THE PLURALITY OF BARS QUESTION.

New Zealand Times, Volume XXXII, Issue 5076, 30 June 1877, Page 3

THE PLURALITY OF BARS QUESTION.

(From the Press.)

Appeals from Justices of the Peace Act, and re John Barrett (applicant), and re Alfred Buckley (respondent). Mr. Joynt for the appellant. The respondent was not represented by counsel. In this case, in the Court below, Alfred Buckley, Inspector of Police, was prosecutor on behalf of the Queen, and John Barrett, of Barrett's Family Hotel, Durham-street, defendant. The information laid by the said Alfred Buckley was that the said defendant, being a holder of a public-house license, did knowingly permit more than one bar in or upon his licensed premises, without the consent of the Licensing Court of the District, and without paying the fees for such additional bars, contrary to the Licensing Act, 1873, Amendment Act, 1874. The defendant in the Court below pleaded not guilty, and after hearing the evidence the Bench convicted the defendant, and adjudged him to pay £lO, being £5 for each alleged additional bar. An appeal was taken, and the question now submitted for the opinion of the Supreme Court was whether, according to the evidence, tho half doors and square hole, opening into the bar, as mentioned by the prosecutor, Alfred Buckley, are bars within the meaning of the Act.

Mr. Joynt said this was a special case, stated by G, L. Mellish and George Leslie Lee.Esqs., for the opinion of the Court. His Honor : Does nobody appear on behalf of the Crown ? Surely some one is interested in the protection of the revenue. Who laid the information ?

Mr. Joynt : Mr. Inspector Buckley, your Honor. I may say no one appeared at the settlement of the case.

His Honor : I think it is not acting with respect to this Court. The police appear in the Resident Magistrate's Court, but when the appeal conies on hero there is no one to support the Resident Magistrate. I suppose aotieo has been serred ?

Mr. Joynt : Oh yes,.'your Honor, the case h*} been duly settled, '

His Honor : It seems to me that the police should not interfere with the case in the way of prosecution, unless they are prepared to support it. However, I must hear the case, but it seems to me that some mistake must have been committed, as_ the Crown certainly ought to be represented. Mr. Joynt : Probably, your Honor, the Crown did not think it sufficiently important to be represented here to-day. His Honor : Well, Mr. Joynt, you may go on with the case.

Mr. Joynt then proceeded to read the special case as settled by the Court below. His Honor : This is an appeal' on the merits. De facto it is, were there two bars or one bar !

Mr. Joynt: The magistrates held that both these apertures were bars. In the 2nd section of the Licensing Act, 1873, the definition of the word "bar" is given. That section said—- " The words « public bar' shall be deemed to moan and include any room, passage, or lobby in any licensed public-house open immediately to any street, highway, or public thoroughfare wherein the public may enter and purchase any spirituous or fermented liquors." The Resident Magistrate, taking that interpretation, defined these apertures as bars. The meaning of the statute, he presumed, was that any room, place, or lobby where persons could obtain drink was a public bar.

His Honor : I cannot construe the word " bar" to mean a room.

Mr. Joynt: The 10th section provided as follows :—" No person being the holder of a publican's license, issued under this Act, shall be entitled to have in or upon the premises in respect of which the said license shall have been issued more than one public bar for the sale of spirituous and fermented liquors therein, and "any person offending against this provision shall be hold to be guilty of selling without a license, and liable on conviction thereof to a penalty of not less than five pounds nor moue than fifty pounds." His Honor : There is no suggestion that there is more than one room, but that this lobby constitutes another bar under the Act. Mr. Joynt said that he had very strong opinions on the subject, and contended that the Bench was quite wrong in assuming each of these apertures a bar. His contention in the Court below was, that the place where liquors were served was the bai-, and therebeing half a dozen entrances or apertures in it did not make each of them a bar. There was no contention that drink would be got from these apertures except from the bar. His Honor: It might as well be contended that each place at the bar was a separate bar. Is there a private and public entrance ? Mr. Joynt : Yes. In some hotels there is a billiard-room which has a separate bar. In that case, of course, it would undeniably be a separate one. But iD this case it was not so. The people who required drink could not get it by going into the lobby without getting it from the bar. Johnson's Dictionary defined a bar as being a place where the barkeeper sat and sold liquor and received reckonings. His Honor : I certainly cannot see the contention on tho other side at all.

Mr. Joynt : I submit, your Honor, that it is absurd to call these openings bars. His Honor : The Act says there shall not be more than one public bar. If there are private bars they do not come under the section.

Mr. Joynt : But there is a section further on, your Honor, which gives the holder of any license power to have more than one bar. I refer your Honor to section 9 of the Act of 1874. It says: "Notwithstanding anything in the said Act contained, any person being the holder of a public-house license may have more than one bar for the sale of alcoholic liquois in or upon the premises in respect of which such license shall have been granted: Provided that wherever there shall be more than one such bar in or upon any such premises as aforesaid, the holder of the license shall pay a fee for each additional bar at the rate of one-third of the fee payable for a publican's license, &c." His Honor : I had overlooked that section, Mr. Joynt. The second section of tho Act of 1873 defines the meaning of the word " bar." It says that "any room, lobby, or passage opening immediately to any street, highway, or public thoroughfare," where drink could be sold, shall be called a bar. If the Crown were represented here, though it is not right the Court should argue for them, they would say that this passage, being a place where drink could be supplied, comes under the Act.

Mr. Joynt : It was never contended by the Bench that these were public bars. The Bench made a distinction between the bars mentioned by the Act of 1873 and the Act of 1874.

His Honor : As I understand section 9, it means that there shall not be different drink shops without paying an additional fee, but not where there are merely separate entrances into the one bar. There might be something in it if the passage or lobby opened directly on to the public street. Bat you say it is not so.

Mr. joynt : I think, your Honor, the magistrates are exceedingly anxious to get a judicial opinion. His Honor : Well, if that is the case, they ought to have taken care to be represented here. If the magistrates are right at all they should have made three bars, because there is one entrance into the bar and two exits for drink.

Mr. Joynt : They call the partiti n immediately opening on to Peterborough -street the public bar, and the two apertures tending therefrom private bars. His Honor : But those requiring drink are served by tho same persons. Mr. Joynt : My contention was in the Court below, and I submit it is the right one, that these apertures not opening immediately into the street cannot be construed into bars.

His Honor : The point is, so far as I can see, whether there is or is not any other room, passage, or lobby opening i&vmecliately on tho highway where the public can, obtain liquor? I Mr. Joynt : Yes, your Honor, but Il'submit that this does not face upon the highway. The lobby cannot posaibly he the bar. His Honor : But the Crown says that the lobby is a bar. The Act says any lobby, passage, or room where drink can be obtained.

Mr. Joynt : I submit that the bars must be independent entirely from the public bar to constitute an additional bar.

His Honor : The publican may serve liquor in. any room of the house without being called upon to pay for an additional bar; but if there is a place where the public can obtain drink fronting on the highway, it becomes another bar.

Mr. Joynt : I will put a case, your Honor. Suppose a circular bar fronting the street all round is divided into compartments, I submit that this is but one bar.

His Honor : Certaiuly Mr. Joynt, your contention would be right. But in this case the Crown puts it that there exists a "lobby" opening on to the street, in which the public can be served with drink. Under the Act this is defined to be a bar. The person goes in to tho lobby, and receives drink. This is how I read the evidence given on the case. Mr. Joynt ; But the lobby is not distinct from the bar. The purchaser, though going into the lobby, is supplied from the public bar as much as if ho stood in front of it. It is merely a matter o£ convenience for the customers. '

His Honor : But if this is a convenience ought not the publican to pay for it ? Mr. Joynt : I submit, jour Honor, that in this case the lobby does not contain within it a bar distinct from and not in any way connected with the public bar. Your Honor will Bee that the purchaser receives the drink from the public bar, and not from another one distinct from it.

His Honor : But the lobby is a different compartment of the house, where tho public can receive drink. Tho lobby is not a means cf getting into the house, bat for the purpose of getting drink. The lobby leads into the street, and nowhere else. Mr. Joynt : Yes, your Honor, it loads into tho taproom, and thero is »n opening from tho taproom into the street. I submit there is no direct entrance into tlfa lobby from the Btr»et.

His Honor : Mr. Inspector Buckley says he went into the lobby from the street. Mr. Joynt : But, your Honor, the door leads from the street into the taproom, and not into the Ipbby.

His Honor : Not at all. This is the whole point of the case. Mr. Buckley says he went in from the street into the lobby. Mr. Joynt : If your Honor will read Mr. Buckley's evidence again I do not think it will bear that construction. He says, " I we7jt into the lobby," but he does not say that he went direct from the street into the lobby. If your Honor will look at tho plau you will see that there is no door from the lobby direct into the street. To get to-the street you have to go through the taproom. His Honor : But, Mr. Joynt, is this marked on the plan here not a door into the street ? Mr. Joynt : No, your Honor, that is the wall. If your Honor thinks it necessary, I I will get Mr. Armson to give evidence on the point. His Honor: Mr. Joynt, we are not discussing matters of fact, you know. It is a matter of the construction of the law as to the definition of what is a bar. Of course, to some extent questions of fact are mixed up with it, but they are not the main point of argument. Prom Mr. Buckley's evidence it appears that there is an entrance direct from the street into the lobby. But if your statement is correct, we must have the whole case re-stated, because it all rests upon the point as to the opening upon a public thoroughfare. If there is no entrance to the Btreet from the lobby, then there is not more than one bar; if otherwise, then there is more than one bar. The law is that a lobby or passage shall be considered a bar when it opens directly on to the street. With regard to the double door, I think that this cannot be held as a bar. With respect to the lobby, Mr. Buckley's evidence is that he went directly from the street into it. If this be so, then, under the Act of 1873, I think this is a bar, and the conviction is right. If, on the contrary, what you state, Mr. Joynt, is correct, and there is no way into the street except through the taproom, then the conviction is wrong. I shall send the case back to be re-stated.

Mr. Joynt : Do I understand your Honor to hold that there is no bar unless it opens directly on to the street. Por instance, you may go into a billiard-room bar, which would not open upon the street,

His Honor : I do not think you can ask me to give you any further opinion than I have done. As I have said, if the lobby spoken of iB reached from the street through some intermediate means, then it cannot be held to be an additional bar. If, however, it can be reached direct from the street, then it becomes, in my opinion, an additional bar under the provisions of the Act. That is, if it is a place opening out on to the street or highway where the public can obtain drink. Order : Case referred back to the Resident Magistrate to be re-stated for the opinion of the Supreme Court. The Court then rose.