THE LICENSING LAWS

Otago Witness, Issue 3442, 2 March 1920, Page 23

THE LICENSING LAWS

AN IMPORTANT DECISION. SUPPLYING LODGERS ON HOLIDAYS. Charges of selling liquor on the afternoon of election day, when licensed pre--mises were required by the law to be closed, were preferred against two publicans on the 26th in the Magistrate's Court at Middlemaroh, before Mr J. R, Bartholomew, S.M. • Sub-inspector Mathieson prosecuted. The charges were laid under section 123 of the Legislature Act, which makes it illegal to sell liquor to any person between noon and 7 p.m. on election day, which is declared to be a halfholiday. Charles Little (licensee of the StrathTaieri Hotel), Thos. Muir (his barman), Thos. Quirk (licensee of the-Railway Hotel), and Martin Grant (his barman) were all charged with the same offence. Mr \V. L. Moore appeared for Little and Muir, and Mr B. S. Irwin for Quirk andM'Grath. The cases against Me Moore's clients were taken first. Sub-inspector Mathieson said ho understood the facts would be admitted. Constable Phillips visited the hotel and found men in the bar. Some said they were boarders, but he submitted that that did not come into the case at all, and that it was an offence to sell liquor to any person whatever between r.oon and 7 p.m. on that day. There was a doubt whether they wero genuine boarders, or whether they had merely become boarders for the occasion, but even if they were boarders, he\ submitted that it made no difference. He would take his stand on these facts and not bring further evidence. The Magistrate pointed out that there was no penalty for a breach of that section of the Act, but the sub-inspector suggested that the charge might be laid under section 39 of the Licensing Act, the penalty being fixed by section 190. Mr Moore said selling to boarders would be admitted. The defence relied on section 191 of the Licensing Act. In interpreting the Licensing Act it must be remembered that section 191 was intended to give the right to landlords and boarders to obtain liquor at any time, and that right was not taken away by section 39, which must be read to exempt boarders. If there was any repeal of a section _ it would be by a later one. They must give both a meaning consistent with the spirit of the Act, which, as shown in the Legislature Act, was intended to stop treating in hotels, from interfering with the conduct of elections, but not to take away the rights of boarders. He did not think he would be far wrong in saying that almost every publican in New Zealand had committed a breach of section 123 of the Legislature Act if the sub-inspector's reading of it was correct. The licensee himself was not in the hotel that afternoon, but before he left he gave the barman strict orders to supply no one except boarders—and them before tea. Tea was at 5.30, and the alleged offence occurred at 5.20.

Sub-inspector Mathieson contened that if a licensee had the right to supply boarders the Act would be useless. Its purpose was to suppress drinking during all elections,, but boarders could enroll at all the hotels and be supplied with liquor. Ho held that the section superseed all legislation previously passed. The Magistrate said that if "there were no special provision in the Licensing Act, and they had a special provision with an appropriate penalty for tho offence in the Legislature, Act, then that special provision would override the general provisions of the Licensing Act. In the Licensing Act a general provision had been in force for many years- prescribing that licensed premises should be closed between noon and 7 p.m.. on licensing poll day. The wording of the Legislature Act was similar, but it referred to general election day. The question was whether section 191 of the Licensing Act, empowering the licensee to supply lodgers at any time, gave him protection and exempted him from the operation of section 39, and from the provision of the Legislature Act. Dealing with the matter under section 9, the penalty was prescribed under section 190, which provided a general penalty for all illegal sales. Section 191 gave exemption from that penalty. Clearly section 191, following 190, gave the licensee exemption from the provisions of section 39. If it rested on the Licensing Act, that special provision would give him exemption, and also the right to .supply lodgers, notwithstanding the operation of section 39. So far as the Legislature Act was concerned, curiously enough no penalty was provided, really making section 123 a nullity. The Legislature Act was passed with full knowledge of the provisions of the Licensing Act, and, no penalty being provided, it must be regarded merely" as a declaratory Statute, calling attention to the state of the law at tho time. It seemed that the licensee had the right to supply lodgers with liquor at all times, including that of election day. Taking all these facts into consideration, the information would be dismissed. The charges against Quirk and M'Grath were dismissed for the same reason. Little and Muir were then charged with supplying liquor (two bottles of beer) on licensing poll day. They pleaded "Guilty" through Mr Moore. Sub-inspector Matheson said the bottles were found in a cart belonging to one Smith outside the hotel. Smith admitted receiving them from another man named Leslie, who said ho had purchased them from Muir, the barman at the Railway Hotel. The Magistrate: How is tho hotel conducted ? ' Constable Phillips: There is a fair amount of after-hour trading. Mr Moore said the barman had no recollection of supplying the liquor. He.had refused to servo one man because he thought ho was not a lodger. In this case the licensee was out electioneering, and he gave the barman strict instructions not to serve anyone but boarders, who might bo supplied before tea. Tho Sab-inspector: I must contradict that statement. The constable says the place was open for trade all afternoon, and that was why he warned the licensee. The Magistrate said he could hardly credit the barman's statement, unless trading was

so promiscuous that the sale of two mrttles was a mere incident during the day. In that caso Lis excuse would be wv.se than admission. It was evideriu from the police statement that liquor was being sold freely. If the licensee had been on the premises he (the magistrate) would have endorsed his license. There had been far too much laxity in dealing with liquor. The licensee had no occasion to leave anyone with the kevs of the bar an election day.

A fine of £lO, with costs (7s), wa3 imposed on the licensee. The barman was fined £5, with costs (7s), and witness's expenses (19s 8d). When a charge against M'Grath and Quirk (Mr Irwin) of supplying liquor on the same day was read, it was found that James Kennedy, a witness for the prosecution, was missing. Constable Phillips 6aid he had warned the witness to be present. Sub-inspector Mathieson: I ask that he be brought in on warrant. He has no right to defy the court The Magistrate: Oh. no; that can't be tolerated.

When the witness was brought in in the afternoon, his excuse was that he "wasn't too well." The Magistrate: You have taken the matter far too- casually and laid yourself open to be arrested and dealt with. You ought to recognise that it is important for you to attend.

Witness, being sworn, said he got a bottle of whisky from M'Grath. He did not know where M'Grath got it. He left the township at 9 p.m. . and had not touched drink that day.—To Mr Irwin: Witness wou!d contradict Docherty- and Smith if they said he was drunk that morning. He asked Quirk for a drink and was refused. After much questioning by counsel, witness admitted it was more than likely that he had some conversation with M'Grath relative to his prohibition order; that he was probably "three sheets in the wind" when he got home, and that it was quite likely that when his wife asked him where he had got the whisky, he just said the first name that* came into his head — M'Grath's.

Ckinstable Phillips read a statement by M'Grath, that Kennedy asked him for a drink, and that he told him that he (Kennedy) was nrohibited. M'Grath denied that he supplied Kennedy with liquor. Mr Irwin submitted there was no ease against the defendants. To suggest that they should be convicted on Kennedy's evidence was absurd.

The Magistrate said there was no necessity for further evidence. Kennedy's evidence was so very unsatisfactory and unreliable- that he (the magistrate) could not gather what story he really wished to put forward. There was nothing for the defence to answer.

The information against Qiurk and M'Grath were dismissed.

Kennedy was fined 10s. with costs (7s), for a breach of his prohibition order.