Dowling, Complainant; O'Loughlin Respondent

• Jurisdiction: Ireland
• Judgment Date: 14 November 1877
• Date: 14 November 1877
• Court: Queen's Bench Division (Ireland)

Q. Bench.

DOWLING,

COMPLAINANT;

O'LOUGHLIN

RESPONDENT.

Rex v. The Commissioners of Excise" 2 J. & S. 243.

Conviction under 35 & 36 Vict. c. 94, s. 83 "Spirit grocer's" beer-house license Intoxicating liquors.

488 THE IRISH REPORTS. [I. H. DOWLING, COMPLAINANT ; O'LOUGIILIN, RESPONDENT. Licensing Acts-Conviction under 35 36 Vict. c. 94, s. 83-"Spirit grocer's" beer-house license-Intoxicating liquors. A licensed "spirit grocer," who also held a "beer-house" license, was convicted before one of the Metropolitan Divisional Justices, under s. 83 of the "Licensing Act, 1872" (35 & 36 Vict. c. 94), upon a summons charging him, as a "spirit grocer," with permitting the consumption of intoxicating liquors (proved to be porter) on his licensed premises :-Held (per MAY, C. J. and O'BRIEN, J.), (dub. FITZGERALD and BARER, JJ.), that the conviction was bad. Per Mk; C. J.-The term " intoxicating liquors" should, throughout the Act, be taken distributively, so as in each case to mean that description of liquor which the dealer is licensed to sell. As to " spirit grocers," under the 8 & 9 Vict. c. 64, the " Licensing Act, 1872," appears merely to increase the penalty under the former Act, and not to create a new offence. CASE STATED by a Divisional Magistrate for the Metropolitan District of Dublin for the opinion of the Court, upon a conviction under Licensing Acts. The facts are so fully and minutely stated in the judgment of the LORD CHIEF JUSTICE, that it would be waste of space to set them out here. , Butt, Q. C. (with him Porter, Q. C., and Keogh), for the Respondent, referred 'to the Licensing Act, 1872 (35 & 36 Vict. o. 94. ss. 3-5). The first of these sections inflicts a fine of 50 and 100 for sale of liquor without a license ; the latter deals with selling drink on premises contrary to license. The definition of "intoxicating liquors " is found in s. 77 ; " spirit grocers " are defined by s. 81. The penalty inflicted on " spirit grocers" suffering the drinkÂÂing on the premises is given by s. 83. It virtually is an applicaÂÂtion of the provisions of s. 5 to " spirit grocers." The conviction. is to be recorded on the license against which the offence was committed. The offence here committed was not against the "spirit grocers" license, and so the conviction cannot be indorsed. Tor. XI.] COMMON LAW SERIES. 489 upon it, but against the beer license. This is a more serious Q. Bench. offence, but it is not the offence for which the Defendant was (Cr. Side.) 1877. Holmes, Q. C. (with him J. G. Gibson), for the Complainant. Section 81 carries the definition of "intoxicating liquors" from section 77 into the spirit grocer's sections. The Act was intended to punish spirit grocers for illegal consumption of all intoxicating liquors on their premises. If a beer license authorised consumption on a spirit grocer's premises, such consumption would. not be illegal. If the argument on the other side is correct, as to the indorseÂÂments, drinking may go unpunished to any extent ; for the " spirit grocer's " license cannot be indorsed, and there may be no other license in existence. It is impossible to suppose the legislature passed an enactment, so generally worded as s. 13, with an intenÂÂtion that it should apply to so small a class as the beer retailers only, and we contend that it and. similar sections dealing with offences under the Act apply to the case of spirit grocers also. MAY, C. J. :- Nov 14. This case comes before the Court upon a Case Stated by Mr. Barton, one of the Divisional Justices of the Metropolitan District, under the provisions of the Act 20 & 21 Viet. c. 43. It appears that on the 5th day of January, 1877, a summons was issued by Mr. Barton, directed to the Respondent Timothy O'Loughlin, grounded upon an information made by Mr. Dowling, the prosecutor, to the effect that the said Respondent, being duty licensed as a spirit grocer, purchasers from him of intoxicating liquors drank such liquors on his premises, and that such drinking was with his privity and consent, contrary to the form of the staÂÂtute ; and the Respondent was thereby required, on the hearing of the information, to produce his aforesaid license. On the hearing of the information, the informant, Dowling, 'deposed that, at 9.30 P. M. on the 20th of last December, he had found in the Defendant's shop a young man and a young woman, and on the counter three bottles and five glass tumblers containing porter, near where they were standing at the counter. On cross 1877. On this evidence the magistrate convicted the Respondent, and DOW. imposed a fine of 5. The case further states that it had been knorrearn, contended before the Bench-that, inasmuch as it was established and admitted that the Respondent held not only a "spirit grocer's'...