R (Gallagher) v Chairman and Justices of County Tyrone

• Jurisdiction: Ireland
• Judgment Date: 08 February 1901
• Date: 08 February 1901
• Court: Queen's Bench Division (Ireland)

Reg. (Gallagher)

and

Chairman and Justices of Co. Tyrone (1).

Q. B. Div.

Appeal.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1901.

Licensing law — Notice of intended application for excise licence — Service of notice — “Next resident magistrate” — Residence — 3 & 4 Wm. 4, c. 68, s. 2.

Section 2 of 3 & 4 Wm. 4, c. 68, provides for service of a notice of intention to apply for an Excise licence upon the “two next resident magistrates”:

Held, by the Queen's Bench Division, on certiorari, that it was not a sufficient compliance with the section to serve a magistrate who had a place of business nearer to, but who dwelt—“eat, drank, and slept, with his family”—further away from the applicant's premises than other magistrates:—

Held on appeal (reversing the decision of the Queen's Bench Division), that a place of business where a magistrate ordinarily transacted his commercial business, and where he was to be found during the working hours of the day, was a residence within the meaning of The section.

[Counsel cited Reg. (Gilbey) v. Justices Fermanagh (1), Reg. (Kinsella) v. Justices of Wicklow (2)].

Certiorari.

Motion to make absolute a conditional order for a writ of certiorari to remove and quash an order of the Justices of County Tyrone, sitting at the annual Licensing Quarter Sessions held at Strabane, on the 11th October, 1900, granting to the respondent Terence M'donnell, the requisite certificate for obtaining an

excise licence for the sale of beer, cider, and spirits, by retail, “at his house at Back-street, Strabane,” on the ground of want and excess of jurisdiction, that there was no due compliance with the statutory requirements as to preliminary notices, and that due notice in writing of the application and of the situation and description of the said house was not given to each of the two next resident magistrates of the district within which the said house was situate.

From the affidavits filed on behalf of the prosecutor, J. Gallagher, who in the Court below had objected to the granting of the licence, it appeared that the main ground of objection taken to M'Donnell's application for a new licence, was that the “two next resident” magistrates had not been served with notice of the intended application as required by 3 & 4 Wm. 4, c. 68, sect. 2. The notice had been served on P. M'Menamin, J.P., and on Neil Bradley, J.P. According to the prosecutor's account, Bradley lived further away than several other magistrates, and especially further than Mr. Edward Gallagher, J.P., who had been served by M'Donnell at the previous licensing sessions, and the prosecutor alleged that M'Donnell's solicitor had “stated that Bradley had a public-house almost next door to the applicant in Back street, and that service on him was sufficient, though he did not reside therein.” Gallagher further called attention to the notice as “exceedingly vague in form,” having regard to the fact that the applicant had two houses in Back street—the one in which he resided and for which the licence was not sought, and the other which was vacant for which the licence was sought.

M'Donnell's account, in answer to the affidavit of J. Gallagher, his brother-in-law and a rival publican, was that the house in respect of which he applied for the licence, and the house in which he lived adjoined; and were two buildings newly erected by him; that since their completion he “resided” in one, and used the other in connexion with his business; that an objection was raised to the service on Bradley, “on the ground that he [Bradley] did not sleep at his place of business where he was served, which is situated in the same street, and within some 20 yards of McDonnell's residence.” “Mr. Bradley, it is true, does not sleep at this business place, but he is in constant and regular attendance there daily, from early morning till late at night. Mr. Bradley personally transacts all his business in his. said business house. He uses portion of said house as an office, and I am informed and believe that all his business correspondence, including letters, invoices, and other documents, are addressed to him by merchants and others, and delivered to him by post and otherwise at his said business place, which is his recognized address, both for making and receiving all business communications; and I say that no person in Strabane who had any legal or other document to serve personally on Mr. Bradley would go to his private dwelling-house, as he could only be found there late at night, as he stays in his business house till same is closed at 11 o'clock, p.m., and very often much later. Mr. Bradley only sleeps in his house in Bridge End street, Strabane, but notwithstanding this, he is still the next resident Justice to my place, as Mr. Edward Gallagher, J.P., mentioned in John Gallagher's affidavit, lives and sleeps, not in his place of business in Main-street, but in his dwelling-house in the townland of Ballycolman, which is fully 300 yards farther away from my said house than the dwelling-house of Mr. Bradley. And said Edward Gallagher usually leaves his said business house at a much earlier hour than Mr. Bradley, because said Edward Gallagher is a draper, and his hour for closing his shop is 7 o'clock, p.m., whereas Mr. Bradley being a publican remains till his shop closes at 11 o'clock, p.m.”

In an affidavit, in reply, Gallagher stated that, even putting Mr. E. Gallagher aside, two other Justices resided unquestionably nearer to Back street than Bradley's residence in Bridge End street, and that at Quarter Sessions it was solely contended that Bradley's place of business in Back street was sufficient residence, no details being discussed or put in evidence. He further stated that the fact was that, he [Gallagher] lived “within three doors of the public-house of Mr. Bradley,” which was “managed by a barman who resides in the house, and, except an occasional visit, Mr. Bradley” was “never there”; that Bradley was “a flax-buyer and merchant,” that he was “most of his time in the country buying,” that his “office hours were spent almost altogether in an office in the market where he had stores, and where he was to be found at all times of the day, and” that he was “much more frequently and longer in the office in the market than in the public-house in Back-street.” Gallagher's solicitor (Mr. J. E. O'Doherty) stated that the matter was discussed at Quarter Sessions, upon the assumption that, to the knowledge of all concerned, if Back street did not make Mr. Bradley “next resident,” [then] only one of the next resident Justices had been served.

M'Donnell's solicitor, in reply to this, stated that the flax markets were held only on Wednesdays, and only occupied about two hours, and that the stipendiary magistrate (even if the section applied to him) lodged in the hotel, and (as deponent was informed and believed) was then absent on his holidays.

Wylie, Q.C., and Patchell, for the objector below.

Drummond, Q.C., and Gallagher, for M'Donnell.

Palles, C.B.:—

Whether Mr. Bradley, one of the two magistrates upon whom the notice was served, was one of the two next resident magistrates within the meaning of 3 & 4 Wm. 4, c. 68, sect. 2, depends upon the place which is his residence. If he resides in his place of business in Back street, then he was one of the “two next resident magistrates,” and the Justices had jurisdiction. On the other hand, if his residence is not in his place of business in Back street, but in his house in Bridge End street, then there were other magistrates who resided nearer to the place sought to be licensed; and, as in that event, one of the persons directed by the section to be served with the notice was not so served, the Justices would not have had jurisdiction, and their order ought to be quashed.

From the affidavits I gather that Mr. Bradley sleeps in his house in Bridge End street, and has his meals there whenever

his presence is not required for business purposes in his place of business or elsewhere. His presence possibly may be so required in his place of business during a large portion of the time when public-houses are permitted to be open (although this is not clear), and, I suppose, that when he is there he takes some of his meals there. His family and servants sleep and eat in Bridge End street.

There is nothing in the section to...