The Queen (Marshall) v Justices of County Tyrone

• Jurisdiction: Ireland
• Judgment Date: 27 June 1894
• Date: 27 June 1894
• Court: Court of Appeal (Ireland)

The Queen (Marshall)

and

Justices of County Tyrone (3).

Appeal.

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.

1895.

Licensing law — Certificate for spirit grocer's license — Suitability of premises — Licensing (Ireland) Act, 1874 (37 & 38 Vict. c. 69), s. 9.

On an application to Justices at Petty Sessions for a certificate for a spirit grocer's licence, 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.” The Queen's Bench Division (Sir Peter O'Brien, C.J., diss.) refused to award to the applicant writs of certiorari and mandamus in respect of the said order and his application:—

Held (FitzGibbon, L.J., diss.), reversing the judgment of the Queen's Bench Division, that the matters stated as the grounds of refusal in the order of the Justices were not grounds on which the Justices should have refused the applicant a certificate as to the suitability of his premises.

Appeal from an order of the Queen's Bench Division, dated February 5, 1894, refusing to make absolute a conditional order obtained by the appellant 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 the appellant for a spirit grocer's license, under sect. 9 of the Licensing (Ireland) Act, 1874, the ground of refusal being stated to be the unsuitability of the premises.

The facts are fully stated in the report of the case in the Queen's Bench Division [1894] 2 I. R. 246.

Campbell, Q.C., and W. H. Brown, for the appellant.

Bourke, Q.C., and MacDermot, for the respondents.

Cur adv. vult.

Walker, C.:—

In this case James Marshall applied to a bench of magistrates in county Tyrone for an original spirit grocer's license. The magistrates refused the application, the curial part of their order being “refused 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 the Quarter Sessions, and his appeal was heard on October 12, 1893, by the County Court Judge and the magistrates sitting with him, who refused his application. The order made at Quarter Sessions was “Affirm order. Refuse application on the ground of unsuitability of premises,” Mr. Marshall, on October 27, 1893, obtained from the Queen's Bench Division a conditional order for a mandamus and certiorari. Cause was shown by the magistrates against that order, and on February 5, 1894, an order was made allowing the cause shown. Mr. Marshall has appealed from that order, and asks to have the conditional order for mandamus and certiorari made absolute.

The case is of importance, as it raises for the first time the question of the true construction of the words “suitability of the premises” in the spirit grocers' code, and the Judges in the Court below differed in opinion; and this and the fact that here Lord Justice FitzGibbon dissents from this judgment shows the question to be a difficult and doubtful one.

A short summary of the law relating to spirit grocers' licenses is necessary for the understanding of the case.

The law as to licenses for consumption on the premises and licenses to spirit grocers has been different from early times. It differed in amount payable and the facilities for obtaining the license. The former Act, relating to spirit grocers (4 Geo. 4, c. 81), provided that:—“Every retailer of spirits in Ireland being duly licensed to trade or vend and sell coffee, tea, cocoanuts, chocolate, or pepper, and not selling spirits in any greater quantity at one time than two quarts, or any spirits to be consumed in the house or premises of such retailer … shall be entitled to take out the license hereinbefore mentioned to retail spirits in any quantity not exceeding two quarts at any one time to be consumed elsewhere than in the house or on the premises of such retailer, subject, nevertheless, to all and every the regulations contained in the said laws, or any of them, in respect of grocers retailing spirits, except so far as the same are repealed or altered by this Act.” Therefore, as the law stood in 1825, a “grocer” was entitled to “retail” spirits in small quantities for consumption off his premises on taking out a license, and he could take out this license as of right. On the other hand, licenses for the sale of spirits for consumption on the premises were at that date only grantable if the conditions existed of (1) the production of the certificate of Justices authorizing the keeping of a common inn ale-house or victualling house, and (2) the production of a license for the sale of beer, cider, or perry by retail to be consumed in such house or premises. Persons disabled by conviction from holding a license to keep a common inn, ale-house, or victualling, became disabled from selling beer and selling spirits for consumption on their premises.

The subject of publicans' licenses was taken up by the Legislature in 1833, while spirit grocers were left as they were; and from 1833 a person seeking for a publican's license was, under 3 & 4 Wm. 4, c. 68, s. 4, liable to be met by objection “grounded upon the character, misconduct, or unfitness of the applicant, unfitness or inconvenience of the house or place, or number of previously licensed houses in the neighbourhood.” From an early date, therefore, the “unfitness or inconvenience of the house or place” has been made a special subject of objection in the case of publicans' licenses. By the same section it is provided that if the magistrates are satisfied of the truth of the objection they are to refuse the license, and by their order, if they refuse, they are to declare the “reason or ground of such prohibition.”

As regards spirit grocers, the 6 & 7 Wm. 4, c. 68, and 8 & 9 Vict. c. 64, gave powers of entry to Justices, constables, and overseers to enter any house or place kept by a spirit grocer for the purposes of supervision. “House or place” in the latter Act for that purpose is defined in the 17 & 18 Vict. c. 89, to extend to “every room, closet, cellar, yard, stable, outhouse, shed, or any other place whatsoever if belonging or in any manner appertaining to such house or place.”

The next legislation on spirit grocers' licenses is contained in the Licensing Act, 1872, 35 & 36 Vict. c. 94, sect. 82 of which imposed a new condition on any person who at any time during the last two years had been a spirit grocer and who sought a renewal of his license. This condition was that he should produce to the Excise authorities the certificate of the Justices (1) as to his good character, and (2) as to the peaceable and orderly manner in which his business was conducted during the preceding year. Sects. 83–89 of the same enactment contain provisions relating to acts of spirit grocers, including making internal communication to places of public resort, and giving Justices and constables a power of entry “into any premises” kept by a spirit grocer.

Then comes the Act of Parliament which contains the provision on which this case immediately turns—the Licensing Act, 1874. The 9th section of this Act is as follows:—“The provisions of sect. 82 of the principal Act relating to the grant of new Excise licenses and renewals of Excise licenses to certain persons therein described, shall extend to the transfer of Excise licenses, and the said provisions so extended shall not be limited to the case of such persons, but shall extend and apply to all such transfers and grants when made to any other persons: provided always that in the case of a new Excise license or transfer of an Excise license under this section the certificate shall be to the good character of the person applying for the same and to the suitability of the premises.” It will be observed that these words apply to a transfer as well as to a new license. The force of the word “suitability,” if it be given the wide meaning attached to it by the majority of the Judges in the Queen's Bench Division, would include the consideration of the number of public-houses in the neighbourhood, and would thus bring in a ground of objection in the case of a transfer of a spirit grocer's license, which, according to Clitheroe'sCase (1), is not available in the case of a transfer of a public-house license.

Now let us come back to section 82 of the Licensing Act of 1872, which, as we have seen, first imposed the necessity of obtaining a certificate from the magistrates on those seeking renewals of spirit grocers' licenses. The latter branch of this section provides that “all applications for such certificates shall be made in the manner, and subject to the like conditions as to appeals against the same, and otherwise (so far as the same are applicable) as are prescribed by ‘The Beer Houses (Ireland) Act, 1864,’ in relation to applications for certificates under the said Act.” Thus we have incorporated in a compendious fashion in the enactment dealing with spirit grocers' licenses several of the statutory requirements prescribed by the 27 & 28 Vict. c. 35.

Section 3 of the latter Act is not unimportant. It enacts that any person applying for a license for the sale of beer by retail, or for a transfer or renewal of such a license, must obtain a certificate of good character of the applicant, and of the “suitability of the premises for the purpose of such...