TEST CASE FAILS

Evening Star, Issue 22890, 23 February 1938, Page 14

TEST CASE FAILS

WOMEN IN RACECOURSE BOOTH LICENSE CONDITION INVALID MAGISTRATE'S RULING 'Ail' important decision was given by Mr J. R. Bartholomew, S.M., in the Police Court this morning in connection with the licensing test case brought before him last week. The case was one in, which Matthew Henry Dawson (Mr J. M. Paterson) was charged with certain breaches or the Licensing Act. The Magistrate ruled. that no proceedings could be taken for a breach of the condition on which the license was issued for a booth at the Dunedin Jockey Club’s Summer Meeting at Wingatui. Mr Bartholomew said:— “ Defendant is charged in respect of .two alleged offences—that, being the .holder of a . conditional license, granted ,*o ■ him under the provisions . of the Licensing Act, 1908, authorising him to 'well liquor at the Wingatui racecourse on December 27, 1937, he did •fail to comply with the restrictions and conditions imposed by such conditional license in that he .did allow women to be in the public 'booth at the said racecourse; and that, being the holder of such conditional license, he did expose liquor to a Woman. “ I was satisfied at the hearing that, assuming the conditions attached to the ‘conditional license were valid, the facts proved did not substantiate the alleged offences, but the question of the legality of the conditions was argued at length, land it is desirable that a decision should be given thereon. “An historical survey shows that after a period of no license, a conditional license was granted for races in 1930, with certain conditions attached, and conditional licenses have been granted ever since with the same condi- . turns. The condition in question is as follows:—‘No women to be supplied With liquor from any of the four booths nor allowed to be therein.’ It was stated at the hearing ; that this condition had been treated for some years practically as a dead letter. The police were instructed at the December meeting to enforce the condition, and the ■ defendant was notified to this effect Shortly before the opening of the booths, and ho said every effort would be made to comply with the condition. His son was in charge of this particular booth, which is in the form of a circular bar in a large room, with a number of barmen. w Sergeant Forsyth, on entering the booth about 3.15 p.m., saw two women . with, glasses in their hands, which had contained port wine, and there was another woman further in the booth with a-man companion. The sergeant asked Dawson junior why the women were allowed in the booth, and why were they served. Dawson replied that they were not served by any of his men, and that he had just put some women out prior to- the sergeant’s entry. One of, the women gave evidence that a.male friend went into the booth and brought the drinks out, and they went into the booth to drink them. “‘Dawson junior said he was in ■ charge of the booth and gave instructions for no women to be served and that'women yere put out as soon as they entered." There-were seven doors to the booth,- and he was .at the bottom .arid putting someone out when the police entered. ■: “ It i* clear on the authorities that • the above' facts would , not support a charge of ‘ allowing,’ which requires knowledge' or something in the nature of connivance on the part of the licensee or his agent; mere. carelessness, if. there were any,, would not suffice. 'Also the charge of exposing •is clearly insupportable. “ The legal question is one of some ■nicety. The Licenaing_ Act, 1908, section 82, states: ‘Subject to the provisions of this Act a conditional license shall authorise the licensee being also the holder of a publican’s license to sell and dispose of liquor at any races , . . for a period not exceeding with any renewal or renewals thereof seven days subject to such conditions and restrictions as the persons granting the license think fit.’ Section 201 (2) provides : ‘ For the purpose of so much of this Act as relates to offences against public order illicit sales and the- adulteration of liquor and the provisions for giving effect to the same, a person taking out a conditional license shall he deemed to be a licensed person within the meaning of the said provision, and the place in which any liquors are sold in pursuance of such license shall be deemed to ho licensed premises and to he the premises of the person taking out such license.’ It was submitted for the defendant that the Licensing Committee had no authority to make a condition that women shall not be served—to make illegal a supply which is lawful under the Act. Now, the Licensing Act makes no distinction between men and_ women (except so far as special provision is made for a disreputable class), and it is submitted that such a discrimination in law is as arbitrary as would' he discrimination • against persons under 30 years of age. “ Now, the Act authorises the imposition of conditions and restrictions, but the condition in question is something more; it is a complete prohibition. The controlling words of section 82_ are: ‘ Subject to the provisions of this Act,’ and . under , the Act, as pointed l out,-a woman is entitled to be supplied equally with a man. The conditions and restrictions imply a . regulating and not a negation of tbe grant. The ‘ for ’ purports to prohibit and make illegal a supply which is a right, granted by the Act under >t conditional license. In short, the condition, instead of regulating within the provisions of the Act, overrides the -Act.' The cqndtion, therefore, in any opinion, is invalid, and no proceedings can be taken for a breach thereof. " ■ “ Perhaps I should point out that in adjudicating on this case I do not occupy an ambiguous position, as the condition was imposed Before I became chairman of the Licensing Committea.’i