The King (Bourke) v The Justices of Dublin The King (Moriarty) v The Same

• Jurisdiction: Ireland
• Judgment Date: 18 February 1903
• Date: 18 February 1903
• Court: Court of Appeal (Ireland)

THE KING (BOURKE)

and

THE JUSTICES OF DUBLIN

THE KING (MORIARTY)

and

THE SAME

K. B. Div.

Appeal

— License — Undertaking to use for purposes of hoiel, and not otherwise — Violation of undertaking — Good character — Condition for payment of sum of money to be applied in extinguishing another license — Public policy.

Leader v. YellENR 16 C. B. (N. S.) 584.

R. (Cox) v. The Recorder of DublinUNK 16 L. R. Ir. 424.

R. (Jones) v. The Justices of KerryDLTR [1897] 31 I. L. T. R. 47.

R. (Morell) v. Justices of AntrimIR [1900] 2 I. R. 492.

R. v. Lancashire JusticesUNK 55 J. P. 580.

R. v. WilkinsonUNK 10 L. T. (N. S.) 370.

Reg. v. BowmanELR [1898] 1 Q. B. 663.

The Queen (Lambe) v. The Justices of ArmaghIR [1897] 2 I. R. 57.

The Queen (M'Kenney) v. Justices of AntrimIR [1901] 2 I. R. 133, 162.

The Queen v. MannELR L. R. 8 Q. B. 235.

The Queen v. RuncimanUNK 28 L. R. Ir. 527, at p. 550.

VoL. II.] KING'S BENCH DIVISION. 429 THE KING (BOURKE) v. THE JUSTICES OF DUBLIN(1). K. Div. THE KING (MORIARTY) v. THE SAME. 1902. Nov. 25, 27. Licensing Acts—License—Undertaking to use for purposes of hotel, and not 1903. Jar.. 1 b. . 3, otherwise—Violation of undertaking—Good character—Condition for Feb. 14 2. payment of sum of money to be applied in extinguishing another Public policy. Appeal. Feb. 18. An applicant for the usual certificate of good character to enable him to renew his license in 1901 gave an undertaking in open Court to persons objecting to the granting of the certificate that he would remove a public drinking bar which he had opened, and conduct his premises for the future as a hotel in accordance with an undertaking given to the Recorder when the license was originally granted in 1899. He failed to remove the drinking bar or to conduct his premises as he had agreed : Held (by the King's Bench Division and Court of Appeal), that such conduct was evidence to sustain the decision of a licensing authority, before whom the application came for a certificate of good character in the following year, that the applicant was not of " good character " within the meaning of the Licensing Code. The applicant for a new license in the year 1899, in consideration of same being granted, paid into Court a sum of £400 to be applied in purchasing and extinguishing an operative license with the approval of the Court, and also gave an undertaking to use the license for hotel purposes only : Held (by the King's Bench Division), that the undertaking so given was void. The payment of money by the licensee ought not to be made a condition for granting a license under the Licensing Acts. MANDAMUS AND PROHIBITION. Jeremiah Bourke applied to the Right Hon. the Recorder of Dublin for a new publichouse license for his premises 38 and 39, Parkgate-street, at the Hilary Licensing Sessions, January 14, 1899, and his application was opposed on the ground of the number of previously licensed houses in the neighbourhood. The applicant was present in person, and was represented by counsel, (1) Before PALLES, C.B., and BARTON and WRIGHT, JJ. • 430 THE IRISH REPORTS. [1903 K. B. Div. instructed by his solicitor Mr. Bergin. The case was adjourned, 1902. and on January 25, 1899, an undertaking was written in the THE KING book of the Clerk of the Peace on behalf of the applicant, and (BOURKE) V. signed by his solicitor Mr. Bergin. This undertaking was as JUSTICES OF DUBLIN. follows :—" County of the City of Dublin. Sessions House, Green-THE KING street. Hilary Sessions, 1899. Saturday, 14th January. Re (MORIA RT Y ) Jeremiah Bourke, 38 and 39, Parkgate-street, and Infirmary-road. v. THE SAME. The applicant undertaking to lodge in Court £400 to be applied hereafter in buying up or extinguishing an operative license, as the Court may approve, and also that the bar to be opened in pursuance of the license, if granted, shall be made use of for hotel purposes only, and be a supply bar merely for the accommodation of guests at applicant's restaurant or persons stopping at his hotel, and not in any sense a public drinking bar. The applicaÂtion is for a hotel license only ; any question as to structure and extent of premises to be open for discussion at Confirmation Sessions. Dated 25th January, 1899. (Signed), Michael S. Bergin, solicitor for the applicant." A few days afterwards the £400 was lodged by the same solicitor with the Clerk of the Peace, and there was added a footnote to the above-mentioned undertaking :Â"Cheque for £400 lodged 2/2/'99." The new license was then granted to the applicant, and the £400 was applied in or towards buying up and extinguishing another license. The said new license was confirmed at the Annual Licensing Sessions in 1899, and again in 1900, without objection. During the year 1901, however, Bourke converted his premises into a regular drinking bar, and supplied all persons with drink indiscriminately, and on his license coming on for renewal at the Annual Sessions in 1901, the renewal was objected to by J. B. Moriarty and by the police on the ground that Bourke had violated the undertaking he had given on the occasion when he obtained the license. What took place on this occasion is fully stated in the passage of Mr. Swifte's written judgment cited by the Lord Chief Baron, infra, p. 436. At the Annual Licensing Petty Sessions on 1st October, 1902, before Mr. Wall and Mr. Swifte, Divisional Justices of the Metropolitan Police District, Bourke applied for the usual certificate required by sect. 14 of 17 & 18 Viet. c. 89 as to his VOL. II.] BING'S BENCH DIVISION. 431 good character and the peaceable and orderly manner in which K. B. Div. the premises had been conducted during the previous year. The 1902. application was opposed by J. B. Moriarty and the police on the THE KING (BouRxE) ground that the applicant was not of good character within the v. meaning of the section. The case was adjourned ,Journed to 8th October OF USTICES , 1902, and then heard. Evidence was given proving that Bourke THE KING ;(3LIORII HTY) had systematically maintained the public drinking bar during the v. _HE previous year in violation of the two undertakings given as above- T SAME. mentioned. The applicant repudiated the first undertaking as having been given by his solicitor without authority. It was admitted that the applicant had always conducted the licensed premises in a peaceable and orderly manner, and except that he had not complied with the terms of the said undertakings, no fault was to be found with his conduct of the said licensed premises, and nothing was to be said against his character. The applicant stated that he was present in Court on January 14, 1899, when his application for a new license was before the Recorder, that his counsel then stated on his behalf that if he obtained a license he would keep in his licensed premises a supply of food for all such persons as asked for food, but it was not stated by his counsel or by anyone else that he would not supply, or would undertake not to supply liquor to persons who called for same, and who did not require food. The applicant further swore that he was not present in Court when his solicitor signed the undertaking in the Clerk of the Peace's book ; that he was wholly unaware of the underÂtaking being so given ; that he did not authorize his solicitor to give it ; that no such undertaking was asked for or suggested at the hearing on the 14th January ; that the only undertaking asked for and given was the undertaking to supply food ; and that he had fully and faithfully carried this out. He had paid the £400 into Court, and the sum was applied in the extinction of a license. As to the second undertaking above-mentioned given at the Sessions in October, 1901, the applicant admitted that not having time (as he said) for consideration, he left himself in the hands of his...