SUPREME COURT.

Gisborne Times, Volume XXVI, Issue 239, 12 October 1908, Page 2

SUPREME COURT.

RESERVED JUDGMENTS DELIVERED. Tlio Registrar of tlio Supremo Court, Mr W. A. Barton, at the Magistrates Court on Saturday morning, read tlio two following judgments in cases 'hoard at the Supremo Court’s recent sittings before Mr Justice Edwards: — ACTION FOR MANDAMUS. John Higgins Martin (Mr J. W. Nolan) v. 'William Alfred Barton, an action for mandamus to Magistrate to issue to plaintiff a certificate of fitness to .hold .a publican’s license, or in the alternative to hear further evidence of plaintiff’s application. “This is an action claiming a mandamus to the defendant, the Stipendiary Magistrate for the district, to sign a certificate in terms of subsection 2 of section 12 of the Alcoholic Liquors Sale Control Act, 1893, that tho plaintiff is a fit and proper person to hold a publican’s license, or ill tho alternative a mandamus to tho defendant to hear further evidence on tlio plaintiff’s application lor such certificate. The affidavit filed in support of 'the plaintiff’s motion shows that the defendant on the 13th of July last, alter notice t 0 the plaintiff, duly held an enquiry consequent on tlio plaintiff’s application for a certificate, and that lie heard all the witnesses tendered by tho plaintiff for examination ill support of such application. It-was admitted on'the hearing before mo that after the evidence in support of the plaintiff’s application closed, 'the defendant informed counsel for tho plaintiff that if ho (the defendant) thought it necessary to make further enquiry of witnesses as to the matter the plaintiff should have notice. No such further enquiry, was in fact made. On the 3rd of August the defendant refused the plaintiffs application, stating in a letter to the plaintiff’s solicitors his reasons for so doing. On the 3ist August the plaintiff’s solicitors wrote to the defendant requesting him to hear further evidence in support of the plaintiff’s application, and on the same day the defendant wrote to the plaintiff’s solicitors declining to do so. As to tilie first branch of the relief claimed, it is plain that ill no cir> cumstances could it bo granted. In Regina v. Hurse 2 N.Z. L.R. (S.C.), 94, a licensing ease, it was held that, apart from authority, the Court conid not order tho Licensing Committee to issue a certificate for a publican’s licenso, however wrong in fact or in law the decision of the Committee might have been. In Douglas v. Dver, 10 Gaz., L.R. 647, 27 N.Z., L.R." (S.C.), 690, I held that although upon an application to a Stipendiary Magistrate for a ‘certificate of fitness to hold a publican’s license the Magistrate must hear the applicant and his witnesses, he was under :io obligation to state the grounds upon which in the exercise of his discretion he had refused 'the application. The grounds upon which I so held are well stated in the King v. Mayor, etc., of London, 3 Barn, and ad. 253, 271; then it is said that, allowing the custom to be good, the. defendants ought to show grounds of disapproval, but the cases which have been cited or. decisive against tho objection, and so is all reason; for if a matter isj left to the discretion *of any individual or body of men, who are to decide according to their own conscience and judgment, it would lie say that any other tribunal is to inquire into tho grounds and reasons on which they, have decided, and whether they have oxericsed their discretion properly or not. If such: a power is given to anyone it is sufficient in coinmonsense for him to say he has exorcised that power according to tho best of his judgment. In the present case the 'Magistrate has stated his reasons. The plaintiff’s application is really a claim that I should review those reasons, and substitute myself for the Magistrate, and deal with . tho case upon the merits. It is impossible that. I can do so. There is no appeal from the decision of the Magistrate. upon such a question; nor, if that decision had been arrived at after inquiry regularly and properly held, can it be questioned in any proceeding whatever .1 may add that if I < iuld review the decision of 'the Magistrate. I see no reason to doubt that it. has been fairly and reasonably arrived cat. As to the Eecond branch of relief claimed, I think that it is clear that the Magistrate having proceeded regularly and properly in" his inquiry, and having adjudicated upon tho plaintiff’s application, was under no obligation to re-open it. The action is dismissed. As the defendant has not filed any defence or affidavit, and has not appeared in the hearing, there is, of course, no order as to costs.” JONES v. COURTNEY. In the matter of an information under the Impounding -Act, ISS4, William Henry Jones, informant, v. Daniel Courtney, defendant. Motion to make absolute rule nisi granted under section 226 of the Justices of the Peace Act, ISB2. ■ Mr. H. J. Finn appeared in support of the rule, nd-Mr. Stock to show cause. “This is a motion to make absolute a rule nisi granted by His Honor Mr. Justice Chapman under section 226 of the Justices of the Peace Act, 1882. The rule calls upon the. Stipendiary Magistrate at Gisborne and the informant to show cause why they should not be prohibited from proceeding further upon or in respect of a conviction made by the Magistrate on the 4th of November, 1907, upon an information alleging that the applicant for the rule did on the 13th October, 1907, unlawfully rescue seven cows and one horse, which had been seized for the purpose of being impounded. A number of grounds are stated in the rule nisi, but the only ground relied upon on the hearing of tlio motion before me was that there was no evidence before the Magistrate upon which lie could find that the place where tho cattle had been Seized was a road within Die meaning of the Impounding Act, 1884. It was not contested that the Magistrate' had jurisdiction to find whether or notthe alleged road was a road within tho meaning of the statute. The case of Gough v. Kcddeil, 21 N.Z., L.R. (S.C.), 61.6, appears to show that the Magistrate had jurisdiction. Two affidavits have been filed by the applicant for tho rule. From these it appears to bo at least doubtful whether or not tho alleged road is a public road. This, 'however, is not an. appeal from the Magistrate, in which now evidence' could ho admitted, and I have to deal with the case as it was presented to him. Tho rule is clear that in 6ucli cases the decision of the Magistrate cmnot he interfered with t if the evidence before him was such as must, have been left to a jury or a trial before a jury : Ex. parte Day, 4 N.Z. Jur. N.S. (S.C.) 34;- Nutt'v. Bishop, 13 N.Z. L.R. (S.C.) 636: In re Biggins, 19 N.Z. L.R. (S.C.) 030. The evidence before the Magistrate that the road was a public road was that it was a road running at right angles to tho main read, and that it was fenced upon both sides, hut not-, metalled. Tho road appeared to be used as the access to ithe lands occupied by several settlers, whose gates opened upon it. The fnformant, who is a ranger for the Ormond Road Board, swore that the road is within the Ormond Road District, and under the control of the Ormond Road Board. ITo does not appear to have been cross-exam-ined as to the mode in which such control had been exercised. There was no evidence at all to the contrary of this evidence, nor anything before the Magistrate to 'throw any doubt upon the fact that this was a public road,"except 'the bare contention of the applicant’s solicitor that there was no evidence that this "'as so. In these circumstances it is, I think, impossible that this co'-e could have been withdrawn from the jury. ’ if it had been tried By jury. ** The rule nisi must he discharged with costs to be paid to tile informant five guineas.”