shall publish notice of such application as follows"; and then sub-s. 1 sets out the notice to be given in the case of a new licence, and sub-s. 2, in the case of the transfer of a licence. At the end of the section there are these words: "The provisions of this section as to notices shall extend to all cases where, under the Intoxicating Liquors Act, 1828, notices are required to be served in a like form to or in the same manner as notices for new licences." Now, the words that I have read from s. 14 of the Act of 1828 shew that, where it is intended to apply for the transfer of a licence from a house that is to be pulled down to a house not then licensed, such and the like notices are required as in the case of a person applying for a new licence. Therefore, some of the provisions of s. 40 as to notices apply to this case; and the only question is whether the provisions of sub-s. 1, in the case of a new licence, or of sub-s. 2, in the case of the transfer of a licence, are applicable. I am of opinion that the provisions of sub-s. Į as to notice in the case of a new licence are those that apply to this case; and, if so, it is quite clear that the notices in this case were not correct.

I have had no great difficulty in coming to that conclusion with regard to the notices; the other question, as to whether there is here a remedy by mandamus, is a more doubtful one. I have, however, reluctantly come to the conclusion that we cannot grant the mandamus. I think that a mandamus cannot go, under the circumstances of this case, without infringing principles that it is not desirable to infringe, however inconvenient their application may be in the particular

case.

Where certain specified notices have to be given before an application can be heard, it is necessary, upon the application coming on for hearing, to inquire in the first place into the facts as to the notices in order to ascertain whether the tribunal has jurisdiction to entertain it. The justices in this case did make that inquiry. They were told that the proper notices had been given. Probably in such a case the justices would rely to a great extent on their clerk. But however that may be, they did come to the conclusion that the proper notices

had been given when in fact they had not been. As I have said, it was their first duty to consider that question. They did consider it, and came to a wrong conclusion. If this had been a case in which they had jurisdiction and had come to the wrong conclusion that they had not, and had consequently refused to hear the application, the mandamus could have gone. That would have been a refusal on their part to hear and determine. But that is not the case before us. They did here enter upon the question whether they had jurisdiction, and wrongly decided that they had. They cannot give themselves jurisdiction by an erroneous decision of a preliminary question, but the result of their decision was that they proceeded to act without jurisdiction. The question is, What is the remedy for that, if there be a remedy? If it was a judicial act, the proper remedy is certiorari: that is the remedy for acts done in excess of jurisdiction. If certiorari lies in this case, no mandamus is wanted. No one would have thought in such a case as this of applying for a mandamus, if it had not been for the recent decisions as to licensing justices not being a court. It seems to me that we must dispose of the question of mandamus just as we should have done if this had been a judicial act. I cannot see my way to dispose of it any differently because certiorari will not lie.

It is argued that there was no hearing by the justices here; that what purported to be a hearing was a nullity. I cannot say that the hearing of this application was a nullity, so that the licence granted at it was altogether void. Then, if the licence that has been granted was not a nullity, the proper thing to do in the first place is to take steps to have it set aside. In this proceeding we clearly have no power to set the licence aside; nor can we do anything but require the justices to hear and determine an application for a licence which they have already granted. Undoubtedly, if the Court could come to the conclusion that what purported to be the hearing was no hearing at all, in that case the mandamus could go. Thus, a mandamus has been granted in cases where a tribunal, instead of considering the application before them and the grounds of it, have taken into consideration matters altogether extraneous

C. A.

1899

REG.

v.

NICHOLSON.

Channell J.

C. A.

1899

REG.

v.

NICHOLSON.

Channell J.

to that which was really before them. For instance, where a licence was practically put up to auction by annexing as a condition to the grant of it a money payment, it was held that the justices had allowed their decision to be influenced by extraneous considerations, and that the hearing was equivalent to no hearing at all: Reg. v. Bowman. (1) The case of Reg. v. Cotham (2) also ranges itself under the same head; because there Wills J. says: "We have next to consider whether the case is one in which a mandamus ought to be granted directing the justices to hear and determine the matter according to law. It is obvious that the distinction between an erroneous decision and a failure to hear and determine according to law may be very fine, and the cases on the subject shew that it is so. I take the governing principle to be that if the justices have applied themselves to the consideration of a section of an Act of Parliament, and have, no matter how erroneously, determined the question which arises upon it before them, their decision cannot be reviewed by process of mandamus." That is exactly what I think, and what I am deciding in this case. Then he goes on: "That is so, whether there is an appeal from their decision or not. If there is an appeal, mandamus will not lie; if there is not, their decision is final. But when it appears that they have taken into consideration matters which are absolutely outside the ambit of their jurisdiction, and absolutely apart from the matters which by law ought to be taken into consideration, then they have not heard and determined according to law." In that case the Court came to the conclusion that the magistrates must have taken into consideration some extraneous matters. It is quite immaterial whether the Court were right or not in fact in coming to that conclusion. They proceeded on the assumption that the justices had known the true facts, and had gone outside them and considered matters extraneous to the question which they had to decide.

In this case we cannot say that the magistrates have taken into consideration any extraneous fact. As I have said, they were correct in their proceedings. They considered whether

(1) [1898] 1 Q. B. 663.

(2) [1898] 1 Q. B. 802.

the right notices had been given, and came to the conclusion erroneously that they had. That was the first thing they had to do. It is said that if the proper notices had been given, other persons would have been present, and would have opposed the application. No one, however, did appear to oppose, and none, therefore, has been refused a hearing. It would not have been open to those persons, if the justices had been right in their decision as to the notices, to come and ask this Court to order a rehearing because they had not heard of the proposed application; and the fact that the justices were wrong in their decision does not give them that right. It is unfortunate that the effect of the decision should be that persons who might otherwise have been present were not so; but that is not a refusal to hear them. It cannot be said that the justices have not exercised jurisdiction. They have done an act which is beyond their jurisdiction, and which we have no power to set aside. Probably, the Legislature may shortly give us that power. The fact that licensing justices are not a judicial body need not in any way prevent Parliament from expressly enacting that certiorari should lie to that tribunal, as, indeed, it has done in other cases.

As to whether certiorari will lie or not to licensing justices, there is the decision in Reg. v. Sharman (1) that it will not. The House of Lords have had the question before them, but have not decided it: Laceby v. Lacon & Co. (2) It may be that, although licensing justices are not a court, certiorari does nevertheless lie in cases of this description. If it should be finally decided that certiorari does not lie, I cannot doubt but that the Legislature will interpose and provide some remedy in such cases, which certainly ought not to be without one.

I will only add that if we directed that the mandamus should go in this case, and the justices were to make a return that they had heard and determined, I think that we should be placed in a position of some difficulty.

Rule discharged.

C. A.

1899

REG.

V.

NICHOLSON.

Channell J.

W. A.

The prosecutors appealed.

(1) [1898] 1 Q. B. 578.

(2) [1899] A. C. 222.

C. A.

1899

REG.

v.

NICHOLSON.

May 17. An application was made to the same Divisional Court for a rule nisi for a writ of certiorari to bring up the licence granted by the justices on January 26. The application was refused on the authority of Reg. v. Sharman. (1) On May 30 a similar application was made to the Court of Appeal, and a rule nisi was granted. The argument as to the rule nisi for a certiorari being made absolute and the appeal from the refusal of the writ of mandamus by the Divisional Court came before the Court of Appeal together.

July 28. Avory and Llewellyn Williams, for the prosecutors, argued, as in the Court below, that s. 40 of the Licensing Act, 1872, applied, and that the notices were bad, and that the justices had proceeded without jurisdiction. They contended that certiorari would lie under these circumstances, and that if the licence granted to the applicant was not in the possession of the justices the form of the writ might be moulded so as to bring up the record of the granting of the licence in the register of licences.

Sir E. Clarke, Q.C. (C. W. Mathews and Guy Stephenson with him), for the defendants. The notices given were sufficient, as s. 14 of the Alehouse Act, 1828, dealt, not with new licences or transfers, but with protective or emergency licences. For that purpose there are regulations as to what notices shall be given and as to how they are to be published, and the reference to s. 10 only refers to the form of the notices, and, consequently, s. 40 of the Licensing Act, 1872, leaves the special provisions of s. 14 of the Alehouse Act, 1828, in full force. There is no direct repeal of those provisions, and none can be implied.

Even if a writ of certiorari can be granted in such a case as the present, the issue of the writ is discretionary, and the prosecutors have not shewn that, by reason of their local situation, they are aggrieved. Further, the delay in applying to the Court is a reason why the Court will not in the exercise of its discretion grant a certiorari.

Avory, in reply.

(1) [1898] 1 Q. B. 578.