THE NIGHT LICENSE QUESTION.

Evening Star, Issue 3712, 15 January 1875, Page 2

THE NIGHT LICENSE QUESTION.

In the Resident Magistrate’s Court, to-day. i Mr Bathgate delivered the following judgment in the case of the police against Barker The information in this case is to the effect that the defendant, heing the holder of a publican’s license under the Licensing Act, 1873, on the day stated, kept bis licensed hou<e open after the hour of ten at night, the time for closing the same not having been extended by a Resident Magistrate. The facts are admitted, and it is understood that the present case has been brought to determine the point, whether the holder of a publican’s license is bound to close his house at any particular hour. It has been urged, in defence, that the defendant, as the holder of a pubiicau’s license, is not restricted in the hours during which he may carry on business, and that see. 311 of the Lipensing Ordinance, 1865, under which the information is laid, does not apply to the defendant as the holder of a publican’s license. The question to be considered is “ whether there is any statutory provision regulating the hours during which alcoholic liquors may be sold by holders of a publican’s license ?” It is clearly not intended that public-houses should be kept open all mght. In sec. 27 of the Amendment Act, 1874, p .wer is given to the Resident Magistrate on any occasion of a public ball, dinner, or other festivity” to “permit any house or premises to he kept open for the sale of liquors for period as he may think fit.” This implicit that there is some statutory restriction regulating the hours of business. The, Acts of 1873 and 1874 being silent as to any regulation concerning hours of business,fit is necessary to look into the Provincial Ordinance. By‘sen. 31 of the Act of 1873 the said Act is to be taken and read as part of any Provincial Ordinance passed for the purpose of licensing- or regulating the sale of alcoholic liquors, and by sec. 38 of the Act of 1874 it is enacted that every license granted under the Act of 1873, as amended by the Act of 1874, should be deemed to have been granted under the Provincial 0 - dinance. sec. 32 of The Licensing Ordinance, 1865, it is enacted that, “ no person holding a license under this Ordinance shall sell or supply auy fermented or spirituous liquor, or suffer the same to be drunk in or upon his house or premises, except between the hours of six in the morning and ten at night on any working day, and at all other hours such house and premises shall be closed,” except in certain circumstances not applicable to the present case. But the defendant contends that this section does pot apply to him, for tho reason that tho license specified in the 32nd sec- ( tion offline Ordinance of 1805 is a “general' license,” whereas his license is a “ publican’s I I license, granted uuder the Act of 1873, and i : Vftt lieate diet]ntot mid thenwives, Tho phrase puhffwrtvs jcenßs” J

is not a technical phrase, conveying in law a meaning which no other words can equii lly well express. In the Act of 1873 a form of a publican’s license is given (Schedule '.), and it is enacted (sec. 9) that it shall authorise the holder thereof to sell and dispose of alcoholic liquor, in any quantity, in the house or on the premises therein specified. The phrase “ pub lican’s license ” is not always used to describe a license authorising the sale of alcoholic liquors in a specified house or premises. The words “ public-house license” are used in see. 9, Act 1874. to designate whht is elsewhere called a publican’s license. In the Ordinance of 1865, instead of a public-house license being called a “publican’s license,” it is there called a “general license.” Sec. 6, sub-section 1, enacts that such license shall authorise the holder “to sell any fomented or spiritous liquors in any quantity,but only in the house or on the premises specified in such license.” These are almost the precise words used in defining a publican’s license in the Act of 1873. Sec. 2of the Licensing Act 1873, Amendment Act 1874, provides that the said Act shall be read as part of the Licensing Act 1873; and as the latter Act is to be read as part of any existing Provincial Ordinance (sec. 31), it follows that the Ordinance of 1865 and the Acts_ of 1873 and 1874 must be read as one. If it bo found that the three phrases—namely, “general license,” “publican a license,” and “public-house license”— used in the said Ordinance and Acts—mean the 3;itnc thing, and designate the same kind of license—to wit, a license authorising the sale ol alcoholic liquor in a specified house and not elsewhere—they must be held tube synonymous and convertible. The holder of a geneial license is commonly known as a publican, and such license may be aptly designated by either of the other terms used a publican’s license, or a publichouse license. Any enactment applicable to a general license must he held to be applicable to a publican’s license. It is, therefore, no strained interpretation to hold that the section in the Jrdinance of 1865, regulating the hours of c osing a public-house, applies to every publichouse licensed to he kept open by the holder of a pubfican’s license. That this is the plain, natural, and ordinary interpretation of the law is shown by the defendant’s own act. By the ■i2nd section of the Act of 1873, the fees payable iu respect of any license shall be such as may have been directed by any Act of any Provincial Council. Hie fee payable for a general li oense is fixed by the Licensing Ordinance, 1855, to be L2O, (See see. 7 ) This is the sum which the defendant paid on the issue of the license under which he is authorised to keep his licensed premises open. _ I am, therefore, of opinion that in beeping his house onen after ten o clock he has been guilty of an offence against the provisions of the 32nd section of the Ordinance. In coming to this conclusion, there is no hardship to the defendant, or inconvenience to the public likely to accrue, as, by obtaining a night license, for which an additional L 5 will be payable, the defendant will be enabled to keep his house open till midnight. The defendant s counsel argued with much ingenuity that a general license and a publican’s license were not the same thing, because the latter, which is held by the defendant, authorised the sale of alcoholic liquors, which include (sec 7, 1873) “every description of distilled spirits, wine, ale, beer, cider, perry, or other fermented liquor of an intoxicating nature,” whereas the former authorises the sale of any fermented or spirituous liquors, and “ spirituous liquors” are defined to be “any liquors exceeding in strength 26 per cent, of proof spirit.” (Sec. 59. 1865.) The word liquor is also defined to mean “any wine, spirits, ale, cider, perry, or other fermented liquor of an intoxicating nature.” These respective definitions, it was contended were different in kind and degree, but they are| in my opinion, substantially the same. The holder of a general license is authorised to sell in his house all the holder of a publican’s license is authorised to sell. He is not prohibited from selling liquors of a less strength than 26 per cent of proof sj ii it. However, as such a liquor would contain only 13 per cent, of alcohol, it is doubtful whether it could be called an alcoholic liquor. Be this as itlmay, it does not, in my opinion, create such a difference in the definition as to warrant me in deciding that the wholesome provision of the Ordinance regulating the hours of closing is inapplicable to the defendant’s case. To do so would be to defeat the plain intention of the Legislature, and I am bound, according to the decisions (see Broom’s Maxims, sth ed., p. 68 i), to consider what is the plain meaning of the Act, and to preserve its intent. If there had been a doubt on this point it is removed by sec. 33 of 1874. which provides that every license granted un.ier the Acts of 1873 and 1874 shall be deemed to have been granted under any Provincial Ordinance in force " for the purpose of reuulating the sale of spirituous or fermented liquors.” I am, therefore, satisfied that a‘l restrictions in the Provincial Ordinance affecting public-house licenses are applicable to such licenses granted under the Acta of Assembly. The definition of spirituous liquors is not a restriction to a license, but is only intended to apply to cases of persons selling without a license, in which cases it is necessary to prove that the liquor sold contains more than 13 per cent, of alcohol. It may be added that so identical in effect are the forms of a general license (Schedule A, 1865), and of a publican’s license (Schedule 0, 1873), that the former might he used for the latter, as the Amendment Act, 1874, sec. 34, provides that the “form of license to be issued shall be deemed deficient if made in the form prescribed in the Act,” or to “the effect thereof.” This being a test case the fine will be limited to twenty shillings and costs.

Mr Haggitt, for defendant, will appeal to the Supreme Court.