THE SYDENHAM LICENSING CASE.

Timaru Herald, Volume LII, Issue 5165, 11 June 1891, Page 3

THE SYDENHAM LICENSING CASE.

JUDGMENT OF THE COURT. Tho following is the full text of Mr Justice Donniston's judgment m the Sydenham lengthy) portion, which related solely to the quoetion of fcho validity of tho returning officer's appointment. It was upheld on technical grounds. Coming to tho othor, and much more interesting, questions submitted to the Court, His Honour eaid :— "I am unable to attach any weight to that part of tho plaintiffs' motion Jwhieh asks to have the election fet aside and the defendants removed from office or prohibited from performing tho functions for which tboj have been oleeted, because of "what ia called an illegal ujn'ooroont. botween them and those who have elected them. It is not said that they are not m accord with thoir 1 constituents, or that they propose to perform their judicial dutioß other than m acnordanco with their own opinions. Tho electod and electors ngroe m their oxpressed determination to onposo and provent Iho sale of liquor by every means which they conaider lawful. If, so m tho plaintiffs' assumption, they share m an erroneous opinion as to the proper interpretation of Gortain of tjje powers givon under tho Ac!., it is, I think, »b3urd to contond that ouch an error invalidated their olection. No oaso has been cited, no caso can be cited, for such a proposition. It is true, as alloged by tho plaintiffs, that the defendants havo m a tense ft Ma?, a very pronounced bias, against tho calling of thoao whoso intnroßts will bo so largely m their hands. But this bias ngain is shared by thoir constituents. Ab pointed out by Mr Juotico Bichmond. m Hamilton v, Fraaer and othors, 5, N.Z.t.8., I, this is tho inevitablo result of loaving such questions, involving such strongly folt and hotly contested issues, to bo decided by judges popularly olected. As eaid m that caso the question becomes a contoat bot.woen tho publicans and the tomporanco socioties, a rosult, as tho learned Judgo puts it, of necessity inconsistent to a great extent with the cxißtonco of tho truo judicial tompor. But, ho adds, it must bo supposed that tho Legislature m jts wisdom hub voluntarily inourred tho risk of this m a ohoico of difficulties. There aro, however, tho further questions — have tho defondantn intimated their intention of administering tho Aot under a misconception of thoir powers under it? and, if so, can this Court now intorfore ? As to tho first question, tho first point iB, how hove thoy interpreted the Aot. On Hub poin£ they lonvn us mno doubt.. s£r Isitt, pno of tho dofondnnts, who calls himself, there can be no doubt rightly, tho louder of tho " Prohibitionists," him m a vary able, n vory frank, and a very ofcrnighlfarnard nflfdavit, uluted tho position of iiirnaolf Ht:d his collougnos. Thoy claim that tho mujority In any diitrict has Iho right to determine whether any licensed house is nocossary for tho salo of linnnr. and Hiat independent End ro-

f gardless of the wants and wishes of the t minority, however large. Their viewa do not i depend on the character and management s of tho individual houseo. They are themi selves prohibitionists, that is to Bay, they hold that the publio Bale of liquor should be prohibited absolutely, ns m itsolt an avil, and they claim, as I have avid, the right under the Act to give effect to these viowe. They ' say — and I beliove quite hoaestly — that they will hear and weigh arguments on the other 1 side, and they would, I think, bo tha firat to ' admit that practically the question is pro- ' judged. That I am not overstating their 1 views will, I think, lie ahown by the fuct that ' Mr Isitt admit a that when a candidate for the lioenaing district of the North-eaßfc 1 Ward of Christchurch — the centro of the ' city — ho intimated ho would consent to grant licenses to two or three of the com- ' morcial housos ia that ward, not as himself considering even that limited concession proper, but because he believed tho 1 majority of tho ratepayers m the ward rogardod some publiohouaes as necessary. He speaks of prohibition aß a local and not a national question. In their statement of defence the defendants say ' they are prepared honestly and fairly to hear and determine the said applications of the plaintiffs, and any other applications that may be made. and if, notwithstanding tho result of the said 1 election, the plaintiffs or any of them are able to satisfy them that the suid publichouses or any of them aro required by the majority of the ratepayers and adult male and female residents of Iho said licensing district, and not merely by the plaintiffs themselves and those immediately and financially interested m tho 6aid publichouaes, or by a email portion of the community of Sydeuham, the caid defendants will not arbitrarily, dishonestly, and unjustly refuse tho said applications, or any of them.' That amounts, of course, to a recognition of local option — that tho question is to be decided by tho viewa of the majority of the male and female residents of the district, whatovor may bo the wishes of the minority. Is this view of tho powois and duties of Liconaing Committees a correct one ? In my opinion it is not. Ido not think, tho Act eithor was intended to gico, or doos give, tho right to what ia termod local prohibition. Apart from uny restriction contained m the liconaing laws, there is nothing to make tho purchase or sale of liquor an illegal act. The various Lieousing Acts wljioh Imvo from time to tima been passed have boon passed for what mny bo called police purposes, and not, except incidentally, v:ith the view of provontingany person from purchasing liquor should ho doßire to do so. Eestrainta on individual liberty aro not to bo imposed oxcept m distinct and unambiguous language. The right claimed by tho defendanta is a serious interference with such liberty — it is the right of what may be a bare majority to impose upon a minority the consequences of certain views of the majority as to tho impropriety of drinking intoxicating liquor, and to take from them certain hithorto lawful rights to obtain what they dosiro and think for their benefit. It is of course open £to a Legislature to give such ° powers to a majority ; it hail boon dono olsewhore, but ono would nxpect such a new departure m liquor legislation to bo enacted m plain torma, and aa a aubstanlivn part of the Act. That ia certainly not the ease hero. TVe powov of local prohibition m thia colony, if it exists at all, exists by virtuo of a few worda at the close of oection 62 of tho Act, a section which • emimoratoo tho grounds of objections to a grant of new licenses, and similar words m section 81 as to renewals. Tho worda aro ' Tho objections which may bo taken to the granting ' (or renewal) 'of a liconso may bo ono or moro of tho following. . . That tho licensing thereof' (i.e., the premises) 'is not required m the neighbourhood.' Theso worda must of course be read m connection with their contoxt and subject matter. ' Required ' is not an abBtraction, its meaning must depend on the standpoint from which it io considered. In ono sense a license is not required at all, men could exist without it. From the prohibitionist stanripaint it ia not only not required, but. a positive evil. From what may be called the administrative and police standpoint the extent to which any license is required will depend upon the existing accommodation and upon the population, its extent, its character, its habits. I think, aB I have already indicated, that the last is the proper point of view. It is important to notice tint the 'requirements' are to bo thoee of tho neighbourhood, not of the district, oofc of tho majority. It would be strange if m a statute providing for regulating the sale of drink the requirements of thoso who m the neighbourhood wish to diinkiß to bo determined by tho wishes of thoae m tho district who do not wish to drink. The question is to bo decided by an honeet consideration — I will not say of the interests, for thooe I have no doubt the defendants honeGtly and "perhaps rightly believe they would be consulting by refusing the lieonsoa — but of tho rights of the minority who mny think difforont from them. Tließe rights are, I think, to havo the necessity or otherwise of a publichouae m any neighbourhood determined m a judicial spirit, according to tho circumstances, conditions, and facilitieo of its surroundiogs from tho standpoint of human nature, as it is not by tho mandates of a majority on tho abstract question of tho improprioty of all public housoa. Thero aro other provisions m the Act which support this view, an section 8, which provides that any place, oven m existing licensing districts, may be appointed a special licens'-'g district, whore, owing to a sudden increaa. if population or otherwise, the necessity for .ho immodiato grant of public licenses exists. But tho strongost argument from the statute itself is to be found m thoso sections (45 to S4) which provide for a limited local option, that is, for permitting the majority of ratepayers m each licensing district to pronounce absolutely and without reason given for or against ony iDorGttSO of licenses. It would seem on extraordinary thing to provide elaborate machinery for this purpose if ooincidpntly with it tli« came majority under anothor soction of tho Act may be electing a committee with full powera to give offeofc to tho wishes of the majority, not only m refusing to increase tho number of houaeß, but m suppressing thoso which exist. It will not bo necessary for mo to cito tho English casoa, which seem to mo to support, what I have just stated as my view of tho powers given to Committooa. Thoy aro all connidorcd. and commented on m Sharp v. Wakoßeld m tho Houbo of Lords, reported m The Times Law Reports, vol. vii., p. 389. I shall confine myself to ono citation from the judgment of Lord Chancellor Halsbury (page 390). ' I do not feel, therefore, though the language of tho Btatute and tho powor given by that language is bo great and so unqualified, that tho mißchiof or danger apprehended by the appellant ia at all likely to arieo. Tho Legislature has givon credit to tho Magistratoß for oxorcising a judicial discretion that thoy will fairly decide tho questions Bnbmittod to thorn, nnd not by evasion attempt to repeal the law which permits public houses to oxist or evudo it by avoiding a plain oxpoaition of tho roasono on which they act.' 'By evasion attempt to repeal tho law which pormits publiohousos to exist' Boema to mo oxactly to describe tho result of reading tho Act as tho prohibitionist party desire to read it. I do not, of conrso, suggest that thoy aro intontionally endeavouring to evadoit, but auoh is, I think, tho result. Ido not think the fact that m this colony tho Oommitteo is elected directly by tho ratopayore, and m England by tho Justices m quartor DCBPiona, alters tho principle. Ihcre is ono point suggested by Mr leitt'a affidavit to which I think I should refoi 1 . It eoema to beasaumod that it ia intended by tho Act that no liconßOß should ho granted to any houao ' not ncodod ' (to quoto thn affidavit( ' for lodging accomodation or porßonal convenience.' Thero is nothing to that offoot m tho Act. It ia truo thnfc tho law han attached to nvory licensed housa tho burden of providing a cortain minimum public accommodation for lodging but I do not find m tho Aofc any indication that houses may not be required m a neighbourhood simply to provide thoso who wish i it with liquor. I do not mean, of course, that Iheso points and tho character of tho neighbourhood and of ita residents aro not nloinents to which full weight must bo givon m exorpiaing tho diaorntion cntruetrd to tho Oomrnifcleo, Imt rightly or wrongly, thn t.eginluturn han coiitnrn plated that pooplo may roquiro and ho ontitled to got drink who do not want lodging. Only tho question Bhould, I think, m this, H8 m oilier points, not be lookod at from tho pro-

\hibitiouist Bland-point. There remains then , only the question whether the court can interfere at this stage. On this point I find great difficulty. On the one hand, as I have said, the defendants are a, duly elected committee, entitled to sit, to hear, and to determine the plaintifi's applications. What this court is asked to do io to restrain them from acting on a particular view of the law. No case has been citod m which a court has gone the length I am asked to go. AH the cases have been those where the objection went to the jurisdiction— the right to sit at all. A court iB not however bound to hold its hand morely because thore is no exact precedent to cover its action, It must act on general principles, according to the circumstances of eaoh case presented to it. The circutnetancoa of the preseDt cobo are very unusual. Xhe defendants have by their statement of defence, and by their affidavits, individually and collectively, intimated that they intend to deal with defendants' applications for a renewal, on a construction of the statute which I have just said I think erroneous. If the defendants have been advised, and I presume they have been, that their views ia the correct one, and if they are unconvinced, and I have no reason to suppose they will be convinced by my expositions of the law, if I simply dismissed the motion they nould not be bound to follow what would amouut to a mere judicial dictum, and one as to which they would bo unable to obtain, as they have a right to, the opinion of a higher Court. The most they could bo expocted m such circumstances to do would be to state fairly tho grounds on which they decided, leaving the plaintiffs again to come to the Court, causing fresh espouse and delay. In the meantime irreparable injury might — I do not say would, that must depend on defendants' discretion —bo done to rights of proporty, rights which this Court is ontitled to protect. Under all the circumstances I think tho interests of bath parties would be best consulted by making an order m terms of the opinion 1 have cxpresocd. I think I should mako an order restraining tho defendants from rofusinß the licenses of the premises of the plaintiffs or auy of them, on the ground only that the licensing of ouch premises or any of thorn ia not required by tho majority of the ratepayora and adult male and female residents of the Sydenham licensing district. And declaring that m considering whether the licensing of Buch premises or any of them is required m tho neighbourhood of euch premises, they will conßidor whether such premises are required according to tho reasonable wants of such of tho residents as may desire to purchaeo liquor. I think this will raise tho pointo on whioh I have dooidod, aud enable tho defendants to have, what I should myself very much desire, thi3 important and by no means clear question decided by the highest Court m the colony. I am anxious to be understood as- not desiring iv any way to interfere with tee discretion of the committee, except m so far as they claim to exercise thoir discretion on prohibitionist lines. The very largo, ono may say the absolute, discretionary powers given to committees will leave it open to the defendants very largely, if not altogether, to evade tho result of what I have previously stated as my viow of the Act, either by (to use the words of tho Lord Ohancellor m Sharp v. Wakefield) avoiding a plain exposition of tho rpaeorjs on which they act, or giving other reaaona thau tho real one. Nor can I ignore tho tomptation to do this. The members of the committee aro the ohoaon leaders of a party who are struggling to destroy or reduce what they — and all of us — feel to bo a, crying evil, a cancor m tho body pulitic. They believo prohibition to bo tho most poworful weapon against such ovil. The election on the prosent defined iesue m favour of prohibition shows that thoy are backod by the public of their district. Closing tho whole of tho publichouses m an important district would bo a moral aB well as a physical triumph for thoir causo. They have read, and probably boon advised to read the law other than aa I have read it, and will, as I have said, probably be unconvinced by my exposition of it. Under these circumstances it ia no light thing to be askod to hold their hands m the moment of victory ; nor easy to reßiet the tomptation so to act as 'To do a creat right, do a little wrong,' to sink tho onthusiasm of the party leader m the calmness and impartiality of tho judge. So far tho action of tho committee hue been straightforward and abovo board. I have had an opportunity of seeing and hearing them m other proceedings connected with this matter, and I have no reason to doubt that thoy will do their duty honestly. They will, I am euro, remember the often quoted words of Mr Justice Richmond— 'lt io certain that tho cause of temperance, holy though it be, cannot be advanced by disregard of the still more sacred claims of justice.' Aa the defendants have succcodod m a substantial part of tho claim, which indeed occupied most of the time at tho hearing, I think there Bhould bo no costß." For tho plaintiffs, Mr B. Fishor, with him Mr (Stringer ; for defendants, Mr Oaygill, with him Mr Widdowson. Mr Caygil! aßked for leave to appeal. His Honour said ho had bcon largely guided m making tho order by the hope that ono or other of tho parties concerned would appeal, a9 ho wbb anxious, under the circumstances, that the judgment he had given should como under review of the full Court. He would bo glad to giant the leave aßked for.