PROHIBITED PERSONS.

Taranaki Daily News, 7 September 1917, Page 6

PROHIBITED PERSONS.

LIABILITIES OP LICENSEES. IMPORTANT JUDGMENT. At the New Plymouth courthouse yestadiiv tlic Deputy-Registrar of the Supreme Court (Mr. J. Terrv) read the reserved judgment of Mr. Justice Chapman in the case Henry Xuttall (appellant) ■y John Kelly (respondent), argued before Jus Honor at \ e w Plymouth on August -24 last, when .Mr. H. R. Billin" appeared for the appellant and Mr. A H Johnstone for the respondent. The judgment was as follows: "This is an appeal from a judgment of Mr. \\. R. Hidden, .S.M., dismissing an information. The respondent was charged with having, during the currency of a prohibition order against a person named, and with knowledge thereof, sold liquor to him. The sale wa s made bv the respondents barmaid, and one of the grounds was that, though s h e knew the respondent did not know that the person supplied was a prohibited person Tins ground was not insisted on at the hearing of this appeal, counsel admitting that in view of the proviso of section of the Licensing Act, IMS, and the general rule as to liability for the acts of an agent, he could not contend that the respondent's personal knowledge was essential. The barmaid, against whom an information had also been laid was convicted of selling. The prohibition order, dated at Wellington, Deecmber 20 li>l<>, is addressed 'to each and all of the licensed persons 'within the licensing districts of Wellington and Wanganui,' and bears on its face the consent of the person prohibited.

'The alleged offence was committed at Hawera, which is not within either of the districts named. The further objection is, however, raised that the respondent is not a person who has been forbidden to sell to the drunkard in question. It was held under the legislation in force before the passing of the Consolidated Statutes that a prohibited person was prohibited everywhere, and that it was an offence on liis part to enter licensed premises anywhere. That decision is, I think, applicable to a person who procures liquor from any person in any part of the Dominion. The language of section 214 is positive and unrestricted so far as he is concerned. The question here, however, is a different one, namely, whether licensed persons outside the districts or places named in the order, or subsequent order made pursuant to the concluding words of section 212 (1) of the Act, are in the .same position when they have notice of the order as those were in the named districts. The difficulty in- construing the Act arises out of the way in which the sections relative to prohibition orders have been built up by successive Acts. The first part of section 212 (1) empowers justices to forbid any licensed person to sell to the drunkard any liquor for the space of one year. So far it is in terms a prohibition affecting some person or persons other than the drunkard. The second part of the paragraph merely empowers the justices to extend the order to persons in any other city, town, or district, that is to say any other licensing district. The extension may bemadded at any time and may be nnfdc ex parte.

"By the second paragraph of section 212 it appears that the order is intended to affect not merely licensed persons but the drunkard himself, and he is em- < powered to consent to it. When he has ' consented I see no reason to doubt that - the order has exactly the same force and effect and that the justices have exactly , the same authority with respect to oxtending it as if they made it in open ■ court. It is merely a concession to the drunkard that the matter is in the first instance dealt with by the magistrate and in private. "The question is one of considerable difficulty, but I have come to the conclusion that the Legislature has not so expressed itself as to make it clear that any licensed person having knowledge or imputed knowledge, perhaps casually obtained by a barman in a distant place before he entered his present employer's service, that the person in question has been prohibited elsewhere, is under such a liability iu is suggested. I fully accepted what has been laid down by Mr. Justice Williams in Rex v. Ward, and treat decision as having the result that a prohibited person is a prohibited person wherever he goes, and that if he obtains liquor anywhere from anyone he incurs the penalty prescribed, and I am satisfied that this is equally so whether the order is made under the first or the second or the third sub-section of section 212. "Different considerations appear to me. however, to apply to licensed persons. Section 213 assumes that each licensed person ■will be served with a copy of the order, although it does not command or render it essential that this shall be done, and to prevent evasion and render it unnecessary to name in the order all licensed persons affected, it enacts that knowledge of the order obtained in any other manner by him or his servant shall place him under the same liability. The Act does not contemplate the service of the order in places beyond the cities, towns, and districts to which it in terms applies, and it seems to mc that much of the language both of sections 212 and 213 is surplusage if the real meaning is that every licensed person in New Zealand is liable for selling to a person whom he personally or through his servant knows to be a prohibited person just as persons within the named districts are liable. If that is the law the provision for extension by justices i 3 unnecessary, as the police could effect the same result by merely giving notice. 1 quite admit that the language of the section is wide enough to embrace all licensed persons who know of the order, but for the reasons given I do not think that that was intended. Further, the reasons given by Mr. Justice Williams for his conclusion in the case quoted do not apply with the same force here. The prohibited person carries his knowledge with him, while it might have seemed to the Legislature oppressive to assume that a licensed person, even with that knowledge, whom the justices are encouraged by the terms of the Act to warn, but have not thought fit to warn, Bhould come under these- penal provisions merely by reason of such knowledge. "The conclusion I have formed is in liarmony with section 215, which must be admitted to be of general application, which imposes a minimum penalty wherever the offence is committed, but only on a licensee with personal knowledge that he is harboring a prohibited person. 'Appeal dismissed."