A LICENSING CASE.

Poverty Bay Herald, Volume XL, Issue 13172, 4 September 1913, Page 8

A LICENSING CASE.

INTERESTING LEGAL ARGUMENT.

A Banco matter m. which considerable interest was displayed', particularly by tha legal profession, was heard at the Supreme Court,' before his Honor Mr Justice Cooper, yesterday afternoon, ln connection with Mr J. R. Quinn's application for a certificate for a publican's license m respect of the Gisborne hotel, ■a Avrit of mandamus was issued by Mr Burnard, on behalf of the applicant, requesting that Mr R. S. Florance, S.M., hear and determine Mr Quinn's application, the statement of claim set put : On 6th August, 1913, during, the absence *o£ Ma- Barton, from Gisborne, the plain'Aitt made application to the defendant for the issue to him of a certificate of litness to hold, a publican's license m respect of the Gisborne hotel,,^as.requir ed by section _5 of the Licensing Act, 1908. -The defendant- called for a police report, which was supplied to him by tlie sergeant of police at Gisborne on the 11th day of August, 1913, and tlie defendant then required . __»ni.,»the said sergeant a further report, which was supplied to liirn on the 13th day . of August., 1913. On the 14th day of August, 191?, the defendant refused to hear and determine" ihe said application, and the defendant still"^refusses to hear and determine the said application although the plaintiff has requested him to do so. Wherefore the, plaintiff prays : (1) That a. writ^of mapdaihus. do tissue to the defendant ordering him — (a) To hear "the plaintiff m support of the said application j (b) to hear such evidence as the plaintiff may tender rupou. such application ;• (c) to > hear and. determine the said application; (2) that such further or other order, may.h.e^made^as to this honorable Court shall seem fit".'"' Mr CI P. Skerrett, K.C.j instructed by the. Crown- Solicitor, appeared for Mr Florance. ,, . „_. „';., ;,_ u „.';;.•:,-,• Mr Burnard, m opening, said the,, fa qt?, on wliich the plaintiff relied were set out m the statement of claim ..and an affidavit by himself. Defendant,' acting m good faith rio doubt, declined to give a certificate of fitness to; the. plaintiff: No evidence was given . a^^> no pppor.r tunity was given for calling evidence, the defendant holding that the case had been decided by another Magistrate. Counsel JsoidTan was .r&t fused a Certificate by one 'Magistrate could apply to another. Magistrate. .. Air Barton, S.M., who had declined the previous application, was away up the Coast at the time, and Ma* Florance was the only Magistrate to whom the appii--1 ?°*# *>£ .^drpa^dv. T.he .second, distinction was that the hotel m question was a totally different oiie from the two hotels m, respect ofj which the , previous applications were ijefj^sed. Has Honor •. And a n*,bre important one.. ..' * ...■'.. . v , r !ii::' ii ■'-..■..':■'. '•■.'

-Mr Burnard wa&-so. His Honor said it was, therefore, .. all the more necessary that tlie" applicant should be a suitable , person to hold the license. 7- -7?.-' .«*'•> AX''l.: : XMr Burnard said m, jdecliiung.tjhe-', application the Magistrafejiii^ht':n6i;_^ve declined it on the grb^rid v of"cn_racter and fitness of the t applicant," but. on the ground of the claiss of house: .. His Honor said tfceie wi_s ; rio.h_ng m tho Act to compel the : Magistrate to hear the application at aU*:;^-. '—..-. ... . After citing the caacle^^Douglas v. Dyer, Mr Burnard said 'that '"the statute imposed, a duty orn:.Migist>rate_t'vt_f inquire into the question of fitness. His Honor, .^{dni^der.: «.;^recejit^ dcci : sibh the Magistrate' hail no'; jiow^r to call evidence. No express obligation was placed on any Magistrate under the Act. Supposing a Magis^r&fcQ at jAuckland was applied to for .'a certificate of fitness and he declined, could a, writ for mandamus be issued against* him? Mr Burnard .submitted it could. ' His Honor: Then, you oould' apply to all the Miagistrates m the Dominion. Mr Burnard said he did not go that far, but claimed they could' apply , to any Magistrate* m the: ; district.. <jn .which tl_> hotel was situatec)'., .. .:..->'-, His Honor remarked that ;the present application was for a certificate iri respect of ;• publican's lic^nee^ genially, . not m respect of a .special hotel. " There were three different classes of, licenses, a publican's license, s, liotel license, and an accommodation license. , Mr Burnard said the Magistrate was entitled to take into consideration the class of house.

His Honor said »t was not so^rU-'he. Magistrate was required to inquire i^ito the character and fii ness of a person' to hold a publican's license, whether the house involved was m, the, bush or m the city. ...- Mi* Burnard. said the fact ,tha>t7bhe applicant could , »oti obtain,. a y yipeipp without a certificate showed that the Legislature delegated to; r a the duty to inquire as to a person's fitness. Counsel contended that such duty was enforcible by* mandamus.

His Honor' saidv.a-Magistrate^vQeukl-be proceeded against by mandamus to grant a certificate. Mr Burnardi said , ne appieqjatedj, jjhatj but they askad tliot" 'tfie .^Magistrate should hear and "determine the application. He quoted further authorities bearing on the matter. Proceeding, Mr Burnard argued that there was no disadvantage if a Magistrate differed from another Magistrate m his idea of the standnrd of fitness! thaC^w^inecp^ajry for the holding of a publican's 'Bcei'ise. A Magistrate could exercise the discretionary powers imposed on him. TJhen, again, as there was no appeal from, the Magistrate's decision, they were justified m applying to aaVofcher Magistrate. Cbuh'sel urged that a Magistrate 'rmust hear the caso to see if the applicant was a fit person to hold . a • license. If an. application was declined because another Magistrate had declined an applicati6n m respect of another hotel, what was to bo the lapse of lime before a fresh applicatkjn could be made? He submitted that,; thejMifed done all that cbuld be expected vof Hiem, m that they addressed the application to Mr Florance, who was the sole Magistrate available at the time. . „

His Honor: You may submit that as your aa*gument, btit T take it that, you submitted the application to Mr Florance because Mr Barton refusfed the other one. (Laughter.) You could have waited until Mr Barton returned.

Mr Burnard said that was not tho reason why they applied to Mfc* Florance. "Reading Between the lines,""smilingly observed his Honor, "you cannot sb/ow me without a smile that you submitted the application^ tp Mr Florance because it was a Master, ; oi \n?gei_fcy'','. but because Mr Barton had refused the other application." No l^ttle/amu^ment was caused by his Honor's remark, and Mr Burnard joined m the laughter, but he repudiated the suggestion. Mr Skerrett said there were tv^o main issues involved. The first' was whether tho Legislature ca^t/^^'dnty^^MPPjl a. Magistrate to doterrrjlne an application for a certificate of . fitness- -> T3e .second was whether a Magistrate could" be compelled to determine^an applioaiuj.nv when another application :-.->lusd> b'ed# ;re|u_ed by a Magistrate who ,was •.peculiarly fitted to determine such'apjrdicaiidn. .He submitted oh these ttyo/p^pints <the defendant must succeed.' . . Mr Skerrett. pointed out that' the :c^_'. Of Douglas v. Dyer had been^^ overruled', and _ was not now an authority m su<Jh'qu^tions. It had been held that it Magistrate did not proceed judicially,. nor had he power to call evidence on oath , or compel the applicant to oome, before. J him. The duty was imposed, on the. applicant. .In order to obtain a license tlie amplication rtttstbe accompanied by ' a certificate of fitness. Ther o were no woVds m tho ; Act t'hht cast any obligation ''on fche .-Miagfc-' trato to determiho '4i.u application for. certificate of fitness. . What- wa^.it a^Mflgis' trate was asked to five?. , ' He "was: asked to give a oeTtjifioajie • wbicp topic ; the place of the ten householders' certificate. If it was intended that a Magistrate should- be compelled • tp. determine an application, the I#g]fs]a,ixxrp would have specified the Maei^ai^whp^should .do so . If an, applicant^^ e^^;^Qt ,olj^ijd a eertificateV.of fitness -lie'i^ulfil.vnqt^geV' his license, for he had not. complied with the conditions. Before the duty could be imperative, there must be an expressed obligation cast upon the Magistrate to do the act. It was, ■ conceded that there was no imposition of the duty. It was not a judicial function, therefore not imperative. -It was either a disei-e---+-i-._omir fiinnfiAn r>r an administrative

was some duty cast on Magistrates to consider and determine applications, then could a person select liis own administrative officer and insist on him determining the application? If a Magistrate had judicial discretion, and he acted upon that reasonably, and not capriciously, then the Court could not interfere., Counsel cited some cases on this point. Continuing, he said: Mv Barton had refused an application by the same poison m respect of another hotel m Gisborne. It was a mistake to suppose that the certificate of fitness was limited to the character and fitness of a person to conduct a hotel ; there were other elements to be considered. Tlie position which Mr Florance took up was a proper one. He said he would do what he could to get the material for Mi* Barton when he returned, but he did not think it proper for him to determine the application, because there was a Magistratemore peculiarly fitted to determine tho application. That could not be said to be a capricious execution of the judicial discretion. As to the limit of time Mr Skerrett said if a man Avanted a publican's license he must be m a position to obtain a certificate of fitness. If he could not get that, then "lie should not apply for a -license. This Court could not say to the .Magistrate that "you shall deal with the application." If the duty was inoperative the Legislature, gave the Magistrate' no power of performance. He oould not call evidence, nor could he call the applicant. They submitted tliat the applicant was not entitled to the mandamus.

In the course of his reply, Mr Burnard said although the Magistrate could not bring, the applicant before him, he had powers to hear evidence that the applicant desired to bring forward. Am administrative duty may be imperative if the -circumstances were imperative. His Honor said if a Magistrate said he would not inquire into an application the Court might a mandamus, ordering him to do so. jP •■ Mr Burnard submitted mat the fact that the applicant had tcK obtain a certificate of fitness before he could get a liceiise made it imperative for an application to be determined.

Counsel was proceeding to urge that a Magistrate could be compelled: to go into an application, when his Honor reiriarkied that there was a difference between Magistrates and other registrars. V ! ''For instance," jsaid his Honor/ "supposing a man applied to the registrar of . births, deaths, : and marriages for a marriage certificate, and tho registrar refused: to give one, the Courl-t could by mandamus compel him to do so. The difference is that it is the registrar's * duty -to issue suoh certificates. " Mr. Rurnard said if there was no duty vested m the Magistrate to hear the i application, there v. as no. means for the applicant to receive justice. "I consider this a very important question," intimated his Honor, ''and 1 will take time to consider my judgment, and I think I shall put it m writing. I think they case has been very well argued by Mr Burnard and by Mr Skerrett, and it is one that requires to be very carefully considered."