The Queen (Crowley) v The Justices of West Cork The Queen (M'Intyre) v The Justices of County Donegal

• Jurisdiction: Ireland
• Court: King's Bench Division (Ireland)
• Judgment Date: 29 January 1901
• Date: 29 January 1901

The Queen (Crowley)

and

The Justices of West Cork (1).

The Queen (M'Intyre)

and

The Justices of County Donegal (1)

K. B. Div.

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.

1902.

Licensing (Ireland) Act, 13 (3 & 4 Wm. 4, c.6), ss. 2, 4, and 5—Publican's licence—Application at Quarter Sessions—Justices equally divided—Mandamus.

On an application to Quarter Sessions for a publican's licence, which was opposed, the Justices, after hearing evidence on behalf of the applicant and of the objector, made an order reciting that the Justices were equally divided, and rejecting the application:—

Held, that the order was bad, not only for not stating the grounds of the refusal of the application, but also because the justices being equally divided had not adjudicated on the question before them, and that therefore a writ of mandamus should issue to the justices to hear and determine the application.

On a similar application the order purported to be made by the Justices was—“Bench equally divided. No rule.” The applicant now sought for a

writ of mandamus to the Justices to hear and determine the application, and also for a writ of mandamus to the Clerk of the Peace to issue the certificate mentioned in sect. 5 of 3 & 4 Wm. c. 68:—

Held, he was entitled to the former writ, hut not to the latter.

These were applications to make absolute Conditional Orders for writs of certiorari and mandamus.

Reg. (Crowley) v. The Justices of West Cork.

Ellen Crowley was an applicant for a seven-day licence for the sale of beer, cider, and spirits, by retail, to be consumed on the premises—she not having been licensed in the preceding year. The necessary notices had been duly served and published, and the case came on for hearing at the Annual Licensing Sessions held at Skibbereen. The District Inspector of Constabulary objected on all the statutory grounds of the unfitness of the applicant, the unsuitability of the premises, and the number of previously licensed houses in the neighbourhood. On the hearing the Justices were equally divided in opinion, and an order was made rejecting the application. The material portion of the order was as follows:—“An application was made by the above-named applicant, Ellen Crowley, for a new seven-day licence. Whereupon, upon hearing the said application, and the objections raised by the constabulary, a division of the Justices assembled at the said sessions was taken, when twelve Justices voted for and twelve Justices against. Whereupon an order was made by the Court rejecting the said application.”

The applicant obtained from the Queen's Bench Division a Conditional Order for a writ of certiorari to remove and quash all orders and adjudications respecting the application, and for a writ of mandamus commanding the Justices to enter continuances and to re-hear and determine the application on the grounds (as to the certiorari) that the said orders and adjudications were made without, and in excess of, jurisdiction; that the Justices being equally divided, they had no authority to refuse but were bound to grant the application; and that the order was bad on its face for not stating the grounds of such refusal.

Ronan, K.C., and Sheehan, for the applicant:—

Where the magistrates are equally divided, the applicant is entitled to a licence. The general impression that a licence is affirmatively granted by the magistrates is erroneous. In England, indeed, under the statutory provisions in force there (9 Geo. 4, c. 61, ss. 9 and 17), an actual licence must be granted by the magistrates, and signed by the majority of them, as a condition precedent to obtaining the Excise licence; but the scheme of the Irish statute (3 & 4 Wm. 4, c. 68) is wholly different: the true construction of sections 2, 3, and 4 of that Act is that the applicant is to give publicity to the fact that he is about to make an application for a licence, so as to enable certain persons to raise objections; if any of these objections are established the Justices are to prohibit the licence. The power of the Justices is prohibitory merely, not affirmative: 6 Bac. Ab. 644; Young v. Wright (1); Reg. (Gilbey) v. The Justices of Fermanagh (2), per O'Brien, J.; Reg. (Marshall) v. The Justices of Tyrone (3), per O'Brien, J. This construction is confirmed by a comparison of sections 9 & 10 of 17 & 18 Vict. c. 89. The Clerk of the Peace is bound to issue the certificate, mentioned in sect. 5 of 3 & & 4 Wm. 4, c. 68, to any applicant to whom the Justices have not prohibited a licence to issue; the giving of such certificate is not an act of the Justices, but a ministerial act of the Clerk of the Peace. The magistrates being equally divided should have made no rule on the objection: Reg. v. O'Connell (4); Reg. v. Belton (5), per Lord Denman, C. J. The order here is, at all events, bad for not stating the grounds of refusal: Reg. v. Sykes (6).

Morphy, for the objector below:—

I admit that the order is bad for not stating the grounds of refusal, and I cannot resist the application for a mandamus in so far as sought for on this ground.

Reg. (M'Intyre) V. The Justices of Donegal.

In this case James M'Intyre had applied for a similar licence to that sought in the last case, and the application was opposed on similar grounds. The material portion of the order made by the magistrates was—“Bench equally divided. No rule.” The applicant obtained a Conditional Order for writs of certiorari and mandamus, as in Crowley's case, on the grounds (as to the certiorari) that the orders and adjudications in the premises were made without...