Breen v Keene

CourtCircuit Court
Judgment Date01 January 1981
Date01 January 1981
In re Riordan

Forfeiture - Application for ad interim licence - Endorsable convictions - Conditions not endorsed on licence - Licence should have been forfeited - Licence subsequently renewed on five occasions - Validity of licence - Validity of issue of licence by the Controller of Customs and Excise in the name of a deceased person.

Licensed premises turned down - Closed for over one year - Application to renew ordinary seven day publican's licence refused in District Court - Appeal - Whether licence can be renewed - Spirits (Ireland) Act, 1854 (17 18 Vict. c. 89), s. 11.

The applicant applied in the District Court for an ad interim intoxicating liquor licence. Her deceased husband, the holder of the licence, had been convicted of the offence of permitting intoxicating liquor to be consumed on the premises at prohibited hours in 1961, 1972 and twice in 1973. None of the convictions was endorsed on his licence and the licence was renewed by the District Justice at the annual licensing District Court for the next five years. The Gardaí objected to the granting of an ad interim licence upon the basis that the licence had become forfeited by operation of law and relied upon s. 31 of the Intoxicating Liquor Act, 1927. The District Justice stated a Case as to the validity of the licence which was last issued in 1978 after the holder had died. Held, applying The State (Attorney General) v. DurcanIR [1964] I. R. 279 and The State (Reddy) v. JohnsonUNK (High Court, unreported, 31st July, 1980) that, although the order reviewing the publican's licence was made in error, the error was made by the District Justice within jurisdiction and as such could not be the subject matter of an order of certiorari. Section 31 does not invalidate a valid order of a court of record even if such an order was based on an error within that court's jurisdiction. Accordingly. the District Justice must accept as valid the renewal order made by him at the annual licensing Court of 1978. Applying R. (Murphy v. The Cork Justices [1895] 2 I.R. 104: The issue of a licence by the excise authorities is merely a ministerial act performed upon the receipt of the certificate of renewal of the District Justice and the appropriate amount of duty. The excise authorities have no right to enquire...

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