PRIVATE BARS

Marlborough Express, Volume XLVII, Issue 32, 6 February 1913, Page 3

PRIVATE BARS

EMPLOYING UNREGISTERED

BARMAIDS

MAGISTRATE SAYS THE LAW IS

BROKEN

Dr McArtluir, S.M., gave judgment in the Magistrate's Court at Wellington on Tuesday morning in the case in which the licensee o? the Adelphi Hotel was charged that from the Ist to the 10th day of January, 1913, included, with the exception of Sunday, the sth 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, said his Worship, as amended by section 2 of the Barmaids' Registration Act, .1912, reads as follows:—"After the firstday of June, 1911, save as provided by this section, 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 follows:—'The wife, sis-

ter, or daughter of the licensee of the premises, the licensee being a woman, any person duly registered as a barmaid under this Act."

_ Under the Licensing Act, 1908, section 4, "public bar" or "bar" means any room, passage, or lobby in any licensed premises open immediately to any street, highway, public place, or public thoroughfare wherein the public 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 bar by definition. It was shown in evidence that the public had access to this bar and 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 construing an Act like the present (the Licensing Act, 1872), by which a penalty is .imposed, We'must look strictly at the language in order to see whether the person against whom the penalty is sought to be enforced has committed an offence within the section.' Twelve years later in 1908— the second edition of Beale, at p. 443, reads as follows:—'A penal statute is to be interpreted, like any other instrument, according to the fair, com-mon-sense meaning of the language used.' Again, Maxwell on the Interpretation Statutes, says: 'The literal construction, then,' has, in general, but prima'facie preference. lo arrive at the real' meaning it is always necessary to get an exact conception of the aim, scope, and object oi the whole Act to consider, according to Lord Cope—(l) which was the law before the Act was passed, (2) what was the mischief or defect for wnicn the law had not provided (3) what remedy Parliament has appointed, and (4) the reason of the remedy.'* Ihe 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 Iw • .., At, Pa-e 429 Maxwell states tnat 'the degree of strictness applied to the construction of a penal statute depended m 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 ravorern vitaei'

. As I have already stated in my opinion an offence has been committed and the defendant must bs convicted and lined £2, and Court fees. 1 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 penalty, as they "? first and test cases. 'His Wor-SlSr^^i-T". 1 take i* that the word 'private* m the expression 'private bar must be used in its fair and reasonable meaning in connection with the aim, scope and object of tho statute in which it is used " Mr Wilford (for the defendant): tn *■ T tw° imP<n-tant points in your judgment.-_(!) The question of whether the onus is on t& prosecuHli^ delenc, e ' ™ ™ information .like the present, to show that the bar™a^. ls «*w£stered; (2) the question of whether 'private bar/ J called, nf Vi \ \ bar mthin tlle waning %Sl 9 1% or- P»vate bar.'?--Tho edect of the judgment, he added, was !ffiT r? a- cßmg-t}iat ft mi?ht h»^e the effect of imposing a liability on hotelkeepers of reconstructing licensed Premises which had been construct under the authority of the then existing law, and it might also affect the fcTi tO eJ ei" y lwtefreeper in o. bar.to "license" applied. Ho therefore gave notice to appeal. His Worship: I quite understood that an appeal wouls be made, and thererore I took considerable trouble wrfcn it.

Mr Wilford asked that the other cases be allowed to stand over In the case of the Royal Tiger Hotel, he added, the barmaid had since been registered.

His Worship adjourned Ual! the other cases sine die, adding: "You ~ o t the hutle warning that the penalty 5 is a ■recurring one."—Post