S.C. 1901. Ex parte GAUKRODGER, rised by the Act, which would have the effect of removal. But the simplest answer to the applicant's proposition is found in the reasoning and judgment of the House of Lords in In re Laceby v. Lacon & Co.(1). The same contention was there O`DRISCOLL'S made—that in granting a new licence the Magistrates were APPLICATION. in substance" granting a removal. granting a removal. I need only quote 66 66 66 one passage from the judgment of Lord Halsbury: 'Your 66 The next point made for the applicant is that at the time of the application the licence must be legally grantable. I cau see nothing in the Act to justify this. Licences are granted at a meeting of the Committee. Section 38 of the Act of 1881 shows that conditions as to accommodation are to be considered as they are existing at the hearing by the Committee. The object of posting and giving notice of the application is to enable objectors to ascertain and formulate objections. But the reason for calling for objections is surely not to prevent licences being granted, but to see that they are not granted under objectionable conditions. If the objections can be obviated before the hearing, can it be seriously said that they remain grounds for refusing the licence? The notice is of an intention to apply at a future date. Unless there is express provision to the contrary, the right to the licence must depend on the conditions existing at the time the application is heard. As was pointed out during the argument, if the applicant's contention on this point were justified, no application could be lodged so long as all existing licensees had lodged applications for renewals, although any, or possibly all, such might at the hearing be withdrawn or forfeited. (1) [1899] A.C. 222. S.C. 1901. Ex parte GAUKRODGER, In re APPLICATION. The next contention was that there must be power to grant the licence at the time the application is made. For that position also no specific provision in the Act can be cited. The fact that the Committee cannot grant any licence in excess of the number existing at the time of the last local. O'DRISCOLL'S option poll may make their power of granting a new licence depend on their decision in some other case. The proper inference from this seems to me to be that, unless there is anything forbidding it, it is the condition of things at the determination of any case which should determine the Committee's action in respect of that case. In the absence of any specific obligation, I see no reason why the decision as to granting or refusing a new licence should not await the decision as to whether existing licences should be renewed. It was argued that there is such specific obligation in section 44, subsection 5, which provides that at annual meetings the application for new houses shall take precedence, the new applications for old houses shall be taken next, and the rest of the business shall follow. These regulations cannot, I think, in any sense be considered other than directory. If they are mandatory, then it would follow that proceedings conducted in contravention of them would be without jurisdiction. In practice they have been treated as rules of procedure laid down only for the guidance and convenience of the Committee and the parties, and which could be waived. In any case, there is nothing in the Act which says that the applications for new houses shall be determined before any other business is taken or determined. There is nothing to compel them to determine any case at one sitting, or to prevent their adjourning its consideration at their discretion: See O'Connor v. Goldie (1). It would be an absurd conclusion that they must either determine a case on what they might think insufficient material or consideration, or be compelled to postpone all other business till the first was concluded. In the present case the business was in fact taken in the prescribed order, although the determination of the applications for new houses was, on what we must take to be bonâ fide grounds of public convenience, postponed till after the hearing of the applications for renewals. Many of the observations I have already made are applicable to the last objection on the applicant's behalf, that the premises for which the licence was applied were not, at the (1) 7 N.Z. L.R. 678. S.C. 1901 -- Ex parte GAUKRODGER, In re APPLICATION. time of giving notice, fit for occupation. As I have said, besides the general considerations I have suggested, section 38 shows that the fituess of the premises as to accommodation is to be judged by their condition at the time of hearing. We O'DRISCOLL'S were strongly pressed with the provision in section 56, that notice of the intention to apply for the licence was, twenty-one days before the day for hearing, to be affixed on the principal entrance-door of the premises to which "such licence is intended to apply." I cannot take this as requiring that the building should then be identical in all respects with the completed building, or that it should then be fit for occupation. It is, at least in my opinion, a sufficient compliance with the section if there is at the time of the affixing the notice a structure which can answer to the description of the premises. It is to be observed that the report of the Inspector of licensed premises, so much relied on in the argument for the applicant, is to be made at least ten days before the date of meeting. It may therefore be as to the condition of things at least eleven days after the last day for lodging applications. Although he is to report on applications for new houses similarly" as to applications for renewal, it is obvious that this is to be read sub modo. He cannot, for example, report as to the manner in which they are conducted. It has never been held, and, in my opinion, ought not to be held, that the state of things at the time of such report should be stereotyped, and incapable of alteration and improvement in the interval between that date and the hearing. I must decline to read the word premises,' in section 42, or subsection 2 of section 44, as meaning premises then satisfying the requirements of section 38. 66 If this be so, it becomes unnecessary to consider whether the Court can (no fraud or misconduct on the part of the Committee being alleged) go behind the finding of fact of the Committee that the provisions of the Act were complied with at the time the application was made, or at the later date of the first sitting of the Committee and of the granting of the certificate. It is not disputed that the premises were finished and fit for occupation on the last of these dates. In my opinion, therefore, there was no irregularity in the proceedings of the Committee in connection with the grant of this certificate. Certainly there was none which would take away the jurisdiction to grant it when it was granted. Assuming, as I think may reasonably be assumed, that the S.C. 1901. Ex parte GAUKRODGER, Magistrate (who in this instance was the Licensing Committee) had made up his mind (we are bound to conclude, on grounds of public convenience) that this house was necessary and ought to be licensed, and had adapted the procedure to make it possible for him to do so, he was in so doing, as long as he O'DRISCOLL'S kept within the Act, in my opinion, only doing what it was his duty to do. I agree that the judgment should be for the defendant, with costs. CONOLLY and EDWARDS, JJ., delivered judgments, which will be found at the end of the volume (pages 771 to 777). Judgment for defendant, with costs. Solicitors for the plaintiff: Wright & Hutchen (New Plymouth). Solicitor for the defendant: T. S. Weston, jun. (New Plymouth). THE CHAIRMAN, COUNCILLORS, AND INHABITANTS The control of drains conferred on County Councils by "The Public Works Act, 1894," is not an absolute or unqualified control, but only such a control as entitles the Council to interfere in case of injury done or about to be done. Such control does not, therefore, abrogate the common-law rights of riparian owners. THIS HIS was a special case stated for the opinion of the Court. The Waiwakaiho River is a non-navigable river, and is therefore a public drain within the meaning of "The Public Works Act, 1894." The river is within the boundaries of the County of Taranaki, and the control thereof is vested in the plaintiff Corporation, under the provisions of the Public Works Act. In the month of June, 1901, the defendant, claiming right as licensee from the owner of the adjacent riparian freehold section on the Waiwakaiho River, but without the permission of the Taranaki County Council, removed from the bed of the river, between the banks of the section and the middle of the river, a large quantity of stone for the purpose of a metalling contract at Hawera. In re APPLICATION, S.C. 1901. December 11. CONOLLY, J. S.C. 1901. &C.. OF COUNTY v. BROUGH. The questions submitted for the opinion of the Court were (a) Whether the Taranaki County Council had an unqualified CHAIRMAN, Control over the bed and banks of the said river, so as in its TARANAKI absolute discretion to prevent the removal therefrom of stone, gravel, or other material by the adjacent freehold riparian owner, claiming to the centre of the river, or by his licensee, or by any other person whomsoever; (b) or whether, as is contended by the defendant, the common-law rights of such adjacent freehold riparian owner are only qualified to the extent that the County Council can, subject to the payment of compensation, exercise the powers expressly conferred upon it by section 246 of "The Public Works Act, 1894," or can exercise the remedy given by section 252 of the said Act, or, in cases in which other adjacent riparian freeholders would be entitled to do so, obtain an injunction from the Court. Roy, for the plaintiffs : The Waiwakaiho is a non-navigable river, and is a drain within the meaning of section 241 of "The Public Works Act, 1894." Section 252 places the control of drains in the County Councils. At common law a riparian owner would have the right to remove stones, &c., from the river bed or banks if he did not injuriously affect the property of other riparian owners. The right of the riparian owner has been restricted by "The Public Works Act, 1894." The whole tenor of Part X. of the Act is to give County Councils control over drains; and “con"trol" means complete control, otherwise it is no control at all. If stones, &c., can be removed from the river bed or banks without the consent of the Council, the Council cannot be said to control the drain. It is for the public good that in this case the material should not be removed, as serious damage might otherwise result. Clause 7 of section 5 of " The Interpretation Act, 1888," requires that a liberal construction should be given to provisions of this nature, in order that the objects of the enactment may be effected. If "control," as here used in the Public Works Act, does not mean absolute control, the word is meaningless: Aitcheson V. Waitaki County(1); Maxwell on Statutes(2). Weston, for the defendant: Unless the rights of riparian owners have been taken away by express words, the word "control" must have a limited meaning. The powers of County Councils with reference to |