The Queen (Lambe) v Justices of Armagh

• Jurisdiction: Ireland
• Judgment Date: 10 February 1896
• Date: 10 February 1896
• Court: Queen's Bench Division (Ireland)

The Queen (Lambe)

and

Justices of Armagh (1).

Q. B. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1897.

Licensing law — License for sale of intoxicating liquors on and off the premises — Renewal — Certificate of Justices as to “the peaceable and orderly manner in which such house has been conducted in the past year” (17 & 18 Vict. c. 89, s. 11) — License lying dormant and unused during part of the preceding twelve months — Undertaking given by applicant not to use the license, or to use same in a limited manner only — Obligation to supply reasonable refreshment to all comers — Certiorari to quash certificate of Justices given for the renewal of publican's license.

D. & Co. held a license for the consumption of intoxicating liquors “on and off” certain premises in Monaghan-street, Newry, originally obtained by them in 1890, on an undertaking then given by them to the Justices at sessions that they would not use the premises so licensed as an ordinary public-house, or for the sale of intoxicants on the premises. This license was renewed from year to year without objection, the original undertaking being strictly carried out by D. & Co., the licensed premises being used for storage and for bottling in connexion with their main offices in another street, where they carried on the business of wholesale wine and spirit merchants. In August, 1895, they opened the premises in Monaghan-street, so licensed, as a branch office for the sale therefrom of wines and spirits to their customers.

At the Annual Sessions in September, 1895, when D. & Co. applied for a renewal of the license, Lambe, a publican, living in the same street, objected (on notice previously given) on the ground that the premises had not been used during the preceding twelve months for the sale of intoxicating liquors on the premises; that during the few weeks they had been open they had not been conducted in a peaceable and orderly manner, as D. & Co. had refused to supply refreshments to persons requiring the same, without just cause of refusal—this referring to an occasion when Lambe had sent two persons to purchase drink for consumption on the premises. There was no objection by the police. The Justices heard Lambe's objection, but granted the certificate. On motion to make absolute an order for a writ of certiorari to quash the certificate:—

Held, that any member of the community may come forward and object to the renewal of a publican's license; that certiorari lies to remove and quash as well an order of Justices granting such certificate as an order refusing same; that (following Reg. (Cox) v. Recorder of Dublin, 16 L. R. Ir. 424) such an undertaking not to use a publican's license, or to use same in a

limited, manner, is ineffectual and void; that where premises licensed for the sale of intoxicating liquors have not been, in fact, conducted as a licensed house in the past year, it is not competent to the Justices to grant a certificate that they have been “conducted” in a “peaceable and orderly manner” in that period.

Per Holmes, J.: The proprietor of a public-house licensed for the sale of intoxicating liquor on or off the premises is under no legal obligation to supply reasonable refreshment to all comers, so that his refusal so to do would disqualify him from applying for a renewal of his certificate, such refusal being, however, a matter which it is open to the Justices to consider when called on to certify to the good character of the applicant.

Certiorari. Motion to make absolute a conditional order for a writ of certiorari directed to the Justices of the county Armagh, and to Messrs. Duncan, Allardyce, & Co., to quash an order of the said Justices, granting the application of Messrs. Duncan, Allardyce, & Co. for a certificate for the renewal of an excise license for the sale of intoxicating liquor by retail, on their premises, at 19, Monaghan-street, Newry, on the ground that the order of the Justices was without and in excess of jurisdiction, and that, the premises not having been used as licensed premises in the year last immediately preceding, it was not within the competence of the Justices to grant a certificate to the good character of the applicants, and to the peaceable and orderly conduct, by them, of such house. Messrs. Duncan, Allardyce, & Co., showed cause.

It appeared from the affidavits that Messrs. Duncan, Allardyce, & Co. were wholesale wine and spirit merchants, who carried on business in Hill-street, Newry, and who, about six years ago, purchased the premises, 19, Monaghan-street, from the representatives of D. Hoey, who had carried on a like business therein, and had held, in respect thereof, a retail as well as a wholesale license. Hoey's license had been allowed to lapse, and, Messrs. Duncan & Co., after purchasing these premises and the bonded stores in the rere, applied, in 1890, to the Justices for, and obtained, an ordinary retail license for the premises, this license being granted upon the assurance given by Duncan & Co. in Court to the Justices, that the license would only be used by the firm in connexion with their trade (as wine merchants), and in the same way as formerly used by Hoey, and that the premises would not be worked or used as an ordinary public-house, or for sale of liquor for consumption on the premises. Duncan & Co. had acted in accordance with this undertaking, and had, until August, 1895, merely used the premises in Monaghan-street as wine cellars and stores, and for bottling, in connexion with their Hill-street establishment. About that date they opened, at 19, Monaghan-street, a shop, or branch office, for the sale of wines and spirits to their customers, direct therefrom, instead of taking all orders, as formerly, at their house in Hill-street.

At the annual licensing sessions, in September, 1895, when Messrs. Duncan & Co. applied for a renewal of the retail license for the premises in Monaghan-street, the present applicant, Lambe, a commission agent, and, as it would appear, owner of certain premises in Monaghan-street jointly with his mother who held a publican's license in respect thereof, objected, as a parishioner, to the renewal, on the grounds (as set out in a notice previously served by him), that the premises had not been occupied and used during the past twelve months for the sale of intoxicating liquors on the premises, save for a fortnight, or thereabouts; that, during such time as the premises were open for the sale of intoxicating liquors, they were not conducted in a peaceable and orderly manner, as Duncan & Co. had “refused to supply refreshment to persons requiring the same, without just cause of refusal”; and that, on account of such refusal, they were not entitled to a certificate of good character. This refusal referred to an instance where two men, sent by Lambe, demanded two bottles of beer and porter for consumption on the premises, and were refused. Lambe was aware of the undertaking given by Duncan & Co. in 1890.

The Justices heard the application and Lambe's objection. There was no complaint or opposition on the part of the police, and the necessary certificate was granted. Lambe obtained a conditional order for certiorari to quash this certificate and the order of the Justices granting same, and now moved to make the conditional order absolute.

Seymour Bushe, Q. C. (Drumgoole, with him), for the applicant:—

In granting a license for the sale of intoxicating liquors on and off the premises, it is not competent to Justices to require any such undertaking as was here given. Such an undertaking is illegal: Reg. v. Wilkinson (1); Reg. (Cox) v. Recorder of Dublin (2); and could not be enforced, legally, against the licensee, or against a transferee, who possibly might not be aware of the undertaking. The duty of the Justices is confined to granting a license for the purposes mentioned in the Act, and for no other. Therefore, in the present case, the undertaking must be treated as a nullity, and as the premises were not kept open, as a public-house, for the preceding twelve months, the Justices could not certify (as they purport to do), to “the peaceable and orderly manner in which such house had been conducted in the past year” (3). The house had not been conducted as a licensed house at all: Griffiths v. Justices of Lancashire (4), and Reg. (Cox) v. Recorder of Dublin (2). Further, the owner of licensed premises is bound to supply refreshment to all comers at reasonable times. The Justices were right in hearing Lambe's objection, there being no statutory restriction, such as exists in the case of certificates for a spirit grocer's license.

J. H. Campbell, Q.C., and Hume, for the respondents:—

The present applicant, a rival publican, had no locus standi to object to the renewal: Reg. v. Justices of Middlesex (5). The public have no right to intervene. The statute (27 & 28 Vict. c. 35, sect. 5, and see 35 & 36 Vict. c. 94, sect. 82) confers this right upon the officer of police. Read in the light of the earlier legislation on the same subject, it is evident that it was the intention of Parliament to confine the right of objection to renewal to the officer of police, and to confide to his care the protection of the public interests. In the case of new licenses, public advertisements are required, but none in the case of renewals; and the applicant need not be in attendance at the Court, unless he is required by the Justices or the police authorities so to attend for some special cause personal to himself (37 & 38 Vict. c. 69, s. 14). An objection to an application for a new license must be made by a Justice, churchwarden, or parishioner. Here, if the view submitted be not correct, the right of objection to a renewal is larger than the right of objection

to a new application...