The King (Cottingham) v Justices of County Cork

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 09 May 1906
• Court: Court of Appeal (Ireland)
• Date: 09 May 1906

The King (Cottingham)

and

Justices of County Cork (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.

1906.

License — Licensing Acts — Brewer of beer for sale — Wholesale beer-dealer's license — Certificate — Incorporated Company — Right to obtain license — Residence of Company — 27& 28 Vict. c. 35, ss. 3, 4 — 37 & 38 Vict. c. 69, ss. 8, 37 — Certiorari.

Held, by the King's Bench Division, that an incorporated Company was capable of holding such license, and of obtaining a certificate for the same in its own name; that the Company had a residence in Macroom; and that service of notice of the application on the District Inspector of Macroom was sufficient.

Held, by the Court of Appeal, that sect. 8 of the Licensing Act, 1874, does not apply to brewers, and that the certificate was unnecessary and valueless.

Certiorari refused.

Certiorari.

Beamish & Crawford, Limited, were a Company registered under the Companies Acts, 1862 to 1900, carrying on the business of brewers in the city of Cork, where they brewed ale, stout, and porter, and having several depots for the storing of their manufacture in different towns in the county of Cork and elsewhere for the convenient supplying of same to the district surrounding

such towns. For each of their depots they held wholesale beer-dealers' licenses which, since the incorporation of the Company in the year 1901, had been taken out in the name of the Company.

Amongst other towns in which the Company held such licenses was Macroom. The premises in Macroom to which the license was attached were held by the Company under a contract of tenancy from year to year; and being old and dilapidated the Company procured a site in another place, in the vicinity upon which they built new premises, and they applied on the 27th September, 1905, at the Annual Licensing Petty Sessions for the Petty Sessions District of Macroom for a certificate for a wholesale beer-dealer's license for such new premises. Twenty-one days notice in writing of the intention to make the application was given to the District Inspector, R.I.C., of the Macroom District. This notice was as follows:—

“We hereby give notice that it is our intention to apply at the Annual Licensing Petty Sessions to be held at Macroom, in the town of Macroom, on the 27th day of September, inst, for the Justices' certificate for a wholesale beer-dealer's license to sell beer by wholesale not to be consumed on the premises at the new house and premises recently erected by us on the north side of the Mainstreet …. in the parish and town of Macroom and county of Cork, which license is to be in lieu of our existing wholesale beer-dealer's license for our premises in the Square, Macroom, aforesaid. Dated the 4th day of September, 1905. Sealed by Beamish & Crawford, Limited, in presence of Richard H. Beamish, Director, J. J. Mahony, Secretary.”

The application was opposed by the prosecutor, the District Inspector of the Macroom District; but the Justices granted the certificate, which was to the following effect:—

“We, being two of the magistrates presiding at Petty Sessions for the District in which Beamish & Crawford, Limited,, wholesale and retail beer-dealers, reside, do hereby certify that we consider them to be persons of good character, and that their house in the Main-street, Macroom, in the parish of Macroom and county of Cork, has been conducted in a peaceable and orderly manner during the past year; that the said house and premises have been in the occupation of the said Beamish & Crawford, Limited, for upwards of three months, and are rated for the relief of the poor at £8 per annum” Dated, &c.

The prosecutor obtained a conditional order for a writ of certiorari to quash the order of the Justices, granting the certificate, on the following grounds:—

1. That inasmuch as Beamish & Crawford were a firm of brewers having their head office in the city of Cork, and resided outside the Petty Sessions District of Macroom, there was no jurisdiction in the Justices to sign the required certificate.

2. That the twenty-one days notice of the applicants' intention to make such application was served upon the said Thomas Cottingham, instead of being served upon the District Inspector of the District in which the person applying for the required certificate resided; and that the twenty-one days notice had not been served in accordance with the requirements of the statute made in that behalf; and that due service of the same was a condition precedent to jurisdiction.

3. That if the license was to be granted, it should be granted, not to the applicants, but to their local agent or manager.

4. That neither Richard Beamish nor A. F. Sharman Crawford, who constitute the firm of Beamish & Crawford, resides within the Petty Sessions District of Macroom, but they reside in the city of Cork.

Cause having been shown by Beamish & Crawford, the present application was, on behalf of the prosecutor, to make the conditional order absolute, notwithstanding cause.

A Company of brewers, incorporated, under the Companies Acts, brewed beer in the city of Cork, and had a depot for the supply of it in Macroom, for which they held a wholesale beer-dealer's license. Having built new premises in Macroom, they applied for and obtained in the name of the Company, at the Licensing Sessions at Macroom, a certificate for a wholesale beer-dealer's license for such new premises. Twenty-one days' notice of the application had been given to the District Inspector of Constabulary of Macroom district. On an application by the District Inspector for a writ of certiorari to quash the order granting the certificate, on the grounds that such license could not be held by an incorporated Company; that the Company had not a residence in Macroom; and that notice of the application should have been served, not on the District Inspector of Macroom, but on the District Inspector of the district in which the Company resided:—

The Solicitor-General (Redmond Barry, K.C.,) and Dudley White, for the prosecutor.

Ronan, K.C., and Jefferson, for Beamish & Crawford.

Palles, C.B.:—

Beamish & Crawford, a Limited Liability Company incorporated under the Companies Act of 1862, are brewers of beer, having their brewery in the city of Cork. They have also several houses throughout the south of Ireland, which have been called during the argument “distributing centres,” in which they sell strong beer in quantities of not less than 4¹/₂ gallons, to be consumed elsewhere than on their premises. A license authorising these sales is required for each of these centres, because the exemption from duty in favour of brewers of beer is by 13 & 14 Vict. c. 67, s. 6, limited to sales at their brewery premises. These licenses they have been in the habit of taking out in their own name, feeling, as their counsel state, that inconvenience must result from having them in the names of their employees. Accordingly, they applied at the last Licensing Sessions for and received a certificate, under the Beerhouses (Ir.) Act, 1864, s. 3, and the Licensing (Ir.) Act, 1874, authorising the grant of a license to them in their own name. This was objected to by Mr. Cottingham, the District Inspector of Constabulary, on three grounds. Of these, two are comparatively unimportant, and relate to the particular District Inspector on whom the notice of the application ought to be served, and the place of residence of the Company, which should be stated in the notice. The third, however, is an important one. It is that an incorporated Company is incapable of obtaining such a license, because, as is alleged, a certificate of good character is a condition precedent to obtaining the license; and it is said that an incorporated Company is incapable of having such a character, within the meaning of sect. 3 of the Act of 1864. A certiorari is now applied for, nominally by Mr. Cottingham, but really by the Crown, to bring up this certificate; and the main contention of the Crown has been that an incorporated Company is not capable of obtaining a certificate under sect. 3 of the Act of 1864.

It has been stated to us by the Solicitor-General that the practice in Ireland of the Inland Revenue, since 1864, has been te grant these licenses to the managers of incorporated Companies, and not to the Companies themselves; but that in England, where there is no statutable provision similar to sect. 8 of Licensing Act, 1874, the licenses are usually in the name of Companies themselves. I need not, however, state that statutes of 1864 and 1874, on the construction of which question depends, are quite too modern to allow the practice under them to be taken into consideration as “contemporanea expositio” in aiding their construction. Our judgment must be based upon the construction of those statutes, without regard to the practice.

The argument of the Solicitor-General, as I have said, is that a body corporate is incapable of having “good character,” within the meaning of that expression in sect. 3 of that statute, and that therefore it cannot obtain the certificate which by that section is made a condition precedent to the grant of the license.

Whilst this is contested by Mr. Ronan, he has also insisted that, if this contention of the Crown were true, it would necessarily follow that such a Company cannot be a “person” within the meaning of that section, and therefore would be entitled to a license without the certificate. This latter question is not, in strictness, open upon this motion for a certiorari. The apt mode of raising it would be by an application for a mandamus to the Inland Revenue to issue the license; but it was so closely mixed up with the contention of the Crown that we allowed it to be argued, reserving the question whether we would not make a conditional order for a manda...