S.C. 1901. Ex parte GAUKRODGER, In re APPLICATION. One of the objections raised to the application in respect of the Hotel Commonwealth had been that section 38 of The Licensing Act, 1881," in regard to accommodation, had not. been complied with. The only witnesses called upon this question were Sergeant Stagpoole (the sergeant of police at New O'DEISCOLL'S Plymouth) and Alfred Boon, one of the contractors for the hotel. The evidence given by them was in regard to the condition of the building on the 16th of May (twenty-two days before the first day of the licensing meeting), being the last day on which notices of application could be lodged under section 56 of the Act. The majority of the Court having held that it was sufficient that the Act was complied with as to accommodation at the date of the grant of the licence (which it admittedly was), it is unnecessary to set out this evidence. A statement of its effect will be found in the judgment of Stout, C.J. The Magistrate personally inspected the premises on two occasions. The portion of the judgment of the Magistrate granting the licence which referred to this matter was as follows: "I have no difficulty, after hearing the evidence, in deciding that the provisions of section 38 of the Act of 1881 were complied with on May 16, there being then nine rooms finished, and I determine this as a matter of fact. I may "add that I personally inspected the Commonwealth premises in question in the middle of May, and again this morning" [the 1st of July], "when I found twenty-three rooms upstairs "completed and furnished." 66 66 66 66 The certificate for a licence, and the licence itself, were taken out on the 1st of July, the date of the decision. At the hearing in the Supreme Court the motion for prohibition, as well as that for certiorari, was moved, but it was not pressed, there being nothing further to prohibit, and the motion for certiorari alone was relied on. Findlay, for the plaintiff : This was, in fact, the removal of a licence, and could not be granted: Section 97 of the Act of 1881, as amended by section 22, subsection (a), of the Act of 1895. [WILLIAMS, J.-Suppose O'Driscoll had absolutely given up his licence, and some one else had put in an application for a new licence in New Plymouth do you say that it could not have been granted?] It may not be possible to go so be very different from this case. far as that. But that would to removals, which are clearly imposed in the interests of the S.C. 1901 Ex parte public. This is, in fact, a removal. A licence is a licence to a person in respect of premises. Where there is a removal there is the same licence but new premises. The mere form GAUKRODGER, in which the thing is done cannot affect the matter. O'DRISCOLL'S [EDWARDS, J.-There is this difference: that here the old APPLICATION. licence was given up before the grant of the new one.] In re No doubt that risk was run, but the application was made before the old licence was given up. That should not have been done. Statutes will be construed so as to defeat devices to evade their object: Philpott v. St. George's Hospital(1); Jeffries v. Alexander(2). O'Driscoll could have absolutely controlled this vacancy by not putting in his application for a new licence until the last moment. Reg. v. Thornton, Ex parte Lacon & Co.,(3) was subsequently overruled in the House of Lords, but shows how the result was arrived at. It was overruled in Laceby v. Lacon & Co.(4); but the ground there was that the provision was for the benefit of the landlord only. If, as here, the provision had been intended clearly for the benefit of the public, the point would have been otherwise decided. The cases cited in Maxwell on Statutes(5) show what a long way the Courts will go in enforcing a prohibition intended for the public benefit or protection. At the time of lodging the application for a new licence the licence must be legally grantable. The police have to report immediately after the lodging of the application as to the condition of the house, and the number of other houses in the district: Subsection 2 of section 44 of the Act of 1881. Suppose half a dozen new licences were applied for, and there were no intimation as to where the vacancies were to occur: it would be impossible for the police to report. The same reason applies to residents: they may petition a certain number of days before the hearing. Where the full number of licences exists, and renewals are in all cases applied for, they are entitled to assume that no new licences can be granted, and to abstain from petitioning. The application must, at any rate, be legally grantable at the time of its coming before the Committee. The hearing must proceed on the state of facts which exists when the application is called on and the hearing begins: Falconer v. Williams(6). The Magistrate was bound by subsection 5 of section 44, and could not alter the order of business so as to give himself jurisdiction. (1) 6 H.L.C. 338; 27 L.J. Ch. 70. 9. 13. (3) [1898] 1 Q.B. 334. (4) [1899] A.C. 222. [WILLIAMS, J.-Do you say he could not reserve his decision?] It is not necessary to go so far as that. Here there was much more. S.C. 1901. Ex parte GAUKRODGER, In re APPLICATION. [DENNISTON, J.-If he can reserve his judgment, does that O'DRISCOLL'S not show that this order is not mandatory—that at most there has been a mere irregularity?] The It is submitted not. Further, there could not be a grant of a new licence on the 7th of June, even although the application for renewal had previously been withdrawn, because the old licence would not expire until the 30th of June. licence fee must be paid within fourteen days from the grant of the certificate. Here that could not be done if the licence were granted on the 7th of June. What could not be done then could not be done afterwards by adjourning. If it could, an application might be continually adjourned waiting for some licence to be cancelled on the indorsement of a conviction. The Act in no way limits adjournments. In view of the condition of the house at the time when the application was made the Magistrate had no jurisdiction to grant it: Falconer v. Williams(1). Notice of the application must be affixed to the door: Section 56. Any ten or more ratepayers may object, and their objection may go to the condition of the premises: Section 57. If the house is fitted up as a store or music-hall a licence cannot be granted: Section 44, subsection 7. The Magistrate appears to have proceeded on the basis that he was entitled to look at the building on the day on which he proposed to give judgment, the 1st of July. There should, at any rate, be a rehearing to decide whether at the time when the application was heard the premises complied with the Act. Skerrett and T. S. Weston, jun., for the defendant O'Driscoll: : The Clerk to the Committee was entitled and bound to receive the notice of this application under section 56. The Committee had jurisdiction (a) to hear the application, and (b) to grant it. There is a statutory duty on the Committee to dispose of every application which comes before it: Section 44, subsection 8. They are bound to inform themselves whether they have jurisdiction to hear and grant. Here there was jurisdiction both to hear and to grant. Any Committee is entitled to grant any number of licences at any annual meeting unless the particular licence is brought within some prohi (1) 14 N.Z. L.R. 502. S.C. 1901. Ex parte bition of the statute: Sections 55, 62, and 75 of the Act of Since 1895 the only prohibition which can affect this case is that contained in section 3, and subsection 1 of secGAUKRODGER, tion 8, of the Act of 1895; and see the form of voting-paper O'DRISCOLL'S In the First Schedule to that Act. The only prohibition is APPLICATION. that the total number of licences in the district is to continue In re as it has been. This means that the number of grautable licences shall continue, and not that any particular licence shall continue: Elirenfried v. Kenny(1). There is no prohibition against the grant of new licences so long as the grantable number is not exceeded: Cooper v. Booth (2). The Committee does not, therefore, exceed its jurisdiction unless it issues certificates for a number of licences in excess of the grantable number. The prohibition is not directed to receiving an application, but to granting only. The notice under section 56 is not an application-it is a mere notice to the Clerk and the public that an application will be made. There is nothing before the Committee until they meet. There was no breach of the prohibition in this case. There had been a withdrawal in writing of the application for a renewal before the applicant had concluded his case on his application for a new licence. There is no express power to withdraw, but there is an implied power, and the withdrawal of the application deprived the Committee of jurisdiction to go on with the application: In re the Committee of the Licensing District of Invercargill North, Cameron's case(3). If the withdrawal must be assented to by the Committee and acted upon, here both things had occurred. On the question of jurisdiction there are only two points of time which are important-the time of notice of the application and the time of granting. If jurisdiction is not necessary at the time of the notice (which it is not, because notice is not a proceeding before the Committee), it is not necessary at the moment when the case is opened. The analogy to an action is false, because in an action there must be a cause of action, and jurisdiction when the writ of summons is issued. Subsection 5 of section 44 is not mandatory. In McLeod v. Hay(4) it was held that subsection 7 of section 44 is not mandatory. There are no negative words in subsection 5. It simply means that applications for new licences shall be called on first, and does not limit the ordinary powers of a Committee as to transacting its busi (1) 14 N.Z. L.R. 19. (3) 11 N.Z. L.R. 507. ness. S.C. 1901. Ex parte GAUKRODGER, Otherwise section 43 and subsection 9 of section 44 would be abrogated. And the Committee could not adjourn under section 59 or section 63 without disposing of the rest of the business altogether. There is nothing even in the language of the provision to prevent an adjournment for consideration O'DRISCOLL'S of the decision. [STOUT, C.J.-What do you say is the meaning of “then,” in subsection 12?] It means "thereafter." The practice in England is to adjourn: Paterson's Licensing Acts(1). The Court will not interfere with the power of adjournment: Rex v. Justices of Monmouthshire (2); Rex v. Justices of Monmouthshire(3). So long as at the termination of the licensing meeting the Committee have not granted licences in excess of the number grantable, there is jurisdiction. This was not a "removal" in contravention of the Acts. The matter is concluded by Laceby v. Lacon & Co.(4). In a removal the same licence subsists-indorsements are continued. This is a new licence, without indorsements. The restrictions are a proviso to the power of removal. They apply only where what is being done is a removal. As to the condition of the premises when the notice of application is sent in, all that section 56 requires is that there shall be an outer door of the premises to which the application relates. Section 38 is against the plaintiff's contention. Most of the requirements are within the discretion of the Committee, and it cannot be known what is required until the application is dealt with. Subsections 1 and 2 of section 44 are not inconsistent with the defendant's condition. The police. no doubt, report in respect of the house which is the subject of the application. Sections 40, 45-47 of "The Licensing Act, 1872" (England), are analogous to sections 56 and 38 of our Act, and it has been held under the English Act that a house which is insufficient at the hearing may be sufficient at an adjournment if in the meantime adjoining premises have been added: Paterson's Licensing Acts(5), and cases there cited. Here there was a "house" with eleven rooms, complying with the statutory requirements. The question is one of fact, and if there is any evidence the Court will not interfere with the decision of the Committee where honestly given: In re The Licensing District of Waipawa(6): Reg. v. Cook(7); Brown (1) 11th ed. 218. (2) 4 B. & C. 844. (3) 8 B. & C. 137; 6 L.J. (0.8.) M.C. 37. (4) [1899] A.C. 222. (7) 6 N.Z. L.R. 621, 625. In re APPLICATION. |