PUBLICANS’ REAL GUESTS.

New Zealand Times, Volume LXVII, Issue 3441, 24 May 1898, Page 2

PUBLICANS’ REAL GUESTS.

IN PROHIBITED HOURS. MAYBE GIVEN ALCOHOLIC REFRESHMENT. An inU-resting licensing cise wis lean! by tho Supremo Court yesterday, 'll five Judges sitting. The case was that ol Mdliatu Georgo Ryland.-, hpp-.-'l lot. and Michael Foley, respond.-ut. Mr Skerrett appeared for the appellant, and Mr Gully for the respondeat. This was an appeal from a do.'s uof the Stipendiary Magistrate at Web-mr '• In the case stated by Mr K-nny, SM. -t was sot out that on Sunday, th- ‘dlh January, IB9S, in the force on. Mr Ry ii’-d-, wh > is ibo licensee of tho To Aro Hotel. Wellington, met a personal friend named Louis Henderson iu the street outside his hotel, and after con versing with him for seme time, invited him into his house as a guest to have a drink. Mr Rylands supplied as a fcono Jiiic gift to his friend a glass of beer, which was consumed by Henderson in tho hotel on the Sunday in question, during the hours when by the L censing Act, 1881, the house was directed to bo closed. No other person except Mr Bylands and his friend was found diinkiiiw in the bar of the hotel. An information was laid against Mr Rylands, who was lined Is and costa. Mr Kenny determined that there was no ground of defence to tho prosecution. The question for the higher Court was whether his determination was erroneous in point of law. Mr Skerrett said the case raised in its simplest form tho general question of whether a hotelkeeper could invite a personal, fcuna fide friend to partake of alcoholic liquid refreshment in his hotel during prohibited hours. It raised tho question of whether a hotelkeeper who invited a friend to dinner on Sunday could supply his friend whilst in the hotel, or even during the meal, with a glass of beer or other alcoholic liquor. The Chief Justice-. What about the hotelkeeper’s wife ? Mr Skerrett; It also raised that question. The case turned on section 155 of the Incensing Act, 1881. . This section was considered by Mr Justice Edwards in the case of Batt and Cullen (New Zealand Law Reports, January, 1898). There were two constructions which could be placed on section 155. One was that it contained an absolute prohibition against allowing any liquors to becousumed in prohibited hours, even if such liquors had been purchased before closing hours. The alternative construction was that the prohibition was limited to a prohibition against allowing consumption of liquors purchased, although such liquors were purchased before tho hoars of closing. He (Mr Skerrett) submitted (1) that the second construction harmonised with the spirit and language of the Act ; (2) that it gavo effect to every word of tho section, while the opposing construction gave no effect to tho words " although purchased before the hours of closing ”; (3) that the first construction necessitated the introduction of implied exceptions to make it at all reasonable j and (4) that whatever authority there was, it was in favour of the second construction. The statute was not intended to interfere with a publican in relation to his private drinking, or to his treating of his 6ona fide friends. It was intended to regulate a publican’s conduct towards his customers, not towards his family, servants, or any guests whom he might choose to entertain.

Mr Gully submitted that the statute contemplated a complete cessation of tho licensee’s trade during prohibited hours, and gave only a certain limited and conditional exception in favour of three classes of persons. These three classes were lodgers and their guests, travellers but not their guests, and tho licensee and members of his household. The Chief Justice, in hia judgment, said that in his opinion the contention advanced on behalf of the appellant should prevail. Besides the exceptions of travellers and lodgers, there were the exemptions of the publican himself, and necessarily, one might say, of the publican’s family. He could see no reason for stopping at tho publican himself and his family, including his servants. He could sea no reason for saying that these latter exemptions were not to include the real guests of the licensee. In regard to the Alcoholio Liquors Sale Control Act of 1895, this Court had not really to construe it, but he' should say that tho fact of tho Legislature’s stopping short after dealing with the cases of lodgers and travellers rather lent strength to the view that there was no express prohibition—nothing in the principal Act, to show that a licensee might not entertain hia real guests in the way in which the licensee had done iu this case.

Mr Justice Deuniston said the Act on this point was certainly not clear, but ho had come to the same conclusion as had just been stated by the Chief Justice. A reasonable meaningmust be given effect to in a penal statute. The same reason that exempted members of a landlord’s household would reasonably exempt the bona fide guests to whom a landlord gave liquor honestly as guests. Mr Justice Conolly ashed where there was anything to show that a landlord should not have his rights as a host, that was as an individual, which would include, of course, supplying liquor free of charge to members of his own household, who were not mentioned in the Act, and alto to such persons as he specially invited to be his guests. Mr Justice Edwards said the case had been exceedingly well argued by Mr Skerrett. Although the matter was, in his (Mr Justice Edwards’) opinion, far from being free from doubt, he concurred in the previous judgments. To support tho limited construction of the section the words “ which has been purchased on the licensed premises ” had to be read into it. He thought that was a very violent extension of the section, and it was one which he should hesitate very much to adopt. Moreover, it might lead to the introduction of abuses. It might lead to the bringing of liquor from other premises, and to its being consumed wholesale without anyone being liable. There were quite enough inducements to commit perjury in connection with licensing prosecutions without making further inducements. On the other band the notion that the exemption which undoubtedly existed as to a landlord and his family was extended to his guests did proceed upon some principle. His guests were for the time being part of his family. Toe reception of guests, so long as it was confined to bona fide reception, was not part of the conduct of the business of licensed houses. Mr Justice Pennefather said a publican had a common law right to entertain his guests as he liked. There was power to the Legislature to deprive him of that right, but if they did so they must do it in clear and distinct language. In the present case they had not done it in clear and distinct language. The appeal was accordingly allowed with costs.