The King (Blackburn) v The Chairman and Justices of County Down

• Jurisdiction: Ireland
• Judgment Date: 16 February 1904
• Date: 16 February 1904
• Court: King's Bench Division (Ireland)

The King (Blackburn)

and

The Chairman and Justices of County Down (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'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.

1905.

Licensing law — Licensing (Ireland) Act, 1902 (2 Edw. 7, c. 18) — Transfer — New license — Surrender of lease — Premises pulled down and rebuilt — Existence of license — Licensed premises.

A., the tenant of a licensed house, surrendered the house to the landlord in November, 1901. A. had carried on the business of a publican on the premises up to the time of surrender, and had obtained on the 10th October, 1901, the usual Excise license for the year expiring 10th October, 1902. After the surrender the existing house was pulled down, and a new house built which, with the curtilage attached thereto, covered the site of the old premises and also a considerable additional area. In September, 1902, A. endorsed the license, and handed it over to B., who was in possession of the new premises. B. applied at the Annual Licensing Quarter Sessions in October, 1902, for a transfer of A.'s license, and also for a new license. Both applications were refused, the County Court Judge having ruled that there was not at the date of the passing of the Act of 1902 any license in existence in respect of the premises or any portion thereof, and that the premises were not attached to or adjoining premises licensed at the passing of the Act. On an application by B. for writs of certiorari and mandamus:—

Held, by the King's Bench Division, that B. was not entitled to a transfer of A.'s license, and that, as the case did not come within any of the exceptions in the Licensing (Ireland) Act, 1902, there was no jurisdiction to grant a new license.

Held, per Palles, C.B., and Barton, J., that the license granted to A. was still in force at the date of the passing of the Licensing (Ireland) act, 1902 (31st july, 1902); but held, that the words “the said licensed premises” in the proviso to section 6 of the Act meant the formerly licensed premises, and that, as, in the present case, the new buildings in which it was intended that the business should be carried on did not include any substantial part of the formerly licensed premises, the case did not come within section 6.

Held, per Wright, J., that the license granted to A. was not in force at the date of the passing of the Act, and that on this further ground the case was excluded from section 6; and that the case was not within section 3, inasmuch as that section applies only where the expiration of the lease, by reason

of which the license is extinguished or surrendered, takes place after the passing of the Act.

On appeal:—

Held, per Lord Ashbourne, C., and FitzGibbon, L.J., that the ruling of the County Court Judge was wrong, inasmuch as there was, as matter of law, a license in existence in respect of the premises at the date of the passing of the Act, and that the premises were, within the meaning of section 6 of the Act, attached to or adjoining premises licensed at the date of the passing of the Act, and that therefore the mandamus should go.

Held, per Walker and Holmes, L.JJ., that the premises were not licensed at the date of the passing of the Act, and that they were not attached to or adjoining premises licensed for the sale of intoxicating liquors at the date of the passing of the Act, within the meaning of section 6 of the Act, and that therefore the decision appealed from was correct.

The Court of Appeal, being equally divided, made no order on the appeal, and accordingly the order of the King's Bench Division stood affirmed.

Certiorari and Mandamus.

The following statement of the facts is taken from the judgment of Wright, J.:—

“William John Askin was tenant to Lord Dunleath of a licensed house in Ballywalter, county Down, under a lease for lives and years, the term and interest in which expired in June, 1901, after which time Askin remained on in possession until November, 1901, when he surrendered and gave up possession to the landlord, who paid him a sum of £200. Askin carried on the trade and business of a licensed publican in the house until he left in November, 1901, and prior to that he in October, 1901, paid the license duty and obtained the usual Inland Revenue license, dated 10th October, 1901, for the year which would expire on the 10th October, 1902. He took a house adjoining, and some time in the following year applied for a license for this house, which application, being for a new license, was refused.

“Shortly after the surrender to the landlord the old house was pulled down, and the erection of a new house was commenced; the building of this house would appear to have been going on from the early months of 1902 down to September of that year, when it would appear to have been finished; and while it covers the site of the old licensed premises, it is certain that it covers also a very considerable additional area. It occupies a frontage to the street of 93¹/₂ feet, being 35 feet more frontage than that of the old house; it was erected at a cost of about £3000, and is altogether a larger and costlier house than the old one which it has replaced. The new house is called ‘The Dunleath Arms.’ It could not for a moment be contended, nor was it contended, that the new premises are substantially the same as the old premises. It is plain that they are essentially different, i.e. not merely that there are structural differences, but also large additions made to the old premises (1).

“It is stated that Lord Dunleath has agreed to grant a lease to the Ulster Public House Trust Company, Limited, a Company incorporated in July, 1901, having for its object, amongst others, the acquiring of licensed premises and the reforming of the arrangement and management of them. The Company appointed Mr. Joseph Blackburn manager of these new premises, and he got possession from the landlord. On the 18th September, 1902, Askin, the former tenant, by endorsement on the license purported to assign and transfer his interest therein to Blackburn; and at the Annual Licensing Quarter Sessions held in New-townards on the 25th October, 1902, he (Blackburn) applied to the Chairman and Justices, first, for a transfer of Askin's license, and, secondly, for a new license for the Dunleath Arms. These applications were opposed by two parishioners, and were refused; the first, on the ground that this was not properly a transfer or the subject of an application for a transfer; and the second, on the ground that the application did not come within any of the exceptions in the Licensing (Ireland) Act, 1902. A fresh application for a new license was made at the Quarter Sessions held at New-townards on the 20th January, 1903, was opposed as before, and was refused by the County Court Judge, who ruled, as appears from the affidavit of Mr. W. B. Galway, that it did not come within section 6 of the said Act, on two grounds—(1) that there was not at the date of the passing of that Act any license in existence in respect of the said premises or any portion thereof; and (2) that

the new premises were not, within section 6, attached to or adjoining said last-mentioned premises. On the 7th May counsel for Blackburn obtained from this Court a conditional order for a writ of certiorari to bring up the three orders of refusal (the two of 25th October, 1902, and one of 20th January, 1903), and for a mandamus, against which cause has been shown by counsel for the same objectors.”

W. Martin Magrath (with him J. O'Connor), for the prosecutor:

The interest both in the premises and the license was vested in the prosecutor, and he was therefore entitled to a transfer of the license. At all events, if he was not entitled to a transfer, the magistrates had jurisdiction under section 6 of the Licensing (Ireland) Act, 1902, to grant a new license. The premises for which such new license is sought are attached to or adjoining premises licensed at the date of the passing of the Act. Licensed premises are defined by section 77 of the Licensing Act, 1872 (a definition incorporated by section 8 of the Act of 1902) as meaning premises in respect of which a license as defined has been granted and is in force. License is defined by section 37 of the Licensing (Ireland) Act, 1874, as meaning “any license for sale of any intoxicating liquor granted by an officer of Excise in Ireland upon production … of a certificate … of Justices …” The license in the present case was granted in October, 1901, and enured up to October, 1902. It was, therefore, in force on the 31st July, 1902, the date of the passing of the Licensing Act of 1902. Assuming, however, that the license has become extinguished by reason of the surrender of the premises to Lord Dunleath, then the case comes within section 3 of the Act of 1902. [He referred to R. (Callaghan) v. The Justices of Donegal (1); R. v. Raffles (2); R. (Kennedy) v. The Justices of Antrim (3).]

Michael J. Dunn, for W. C. Carmichael, an objector below:—

The new premises are not substantially the same as the old, and therefore the prosecutor was not entitled to a transfer. He was not entitled to a new license under sect. 3 of the Licensing

(Ireland) Act, 1902; I submit that that section does not apply to a license which was extinguished or surrendered before the passing of the Act. The words are, “is extinguished or surrendered,” not “has been extinguished or surrendered.” Nor does the case come within sect. 6, which obviously deals with the granting of a new license as accessory to existing licensed premises. Here there was no license existing in respect of any portion of the premises at the date of the passing of the Act of 1902. The interest in the premises, and the interest in the license, became severed on the surrender to Lord Dunleath in November, 1901, and were never again united in the same person. The...