The Queen (Marshall) v Justices of County Tyrone

• Jurisdiction: Ireland
• Judgment Date: 01 January 1894
• Date: 01 January 1894
• Court: Queen's Bench Division (Ireland)

The Queen (Marshall)

and

Justices of County Tyrone.

246 THE IRISH REPORTS. [1894. Q. B. Div. THE QUEEN (MARSHALL) v. JUSTICES OF COUNTY J893' 1 TYRONE (1). Nov. 7. 1894. Licensing lawCertificate for spirit grocer's licenseSuitability of premises Feb. 5. Licensing [Ireland) Act, 1874 (37 # 38 Vict. c. 69), sect. 9. On an application to Justices at Petty Sessions for a certificate for a spirit grocer's license, under the Licensing (Ireland) Act, 1874, sect. 9, the Justices refused the application " on the ground of the unsuitability of the premises, from their locality being in the immediate neighbourhood of another public-house, and also close to a school and place of worship." On appeal to Quarter Sessions, the Chairman and Justices refused the application " on the ground of the unsuitability of the premises." On motion to make absolute a conditional order for writs of certiorari and mandamus: Held (per Harrison, Gibson, and Madden, JJ.; diss. Sir P. O'Brien, C.J.), that the Justices, in considering " the suitability of the premises," were entitled to look beyond the question of the suitability of the house in which it was proposed to carry on the business of spirit grocer, and might have regard to the unsuitability of its situation and surroundings, e.g. proximity of a school or place of worship. Assuming that the existence of other public-houses in the immediate neighbourhood could not be taken into consideration upon objection to the suitability of the premises, the order by the Court of Quarter Sessions being itself regular was not vitiated by the fact that one of the grounds stated upon the order of the Justices, from which the appeal was taken, was unwarranted in law. Per Sir P. O'Brien, C.J.The question arising on the expression " suitability of premises" is whether the premises are suitable for the sale of spirituous liquors, not whether the sale of spirituous liquors is suitable to the surroundings. Motion to make absolute, notwithstanding cause shown, a conditional order for writs of certiorari and mandamus directed to the Chairman and Justices of county Tyrone, in regard to an order made by them at the General Annual Licensing Sessions, 1893, held at Strabane, refusing the application of James Marshall (1) Before Sin P. O'Bbien, C.J., and Haerison, Gibson, and Madden, JJ. Vol. II.] Q. B. & EX. DIVISIONS. 247 for a spirit grocer's license, under section 9 of the Licensing Act Q. B. Div. of 1874, the ground of refusal being stated to be the unsuitability 1S83-of the premises. The QUEE*r The application for the conditional order was grounded on the Justices op affidavit of the applicant James Marshall, who carried on the Tyeone-business of a spirit grocer at Ballyfatton, in the said county. This affidavit, after proving the service of notice on the District Inspector of Constabulary, stated that the application for the certificate came before the Strabane Petty Sessions on the 25th September, 1893, when, notwithstanding the applicant's objection, Mr. Gallagher, solicitor for Messrs. J. and E. T. Herdman, was heard in opposition to the application. There was admittedly no objection to the good character of the applicant, or to the structural fitness of his premises, but the objection of the Messrs. Herdman was grounded on the proximity of the applicant's house to the neighbouring church and the National schools, and that there were three public-houses within the respective distances of a few hundred yards, one mile, and two miles. The applicant referred to certain proceedings in the Court of Queen's Bench in the year 1877, which will be found fully stated in the judgment of the Lord Chief Justice, infra. Mr. Eisk, the solicitor for the applicant, argued at Petty Sessions that the order then made by the Court of Queen's Bench was binding upon the magistrates; and that evidence was not legally admissible as to the proximity of public-houses. The magistrates, however, refused the application, the curial part of their order being as follows :" Eefused unanimously on the ground of the unsuitability of the premises from their locality being in the immediate neighbourhood of another public-house, and also close to a school and place of worship." The applicant appealed to Quarter Sessions, when his counsel objected to anybody being heard in opposition except the constabulary. The Court, however, ruled that the solicitor for the Messrs. Herdman should be heard. The evidence and objections were practically the same as those at Petty Sessions, Mr. Dickie, Sessional Crown Solicitor, on behalf of the constabulary, opposing, as stated in the affidavit of the applicant, "on account of the nature of the locality and surroundings, the proximity of a church and school, and the number of women and T2 248 THE IRISH REPORTS. [1894. Q. B. Div. children employed in a factory in the village of Sion Mills, who I893- might be tempted to procure spirits if the license were obtained, The Queen an(j faQ wants of the place were already supplied by the Justices or existing license," **. e. that of the nearest public-house, owned by Tteone. Mrs (Javier. The County Court Judge, His Honor Sir Francis W. Brady, Bart., Q..C, advised the magistrates present that, in point of law, " suitability of the premises " meant " suitability of the premises with reference to the locality and surroundings." After hearing evidence the application was refused by a majority. The order of the Court of Quarter Sessions was "Affirm order. Eefuse application on the grounds of unsuitability of premises." The following affidavits were filed as cause: I. Affidavit of Henry C. Tyacke, of Strabane, in the county of Tyrone, District Inspector of the Eoyal Irish Constabulary. 1. "I have read an attested copy of an affidavit of James Marshall in this matter, tiled on the 16th day of October last, and with many of the statements therein, so far as I am therewith conversant, I agree that they correctly state the facts. 2. With reference to what occurred in the year 1877, I was not then the District Inspector of Constabulary for the district of Strabane, and I know nothing whatever of the proceedings in that matter, or whether or not the applicant applied for a spirit grocer's license, and a beer retailer's license, as he did last year when this Court refused to give him a certiorari, and the Court of Appeal confirmed its decision. I am not aware what the circumstances were connected with the obtaining of that order, or whether cause was shown, or was not, against same by the constabulary or anyone else. 3. I say that the village of Sion Mills is within the constabulary district of Strabane, and is situate within about two statute miles of that town, and contains about 1100 or 1200 inhabitants, all of whom are workpeople of the owners of the large mills there, and their wives and families. It has no fair or market. The applicant's house is situate immediately adjoining the village. I considered at the time the application was made, and still consider, that, having regard to the position of said house, and the circumstances of the surroundings, and the fact that the applicant Vol. II.] Q. B. & EX. DIVISIONS. carries on a general grocery business in said house, these premises Q are unsuitable for a spirit grocer's license; and it would be especially -objectionable, having regard to the great number of women and children going into the house to buy groceries and tobacco, to offer facility for the sale of drink in bottles at the same time therein. 4. It is quite true I made no objection on the ground of the personal character of the applicant, or to the house itself as unsuitable for the sale of drink, or to the conduct of such business therein, as indeed almost all houses are suitable enough for the sale of drink in bottles, but my objection was grounded upon the reasons I have already stated ; and that it is not a question of the number of licensed houses at all, though this point was also discussed at the hearing, but it is solely upon the question that the position and situation of applicant's house is very unsuitable for a spirit grocer's license, and this for reasons above stated, and objected at the hearing of the application by the Chairman and Justices, before whom the application came. 5. When the appeal was heard at Quarter Sessions, it is not correct to say that Mr. Dickie, Sessional Crown Solicitor for the Co. Tyrone, who acted on my behalf, made no objection to the suitability of the premises. Mr. Dickie did object to the suitability of the premises for the reasons I have given, and in support of which he examined several witnesses to show that the premises were unsuitable, not by reason of any structural defect, but by reason of the applicant selling groceries, and owing to the character of the surroundings of the house, as above-mentioned, and although there was only a small majority of magistrates present who ruled with the Chairman, yet I am aware many of the magistrates of the districts who were not present are opposed to the granting of any such license, and I know of no license which would be more calculated to do injury to a respectable neighbourhood peculiarly circumstanced as this is than to give the applicant a spirit grocer's license for a house in which he now sells groceries continually to the women and children of this village." II. Affidavit of Thomas Dickie, of Omagh, in the County of Tyrone, Sessional Crown Solicitor:- 250 THE IRISH REPORTS. [1894. Q. B. Div. 1. "I have read an attested copy of the affidavit of the said 1893,_James Marshall, filed in this matter, on the 16th day of October The Queen jag^ j conducted this appeal at last Quarter Sessions on behalf Justices of 0f the Constabulary, and it is not accurate to say, as in said Tyrone. affidavit is set out, that I stated that no objection could be made either to the character of the applicant or the suitability of the premises. What I did say was that I opposed the...