LAW REPORTS.

New Zealand Police Gazette, Volume XXXIX, Issue 27, 15 July 1914, Page 443

LAW REPORTS.

(“ New Zealand Law Reports,” Vol. xxxiii, page 499.) [S.C. In Banco, Gisborne.—(Cooper, J.) — 3rd, 15th September, 1913.] Quinn v. Florance. Licensing Acts —Application to Magistrate for Certificate of Fitness—Refusal to hear and determine Application — Ground Person's Refusal by another Magistrate—Mandamus— Discretion of Court to issue—Rule 461 of Code of Civil Procedure. The Licensing Act, 1908, section 85, subsection 2, imposes upon a Magistrate in proper cases a duty to consider an application for a certificate of fitness to hold a publican’s license; and if • a Magistrate, out of mere caprice and without any reasonable cause, refuses to consider such an application the Supreme Court has jurisdiction under Rule 461 to grant a writ of mandamus to the Magistrate directing him to consider the application. The granting of a writ of mandamus under Rule 461 is discretionary, and the Court will examine the reasons upon which the statutory officer has refused to determine an application made to him which he is authorized by statute to consider. If those reasons show a reasonable ground for such a refusal it will refuse the writ; if they do not it will, if the applicant has no other remedy, grant it.

A Stipendiary Magistrate, who in the absence of the senior resident Stipendiary Magistrate on circuit exercised the duties of a Stipendiary Magistrate at Gisborne, was applied to by an applicant for a publican’s license under the Licensing Act, 1908, for a certificate of fitness as provided for by section 85 of the said Act. Two prior applications to the resident Stipendiary Magistrate by the same applicant in respect of other licensed houses had been refused, and the acting Stipendiary Magistrate refused to deal with the application and referred it to the resident Stipendiary Magistrate. Held, That the acting Stipendiary Magistrate took a reasonable view of the matter, and that the Court should in its discretion refuse the application for a writ of mandamus to compel him to hear and determine the application for a certificate of fitness. Motion for the issue of a writ of mandamus under Rule 461 of the Code of Civil Procedure. The facts are sufficiently set out in the judgment of Cooper, J. Burnard for the plaintiff. Skerrett, K.C. (instructed by the Crown), for the defendant. Cur. adv. vult. Cooper, J. : This is a motion under Rule 467 of the Code of Civil Procedure for the issue of a writ of mandamus under Rules 461 and 466 directing the defendant to hear and determine an application by the plaintiff for a certificate of fitness required by section 85 of the Licensing Act, 1908 ; or, in the alternative, directing the defendant to hear the plaintiff and such evidence .'as he may tender in support of such application, upon the alleged grounds (a) that the plaintiff has applied to the defendant to hear and determine the application; (6) that the defendant has refused to hear and determine the application; and (c) upon the further grounds set out in the statement of olaim and the

affidavit of Leonard Thomas Burnard sworn and filed herein. Mr. Florance is District Land Registrar at Gisborne, and i 3 also a Magistrate within the meaning of that term as defined in section 4 of the Licensing Act, and he resides in Gisborne. Mr. W. A. Barton is the senior Magistrate at Gisborne exercising jurisdiction in the district, and he is also Chairman, under the provisions of section 42 of the Act, of the Licensing Committee for the district. Mr. Barton is sometimes absent from Gisborne holding sittings of the Magistrate’s Court in other parts of the East Coast. During these absences Mr. Florance exercises in Gisborne the duties of a Stipendiary Magistrate. In November, 1912, the plaintiff applied to Mr. Barton for a certificate of fitness, he then desiring to become licensee of the Royal Hotel, Matawhero. After due inquiry the certificate was refused. On the 2nd of May, 1913, the plaintiff again applied to Mr. Barton for a certificate of fitness, he then desiring to become licensee of the Record Reign Hotel, Gisborne, but after due inquiry Mr. Barton also refused this certificate. On the 6th of August, 1913, during Mr. Barton’s temporary absence from Gisborne, the plaintiff, desiring to become licensee of the Gisborne Hotel, Gisborne, applied in writing through his solicitor to Mr. Florance for a similar certificate. Mr. L. T. Burnard, a member of the firm acting as the plaintiff’s solicitors, has sworn an affidavit in which he states that in this application there was a request that an early date should be appointed for the hearing, as one of the principal witnesses was shortly leaving on an extended holiday; that the defendant called for a police report, which was supplied to him on the 13th of August; that on one or two occasions between the 6th of August and the 18th of August Mr. Burnard applied to Mr. Florance to expedite the hearing, and that subsequently certain correspondence passed between his firm and Mr. Florance; that the Gisborne Hotel is an hotel totally different in character from the Royal Hotel, Matawhero, or from the Record Reign Hotel, Gisborne; that the Gisborne Hotel is a first-class house and is situated in a central position, but that the other two hotels are not first-class houses, and the nearest of them is a mile from the Gisborne Post-office. On the 14th and 21st of August, 1913, certain correspondence passed between the plaintiff’s solicitor and Mr. Florance. This correspondence discloses fully the position taken up by Mr. Florance, which may be shortly stated thus : 1, Mr. Florance, although a properly appointed Stipendiary Magistrate, only acts in Gisborne as such during the occasional absences of Mr. Barton; 2, although the application for a certificate was addressed to him (Mr. Florance), he claims that he did not undertake or intend to undertake the duty of hea.ring it; but, 3, merely undertook to obtain police reports and particulars of office records for the purpose of placing the information so obtained before Mr. Barton upon Mr. Barton’s return to Gisborne; 4, that he ascertained that two prior applications for a certificate had been made by the plaintiff to Mr. Barton, and both had been refused, the last being as recently as the 2nd of May, 1913; 5, that some application had been made by the plaintiff to the Minister of Justice in reference to such refusals, but that the Minister had declined to interfere ; 6, that Mr. Florance had therefore decided to refer the matter to Mr. Barton; and, 7, that he (Mr. Florance) considered that under these circumstances he was justified in declining to consider the application. Now, as was pointed out in the judgments delivered by the Court of Appeal in Rex. v. Aitken (32 N.Z. L.R. 1185), the sole reference in the Licensing Act, 1908, to a certificate of fitness applied for by a person who desires to obtain a license is subsection 2 of section 85, — “ Such application” [that is, the application fora license] “ shall also be accompanied lay a certificate, signed by a Magistrate in the form in the Eighth Schedule hereto, in respect of the fitness of the applicant.” The form in the schedule is : “ I, the undersigned, A. 8., Stipendiary Magistrate, do hereby certify that [Name of applicant ] is a person of good fame and reputation, and fit and proper to have granted to him a publican’s [or New Zealand wine, or accommodation] license. “ Witness my hand this day of 19 . “ A. 8., Stipendiary Magistrate.” Subesction 2 of section 85 is a substantial re-enactment of subsection 2 of section 12 of statute No. 34 of 1893, which was in effect an amendment of the last paragraph of section 56 of the Licensing Act, 1881, a certificate of a Magistrate being substituted in the Act of 1893 in place of the certificate of ten householders required under section 56 of the Act of 1881. Mr. Skerrett has submitted that no duty is cast upon any Magistrate to hear an application for such a certificate, but I think the Legislature did intend to impose such a duty. It is true there are no express words creating a duty, but the effect of the provision is to clothe the Magistrate with authority to grant or refuse such a certificate, and impliedly

to impose upon him in proper cases a duty to consider the application: Douglas v. Dyer (27 N.Z. L.R. 690). His duty to do so is, however, administrative only, and its performance is not a “judicial” proceeding. He has no power to summon witnesses or to examine any person on oath. The administrative duty is merely judicial in the sense that it has to be performed fairly and impartially and consonant to the principles of reason and natural justice. The Act does not limit the authority to give the certificate to a particular Magistrate in any particular district. An applicant can apply to any Magistrate in any part of the Dominion for the required certificate. In practice, however, the application is usually made to a Magistrate who is, under departmental regulations, stationed in the particular licensing district in which the applicant resides or in which he desires to obtain a license. The Magistrate acts as one of a class holding an official position, designated as the class to give a certificate of character and fitness to the applicant. These principles are those affirmed by the Court of Appeal in Rex v. Aitken (32 N.Z. L.R. 1185). I have already stated that in my opinion the Act impliedly imposes upon a Magistrate in proper cases a duty to consider an application fora certificate. If a Magistrate, out of mere caprice and without any reasonable cause, refuses to consider such an application, then this Court has jurisdiction to grant a mandamus to the Magistrate directing him to consider the application. A mandamus will go to compel a statutory officer to perform a statutory duty : Brooks v. Jeffery (15 N.Z. L.R, 727); Reg. v. The Registrar of Jointstock Companies (21 Q.B.D. 131, at p. 135) ; Parker v. Brooks (16 N.Z. L.R. 276). But the mandamus which can be applied for under Rule 461 is in reality the same as the prerogative writ of mandamus, and the issue of this writ is in the discretion of the Court. Upon a prerogative writ there may arise many matters of discretion which may induce the Court to withhold its grant. At common law the prerogative writs of mandamus, prohibition, and certiorari were not writs of course. The Court, when called on to use them, always exercised a discretion —The Queen v. The Churchwardens of All Saints, Wigan (1 A.C. 611); Julius v. The Bishop of Oxford (5 A.C. 214, per Lord Blackburn, p. 246) ; Reg. v. Leicester Guardians ([1899] 2 Q.B. 632, at pp. 637-638); Croydon Corporation v. Croydon Rural District Council ([l9oß] 2 Ch. 321) —and this discretion has been carefully preserved in the wording of Rule 461. The Court will examine the reasons upon which the statutory officer has refused to determine an application made to him which he is authorized by the statute to consider, and if those reasons show a reasonable ground for such refusal it will, in its discretion, refuse the writ; if they do not it will, if the applicant has no other remedy, grant it. For instance, if an applicant for a certificate under section 85 of the Licensing Act resides in Auckland, and, desiring to obtain a license for a house in Auckland, applies to a Magistrate in Dunedin for the necessary certificate of reputation and fitness, the Magistrate could, in my opinion, quite properly say, “ You are unknown in Dunedin, but you are known in Auckland; make your application to a Magistrate of the district where you are known; I will not consider it.” In such a case the Court would not grant a mandamus to the Dunedin Magistrate to consider the application. So also, in my opinion, if a man who haid recently arrived in Auckland, but who had resided in Dunedin for many years, desired to obtain a license in Auckland, and applied to an Auckland Magistrate for a certificate of fitness, the Auckland Magistrate might well say, “You are well known in Dunedin, but are unknown in Auokland ; apply for the certificate to the Magistrate of the district where you are known.” In such a case this Court could, in my opinion, in the exercise of its discretion, properly refuse to grant a mandamus. In a district such, for instance, as the Auckland District, where there are three Magistrates, take the following hypothetical case : An applicant desiring to obtain a license for a particular hotel applies to Magistrate A for a certificate of fitness. This Magistrate makes all necessary inquiries, and refuses the certificate. He then applies to Magistrate Bor G. This Magistrate enters upon the inquiry, and is informed that Magistrate A has, after due inquiry, refused the certificate. In my opinion Magistrate Bor Magistrate C, as the case may be, could quite properly say, “ Magistrate A has heard your application. He has refused the certificate. If you have any additional matter relating to your fitness, &c., go back to Magistrate A and put this additional matter before him, and ask him to reconsider the application.” In such a case the Court could quite properly, in the exercise of its discretion, refuse to order the issue of a mandamus to Magistrate B or 0. This is substantially the present case. The plaintiff, in November, 1912, applied to Mr Barton for a certificate of character and fitness. He desired to obtain a license for an hotel at Matawhero, a few miles out of Gisborne, Mr.

Barton, after due inquiry, refused the certificate. In May, 1913, he desired to obtain a license for an hotel in Gisborne about a mile from the Post-office. Mr Barton again, after due inquiry, refused the certiScate. Three months later he, desiring to obtain a license for one of the principal hotels in Gisborne, applied, during the temporary absence of Mr Barton, to Mr Plorance, who only occasionally exercises the functions of a Stipendiary Magistrate in Gisborne. Mr Florance ascertained that the applicant had made the two previous applications to Mr Barton, and said, in effect, “I will not proceed further. The information you have supplied me with, and that which I have ascertained from the police reports and records, I will place before Mr Barton. He is, under these circumstances, the proper person to consider the matter.” In my opinion Mr Florance took a reasonable view of the matter, although he had the necessary statutory authority to grant or refuse the certificate. Mr Burnard has contended that an applicant, whose reputation and fitness may be such that he ought not to be the licensee of a small hotel at some distance from the centre of Gisborne, may nevertheless be quite a proper person to hold a license of a larger hotel in the centre of the town, and that as the plaintiff now wishes to become licensee of one of the principal hotels the circumstances under which Mr Barton refused the certificate in November, 1912, and May, 1913, are different. This is a matter upon which I express no opinion. It is open to the plaintiff to make a fresh application to Mr Barton, and he can then ask Mr Barton to consider this argument. This Court ought, therefore, for the reasons I have stated, in the exercise of its discretion, to refuse to order the issue of the writ of mandamus asked for, and I therefore dismiss the motion and give judgment for the defendant with £lO 10s. costs. Solicitors for the plaintiff : Kirk, Burnard, and Sievwright (Gisborne). Solicitor for the defendant: Crown Law Office (Wellington).

(“ New Zealand Law Reports,” Yol. xxxiii, page 588.) [S.C. in Banco, Palmerston North.—(Stout, C.J.)—23rd August, 26th September, 1913.]

Cartier, v. Marlow. Cartier v. Morgan. Animals Protection-Offences —Resisting Ranger in Eoeecution of his Duty—Production of Ranger's Authority— Not essential —Mens rea. The respondents were separately charged with an offence under section 46 of the Animals Protection Act, 1908— to wit, with obstructing a Ranger in the exercise of the powers conferred upon him by the said Act. The Ranger (the appellant) did not produce his appointment to the respondents, and was not asked to do so. Held , That it was not necessary for the Ranger to produce his appointment before proceeding to exercise his powers; and, further, that it was not necessary to prove as an ingredient of the offence that the respondents knew that the appellant was a Ranger. Appeal from decisions of Edward Page, Esq., S.M., at Taihape. The facts are sufficiently set out in the judgment of Stout, C.J. H. R. Cooper for the appellant. D, Hogg for the respondents. Cur. adv. vult.

Stout, C.J.: — This is an appeal against the decision of the Stipendiary Magistrate, Edward Page, Esq., sitting at Taihape. Both the respondents were separately charged with an offence under section 46 of the Animals Protection Act, 1908—viz., with obstructing a Ranger in the exercise of the powers conferred upon him by the Animals Protection Act. The two informations were heard together, and it was proved that the appellant was a Ranger duly appointed under section 44 of the Act. On 13th March the respondents were driving a gig. They had been shooting at Utiku, and reached Taihape at 7.30 p.m. The appellant hailed them, stating he wanted to examine their bag. They drove on, and he followed them and seized a bag. In the gig were a dog and three guns. The appellant was pushed off the gig by Marlow, and the gig was driven on by Morgan. The appellant had his warrant of appointment in his possession, but no demand was made by the respondents for its production, nor did they ask who he was or by what authority he was acting. It was contended on behalf of the respondents that as the appellant did not produce his appointment, though not asked to do so, his seizure of the bag was unlawful. Reliance was placed on subsection 4 of section 45 of the Aot,

which is as follows : “ The production by such Ranger of his appointment under the hand of the Governor shall be a sufficient warrant for his so acting in any of the eases aforesaid.” The appellant relies on the power given by subsection 2 of the same section, which is as follows: “Any such Ranger may stop in transitu any parcel, package, case, bag, or luggage in possession of the owner, or of any carrier or forwarding agent, whether by land or sea respectively, if he has reason to believe or suspect that any breach of this Act has been committed by such owner.” I am of opinion that the Ranger was in a similar position to that of a constable executing a special warrant for some offence that would be less than felony in England, or executing a search-warrant. He was not proceeding to arrest the respondents, but to deal with packages in their possession. In England, to effect an arrest for a crime less than felony, if the constable did not see the offence committed, and it had been committed some time before, he would require a warrant. The law does not, in my opinion, require that before a constable proceeds to effect an arrest justified by the warrant, or before he proceeds to execute a searchwarrant, he must produce the warrant. It is enough if he is clothed with the authority of the warrant, having it in his possession. The practice to be followed is thus laid down in Burns’ Justice of the Peace (28th ed. Vol. iv, 161) : “An officer giveth sufficient notice what he is when he saith to the party, ‘I arrest you in the King’s name,’ and in such case the party at his peril ought to obey him, though he knoweth him not to be an officer; and if he have no lawful warrant the party grieved may have his action of false imprisonment.” In Hawkin’s Pleas of the Crown (Bth ed. Vol. ii, 135, Book 11, chap. 13, s. 28), also, the following passage occurs : “First, that a bailiff or a constable, if they be sworn and commonly known to be officers, and act within their own precincts, need not show their warrant to the party, notwithstanding he demand the sight of it ; but that these and all other persons whatsoever making an arrest ought to acquaint the party with the substance of their warrants, and that all private persons to whom such warrants shall he directed, and even officers if they be not sworn and commonly known—and even these if they act out of their own preoincts—must show their warrants if demanded. And therefore it is enacted by 27 George 11, c. 20, that in all cases where any Justice of the Peace is required or empowered by any statute to issue a warrant of distress for the levying any penalty inflicted, or sum of money thereby directed to be paid, ‘ the officer executing such warrant, if required, shall show the same to the person whose goods and chattels are distrained, and shall suffer a copy thereof to be taken.’” It is unnecessary to refer to section 61 of the Crimes Act, 1908, as owing to the fact that there was no arrest of a person in the present case subsection 2 does not apply, while, as the officer was not required to produce the warrant or process, subsection 1 has no application to the present case. This question has been dealt with in several cases. In Hall v. Roche (8 term. 187) the question of the lawfulness of an arrest by a Sheriff’s officer arose. The question was, Was the warrant of arrest issued before the arrest ? The facts were held to show that the person had been arrested before the issue of the warrant. In dealing with the contention of counsel Lord Kenyon, C.J., said, inter alia, “ If it be established at law by the cases cited that it is not necessary to show the warrant to the party arrested, who demands to see it, I will not shake those authorities ; but I cannot forbear observing that if it be so established it is a most dangerous doctrine, because it may affect the party criminally in case of any resistance, and if homicide ensue the legality of the warrant enters materially into the merits of the question. Ido not think that a person is to take for granted that another, who says he has a warrant against him without producing it, speaks the truth. It is very important that, in all cases where an arrest is made by virtue of a warrant, the warrant (if demanded at least) should be produced.” In Galliard v. Laxton (31 L.J. M.G. 123) a warrant was issued against Galliard, but the warrant was addressed to all officers of the peace. He was apprehended by two constables, and rescued by bystanders. At the time of the arrest the constables had not the warrant. They were not, therefore, clothed with the authority to execute it. Wightman and Crompton, JJ., held in the Queen’s Bench that the proceeding was in the nature of a civil proceeding, and as they had not the warrant the arrest was illegal. Two passages from the judgment may be quoted : As they were obviously police constables we think that they were not hound in the first instance to produce the warrant at the time they made the arrest; but that, as this was not a charge of felony but rather in the nature of a civil than of a criminal proceeding, the warrant ought to have been produced if required, and that an arrest without such production would not be legal. The production of the warrant was not, however, required before or at

the time the arrest was made, notwithstanding the resistance of the appellant and his brother, nor, indeed, at anytime. The case of Mackalley (9 Co. Rep. 69a) is distinguishable on the ground suggested by Mr. East in his treatise on Pleas of the Crown (Vol. i, p. 319, citing 1 Hale P.C. 458), and, indeed, we are unable to find any case in which the precise point raised for our consideration has been decided ; but we are, upon the whole, of opinion that the officers making the arrest ought to have had the warrant with them ready to be produced in case it should be required, and that, not having it, they were not justified in making the arrest.” Codd v. Cabe (1 Ex. D. 352) was a case also of a warrant of arrest for an offence less than felony. It was a charge under the English Act regarding the pursuit of game, a statute analogous to our Animals Protection Act. The warrant was general, in the sense that it was addressed not to a special constable, but to “ the constables of the Parish of Stoke Gabriel, in the County of Devon, and to all other peace officers in the said county.” A policeman, not having the warrant in his possession, arrested the accused. He stated that he arrested him under a warrant. The accused resisted, and the charge was for resisting. It was held tbat Galliard v. Laxton (31 L.J. M.C. 123) was well decided. Mr. Justice Denman said, “ The general rule is that in felony a police constable may arrest without a warrant, and that in offences of a lesser degree he cannot; it follows, therefore, that when a warrant has been issued for an offence punishable upon summary conviction the officer executing it ought to have it in his possession ready to be produced if it is asked for.” In Reg. v. Chapman (12 Cox C.C. 4) there was a similar decision —viz., that the arresting constable must have the warrant in his possession, but it need not be produced unless asked for. In this case there is no need of a special warrant, and in my opinion the Act provides that if the authority of the Ranger is questioned he must have his appointment, and he must produce it if asked. In the present case there was no such request or demand made of the appellant. Section 46, under which the respondents were charged, says, “ Every person who assaults, resists, or obstructs any Ranger or any person acting by his order or in his aid in the execution of any of the powers conferred on such Ranger by this Act is liable to a fine not exceeding ten pounds.” The questions, then, are, Was the appellant a Ranger, and was he obstructed ? It is not necessary that the person obstructing should have known that he was a Ranger. The statute 24 & 25 Viet., c. 100, s. 38, enacts, “Whosoever . . . shall assault, resist, or wilfully obstruct any peace officer in the due execution of his duty, or any person acting in aid of such officer, or shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of a misdemeanour. In Reg. v. Forbes and Webb (10 Cox C.C. 362) it was held that in an indictment under that statute it was not necessary to prove that the persons assaulting knew that the persons assaulted were police officers. Those officers were in plain clothes: but the Reooraer, Russell Gurney, Q.C., said, “ The offence was not assaulting them knowing them to be in the execution of their duty, but assaulting them being in the execution of their duty.” So that in the present case there is no need to prove that the respondents knew that the appellant was a Ranger. See also Rex v. Maxwell (73 J.P. 176). Reg. v. Forbes and Webb (10 Cox C.C. 362) is quoted in Halsbury’s Laws of England (Vol. ix, pp. 237, 506) as being good law.

The appeal must therefore be allowed, and, as the cases were heard together, with £7 7s. costs. The case will be remitted to the Magistrate, with a direction to convict the respondents and to inflict such penalty as he considers proper according to law. Solicitors for the appellant: Arrowsmith and Loughnan (Taihape). Solicitor for the respondents : D, Hogg (Wanganui).