PRIVATE BARS

Evening Post, Volume LXXXV, Issue 29, 4 February 1913, Page 7

PRIVATE BARS

EMPLOYING UNREGISTERED BARMAIDS MAGISTRATE SAYS THE LAW IS BROKEN. Dr. M 'Arthur, S.M., gave judgment in, the Magistrate's Court this morning in the\case in which the licensee of the Adelphi Hotel was charged that from the Ist to the 10th day of January, 1913, included, with the exception of Sunday, the 6th day of January, he did employ a certain female in or about a private bar of the licensed premises, the said person not being a person duly registered as a barmaid under the Licensing Amendment Act, 1910. Sub-section 1 of section 36 of the Licensing Amendment Act, f 'i his Worship, as amended by section 2 of the Barmaids' Registration Act, 1912, reads as follows :— "After the first day of June, 1911, save as provided by this sec tion, no female shall be employed in any capacity, or permitted to serve in any capacity, in or about a bar or- private bar, of any licensed premises at any time while the bar is open for the sale of liquor.' The exceptions are contained in sub-section 3, and are as follow :—: — 'The wife, sister, or daughter of the licensee of the premises, the licensee being a woman, any person duly registered'as a barmaid under this Act." Uider the Licensing Act, 1908, section 4, "public bar" or "bar" means ,any room v passage, or lobby in any licensed premises open immediately to any street, highway, public place,' or public thoroughfare wherein the puWic may enter and purchase liquor. A private bar, then, in* the ordinary sense means a bar that is not public, that is, one which lacks one or other of the qualities necessary to a public h&v by definition. It was shown in evidence that the public had access to this bar ffrtd could obtain liquors there. The necessary quality wanting was that it did not "open immediately to any street." "I am of opinion that the bar referred to in the information was a private bar, and that an offence has been committed. A great deal was said by counsel for the defence as to the necessity for the literal construction of penal statutes. He relied strongly on Beale's Legal Interpretation, where it is said that : 'In con struing an Act like the present (the Licensing Act, 1872), by which a pen alty is imposed, we must look strictly at the language in order to see whethel the person against whom the penalty is sought to be enforced has committed an offence within the section.' Twelve years later— in 190&-*-the second edition of Beale, at p. 443, reads as follows :— 'A penal statute is to be interpreted, like 4ny other instrument, according to the fair, common-sense meaning of the language used.' Again, Maxwell on the interpretation Statutes says : 'The literal construction, then, has, in general, but prima facie preference. To arrive at the real meaning it is always necessary to g«t an exact conception of the aim, scope, and object of the whole Act to consider, according to Lord Cope—(l) which was the law before the Act was passed,, (2) what was the mischief at dtrfect for'whjch the law had not provided, (3) what remedy Parliament has appointed, and (4) the reason" of the remedy.' "The words of a statute, when there is a doubt about their meaning (I do not admit there is any doubt here),'. are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature had in view. At page 429 Maxwell states that 'the degree of strictness applied to the construction of a penal statute depended in great measure on the severity of the statute. When it merely imposed a pecuniary penalty it was construed less strictly than where the rule was invoked in favorem vitae.' "As I have already stated in my opinion ail offence lias been committed and the defendant must be convicted and fined £2, and- Court fees. I would here point out that the penalty is a recurring one, but I have no desire on the case at present before me to inflict such a CJty, as they are first and test cases." Worship added :— "I take it that the word 'private' in the expression 'private bar' must be used in its fair and reasonable meaning, in connection with the aim, scope and object of the statute in which it is Used." Mr. Wilford (for the defendant) : There are two important points in your judgment :— (1) The question of whether the onus is on the prosecution or defence,' in an information like the present, to show that the barmaid is unregistered; (2) the question of whether "private bar," so called, is either a "bar" within the meaning of the Act or a "private bar." The effect of the judgment, he added, was so far-reaching that it might have the effect of imposing a liability on hotelkeepeW of reconstructing licensed premises which had beeri constructed under the authority of the then existing law, and it might also affect the license issued to every hotelkeeper in New Zealand' so far as the relation of "bar" to "license" applied. He therefore gave notice to appeal. His ' Worship: I quite understood that an appeal would be made, and therefore I took considerable trouble with it. Mr, Wilford asked that the other cases ba allowed to stand over. In the case of the Royal Tiger Hotel, he added, the barmaid had since been registered. Hlb Worship adjourned all the other cases sine die, adding: "You got the little warning that the penalty Is a recurring one."