THE FOUR CLOSED HOTELS. IMPORTANT JUDGMENT.

Te Aroha News, Volume VII, Issue 382, 6 July 1889, Page 4

THE FOUR CLOSED HOTELS. IMPORTANT JUDGMENT.

Auckland, July 3. At the Supreme Court this morning His Honor Mr Justices Gillies gave judgment on the four applications that were made last week for writs of mandamus to compel the City North Licensing Committee bo grant renewals ot license to four hotels in that distiict. The applications were as follows ;—; — Eaule J-lotkl.— Daniel O'Connor v. D. G oldie and Others (Dr. Laishlcy). JTokkstivus' Arms Hotel. — Ooombos and Another v. D. (J oldie and Others (Mr E. Hcsketh). Wharf Hotel, — Caulton and Others v. D. Goldie and Others (Mr E. Ue&keth). CiiANRroATiDK Hotel.— Lynch v. Goldie and Others (Mr F. Baume). Mr Theo. Cooper appeared for the defendants in each instance. His Honor gave judgment as follows :—: — In these acLions the plaintiffs pray for writs oi*mandamus to issue against the defendants, the Licensing Committee for Auckland, City North, commanding them to issue certificates authorising the renewal of the licenses of the several houses of the plaintiffs, which certificates the defendants had refused at their adjourned licensing meeting held on June 20th last, on the ground that these licensed houses weie not required in the neighbourhood. The plainfcifls also pray, ' in the alternative, tor writs of onandamu^ commanding the defendants to hear and determine their several applications for renewal. This alternative prayer \v as, however, scarcely insisted on, as it is manifest that if the defendants were ordered to again hear and determine these applications, they would be exceedingly unlikely to come to a different determination from that already arrived at, and yet this alternative prayer is the only one which this Court could grant even if it were satisfied that an irregularity should take place in the attempted exercise of the defendants' undoubted discretion. (Vide Mr Justice Williams's judgment in Birley v. McDonald and Others, 4, N.Z.S.R., 427, S.C.). The plaintiffs were therefore, in order to sustain their prayer for mandamus to issue a renewal certificate, driven to the contention that the defendants, by informing the applicants of their intention, of their own motion, to take notice of the fact that these licensed houses were not required in the neighbourhood, and, failing to follow up that information by the procedure prescribed by the Act, had thereby exerci&ed and exhausted their discretionary powers, and that, consequently, the plaintiffs had acquired an absolute right to the renewal of their licenses under section 78 of the Acb. I recognise, a& fully as the learned counsel mho urged it, the propriety and necessity, in construing an Act like the Licensing Act, giving almost unlimited power to Licensing Committees, in respect of the property of licensed persons, to construe the Act strictly, and to see that its pro\isions are strictly conformed to. or as my brother Richmond has said in Faber and Co. v. Fraser, "The just thing must be done in a just way." At the same time I must not forget that canon of construction of statutes that whenever any doubt exists, the construction ought to be such as to favour, not to frustrate, the manifest intention of the Legislature. Bearing both of those doctrines clearly in my mind, I shall shortly deal Avith the authorities quoted, and then deal with the facts of the present case. As to the English and Australian authorities quoted, they seem to me to have but littie bearing on these cases. Some of them throw a faint side light on the questions at issue, but they have no direct bearing" on these questions, inasmuch as our statute is unique in its character and provisions. I preter to examine and be guided by the judgments of the various judges oi this Court upon the provisions of this very | Act. The first case in point of date quoted was that of Resjina v. Hurst* and others (2 N. Z. L. R.), decided in July 1883 by the late Mr Justice Johnston, in which he granted a mandamus to hear and determine on the giounrt that the Committee had determined without hearing. But he expressly states : "It is clear, apart from authority, that however strong in law and in fact the Committee may have been, the Court cannot order the Committee to issue the certificate. This is not an appeal against their decision. No appeal is given, etc." The next case is that of Faber and Others v. Fraser aud Others (4 .N.Z.L.R.) decided in March, 1886, by Me Justice Richmond, in which he granted a mandamns to hear and determine on the ground that the Committee had refused an adjournment to enable the plaintifls to meet the charge mado against them, and in his judgment made the remark already quoted, and which was relied upon for the plaintifls in the present cases. The next case is that of Birley v. McDonald and Others (4, N.Z.L.R,), so much relied upon by the plaintiffs, in which Mr Justice Williams, in June, 188G, granted a ma?idamus to issue a certificate ot renewal, There does seem some little difficulty, so far as the report goes, in reconciling the decision of the learned judge with bis reasoning, but I think that may be accounted for by the peculiar circumstances of the case, and it must be lead in conjunction with the same learned judge's judgment in June, 1887, in the case of Harold v. De Lacy (6, N.Z.L.R.) in which he refused a mandamus either to grant a certificate or to hear and determine, when the plaintiff had refused an offered adjournment, and the Committee had without evidence decided that the house was " not required." The only other case, and that most analogous to the present cases, is thafc of Hamilton and others v. Fraser and others, decided by Mr Justice Richmond in July, 1886 (5, N.Z.L.R.), in which he refused a mandamus to grant a renewal in that and two other similar cases. In that case previous notice of the Committee to consider the necessity for a public house in the neighbourhood and requiring them to attend, was sorved on the licensees, apparontly under section 83 of the Act. Bub that very notice seems to have been relied on by the licensees, as indicating a foregone conclusion on the part of the Committee 1 inconsistent with their exercising a judicial discretion. In that case, too, the Chairman, as soon as the case was called on, without hearing any evidence, or any objection, and without conferring with the Committee, announced that the application was refused, bub subsequently granted an adjournment. At the adjournment plaintiffs refused to call evidence, none was called by the Committee, but, after consultation, they refused the renewal. This was a very strong case, much stronger than those with which I have now to deal. Nevertheless the learned judge held that having held an adjournment, and an opportunity of bringing forward evidence and argument, the exercise of the committee's discretion was not questioned. That case, however, seems to have been decided rather on the provisions of

section 75 than upon the provisions ,of section 63, on which in the present cases the committee avowedly acted. In the cases now before me, it appears thab the Committee did not give any previous notice of,their intention, of theirown motion, bo bake notice of objections, but on the calling of the various cases on the 3rd June they informed the applicants that under the provisions of Section 63 they would of their own motion, take notice of the fact that their respective house, jvevo not required in the neighbourhood, "and offered to the applicants an adjournment in accordance with thab section The objection that no previous notice or summons had been issued to the applicants, requiring their presence, seems to me futile : the applicants were present or represented, and manifestly for the purposes of supporting bheir applications, and the suggestions thab they were only casually present from curiosity or otherwise seems to me undeserving of serious nobice. They were present, represented by counsel, who, in bhiec oub of bhe four cases, acquiesced in bhe adjournment to the 10th June. That adjournment was admittedly bad under eecbion 63, and the written notice subsequently given in terms ot that section was also admittedly bad and void, as being given under an Aot which had no existence. Had the Committee under these proceeded to hear and determine the application on the 10th, the question I would have to determine would, be much moie difficult, although I am nob quite sure that the acquiescence in the erroneous adjournment in three of the cases might not have stopped them. Now, however, I need not decide, for at the adjourned meeting of the 10th June, all parties being represented, and the irregularities being brought to their notice, the Committee abandoned their previous proceedings, informed the applicants afresh of their intention to take notice of the objection they had previously intimated, gave proper written notices in terms of Section 63, and further adjourned the hearing of the applications until the 20th June, 'a time ample under the provisions of that section. At the adjourned meeting on the 20th June, the parties appeared, protested, and. called evidence in support of their various applications, especially in answer to the objections raised by the Committee as to their houses not being required in the neighbourhood, and the Committee, after consultation, decided to refuse the renewal. Now it cannot be suggested, nor was it suggested on argument, that the Committee had acted unfairly, harshly, or unjustly, &o far as their procedure went. The plaintiffs had ample opportunity ot being heard, and of bringing forward evidence, moie bo in face 'than the Act allows them. Bub the contention for the plaintiffs was, that having once intimated to the plaintiffs their intention, of theirown motion, to take notice ot certain objections and having tailed to follow up that intimation by the steps required by the Act to render that intimation effectual so as to confer upon them the discretion of refusing the applications, the Committee had exhausted their powers and ceased to be able to exercise their power of intimation and their discretion as to granting or refusing the applications, and that the prima Jacte right of the applicants to a reserval conferred by Sec. 78 then became absolute. I see no ground, either legal or equitable, for this contention. It would amount to this, that any slight irregularity _on the part of the Clerk of the Committee, or the person entrusted with serving the notice, would have the effect of depriving the committee of their de&crebionary jurisdiction and of rendering the will of the legislature nugatory. It eeems to me that the power of intimation to the applicants of the intention of the Committee to take notice of their own motion of objections, is nob exhausted by one intimation. I see no reason why, on the first hearing, they should nob intimate their intention to take notice that the applicant is of drunken habits, that, at the adjourned hearing to consider this, they should nob find thab such objection is not sustainable, that they should not then intimate that they will take notice that the premises are out of repair, and on the adjourned hearing, find that objection unten able, and then intimate that the house is nob required in the neighbourhood, and, on the further adjourned hearing, find thab objection good, and refuse the license. So long as they exercise these powers of intimation, notice, and adjournment within the period during which they are entitled to exercise bheir discretionary powers of hearing and determining the application, I see no reason why they should nob under the Act do so. lam therefore ot opinion thab the defendants in three cases, notwithstanding the defective exercise of their powers of adjournment on the first occasion of their intimation, having subsequently exercised that power of intimation, notice, and adjournment in accordance with the stabutoiy powers, that judgment must go for the defendants with costs. I would, however, reiterate, and intensify, if possible the advice to the^e committees of my brother Richmond in Hamilton v. Fraser, in which he says : " It is, therefore, a tribunal which ought to proceed with the utmost caution and discretion. It is, therefore, to be hoped thab those who have the execution of this law will recognise the difficulty and delicacy of their position, and give as little occasion as possible for just complaint. Ib is certain that the cause of temperance, holy though it be, cannot be advanced by disregard of the still more sacred claims of justice," and I would aid that they ought to remember thatb'i?/ have to answer for their acts at a higher tribunal than this Court, the tribunal oE public opinion. The judgment of this Court will be, as I have said, for the defendant, and following the precedent of Hamilton v. Fraser, the costs will be seven guineas in each case.

Mr R. W. S. Ballanfcvne, formerly of Ponsonby, and now of Napier, achieved the distinction of winning the second prize at the Melbourne Exhibition for a splendid map of the Reef ton Goldfields. The map was a remarkable exhibit, being very large and complete, and showing ample evidence of having been prepared by an able draughtsman. Referring to the map, the " Reefton Guardian " says :— " One of the best exhibits in this particular line, and which formed an attraction in the New Zealand Court at the Melbourne Exhibition, ivas a large district map of our goldh'elds, prepared to the order of the Reefton Committee by Mr R W. S. Ballantyne, draughtsman, of Napier. It was sent on to its rightful owners yesterday, and was shown to an admiring assemblage of townspeople in the reading-rootn lastnight. It measures over 20ft by 12ft, and is on a scale of 10 chains' to the inch, embracing the whole of the Inangahua field from Larrys Creek on the north and Snowy river on the south, a distance of about twenty-five miles. It reflects the highest credit upon Mr Ballantyne to have penned out so meritorious a work (for such it really is), as, independent of its value a3 a record ot all existing leases, and their relative positions to each other, the merely professional work of the draughtsman is almost forgotten in the avbistie taste displayed by the trained eye of the designer."