n.g act. Mr Solomon agreed. He submitted that under the consolidated statute of 1908 there was still the same power to renew licenses that had been exercised! before its passage into law. He further contended on tho second point, • that the law was now, as it had been since the passage of the act of 190*, that licensing committees, except for such cause as, was indicated by, the statutes, had no power to take away or refuse renewals of thosa bottle licensee which were in exiotenoe. In other words, in the ease of renewals which were in existence in Otago. Nelson, and Westland. the three provincial districts in which bottle licenses prevailed 1 , the peireor.e who had botfcls licenses had a right to perpetual renewal co long aa they complied with the v conditions under which the licenses .were granted. an>d so long as- they did not commit offences specified by 'the statute. There were four acts. The first to which he would draw attention was the original act of 1881. There v.were ee-ven different classes of licenses which could be granted, one of which was, of course, bottle licenses. Section 29 indicated the seven classes of licenses to be 'granted. Section 33 gave the effect of bottle licenses. Section 57 authorised the ratepayers +o object to -the granting of' licenses. Section. 62

indicated the objections that might be -made by ratepayers. „ His Honor: Does that apply to all licenses V Mr Solomon : Yes. your Honor ; • it is clear it applies to all licenses. Section 81 gave the grounds which might be taken to prevent the renewal of licenses. Section 63 was a matter of importance. ■ It gave to the licensing committee the power on its own motion to take notice ,of any matter or thing -winch, in its ' opinion, would be an objection to the ! granting- cf licenses. He contended that '*" that section did not give a licensing com- • ' mittos power or , discretion beyond the discretion already giv-sn by sections 57, 62, , and 81. At that time the renewals of bottle licenses, as in the case~ of other licenses, was practically entirely at the discretion of the committee. That state „ of "affaire had not remained, because they ' then got the Alcoholic Liquors Act of 1893. That was the. first statute that took ' away the direct discretion .of licensing benches and placed the diser<ytioti directly. '■ in the hands of -the psople. Previously to [ the passing of that statute ]tfea -control of . all 'these licenses ' was ■■- indirectly, in t.he [hands of the people, because it was they, " •who elected' the licensing .comnvttees. I Under section 15 of- the-> "statute- of 1893. (-.they "cams' to' the firstf'right of the people ' to say what should happen- in the case^ of all. licenses. By fraction IS tfc^ question. i ol . whether the number of- Hc&nses io , a dis,trict, should continue ~>or be- . reduced- - or., ■ , oease to exist was hat to the voter Section** - 16 providiad that the ouiastiors to bs eirbmitted to the poople should be eub.Tnittcdin the form contained in the "third schedule to the statute. Umdar that schedule th.3 ausstibn of reduction oc otherwise o£ each clan's of license was separately put to the people. That was of great importance, ' beeiuee it was obvious that the retaining by a licensing committee of, a general discretion on the nuestion of either- grant- • in? or renewing license would be quite subversive of the princip-le contained in the statute. The question of whether tliev shculd continue as they were or ba reduced was to b-> decided -directly by tlws vote of the people. ' ■• ' His Honor: These provisions are Jiiandatorv. "with the'Sxception of reduction, aa to which trirre are limits. ■ Mr ScJdmon : Yes. your Honor. Continuing, learned counse-l eaid that, in- regard . to ! reduction, there was a discretion td tha committee, but "within a statutory limit— • there was a maximum and a minimum. ' Therefore, it woa not surprising to find, under oac'tdon 28 of the statute, that th* f.ftli subsection of emotion 81 was repealed. It was do,nc away with. The object. of that, it was submitted, vra>s to 'do away -with; the - gen-ccal discretion wh.'eh bjfere that tinia > wa« vested in the?' Licensing Committee?.' ' and which would 'by entirely subversive of the princiole which was introduced for the - fir*t tirec by-th«* £oi of 1893. -- • Hi* Honor: Do, you contend, Mr Adams,that _tbe~ power, rezna.ins? •' '- > •■ j Mr Adams f Yes. your Honor, except'tna*it. is sp~.cinrallv limiied." J^ghall- -contend' tihafi urukz. sections 75 ard 73-of-rh* net of 1881. -which create the discretion, the di*"'creiioniyrv pow^r •of the * cammSto - <« - supei-arVW to th.? ' objections provided for • in t,fo? L!C?tt=;infr Act.. ' '*' ' ' i Mr Sqiomon claimed that section 78 was. his fovonr. as' iii<l4«itiii?T Usit a _t>erson ■ 1 w.ho hold a lioaneo htwl an abLol'uto ri.^ht fo ■• "a. renewal oxceut for cans- 3 , ehown. B^ petition 18, s-ufep-tjon 1 o? the ..act of FSS his - Honor -would find what was to . t'© . tt u * • '. result if continuajic^ were carried. .'Tit' ' se«m<p<i to him (Mr So'ombn) that cuWc- ; tion 1 was. conclusive on tl-esubjert. The immber of licenses was to- cdntiriife l as\ ■fhev were^ " subject to" Ite power *of refusing to renew any licenses under the oro-visi-ms o f suboec+ion h of footion 12.'* Und«!r tb«'is oi>bs?etion 6 Lict n«iir.g G^-mniat-i tees roidd only r.-ifus^ renewals cf lic^n^^^s j on tho (Trouncfe of offeno?^. and upOD the ! srounds oonteined in the first four Fuhseci tions of section 81 of the act of 1881, {«iv- | ing out the fifth section. . He submitted i that subsection 1 of -section 13 catablis'^d I the fact- £Yn£ the discretionary nower that^ ! had oxisied Ln t.b.p. Licensing Committees j was dono awa.v witih. ' He wouM next tat« j the oourfc 1 to che act of 1F95. By- cection. 3 i a poll haA to be taken on the same quesI tions as -the poM vran diro"ted lo be telc^n by -the act of 1893. But this 4>hve it was to b-2 tnken in fh*» form set out in th<? s^hedul". to iJie act o* 1895, and that form, instead of giving power to the lwople to vcte on each class seoaraiels", ga\i? one que&ticn— namWy, Shall the nunißer of licenses be continued in the' district? Section 8 tojd,the ccnsequionca. If this answer was continuance, then the number of licenses was"' to oO'iiz.ntie as they were until the nexfe paU, "subject uevc-rthe>less to the power of refusing to renew licenses obiected to under eubsscM-ons 1 to 4 (inalusH'c) of section 31 of the prjjieipal ' act." and snbiect .nl&o tc th<? provisions >of the cct relating to fcTfei*urc. " IT-e submiftr-a that the word j " licen&os " in that section meant licenses of j all classes, because in sufc«?cHon 9. a different f*fca>fe of affairs prevailed in the eass 'of reduction bainjr carried. Tn that case the proposal wa« to bs deemed to be carried, and tho committee at its first meetinp. after the noli was to refu«e a number oL publicans' iioanses. The obvio»« meaning was that the people wore to decide whether the total , number of liccnoes of all classes was to continue. .If they sn id yes, t>>/> licenses w©ro to continue. If fchev ?ai<i no. th^ licenses aH'cam**. to an end. T£ the? said licenses w«re to be reduced, tho reduction apolied to a particular .eLi^s ol licences. He_ came now to the clauses which dealt with, the o.xistcnco of the bottle Jiic^nscs in toto. Section 18 of the act, of 1895 said: "No new hottl*> license shal] be granted within any licensing district after" the commencement of tJiis act." His Honor: Ie there power to transfeii bofctL?- licenses? Mr Solomon : Yes.: it -is eommcnlv don». Thftn jmbssction 2of section 18 said : "AM such license in force at the commencement •of this act eboiLr'ontJnue in force nctii June 30 next ensuing." The first onestion in the case Arose as to the effect of that action in tKe dnfc of 3895' The section was "judicially; considered by Mr Justice WiHinnw in thf» case of AlJpn ~r.-Oa.revr (14 N.Z. Lsvtv Tl^.' ivirts. p. 569^ when his Honor decided 1 that the meaning of" the section wm th"fc'.. tihe committee could not grant, a "new"' botHe license, but that it «ould rwew a ibot.tle licetige already in <?xi<st*>nce. Ho (Mr Solomon) nointcd , out to the court t.ha' la7>gua«y« of section 92 cf th.9. -let of 389^: "Provided no such licerse shall henceforth be granted, or. if already granted, ©hall hn ' renewed." It was submitted that t.h<» -wordp "r,o new license «-TiaU 1:© granted" nv&anfc what tihey said— that a new license should 1

not 'he granted as distinguished .from old "licenses being renewed. * Mr«So!omon then dealt with the Consolidation Act, and concluded by submitting that, it was rather late in the day, 'after a statute had been on _. tho books for 14 years, and a judicial interpretation of that statute had been .given, to suggest ' that a mere consolidation statute was to alter the law which had been observed for many years Mr Woodhouse submitted that his learned -friend Mr Solomon had estabJiehed that the licensing Committee had full and complete jurisdiction to issue bottle licenses. He contended that, in thefirst place, it had been established that the right to grant bottle licenses still existed, and if that right existed, the committee had no discretion except to grant them. Learned counsel then proceeded to state that, as there could be no new bottle licenses granted, there was increased value given "to existing bottle licences. In the vested interests a very large value was created, and designedly created, and therefore the court would assume that' the LegisJftture, having created that interest, would not likely read into the act any provisions which would enlarge the power ot. -taking away lioensejs^already hi existence. , ■Ulr- Adams- prefaced" his' remarks "by sayting~" thai *no - act or" series of • acts- had . presented such 'puzzles as' the .Licensing Act. Hr Solomon' had .said .{half there- were -two. branches -to the case— ;dn-e .was. whether the "Licensing Committee could- renew a. bottle license - which had been in '.existence before * *be -act «f"-1908;" the 'other was-, assuming, 'tfiat the committee, had the power to renew, had it the discretion to refuse a renewal. The committee itself, in refusing •on the ground that it thought it had not the jurisdiction, intimated that it had not dealt with any other objection that might be raised. Aa to the question of jurisdiction, he would contend, with great respec* for the court and some hesitancy, that the decision in Allan v. Garew ought to be subject to revision on the grounds that it j was not an argued case before Mr Justice | Wiiliama, and that it was not a" considered judgment, but had been given after the opening of the case by counsel. His Honor: Why .was it not argued? Mr Adams: The reason why the defendant Licensing Committee did not appear was over-confidence. It had been contended that Allan v. Carew, having been decided prior to the legislation of 1904, they must assume that the" legislation in that year adopted and endorsed the judgment of Mr Justice Williams. That was a double-edged argument, for it might also be contended that Parliament, by the adoption of the cryptic clauses in the Consolidated Act of 1908, intended to. cast doubt upon the decision that-hottle licenses lawfully existed. -That made it clear that the Legislature was not relying upon any judicial interpretation. With reference tothe interpretation of, section 18 of - the acfc 0f~1895, if it meant no more c ihan his learned . friend contended for, then the meaning was reduced " to " an almost. intinitesmaL point, and one could hardly understand why Par ' liament troubled itself to - legislate -at all. !A "new license' moant a special license, and did" not, mean a renewed", license. ■further argument, then ensued as to whether a renewed license was a new licen&e, and Mr Adam 3 quoted the judg- "" ment of Mr Justice Richmond in Hamilton v. Fraser. to the effect that a renewed license was the granting of a new license, and on a parallel with Mr Solomon's "reasoning, he said he was entitled to ask the court to believe that the Legislature was aware of this definition of a renewed license, and that section 18 of the act of 1895 was .passed in' recognition thereof. -."His Honor said that practically the members of the Legislature were aware of very few judgments. The draughtsman might 'be so aware. Mr Adams said with reference to section 4 of the act of 1904, where the term- bottle license was used, nothing could be attributed to it. His Honor: Except, of course, that bottle ' licensee did not exist here, and had ceased to exist under the act of 1895. - Mr Adams said that in this section in-ste&d-of using ""no license of any description" they had put in every licence named in the act of 1881. Coming to subsection 2 paragraph B of the 1908 act, Mr Adams said he was going to submit a more intelligible meaning than had been suggested by Mr Solomon. His Honor : No one' would suggest that ' this was ever before Parliament, and ..it is not possible to conceive of the Legislature taking away thess valuable- rights without the cognisance of the members. They accepted the representations -of the Commissioners that no substantial alterations had been mode in the 'aw" of the country. It was perfectly dear that if they had been told, that this, was to have been the effect there would have been a. discussion on the subject. He would decline to aocept the -responsibility of revising the act on that ground, and was". bound to realise that nobocly was more surprised to find what had been done than the legislators themselves. j Mr Adams submitted that the clause obtained subject to the proviso, which was that " nothing shall recognise the law- , fulness of bottle licensee." His Honor: I never heard yet where the' proviso destroyed the clause. Mr Adams: Either the clause or the proviso must be destroyed. " - After .further argument Mr Adams said the proviso would limit up to the point of destroying, but would not destroy. He would submit that ±he meaning was that "such provisions specifically relating to bottle licenses and are in force at the coming into operation of this act shall continue in" force, and that nothing herein is to be construed as to recognise., the lawful existence of euch licenses." He would aubmit that as the reason, because a large amTflber of the sections did not refer specifically to 'bottle licenses, but- nearly all of them did refer to bottle licenses \*long with other licenses. The general Section kept alive the whole of the repealed statutes so far as they related to \Sottle- licenses* and would keep alive those sections of the repealed acts which were &ot re-enacted in - the Consolidated and that was to say that the feourt could not read into subsection B- the. ' 'favour of sections which wer,e re-enacted vS the 6am© statute. Mr- Adams then entered upon argument ■ fa fetation .to the discretionary powers of Stis conjrhittee > n - relation -to the- four ttl&uses of the act of 1881 in -the event of "certain circumstances- arising, and concluded )j j&ying that the committee might take ss»tig£e of anything which in its oprnon an objection. JSi4 Honor eaid he would hesitate to tiphold the re-enactment of an act re- j

creating "any sections which had. been, repealed by any- legislation. Would any other constfruction not make the three gentlemen responsible for the consolidation legislators for the colony? Mr Adams said that as Parliament had seen fit to pass certain clauses which had) been prepared-, the acts as passed must express its will. His Honor: I entirely dissent from that. Mr Adams: Ihen \va have consolidation as an added danger? Hi 6 Honor: Exactly. Mr Adaims eontemdiea that ccinsolid!atLon must have the effect of law. Ho con- ■ tinned and said that section 45^. of the act of 1881- 'embraced the principle that, the granting of new licenses should be governed by the expressed will of the people, and dwelling in dletail on tho point of- the powers of the comimifcfcee in the event- of the carrying of either reduction or continuance 6aid he would <■ claim for the committee the same discretion tihat it had be-fore 1893. His Honor: That will have to go before the Court of Appeal. _Mr Adams, reviewing subsection 6 of section 12 of the act of 1893, and the con- " tinned " effect ofe sections 75 and -78 of ' the"" act' "of 1881," said " that \the powers ' conferred by the latter remained in - force and ' were . effective at the first licensing meeting" following upon the tak- *' ing of the poil. The -present cosition was that they- ha¥ihe!d "the -poll in 1908,- .and too next, following-, meeting-^w«e" the one held at the beginning of- this month. . At. that "meeting^ application was made for bottle licens2s~ amongst othera. He submitted that inasmuch as reduction was carried in Dunediii there "was no mandate whatever to the Licensing Committee aa ' to continuance either affecting publicans, accommodation, bottle, or any other kind of lieemse.His Honoir: Abolish them all? M-r Adams: I don't say that. Probably there would bo certain difficulties in th» way, but' as to bottle licenses I do not know whether that is not exactly- the position. -Mr Bed-ford, associated with Mr Adams "as junior oou-nsel, did not add any' arguments. ' His Honor said that giving a "mandamus to grant " was a very strong measure to take .and he would have_ to give the matter consideration, which, baing e-ngag-sd in other important matters, h« could not do for some time. Ho would like to hear Mr Solomon upen the vquestion of the discretion of the committee. Mr Solomon said he admitted that they were not entitled to ask for a mandamus calling upon the bench to grant the licenses. But he thought they were entitled to his Honor's judgment on the question to get- a mandamus . compelling' the'commiittee to " grant the licenses " subject • to .there being no objection to the licenses.that could come under sections 1 to fr of the aci of ISBl\ If v his Honor' granted to • them a mandamus " simply to hear- and determins ' and "the "other matter" was" - undisposed of --by the -judgment of that court, neither the Licensing Committee nor "the" applicants were'adyanced in any_ way. ■ - His Honor : Oh, yes. Mr Solomon : I think not. His Honor: They might all get their licenses. Or those refused might ascertain that the refusal was. based upon certain grounds and como to the court again. If the committee came to the conclusion that there was no ground for objection to any applicant, the matter so far would be at an end. If I give a mandamus to hear and determine that -assumes that they have -the power to grant" bottle- licenses. If thoy consider it and consider that all licenses shotild be granted, there is an end of the matter in the -meantime. The other contingency is one that I am not at all • prepared to say I should be called upon to decide either off-hand oi at all, or whether I should wait until the question arises. I should not issue an injunction or mandamus to grant and have the matter disposed of; but 'l could issue a mandamus to hear and determine. Then those who want might have the chance of getting their licenses ; otherwise I would have to hold the matter up for some time. Mr Solomon consulted with Mr Adams, and then said that both thought, with great respect to the court, that they would like to get a judgment on the question of discretion also. " His Honor: I am not satisfied I ought to give my individual opinion in that. It is not a case that has arisen, and in> the. meantime I should not be' called upon to deal with it. ' ' . Mr Solomon : What- the committee meant was whether, they had jurisdiction. His Honor: In my opinion they have some jurisdiction.Mr Solomon: If your Honor holds-and- •. gives us a ruling calling upon them to hear and ' determine, and if they should then refuse on the ground of general discretion, it simply means that we shall have to come back to the court. I cannot say I see anything objectionable in that course. His Honor: I cronot care to decide on general principles on my own responsibility. The whole matter might well go to the Appeal Court now. Mr Solomon : I think the opinion you have given expression to is the right one. I am prepared to take a mandamus in the form you arc prepared to give it to us. HIS HONORS DECISION. His Honor said : I have been asked in this cass to give my judgment at iho earliest possible stage in order to allow the question to be gon-s into bsforc the expiry of the current licenses. In order to do that I must give my judgment -at once, because it is impossible for me with the pressure of publio business at present to hold the - matter over except for a. very considerable period. That being so, and as I have formed a very definite opinion on the duty of th>3 committee witb respect to the second order, and as -the parties have, in - •my opinion', properly confined their application to my stating my ..opinion merely on the quastion of jurisdiction,' I think it 'is better to determine that matter now. The question as ■to the" jurisdiction _of the court turns upon -this: Have bottle licenses ■ been abolished before • tho passing of the act of 1908; and if they have not, has the -position been affected by that act?" As to ■ the first point, Mr Adams has very - properly admitted that the question " as to the existence of bottl© licensee before- the act of 1908 turns on section 18 of the act of' 1895. Subsection 1 of that section is in these words: "No new bottle license shall be granted within any licensing dis-

after the- commencement of this act." i These words received a judicial interpretation as. far back as IS96— now a period of j 13 years. Mr Justice Williams, in Allan . v. Carew (14 N.Z.R., 569) held that the ' section does not 'take away right to tho renewal of bottle licenses within the period of two years given by section 12 subsection .' 6 of " The . Alcoholic Liquors Con- J trol Act, 1893." Even if 1 did not agree with that judgment, I consider that.] in a question of this sort I should bs bound by it, and that it must be taken as the law until it is overruled by a higher court.- lam so bound — first, by the general principle which is summed up in the phrase "stare decisis"— in other words, that the law, as declared by a competent court, must remain the law until it has be<ei? overruled by a higher authority. It is unnecessary for me to dwell. upon the importance of that. There are high authorities that have laid it down almo&t as' an absolute principle.' There have been eases— l have myself deliberately overruled the judgment of another judg.&, but only when, 36 is often the case, attention has^ been drawn to some demonerrable error, if I may use "the .word— in the judgment of tho earlior court on some, point which ,has not been -brought before it." In more than, one case I <hiave done- co — sometimes witih the ascent^ of the judge who gave the previous decision. The prircipie is based on ths idea that it is even more important that the law should be 'certain than that itshould be"eouiid. That is the general principle, and- -that "is the principle here.- "In • addition to this, .thisire -is the fact of- the^ long period during which this decision has been acted upon. That, of couree, tells in . two directions : • Fir&t, it has led to the belief in" the parties interested in these licenses acting upon the law as laid down. In confequenoe vested* interests of great value- have thus arisen to an extent which , it would bs a serious thing for any one judge to interfere with; and, A secondly , dur- , ing these years there has beTcn j language in numerous subsequent acts which is quite inconsistent with the assumption ihat the judgment is incorrect or. is not aw. The- assumption cf those who contend that the judgment in Allan v. I Carew is not law" is that the act of 1895 | definitely and absolutely destroyed bottle liosns-ES for all time, and nobody has pretended that if thejr were destroyed they^ j i were eve* ve-created ; a-nd, that being so^ ; I "need not refer to the numerous references j of the Logisiatuw ;n; n subsequent acts to the ! ! continued existence of bottle licenses. It } j is sufficient to ' say that every act passed ■ since has assumed their continued exist- ! anoe. Of course, '<h& njieiie legislator, as- -' suming that as the construction' of this ; statute, does' not make that construction . law — I need not trouble to cite authority , on that point", — Lut it is when you find ■ the Logislatu.r>& — or, at least, -the draughts- !f! f man, acting, it must be v *assume3," with" the'[" knowledge .of '.the- 'judicial construction of j the section — aching 1 and continuing to act ; as if it were law, "then that, construction j may " reasonably ,be he-Id to have received -, nojG only* a, judicial sanction, but to^a la.rge "extent, legislative sanction. " Apart alto- v gether from, that, when dealing with the statute _ for. the first time, I should have' been . . strongly inclined to hold that" "no new,, - -bott.le- licence shall be granted" meant, really no additional license, although I t have not overlooked the force of Mr !• Adams's refe>r-ence to the effect of- subsec- ' tion 2 in tlnat ca&a. If that be so, the ; only question ' which remains on this par- ! ticular noint is ac to tne effect of the J exf'raorddriary provisions of section 1, sub- I section .2, ' subdivision b of the- -Licensing Act of 1908. That is certainly 'a singular provision. It, roads thus: "Such -of- the nrovinions of these enactments as relate to bottle' licenses, and are in force on the coming into operation of_ this act, shall continue in foroa as if this act had not been passed." Standing by itself, it is perfectly obvious that it not only assumes the existence of bottde licenses, but takes the extraordinary course of taking these licenses alone cut " of ' the purvfew of an act which deals with general licenses generally, and pAaogs them 'in a . category of thoir own, preserving as to them existing legislation. Then we come to the. proviso, " provided that nothing herein- shall he construed io recognise the lawful existence of such licenses." Having •n tho section assumed the existence of bo-rtlo licenses, arid the application to th«m of existing legislation, it is contended that in ihe proviso it has proceeded to enact, m effect, that their lawful existence is not to be recognised. That, of course, cannot be the meaning of the statute. It would i bs ridiculous to cay that the section existed onJy for the purpose, of being destroyed by ' its proviso. Such a t.hinsr has never been hoard of in any legislation. It does not negative . in t«rms -their lawful existence, branding by itself, that would be an impossible- section. It is an extraordinary wa y,.<> f dealinj? with the matter. I think the real meaning is thie: ihos^ responsible were- not content with the decision, of the court on the subject, and were not satisfied with the assumption -that the sub*equent legislation had deliberately accepted and acted on it, and those responsible for the consolidation had retained the impression that the decision was wronpr, and that the Legislature did mean to destroy bottle licenses in the act of 1895. and in order to give effect to this opinion they put in this extraordinary provtsion. The natural course would have been to have re-enacted the provision of the act of 1895. and loft th*» interpretation still to the court. Instead of doing* so, they seem to me to have created an entirely new legislative proviso. That seems to me the real explanation of this extraordinary ! provision. But even if that had been the intention, the effect of the section would not, be to destroy bottle licenses, but to leave the law on the subject to be determined by the law as it existed before the act of 1908. The court at the worst would ! bo driven to do what I am asked to do | now — to decide afresh, if it could be done, the point raised in Allan v. Carew. Tho section is not intended to have the effect, and did not have . the effect, of itself destroying the bottls licenses. The obvious intention is simply to treat this as being dealt with on the basis of previous legislation — legislation before the act of 1908. | There is. however, another consideration. , In dealing with this question of . consolidation, one has to refer to the act providing for the consolidation. The commissioners } were to revise, correct, arrange, and consolidate such acts and make such alterations as were necessary ; supply such omissions and imperfections of the existing acts as might be necessary in their judgment; (hey were to report upon thess and to indicate 6uch part of the acts as in their judgment ought to be repealed, v.'ith their reasons.

It is perfectly clear that the I object of the consolidation was not to permit legislation, but simply consolidation, although in the" process it would be permissible to remove, anomalies and to correct obvious errors in acts. We Tinow as a matter of fact thee© consolidated acts were passed in a body without any discussion' and without .any suggestion of amending. T,he assumption was that no material alteration was intended, and certainly it was never intended that any important, vested rights — rights of property — should be interfered .with without due notice to members of the* intention. .Therefore, in construing this. Consolidation Act, we must approach it with the presumption that no such. consequences would result, that if anything of that sort appeared to be done by it it would be done against the intention of the. Legislature, and — without using the language., in an offensive sense — the Legislature would be deceived in passing it. Any court would be careful to see that no such consequences would result and would be driven to accept any construction that would avoid it. I have already pointed out that it is not Necessary to assume that anything of the .sort has occurred. It has occurred to me as a "possible view of looking at' it that - what was intended— it might be held to have .this -effect — was' really "to deal- merely with that section on" the statute — section 28 — which declared that these assumed bottle licenses existed and- said_ the\f ' were to cease to oxist' on\ihe carrying of ■,na-lice.ns«. It -might: be -put ,in this way : the draughtsamn -'might be .* taken to. assume that he. had provided for these bottle licenses being governed by pre-existing lcgkla.tion; .that <that was -antagonistic to 'section 28, which provides for tho ceasing of the*e licens©3 ; and he had, - therefore, to put in this proviso as a precaution in order that the first part of the section was not Jo ba he'.djas contravening section 28. " I do not say that this construction is one. that commends itself -to rri> ; but it is a possible construction., and any construction must, if necessary, be adopted which 11 would prevent the harshnoes and injustice and misleading I -.have, referred to. There is a further method of treating the first part of the section and the proviso if they er& contradictory — that is to ignore the proviso. Certainly that is the soundest courje if we are. dmen to it— ignore the proviso instead of" the enacting- part of the section,— and it is according to every rscognieed canon of construction. Upon the grounds I have given I have come to the conclusion - that the law as it • now stands must be held to have bssn stated by Mr Justice Williams in Allen v. .Carew — that the boltlo licences - were not abolished by the act of . 1895,— Wd, -further, that -the provision* of the -act "of^ 1908 have not had that effect. That being so. it is clear that the Licensing Committee —the defendant— u> bound, .to hear,, and . ■determine/ fhesa applications, arid 'that " is : all I propose to -deal with on .this beca--sion. ,- If r the "occasion should- 'be crfalcd ■■ by the subsequent action of the^committee in this matter -to raise the very Important-question-of rta discretion,— a .question whi^h his been fully -mr! "ably .nroru^d ,hy^Mr Adams, and* indeed, by' counsel rirbcth .=raes • — I can only hops-, that it .will ,be tak>n direct to tha' Cotfrt'-'of " Appeal to Ka decided, and "not refersed-to a .single judge, particularly as therf. will ,in that ; case be an opportunity of determining it without delay. , I shall therefore "make an order-, that the committee Iwar' and determina the application of the plaintiff. The question of cost? w*s discussed by counsel, after which his Honor paid' h»» was bound to giv-e costs to the successful party unices reasons could be "hown against such a course. ' Costs, £10 10b. would bs allowed, with £5 5e to" second counsel. . ♦ " •