THE SYDENHAM LICENSING ELECTION.

Star (Christchurch), Issue 7177, 30 May 1891, Page 3

THE SYDENHAM LICENSING ELECTION.

•» ]l Proceedings in the Supreme ie Court. rs THIS DAY. iy The argument on the motion for declar)r ing the election of the Sydenham License ing Committee void was resumed before i.. his Honor, Mr Justice Deuniston, in Banco, ). at 10 a.m. to-day. g Mr Fisher, with him Mr Harper and d Mr Stringer, appeared for the plaintiffs. 1. Sir Eobert Stout, with him Mr Caygill r and Mr Widdowson for the defendants. There was a large attendance of c spectators. i. Sir Eobert Stout said he wished to make a few supplementary remarks on the point j as to whether the proceedings before the 1 Magistrate were excluded. The only thing 3 which, under our Act, was excluded was . the question of title of the Eeturning ! Officer : the " Eegulation of Local Elections Act" provided for contesting the validity of . an election on every other point. All that _ the other side had set up was that there j was no validity in the appointment of the . Returning Officer. _ Mr Fisher : We say there was no body to appoint him. ' Sir E. Stout said that he did not care [ for that ; it only affected the validity of the appointment of the Returning Officer. ; It did not matter whether the Eeturning , Officer was Eeturning Officer de jure, so long as he was Eeturning Officer de facto ; if he was Eeturning Officer de facto his acts could not be attacked. Section 87 of the English Municipal Election Act provided that the only manner of testing the validity of an election thereunder was by petition ; there was no provieion for proceeding by quo warranto except in cases of disqualification after election. He cited Pritchard v. the Mayor of Bangor, XIII., Appeal Cases, 241. The reason for the law was that it was a first principle of English law that a man's title shail not be attacked indirectly. Now, these present proceedings were attacking the Eeturning Officer's title indirectly. Had the plaintiffs wished to attack the Eeturning Officer's title, they should have proceeded against him by quo warranto. On this point he cited the • King v. Peacock, IV. Term Eeparts, 684. This ease went to show that a quo warranto should not be granted to attack a title which had been held undisputed for more than six years. The present Eeturning Officer at Sydenham had held the office undisputed since 18S2, and, therefore, no quo warranto could be issued against his title. The Statute 32, ! George 111. chap. 58, repealed by j the Act of 1882 in England, laid down clearly that no corporate office should be attacked after it had been held for six years. The Statute First Victoria, Chap. 78, Section 1, provided that no election of any person to any corporate office shall be liable to be questioned in respect of the want of title of the person before whom the election was held. The six years' limit in j respect of proceedings by quo warranto was recognised in Victoria. The principle laid do wn so long ago as 1792 by Lord Keny on : was that, if you want to attack a person i in respect of title to hia office, you must attack him directly, and not collaterally. The English Statute was not so wide as our Act, but he would challenge his learned friends to show a single case in England in which the want of title of the Eeturning Officer had been made a ground of attack. His second point was that the word " jurisdiction," in Sub-sections 1 and 2 of . Section 5 of " The E9gulation of Local j Elections Act," could only apply to a body having power to make laws in tho district, and could not apply to a body such as a Eiver Board or Harbour Board. He | quoted the definition of the word " juris- . diction" from Webster's dictionary, to '■ show that one principal meaning was j the power to make laws or exercise authority. " The Town Districts j Act, 1881," Section 10, specially . pro- j ,vided that the Town Board should i exercise jurisdiction. No such authority was given to Harbour Boards. Section 415 of "The Municipal Corporations Act, j 1886," gave the Borough Councils power to make laws for the good rule and government of the Borough. The Counties Act gave County Councils power to make bylaws for the good rule and government of j the County. Section 126 of " The Eoad \ Boards Act, 1882," gave the Eoad Boards ! similar legislative power. None of the | other bodieß mentioned had anything to do with the good government of the district. The Lyttelton Harbour Board had very little power in Sydenham at all, Sydenham only elected a member. The Eiver Board had only authority over water-courses. It had no jurisdiction in Sydenham, but it had power to ask the Borough Council to levy rates for it, and the Borough elected a member. The Christchurch Drainage Board, according to the Act of 1875, had only power over drains and sewers. It had no jurisdiction, but had power to ask the Borough Council to levy rateß for it. All the bodieß just referred to, therefore, he would submit, had no jurisdiction in the | Borough of Sydenham. Section 6 of j " The Licensing Act, 1881," showed that | only Borough Councils, County Councils ! and Eoad Boards were the only local bodieß I recognised under the Act. Section 60 of the same Act tended to show the same J . thing. His friend had cited Grant on ! Corporations in regard to the title of the j Eeturning Officer. Eegina v. Cooper, IX. j Adolphus and Ellis, 80, showed that the ! election could not be attacked on the ground of the title of the Eeturning Officer. He cited Eex v. Brain, IV. Adolphus and Ellis, p. 664. He submitted that the title of the Eeturning Officer and the title of the person appointing the Eeturning Officer were practically the same thing. He cited Eegina v. Warre, JU.E. 8, Q.B. 210, and Eegina v. Cousins, same, 216, to show that if the right person had been elected, and no person who ought to have been returned had been kept out, a writ could not issue against the election. He further submitted that I aB the plaintiffs had accepted the Eeturn- j ing Officer for several years, and had taken part in the election, they were estopped from further proceedings. On that point he would cite Eex v. Sly the, VI., B. and C„ 240. The plaintiffs knew that Mr Allison had been appointed Eeturning Officer by the Borough Council. They were aware of all the facts ; the only thing they did not know was the ingenious point raised Bince the election by the ', brewers. He cited Eex v. Salmon, IV. Term Beports 222, Bex v. Clark 1 East 46, and Eex v. Peacock, IV. Term Eeports 684. The question of the discretion of the Court in regard to the writ came up in ', Victoria, in Eegina v. Lawrence, 111. Australian Jurist. This was founded on the English case of Eex v. Parry VI. Adolphus and Ellia, 120. \ It was laid down in these cases that, how: J ever clear in point of law the question may i have been in regard to the party's right , to hold his office, the Court had again and ! again refused to issue a rule. The Court had held that, where the election had ' fairly represented the opinion of the ratej payers, they wonld exercise a wise diEi cretion in refusing a rule aßked for on r account of an irregularity such as 1 that in the present case. Short "on mandamus and quo warranto" gave ' numerous cases in whioh the writ had been ! refused under Buch circumstances. Several j of the cases cited by Mr Harper were old caseß, before the passing of the Acts of " William IV. and Ist Victoria, and did not _ apply under the present state of the law. ? The case of Hardwick v. Brown was 3 decided before the passing of " The Munij. cipal Elections Act, 1872," and was not .„ decided on quo warranto. £ Mr Harper eaid that that case went tc _ tho bottom of the matter, below th. Eeturning Officer. > 8 Sir E. Stout said that one could not g< 5q ■ below the Eeturning Offioer. That cast

d- referred merely to a question of a vacan 'b created by the bankruptcy of a membi a The other cases cited had not the slighe is bearing on the point mentioned, as thi it were older than the Acts of William I" ie and Ist Victoria, There was nothing le ie for him to deal with, but the question c bias. His Honor said he did not attach muc importance to the question of biaß, exce] as to whether the Committee may hax expressed their intention of acting on the: own interpretation of the law, wheth. that interpretation were right or not. . Sir E. Stout submitted that the Legii lature had pointed out a way for deal ing with a matter in which a Licensin Committee acted improperly, and th Court had no common law right of dealin| . with a statutory offioer appointed for i . certain purpose. The only ways in whici , the plaintiffs could proceed were certiorari > to quash the proceedings of th< Committee, and mandamus, to compe i them to hear and determine applications As Mr Justice Eichmond had pointed oul in Hamilton and Fraser, the law hac allowed public opinion to declare itself bj means of election, and having allowed this, it was quite open to the Committee tc declare their opinion as to the number oi publichouses in the district. His Honor said that the defendants were prohibitionists, who had said that they did not want publichouses anywhere, and the question was whether the question of publichouses or no publichouses was to be decided on the will of the majority without reference to the wishes of the minority. He did not attach much importance to the statements of the plaintiffs as to conspiring, and he would point out that the defendants, in their statement of defence, had said they would not refuse the licenses if they were satisfied that the majority of the ratepayers required them. The question was whether their interpretation of the law was right. Could not the Court restrain the defendants from a declared intention to act illegally ? Sir E. Stout submitted that it could not. i The case was analagous to that of the removal of a trustee, because he announced . his intention of acting in a certain manner. I As the Governor had the power of appoiut- ' ing Licensing Committees in case of none [ being elected, and under " The Triennial Licensing Committees Act, 1889," had also ■ the power to remove any Committeeman . for any reason whatever, the Court had no '• power to appoint anyone to fulfil the ' duties of a Licensing Committee. All that the Court had power to do was to grant a mandamus compelling the Committee to hear a case, and if the Committee proceeded judicially, no matter what its decision was, the Court could not interfere. His Honor said that supposing the Committee were acting on an entirely wrong view of the law, the Supreme Court could surely interfere. Sir E; Stout said that the Court could only interfere after the Committee had done something. There could be no certiorari, because the Supreme Court had no power to grant licenses itself. His Honor : lam quite with you there. Sir E. Stout said that, further, no mandamus could be iesued against the Licensing Committee, because they had stated their willingness to consider the applications. His Honor : If an inferior judicial body is about to do an actionable wrong, has this Court no power of interfering until the act has been done ? Sir E. Stout said that there was a discretion to be exercised by the Licensing Committee as to whether licensed houses were wanted in the district or not. That discretion was vested in them by the electors and by the Legislature, and as long as they were willing to consider and to hear evidence on the applications brought before them the Supreme Court had no power to interfere. With regard to the question of the authority of diverse local bodies, he might remark that such a question as was now raised had never been raised in New Zealand before. His Honor : And it would never have been raised, but for this case. Sir E. Stout said that he had some more authorities to show that hie view of the question of the authority to appoint the Eeturning Officer was correct. He cited' Eegina v. Grimshaw X., Q. 8.8. 747. Mr Caygill submitted that the jurisdiction which would enable a local body to appoint a Eetuming Officer must be such jurisdiction as would enable a local body to administer the Licensing Act, and such jurisdiction could only be exercised by bodies in whose constitution was incorporated the "Eegistration of Local Elections Act." If the constitution of the body did not incorporate that Act, it could not appoint a Eetuming Officer. The Drainage Board was not so constituted. The Harbour Board and Eiver Board were. But the appointment of a Eetuming Officer was not the whole of "administering the Licensing Act," for there was also the receipt of licensing fees and the paying of expenses. Under " The Licensing Act of 1882," revenue from licensing fees was to go into the general fund of the local body. Now, in Borne licensing districts there was no revenue from licenses, and yet there might be expenses under the Licensing Act, as, for instance, the taking of a local option poll. Such bodies as the Drainage Board had no authority to pay such expenses, and therefore could not be said to have power to administer the Licensing Act or to have any jurisdiction thereunder. With regard to the validity of the appointment of the Eeturning Officer, he would submit that, under Sub-section 2 of Seotion 50 of " The Local Elections Act," it was possible to raise the question of the validity of hiß appointment, but this must be done before the Besident Magistrate, and within fourteen days after the election. As this had not been done, the plaintiffs were barred from questioning the validity of that appointment now. The Magistrate had power to enquire, not only in respect of irregularities in the election, but aa to the whole election, and there was no distinction between its being voidafc initio or void from any irregularity in its conduct. He i would Bubmit that ignorance of the law on the part of the plaintiffs would not prevent | them from being estopped through their having acquiesced in the election if they I had not been ignorant of the facts. On _>his point he cited Eegina v. Mollison, Macassey's Eeports, 71. In reßpect to the second part of the claim, he would submit that if the Court was satisfied of the honesty and bona fides of the defendants, there was no reason to interfere by restraining them at present, before they had an opportunity of hearing the applications and deciding on the evidence brought before them, and also before it could have an opportunity of ascertaining whether their view of the law was correct. Mr Fisher, in reply, submitted that the Legislature must have considered the Drainage Board, and other similar bodiec, as having jurisdiction throughout the Licensing District, under the " Begulation of Local Elections Act." The functions of a local body might be administrative or legislative. Sir E. Stout had said that the words of the Licensing Act must refer only to the Municipal writ; now, there could not be two Municipal writs having jurisdiction throughout a Licensing District. Hia Honor asked if it was not meant to apply to the case of a Licensing District comprising parts of, say, two Boroughs? Mr Fisher said that the two Borough Councils could not both have jurisdiction throughout the district. Mr Caygill had derived an argument from the fact of the payment of the licensing fees to the Municipal Councilß and the payment of expenses under the Licensing Act by them out of their general fund. There was not much in this, as Section 6 of "The Licensing Act Amendment Act, 1882,' provided that the expenses of elections under the Act should be paid by tht local body having jurisdiction throughi out the Licensing Distriot. This meanl ■ that if the Governor appointed a loca i body which did not receive the feeß to ad minister the Act, that body Bhould havi ) power to appropriate their funds to paj i the expenses of suoh administration. Th< I "Begulation of Looal Elections Act ) I could only come into force in a Licensinj i ■ District, iv which there was more thai

cy one locc.-t_.__dy having jurisdiction, by er, order frcM the Governor stating which !st theoo loc^ bodies should exercise ey jurisdiction 'given by the Act. In thiß c V, there waa no local body which wonld , .ft . point the Betarning Officer, as none of 1 of bodies having jurisdiction throughout. 1 distriot had been appointed by the C .h veraor to do so. The English " Municii pt ElectroSa Act of 18S2"laid down that tq election should not be invalidated ir account of a defect of title in the Eeturni: it Officer. Sir E. Stontr Bead' on. you will Bee g _ also says want of title: 1. Mr Fisher said that it was so ; the clau g referred to absence of title. c His Honor said that there could 1 _ nothing wider than want of title, fro: a whatever cause it arose. __ Mr Fiaher said that "The Local Elei ;_ tions Act" assumed the existence of g body under whose authority the electio I could be held. He took it that the pos: tion of this election was practically th same as that of a Parliamentary electio: j held without the issue of a writ. Hi r learned friend had said that tbo right c _ quo warranto had" been taken awa y altogether. p Sir E. Stout said that what he had saii was that the right of quo warrant* wa taken away under the ".Regulation of Loca . Elections Act," except in regard to dis qualification arising after election. Mr Fisher submitted that as the irregu larity in the present election could not b< [ dealt with under the Act itself, it coulc 1 be made the subject of a quo warranto With regard to his learned friend's conten tion that no quo warranto could be issue, after six years, "Cole's Criminal Infor mationa " went to show that this referrec to an office which the local authoritj bad the power to give, and wai limited to offices belonging to a city Borough or town corporate. Now, thi. office of Eeturning Officer for the Licensing election did not fulfil that requirement, and there was no local body in Sydenham which could have legally conferred it. In reply to another point of hia learned friend, he would say that the plaintiffcould not be estopped by having voted at the election, because they were not aware of the irregularity. His learned friend had also said that the issue of a writ was discretionary with the Court. That was true, but the discretion must be a sound, legal discretion. His Honor said that surely it could not be considered that if there was a discretion, it could be more, wisely exercised than by refusing to recognise the claims of bodies which, as compared with the Borough Council, could not be said to have a shadow of a claim to initiate the election. The plaintiffs had acquiesced in the present arrangement for years, and now brought forward a highly technical question. Would they have brought it forward if they had known of it at the last election when their own men were returned ? Mr Fisher having briefly recapitulated his arguments, His Honor said that this was a case in which he would like a little time to consider his decision. He understood, however, that a meeting of the Committee was imminent, and would point out that the criminal sittings opened on Monday, ao that he could not give judgment for some days. Learned Counsel agreed that the meeting of the Committee shonld be adjourned for a week in order to allow his Honor time to consider hia decision. His Honor Baid that, on that understanding, he would reserve judgment. The Court then rose.