UNLICENSED BARMAID CASE.

Hawke's Bay Tribune, Volume III, Issue 312, 23 December 1913, Page 3

UNLICENSED BARMAID CASE.

POLICE v. McGINTY. •J i'DGMENT IN TEST SUIT. A- rcpo. t.d hri -fly yesterday. Mr. S. ! E. McCui-.'iy. S.M.. gave his reserved; ’iidilij.’bi pi iJi'i ease D. 8. (. umming* i Sergeant «>f Police, v. Edward McGinty. • Lfini.-i- ■ of the Provincial Hute!. Napier. J The following is the text of the niagis-; ruling, which, iur < onveiiience ci . publication, is slightly abridg'd:— ( Information alleging that defendant did 1 employ Mary Tolijl], in or about a ■ private bar oi the Provincial Hot -I. at a tiine when the bar as defined, liy Section -1 of “ The Licensing Act j'lijS " was open for the sale of i liquor, the said Mary Tohill not lieing a person duly registered un-j der Section 36 ot “ The Licensing ■ -\ct Amendment Act 1910." j The informant appeared in person.. and Mr. H. B. Lusk appeared lor tlir defendant, who pleaded not gniity. j l!ie inlorniation was heard on th-.' 15th instant. v.h«i judgment was re-. rv.*d. and is now give# as follows: — ( There can be m> doubt that the Ac tcited are in paii mate.is. " Public bar " or " l>:u ” is defined by Sei tarn -! <;f the An of Ilf'S as meaning any room, passage or lobby in any licen e .'*d preir.is, s open immcdtr.Tely to ail.- , street, high.v.:y or public place or pnbii ■ thoroughfare '.vic-rein the, public may *: t t and purchase liq.tor. ’1 here ean he only one bar as delined and that tly* on - siat.-d on th ■ lieen.se opened or used in or, upon any premises the-subject oi pulrliean's hr cm:* < sw Section 20'J of the Art of IP''), 'livre has grown up throughout the Dominion a custom, now. rct-oguis.-d by "The Barmaids’ Ri'gi'-l t -iitloli t 1'.1i2,” of opening <m licensed pr. iiiisi’' places tor the sale ot liquor. iu> ; . opening inimvdiati-Iy on titty stn-et, st-., and the publir- have r<*sort”d thereto and been sold liquor therein. Sueh places are not bars within the meaning <:f S.i-ti-m I of the. Act <>f 1968. and: have been called private bars. There tiKty !>-e any tiumhvr m' stic’i bars o:t l tic. lict'iistd |>rennses, whilst there does. noil s an t<. be any obligation on the liohleri • I a publican's license to provide even | one bar ns defined hv Section -I. See-1 tio>) til cf th? Act of 1910. as amended. !>, Section- of the Act oi 1912.. tiau- j a.■ foilo-.w: - - | "After the Ist day of Juno, 1911, i cava as provided by this Section, noj female shall bs employed in anyi capacity, in cr about the bar or private bar of any licensed premises at any time while the bar is open for tho ( rale of liquor.” 'j W ‘ exceptions provided for are as f, lions: — (a) The wife, sister or,daughter of tke licensee ; (b) the licensee being a liarman; <c) any person duly regist ‘red as a barmaid. Provisions are nia<i .* for th:- registration of barmaids., i Before there can be a conviction under ! Section 36 as amended in respect of the 'employment of an unregistered barmaid ’ m a private liar, it must be proved that Vii-rc was on the premises in resp. et ci j milch the- information is laid a bar as - dsailed by Section -1 of the Act of 1!»B. ! and that that bar was open lor the sale ' uf liquor at th“ time the barmaid was I employed. (Se * Mason v. Kelly. IG.L.R. 5113). By consent of both par- : t:r.<, 1 visited defendant’s licensed pre-

mises, and had pointed out to me two places used <>y defendant for the sale of liquor. 1 fads of the present ease were . i..t: J by the informant and counsel i.;.- the tkieiidant, and are as follow s :~ lln th.? defendant's licensed premises thi-re are two places for the sale oi one wholly abutting on Clive Square, and one partly abutting on that hi'ghivav and partly on Emerson street. Tlx*, place wholly abutting on Clive Square would 1..? a bar as defined by Section -1 oi’ t!i“ Act of 1908, except lor the fact that th.* doorway which abuts on th.* Square is aba ays kept locked, and entrance can only be eifocted by uns <:f a passage which does not open iru.icdi.Holy on to any street, etc. 3he c.Jicr place lor the sale of liquor, in addition to abuttimi on two highways, is (inter alia) entered by two closely adint. doors, one outer, the other inner, hl:.' <li.- t.’.v.ci" iroin tjie swing dooi’Yo the I'Mi-cme (.ill. id.' oi’ il"' v.ll abutting on Clive Squari’ is 4 led 9 inches. The d:-.t:sm-<‘ between the spring door and th? oilier door is 3 ted 9 inches, and th.? whole space between those doors i->r:iis a small recess which leads nov.hcre e'sc but to the place immediately .- . apart for the ..ale oi liquor, except tin t when once insid.* the bar one can

t to ail th" oth.-r parts of tin* licensed promises. The whole quasi ion for consideration, then, is whether th * place open for the sale of liquor abutting partly on Clive S.piare and partly on Emerson street, is or is not a liar within the meaning of .-ter lion I. Before we can find it is such a I>ar we must find that it opens immediately to Clive Square. . What, then, is the force "if “ iinine-dmti-ly ’’? 1 have not been able to find any v. herein the term “ immediately ” is applied to .‘pace. The questient really is, as laid down by Air. Justice Sim in Mason v. Kelly, whether the I." ts of the particular cirne are plainly within th:? words of the Statute, wlnch words must not. as the learned judge points out, be strained on any notion of a casus omissus wlijch would have been provid d against ilk, thought of. The mere Lx t of there being one or :.,or,* doors between a place set apart for the

sail* of liquor and tin? highway will rot iierussarily prevent its being a far within the meaning of Section 4. tor all bars are to be closed within certain 1 i.urs. fl'-re are two doors, one outer, rlie <itli<T inner. Does, then, the presence of the i.'irer d >or. without locks or fastenings, pre. hide the id 'a of a bar opening imm 'diet 'ly on to the street? 'j here anti, o possible ways of viewing the inatt -r. One is to treat the recess between the two doors as being part of the bar; the other is to hold that, notwithstanding the the presence of the two doors, the bar docs open immediately to the Mreet. As to tli<* first point, the recess is an entrance to the bar, the only direct entrance thereto from tho highway. and it is, in my opinion, as much :■ part of the Lar as the walls which surroipid it and the ceiling which covers it. With regard to the second point, tfie swinging or inner door acts as a mere screen and no more bars the entrance than would a device of wool or cotton. As was pointed out by Chief Justing Cocktaii'ii in Queen v. Justices of Berkshire, it is impossible to lay down any hard and fast rule as to what is the meaning of the word " immediately ”iu all cases. Keeping, then, in view the structure of the place in question. its proxiniitv to two streets and the structure of the recess between it and the highway, I have no difficulty in deciding that the place used by defendant for the sale of liquor, and which abuts on Clive Square and Emerson street, is a “ bar ” within the meaning of Section 4 of tho Act of 190 S. and it having been open for the sale of liquor nt a time when the defendant had employed in his private bar an unregistered barmaid, a conviction must ensue.

This case is. however, a test one, and one that reasonably called for interpretation. Defendant will be convicted and fined one shilling. There will, of courre, be no order as to costs or an endorsement.