Folkestone
Daily News 12-11-1912
Tuesday, November 12th: Before The Mayor,
Messrs. Herbert, Boyd, Vaughan, Harrison, Stace, Linton, Ward, Stainer, Fynmore,
Giles, Morrison and Wood.
A temporary transfer of the Red Cow was granted to Mr.
George Summerfield from Mrs. Savage, it being understood that Mr. Summerfield`s
son was about to take over the licence of the Royal Standard.
Folkestone
Express 16-11-1912
Local News
The licence of the Red Cow Inn, Foord Road, was
temporarily transferred on Tuesday by the borough Magistrates from Mrs. Savage
to Mr. G. Smallfield (sic) of the Royal Standard, who, however, had to make
arrangements for his son to manage the house until the licence he then held
could be transferred to his son.
Folkestone
Herald 16-11-1912
Tuesday, November 12th: Before The Mayor,
Mr. E.T. Ward, Mr. W.G. Herbert, Mr. J. Stainer, Major G.E. Leggett, Mr. R.J.
Linton, Mr. G. Boyd, Councillor W.J. Harrison, Mr. E.T. Morrison, and
Councillor A. Stace.
Application was made for the temporary transfer of the
licence of the Red Cow Inn from Mrs. Savage to Mr. George Summerfield, at
present the landlord of the Royal Standard, Canterbury Road. It was explained
that arrangements were being made for Mr. Summerfield`s son to take over the
licence of the Royal Standard.
The application was granted on the understanding that
Mr. Summerfield Jun. went into the Red Cow for the time being until his father
could take over the business.
Folkestone
Daily News 29-11-1912
Wednesday, November 27th: Before Messrs.
Ward, Herbert, Stainer, Leggett, Stace, Swoffer, Linton, and Boyd.
The licence of the Red Cow, Foord, was transferred from
Mrs. Savage to Mr. G. Summerfield, and the latter gentleman`s licence, the
Royal Standard, was transferred to his son, John William Summerfield.
Folkestone
Herald 30-11-1912
Wednesday, November 27th: Before Mr. E.T.
Ward, Mr. W.G. Herbert, Mr. J. Stainer, Mr. G.I. Swoffer, Major G.E. Leggett,
Mr. R.J. Linton, Mr. G. Boyd, and Councillor A. Stace.
The licence of the Red Cow, Foord Road, was temporarily
transferred from Mrs. Savage to Mr. George Summerfield, and that of the Royal
Standard was transferred from Mr. G. Summerfield to his son, Mr. John William
Summerfield.
Folkestone
Daily News 3-3-1914
Local News
Great consternation was caused this (Tuesday) morning
at the Police Court when three licensed victuallers were summoned for selling
cigarettes between 6 and 7 on a Wednesday evening.
The Bench consisted of Alderman Vaughan, Messrs. Giles,
Fynmore, Jenner, Owen, and Boyd.
The defendants were Charles Henry Barker, John William
Summerfield, Edward William James, and Julia Willson. Mr. Holme appeared for
the defence, and the Town clerk prosecuted.
It appeared from the evidence that the defendants had
been asked to supply these goods, and were under the impression that they were
exempt.
As everyone knows, the legislature never included
licensed victuallers in the Act, and Folkestone would never have heard of this
prosecution but for the action of a few bona fide tobacco dealers, who
petitioned the Corporation to ask the Home Office.
The case of Mr. Summerfield was taken first. Mr. Holme,
for the defendant, pleaded Not Guilty.
The Town Clerk, in opening the case, said the summons
was issued under the Shops Act, 1912, and this was the first case taken under
the Act. He proceeded to deal with the provisions of the Act, and the adoption
of the Order by the local authority in respect to tobacconists.
Harold Summerfield, and assistant in the Sanitary
Inspector`s Office, said on February 18th he visited the Royal
Standard, Canterbury Road, at 6.37 p.m. He entered the bar parlour and asked
the assistant for a packet of shag tobacco. At first the assistant refused to
serve him, and said “It is Wednesday afternoon, and I cannot serve you”.
Witness said “Thank you”, and walked towards the door. The assistant called him
back, and said “I`ll oblige you this time. You must not tell anyone as we
should be getting into trouble”. He was served and paid 4d. for the tobacco.
Cross-examined by Mr. Holmes: Witness did not know
whether this public house had any different features as regards the sale of
tobacco to any other house. So far as witness was concerned, it was a mere
casual sale.
Mr. Holmes: A register is kept under the Act?
Witness: Yes.
Mr. Holme: Is the Royal Standard in the register?
The Town Clerk: No.
Mr. Holmes: Are any public houses in the register?
The Town Clerk: A few; the large ones.
Mr. Holmes: There is a notice in the Act which requires
that every person should be served with a notice.
The Town Clerk: I do not think the question should be
put.
Mr. Holme: Very well, I`ll get it from defendant that
no such notice was served.
The Town Clerk combatted the right to put the question
and Mr. Holme said for the present he would not press it.
The Town clerk: That closes my case.
Mr. Holme, opening the defence, dealt with the
interpretation of the Act, which had to be construed as an Act, which had to be
considered as the exception and not within the rule. He pointed out that if the
Act was to be seriously considered, he would take the early closing of fruit
shops. Why, absurd as the proposition was, it would equally apply to the
Metropole Hotel, where they could not supply vegetables and dessert on
Wednesday afternoons and evenings. Dealing with a circular from Mr. McKenna,
the Home Secretary, which pointed out that distinction could be made between
regular sale and casual sale, he said the prosecution had admitted that
exceptions had to be made, and having made exceptions and got within the walls
of the Act they must adopt a common-sense point of view. The Act exempted
licensed victuallers, unless brought in.
The Town Clerk: Not only licensed victuallers, but
other people.
Mr. Holme: Yes, but licensed victuallers are included,
and I am here today for the licensed victuallers.
The Town clerk: I submit that it is not within the
power of the Bench to go into anything subsequent to the Act. The section says
that the Order is an Act of Parliament.
Mr. Holme: If the case goes to the High Court it is
essential to get out all the points. I contend that the Order was never
intended to include my clients.
Mr. Andrew advised the Bench to accept the Town clerk`s
objection.
Mr. Holme: May I put my point? Can anything be more
unfair than not to consult the licensed victuallers, and then making an Order
including them in it? I do ask the Bench to consider the circumstances under
which the Order was made. The scheme of the Order says that before you bring in
an exempted class you must consult them. Voting papers must be sent out, or an
an alternative a petition from two thirds of the people affected. The licensed
victuallers were neither asked to vote, consulted, or asked to sign.
Proceeding, he seriously suggested that if the local authority intended to make
the Order, in all common sense the first thing that authority should have done
was consult those who they brought within the Order.
The Town Clerk: Then not being a substantial part of
the business, you would not be entitled to vote.
Mr. A.J. Hart, secretary to the Licensed Victuallers`
Association, said he had inspected the register at the Town Clerk`s office, and
did not find the name of a licensed victualler.
By Mr. Andrew: He did not look for the names of hotel
keepers, as that did not interest him.
Mr. Holme, the Town clerk, and Mr. Rutley Mowll
discussed the legal position with Mr. Andrew.
The Bench retired, and on returning said they
considered the case proved, but would not inflict any penalty on payment of
costs.
The other cases were withdrawn.
Folkestone
Express 7-3-1914
Local News
On Tuesday a most important point with regard to the
sale of tobacco by licensed victuallers on the weekly half holiday occupied the
attention of the Folkestone Magistrates for close upon two hours and a half.
The Magistrates consisted of Colonel Fynmore, G. Boyd and J.J. Giles Esqs., and
Col. Owen, and three licensed victuallers had been summoned.
The first case held was that of John William
Summerfield, the licensee of the Royal Standard, and he had been summoned for
contravening Section 4 of the Shops Act by selling tobacco on Wednesday,
February 18th, at 6.37 p.m., that being the weekly half holiday
fixed by the Town Council. Defendant pleaded Not uilty. Mr. A.F. Kidson (the
Town Clerk) prosecuted, and Mr. Randle F. Holme, of London, defended.
Mr. Kidson, in opening the case, said that was the
first summons to come before the Bench under that particular Act. He,
therefore, thought he ought to refer the Magistrates to the various Sections
bearing on the question. He then read Section 4 of the Act, which dealt with
the closing of shops on one half day of the week. He then pointed out that the
schedule exempted various trades, amongst which were the tobacconists. He
explained that sub-section 6 provided that the local authority might by Order
extend the provisions of the Act to the shops of any class exempted if they
were satisfied that at least two thirds of the occupiers of the class of shop
approved of the Order. The Council did make an Order under that provision with
regard to tobacconists, and it was confirmed by the Home Secretary. By
sub-section 7 of Section 4 it was provided that in case of any contravention or
failure to comply with any of the provisions, the occupier of the shop would be
guilty of an offence, and would be liable to a fine, for the first offence, not
exceeding £1. That was the first case which had come before the Bench. By
Section 6, sub-section 3, as soon as the Secretary of State had confirmed any
Order that Order became final, and had the effect of an Act of Parliament.
Complaint was received that licensed victuallers were infringing that Order,
therefore it became necessary for the Inspector to make inquiry. They would
hear what occurred from the evidence. To assist the Bench he would like to read
a circular letter sent out by him, as follows: Shops Act, 1912. I enclose copy
of an Order which has been made extending the provisions of Section 4 of the
Shops Act, 1912, to certain shops. This Order is now in force, and must be
complied with by the occupiers of the classes of shops therein referred to. With
respect to the sale of tobacco, etc., at places licensed for the sale of
intoxicating liquors and other refreshment places, the Home Secretary has made
the following statement, and it is the intention of the Town Council to act in
accordance with such statement.
Copy statement: “I am to add, for the Council`s
information, that the Secretary of State is advised that licensed houses in
which a retail trade in tobacco is regularly carried on are subject to the
provisions of the Order, but that the Order would not apply to the occasional
sale of tobacco in hotels and inns in connection with meals, e.g. the supply of
customers with cigars and cigarettes after dinner.” A copy of that letter was
sent to the defendant.
Mr. Kidson then gave evidence of the appointment of Mr.
J. Pearson, the Sanitory Inspector, as Inspector under the Shops Act, 1912, for
the purpose of enforcing the provisions of the Act.
Harold Summerfield, assistant to the Sanitory
Inspector, said he visited the Royal Standard public house at 6.37 on the 18th
February, which was a Wednesday, and the half holiday. He entered the bottle
and jug department, and asked the assistant behind the bar for an ounce of shag
tobacco. The man replied “It is Wednesday afternoon. I cannot serve you”. He
(witness) replied “Thank you”, and walked towards the door. The man then called
him back again, and said he would oblige him that time, and that he must not
tell anyone, or he would get him into trouble. The man served him with an ounce
of shag tobacco, and he (witness) paid 4d. for it. He did not see any notice
whatever in the bar with reference to the Shops Act.
Cross-examined by Mr. Holme, witness said the Royal
Standard was an ordinary public house. He did not think they pushed the sale of
tobacco more than any ordinary public house did. There was no separate counter
for the sale of tobacco, So far as he knew it was a casual sale of tobacco
carried on at the house.
Mr. Holme, at this stage, asked for the register which
had to be kept under the Shops Act, and when it was produced, he requested him
to say whether the Royal Standard was to be found in the register.
Mr. Kidson said he admitted the Royal Standard was not
entered in it. He believed there were a few public houses mentioned in it, but
only some of the large ones.
Mr. Holme asked the witness if he knew whether the
notice calling upon the defendant to say which was his principal trade had been
served upon him.
Mr. Kidson argued that that was not a proper question
to put. The point was, it seemed to him, had that Order and the Act authorising
the Order been contravened?
Mr. Holme agreed to leave the matter until later. He
then addressed the Magistrates on behalf of the defence, and in the course of
his remarks he said that was a very important case. The matter was fairly
simple. They had before them the words of the Act and the Order, which they had
to construe. There were two possible ways of construing the words. Conceivably,
they might say they meant they forbade in the district at the time in question
the sale of tobacco without any exception whatever. If they were construed in
that way, it would have a far reaching effect, not only on the public houses,
but all the fine hotels in the district, including the Grand, the Pavilion, and
the Metropole. They would not be able to call for a cigar or cigarette after
dinner in that case. If the Order was really carried out, they would not be
able to have any game or vegetable for dinner at the Metropole or any other
hotel. That would be absurd, and the prosecution would agree that would be
absurd. The circular of the Home Secretary was, he contended, an admission that
some exception was to be allowed to that general rule. By that circular a
breach was made in the walls of the Act. They could not apply those words
without some exception. The only exception the Home Secretary had allowed was
if a cigar or cigarette was sold in connection with a meal. Not once in the
regulations was the word “meal” used, and, therefore, that was a pure invention
of the Home Secretary. It would be a difficult problem to say what a meal was.
He suggested that the word “meal” could not be read into the Act. He agreed the
circular was founded on common sense. They had to look deeper than that for a
principle.
At this stage Mr. Holmes read several answers to
questions put to the Home Secretary in the House of Commons, and arguing on
those answers he said the Magistrates really had to consider in that case
whether that was a casual sale or was a regular trade or business carried on at
the Royal Standard. The true principle they had to apply was whether that sale
was casual and ancillary to what was going on in the establishment, or was it a
sale in connection with the trade that was going on in the house. The Royal
Standard had not developed into a miniature shop for the sale of tobacco. He
was going to prove by the defendant that he had never sold any tobacco or
cigarettes to a person except that it was a casual sale, and, therefore, it did
not come within the words of the Act. It was an abuse of language to call the
Royal Standard a shop for the sale of tobacco. That was his submission on the
main point.
Mr. Kidson had mentioned Section 4 of the Act, which
provided for the half holiday closing. Then Section 6 exempted licensed
victuallers unless they were brought in by a special Order. Before an exempted
trade could be included, certain formalities had to be gone through. By a
sub-section and the regulations there had to be a two thirds majority of the
shops before the trade could be brought in. A register was also to be prepared.
Mr. Kidson said it was not the Magistrates` duty to go
into anything prior to the making of the Order.
Mr. Holme said he was not going to say the order was
bad, but he wanted to try to find out whether the prosecution meant to bring in
his client. Did the Order include his client? If he could show that the
prosecution, when they made the Order, had no intention of brining in his
client, surely that was relevant to the matter.
A good deal of argument ensued on this point, and Mr.
Holmes said he could not imagine anything more unfair than that an Order should
be made without consulting all the people whom it could affect.
The Magistrates` Clerk eventually said that Mr. Holme
might raise the point should the question of inflicting a penalty arise.
Mr. Holme said he admitted for the sake of argument the
Order was good, nevertheless he did ask the Bench to take into consideration
the circumstances under which it was made. Proceeding, he said no voting paper
was sent to his client. He admitted that a notice was published asking
tradesmen to go to the Town Clerk`s office to see if they were on the register.
He wished to point out there was a provision in the Act by which they might
have got out of that dilemma. It was that sub-section which dealt with the case
of a mixed trade. He submitted, however, that that was not a mixed trade, but
that a publican`s business was one trade, catering for the public. In the case
of a mixed trade the Council had to inquire from the occupier which he
considered to be his principal trade.
Defendant, giving evidence, said he had not a separate
counter for the sale of tobacco, and he made no special effort to push tobacco.
If tobacco was sold to the Inspector in that case, it was the one solitary
exception that he had sold tobacco to a man who had not purchased something
else. His tobacco trade was about 5 percent of his trade. He had had no notice
served on him requiring him to say what he considered to be his principal
trade, and no voting paper was sent to him.
The Magistrates` Clerk held Mr. Holme was not entitled
to put questions on that point.
Mr. Summerfield said he did not sign any application
for the Order to be made.
Cross-examined, he said he would not call his tobacco
trade his principal trade.
Mr. Kidson: Therefore you would not be entitled to have
your name entered on the register.
Mr. A. Hart gave evidence as to going to the Town
Clerk`s office and examining the register. He could not find the name of the
Royal Standard entered in it, nor any other licensed house.
The case of Charles Henry Barker, the licensee of the
Raglan, was next dealt with. Mr. Rutley Mowll defended, and pleaded Not Guilty.
Mr. Kidson put in the Order made by the Home Secretary,
and produced the appointment of the Inspector of Nuisances as the Inspector. In
reply to Mr. Mowll, he said Mr. Barker`s name was not entered in the register.
The Council did not ascertain by vote whether the defendant or other licensed
victuallers wished to come under the Act. The petition asking for the Order was
received from the tobacconists.
Harry Summerfield said he visited the defendant`s
premises at 6.30 p.m. on Wednesday, February 18th, and asked for a
2d. cigar. He was served with it, and paid 2d. for it.
Cross-examined, witness said he did not ask for any
refreshment at the same time.
Mr. Mowll addressed the Magistrates at length on the
matter. He urged that his client had committed no offence, as it was an
occasional, casual sale. He pointed out also that bread and cheese, or even a
biscuit, would be regarded as a meal, and he held that a man would be able to
purchase a cigar or cigarette. According to the Home Secretary, that was a
casual and occasional sale, and not within the meaning of the Act. It would be
very hard indeed to apply the Order to such a case as that. In his opinion it
was a condition precedent to the making of that Order that the Town Council
should first have been satisfied that the occupiers of at least two thirds of
the shops of that class should approve of the Order. If his client was one of
that class to be prosecuted, then he was also one of the class who had the
right to vote for the Order. In other words, the Corporation could not fasten
them with the responsibility and at the same time deny to them the privileges
of the section. He contended that there was no provision in the Act which said
that the Order for the weekly half holiday should have the operation of the Act
of Parliament. It was only by closing order that might have the effect of an
Act; the weekly half holiday Order did not have that effect, for they had to be
made, and could be revoked. In conclusion, he suggested that instead of coming
to a decision that day, they should postpone that matter for a short time, and
give the licensed victuallers the opportunity of approaching the Corporation
and putting before them their views, and requesting that they might be pleased
to revoke the Order. He thought the Council would agree to the revocation of
the Order, for it would be saving the trouble of deciding a point of law. They
must not forget that a conviction was a serious objection to a licensee. It
seemed to him the best course would be to let the licensed victuallers approach
the Corporation.
Mr. Kidson said if there was an adjournment there ought
to be an undertaking given that there would be no sales in the meantime. There
was no desire on the part of the Council to be unfair with the licensed
victuallers. If the latter did approach them, he was certain they would
consider the matter.
Mr. Holme said for his client he would prefer to have a
definite decision.
The Bench retired, and on their return the Chairman
said the Bench were unanimously satisfied that the case had been proved, but
inasmuch as the parties had suggested a re-consideration by the Council of the
position of licensed victuallers under the Act, they refrained from imposing a
penalty, and they dismissed the cases against Mr. Summerfield and Mr. Barker,
on payment of the costs, 8/6.
Mr. Holme asked the Clerk if he would state a case.
The Clerk said there was no conviction.
Mr. Holme said that was very unfortunate. Nothing could
be more inconvenient for his client, for they were no nearer getting an
authoritative decision from the High Court.
The Clerk said if there had been a conviction he would
not have stated a case. He would have left it to the defendants to apply for a
mandamus.
Summonses against Mr. E.W. James, another licensed
victualler, and Mrs. Julia Wilson, a shopkeeper, were withdrawn.
Folkestone
Herald 7-3-1914
Local News
The question of the right of publicans to sell tobacco
on Wednesday afternoon (early closing day), was discussed at the Folkestone
Police Court on Tuesday, four licence holders having been summoned for a breach
of the Shops Act by selling tobacco on the 18th February after 1
p.m.
The Magistrates were Colonel R.J. Fynmore, Mr. G. Boyd
and J.J. Giles, and Colonel G.P. Owen.
The case against John Wm. Summerfield, of the Royal
Standard, for selling tobacco at 6.30 p.m. on the 18th February was
first heard. The Town Clerk (Mr. A.F. Kidson) prosecuted, and Mr. Randle F.
Holme appeared for the defendant.
The Town Clerk said this was the first summons that had
come before them under that particular Act, and he thought perhaps he should
refer them to the various sections bearing upon the question. Mr. Kidson then
went into many details concerning various sections of the Act. He mentioned
that tobacconists were under one section exempt from the Act, but added that
another section provided for this particular matter, and the local authority
had power, if satisfied that they had at least two thirds majority of
tobacconists to include them. The Council did make an Order under that
provision with regard to tobacconists, which was confirmed by the Home
Secretary. The Order provided “That the provisions of Section 4 of the Act,
with respect to the closing of shops for the serving of customers in the
afternoon of one weekday in every week, are hereby extended to the
undermentioned shops in the urban district of Folkestone, to all shops except
those in the Morehall district, and in High Street, Sandgate, wherein is
carried on the trade or business of the sale of tobacco or smokers`
requisites”. That Order was confirmed by the Home Secretary. In referring to
many legal points in the case, Mr. Kidson alluded to Section 6, sub-section 3,
which provided “As soon as the Secretary of State has confirmed any Order, the
Order will become final and have the effect of an Act of Parliament”. A
complaint was received that licensed victuallers were infringing this Order. Therefore
it became necessary to make inquiry. Inquiry was made, and the facts in this
case were very simple, and he presumed could not be disputed. He thought it was
hardly necessary to draw their attention to the fact that the Order provided
that the day of the half holiday should be Wednesday for all the shops. They
knew that this was a new Act of Parliament, and the Order was newer still. The
Magistrates might like to know what steps had been taken to make known Orders
and Acts of Parliament of the kind. If it would be of any assistance, he would
explain what had been done.
The Chairman expressed the wish of the Bench to hear
the particulars.
The Town Clerk then produced a circular (which, he
said, was sent out to the defendant amongst others), in which he stated that he
enclosed a copy of the Order which had been made extending the provisions of
section 4 of the Shops Act, 1912, to certain shops, including tobacconists.
Next Mr. Kidson touched upon a statement made by Mr. McKenna, in which he said
he was to add, for the Council`s information, that the Secretary of State was
advised that licensed houses in which the retail trade of tobacco was regularly
carried on, were subject to the provisions of the Order, but did not apply to
the casual sale of tobacco at hotels and inns in connection with meals and the
supply of customers with cigars and cigarettes after dinner.
Mr. Holme pointed out that the opinion of the Home
Secretary was not binding on the Bench.
The Town Clerk said it was an intimation of the view he
would like the authorities to take.
Mr. Holme: It is an admission by the prosecution.
Continuing, Mr. Kidson said that Mr. Pearson was
appointed the Inspector under the Act for the purpose of enforcing the
provisions of the Act.
Harold Summerfield, an assistant in the Sanitary
Inspector`s office, stated that he visited the Royal Standard, Canterbury Road,
on the 18th February, a Wednesday, at 6.37 p.m. He entered the
premises by the door at the bottom of Bridge Street, and asked the assistant
for an ounce of shag tobacco. There was a small pigeon hole where customers
were served. The assistant refused to serve him at first, saying it was
Wednesday afternoon. Witness said “Thank you”, and walked towards the door. The
assistant then called him back, and this time served him, saying “I will oblige
you this time,, but you must not tell anyone, or we shall get into trouble”.
The assistant then served him, and witness paid him 4d. Witness saw no notice
in reference to the Shops Act.
Mr. Holme said there was no dispute as to the facts.
However, the case was not an important case. Mr. Kidson said it was the first
case in the Borough; he (Mr. Holme) believed it was the first case anywhere.
Cross-examined by Mr. Holme, witness stated that the
Royal Standard was an ordinary public house, and he did not know that it made
any special effort to push the sale of tobacco any more than other public
houses.
Mr. Holme pointed out that in hotels there were
cabinets and counters for the sale of tobacco, and, turning to witness, asked
“There was nothing of the kind here. Was there, in fact, any tobacco on the
bars?”
Witness: I saw none.
Was anyone else buying tobacco when you were there? –
Not in that department.
Did you see anyone else buy tobacco? – No.
Had you been in the house before? – No.
As far as your knowledge goes, it was the only case of
an ounce of tobacco being sold? – Yes.
So far as you know, it was merely a casual sale? – Yes.
Mr. Holme pointed out that, under the Act, a register
was to be kept, and in the register there were set out the different classes of
shops affected. He asked witness to find the Royal Standard in the register.
Mr. Kidson said the Royal Standard was not in the
register.
Mr. Holme asked if any public house was in the
register.
Mr. Kidson: There are a few; some of the large ones.
Mr. Holme remarked that for some perfectly unexplained
reason the Royal Standard was not in. No doubt there was a very good reason.
Continuing, he asked witness if he could tell him if there was a provision
under the Act by which a local authority might serve a notice on any shop
occupier requiring him to say which he considered his principal trade, and
could the witness tell him if that notice was served on the occupier of the
Royal Standard?
Mr. Kidson submitted that it was not a proper question.
It did not matter what notice was served. That was not the question for their
consideration at all. The point was whether the Order was contravened.
Mr. Holme said the matter to be considered was fairly
simple. They had the words of the Act and the Order, which they had to
construe. It might fairly be said that the question was “That in the district
and at the time in question no shop might be kept open for the sale of
tobacco”. Those were the words they had to construe. There were two possible
ways of construing those words. They might say that in the district and at the
time in question it forbade the sale of tobacco without any exception
whatsoever. That was one way of construing them, but he pointed out how ver
far-reaching would be their decision if that course was adopted. It would
affect all public houses and all hotels in the district. It would include the
Metropole and the Grand. They would not be able to call for a cigar or
cigarette, not even after dinner. And it went even further than that. Mr.
Kidson did not read the Order with regard to prohibiting shops being open for
the sale of poultry, game, of perishable articles, fruit, vegetables and
flowers. Under the Act it enabled him to include confectionery. If the Order
applied at the Metropole, they would be able to sell no game; they would have
no game at dinner on Wednesday afternoons, no vegetables, no fruit, no dessert.
If they construed the words strictly, that was the result, and it would be absurd.
He need not remind them that they had to construe the Act, and not the Home
Secretary`s circular. The circular was to the effect that some exception had to
be made, and once they got inside and allowed an exception this case came
within the exception and not within the rule. He (Mr. Holme) knew the Act from
beginning to end, and not in one place did the word “meal” occur. It was a pure
invention of the Home Secretary. What was a meal? There was not only the
difficulty of the definition of the word “meal”, but there was also the
question of how long after could a man be served. Some people smoked
immediately, some hours afterwards. He agreed that the circular was founded on
common sense, but he argued that Mr. McKenna meant that “a meal” was to be
simply alluded to as an example, as a sort of exception, and they had to look
deeper for the principle. He read Mr. McKenna`s answer in the House of Commons,
in which Mr. McKenna said he did not think the casual sales of cigars or
cigarettes in hotels and restaurants for consumption on the premises, as for
example, after dinner, or other meal, would amount to the carrying on of a
retail trade so as to prevent such sales on the day of the half-holiday.
Therefore he argued they had to consider, was it a casual and ancillary sale,
or was it really the sale of tobacco or a regular trade going on in the same
house? He quoted an extract from a paper called “Tobacco”, in which it was
stated “Licensed victuallers are developing into miniature tobacco shops”. Had
the Royal Standard developed into that? There was no counter, no separate place
where cigars or tobacco were exposed for sale. Mr. Holme next referred to the
steps necessary to be taken in the case of those wishing to be brought under
the Order. A voting paper was to be sent out to each one, and a register of all
the different shops affected was started. When one found that the Royal
Standard was not in the register one wondered why they were brought to the
Court.
Mr. Kidson asked the decision of the Magistrates as to
the power to go into anything prior to the making of the Order. He suggested it
was not within their power to do so.
After a considerable amount of legal argument Mr. Holme
said he imagined nothing was more unfair than that the Order should have been made
without the licensed victuallers being consulted. The licensed victuallers were
not consulted, and he maintained that they were not in the Order at all. The
scheme of the Act said that before they made an Order they must consult them in
one of two ways. After describing the mode of procedure, he said no licensed
victualler, so far as he knew, had received a voting paper. And why? Because he
was not on the register. The alternative plan was to have an application signed
by two thirds of the people affected. In this case no application was signed by
the licensed victuallers, and certainly not by the Royal Standard. Mr. Holme
pointed out a section dealing with mixed trades, but held that in this case it
was not a mixed trade. It was in the power of the local authority to serve a
notice on a man asking him which was his principal trade. Could anyone call an
ordinary public house a shop for the sale of tobacco? It might as well be
argued that if he went into a public house for a box of matches to light a lamp
that it was a shop for the sale of matches.
Mr. Summerfield, the defendant, stated that he was the
licensee of the Royal Standard. There was no separate counter for tobacco. He
made no special effort to push the sale of tobacco. The sale to the witness of
the prosecution was a solitary exception. He had sold tobacco to men who had
been having something else at the same time. It was a casual sale. The
proportion that tobacco bore to the rest of his trade was about 5 percent. No
notice was served upon him as to what he considered to be his principal trade.
A paper was not sent to him asking whether he wished the Order to be put into
force.
The Magistrates` Clerk said Mr. Holme was not entitled
to put these questions.
Mr. Holme argued that if the case was going to the High
Court they were material facts that the High Court should know.
Mr. Summerfield, continuing, said no notice or voting
paper was served on him, and he did not send in any application for the Order
to be made. He did not approve of the Order. He did not think any licensed
victualler had sent in an application, and they did not approve of it.
In answer to the Town Clerk, Mr. Summerfield said he
considered 5 percent of his trade a very small, and not a substantial part, of
his trade.
Mr. Kidson: Therefore you would not have been entitled
to vote.
Mr. Holme: That is a question of law.
Mr. Kidson argued that no injustice had been suffered
by the licensed holders, because they were not entitled to vote, even if they
had received notices.
Mr. Holme put another construction upon the case, to
the effect that the whole sub-section depended on the notice being served
first. He did not think Mr. Kidson had any application where any such notice
was served.
Mr. Kidson said his point was that Mr. Summerfield had
suffered no injustice, though he had not served him with the notice referred to
under the sub-section. He quite agreed that the notice must be served, and Mr.
Holme objected that it was not served, but even if the notice had been served
Mr. Summerfield would not have been entitled to a vote.
Mr. Holme characterised the method as very
extraordinary, and contended that the Corporation were absolutely outside their
powers. They were bound to give these people a vote before they made the Order.
Mr. A.J. Hart, of the Bouverie Arms, said he had
inspected the register and he did not fine the Royal Standard there, nor any
other licensed victualler; There were no licensed victuallers in it at all.
Tobacconists were in the register.
The Magistrates` Clerk: Was there any hotel proprietor?
Mr. Hart: I did not notice any.
Mr. Holme said that in hotels they had real counters,
where they carried on the sale of tobacco, but in an ordinary public house they
had nothing of the kind. It was for the Magistrates to say whether the Royal
Standard was selling tobacco as a trade in itself, or whether the trade was
merely casual or ancillary. The answer was obvious. There was no special trade.
They were casual sales, and not a trade under the circumstances. If they did
hold that licensed victuallers were within the scope of the Act, then the local
authorities were in a tight dilemma in making the Order without consulting
them.
Mr. Kidson submitted that Mr. Holme was wrong in his
contentions. However, if he (Mr. Kidson) was wrong, the sooner it was put right
the better for everyone concerned. It was almost impossible to get everyone
within a class of trade who was entitled to vote to do so, but they did their
best. They advertised according to the Act of Parliament, and they called
attention to the Act that if anyone whose name was not in the register thought
he should be on, he could find out by coming to the office, by making proper
application for the same, and if in the opinion of the local authority he was
entitled his name would be put on the register. They advertised in the local
papers, and were only too wishful to get everyone on the register who felt he
was entitled to be on. There was no intention to keep anyone off.
Mr. Holme suggested that another case should be heard
before his case was decided, and this case was adopted.
Charles Henry Barker was summoned for a similar offence
on the same day.
Mr. Rutley Mowll, who appeared for the defence, asked
Mr. Kidson various questions, which were replied to under protest.
The Town Clerk said Mr. Mowll`s client was not on the
register, and he did not ascertain by vote whether his client and other
licensed victuallers wished to come under the Act. They were not included when
ascertaining whether they got a majority of the shopkeepers of the class for
the purpose of the Order.
Mr. Mowll: So they were entirely excluded.
Mr. Kidson pointed out that a bill was published in
prominent parts of the town inviting those interested to see that their names
were on the register.
Mr. Mowll asked whether the licensed victuallers were
taken into consideration in arriving at whether they had a two thirds majority
in favour of applying section 4 to the tobacconists` trade.
Mr. Kidson: No, because they were not on the register,
and did not apply to be put on the register.
Mr. Summerfield, assistant in the Sanitary Inspector`s
office, stated that on the 18th February, at 6.30 p.m., he went into
the public bar of the Raglan Hotel. He asked Mr. Barker for a twopenny cigar,
and he was served with it. He saw no notice with regard to the Shops Act in the
bar.
Mr. Mowll asked witness if he treated himself to a
little refreshment at the same time.
Mr. Summerfield replied that he had nothing to drink.
There were other customers there. He did not hear anyone else ask for a cigar
while he was there. There were two others in the bar at the time. He simply
went in, bought his cigar, and walked out.
Mr. Mowll: How did you like your cigar? – I have not
tried one. (Laughter)
Mr. Mowll said he did not know whether it was necessary
whether it was necessary to call evidence with regard to the lad having a
drink, but he did not dispute the sale of the cigar. He proceeded to ask the
Bench to note how the matter worked out according to the Home Secretary`s
dictum, which, of course, was not a law. The Home Secretary agreed that a
person going to the Metropole Hotel and having lunch was entitled to have a
cigar. Strictly speaking, if the Order was properly enforced, he was not
entitled to have it at all, but it was a casual sale, and therefore the Home
Secretary said “It was a casual sale of a cigar”. If it was casual, why not in
this case? This young man came into the bar and had a drink. Should not that
sale be just as casual as the sale of a cigar in the Metropole, and therefore
outside the Act? He saw no reason why one was outside the Act and the other
within. A person who drove up to the Metropole and had his cigar after lunch
committed no offence. The poor were just as much entitled to a cigar as the rich.
The real difficulty arose because of the rather peculiar operation of those
Orders. It was a casual sale, and he argued that a meal was not necessary to
make it casual. If it was, look how absurd it would be? One man had a five
course meal, one had a one course meal of biscuit and cheese, and perhaps
another would not like the cheese, and would have a biscuit, or a glass of his
clients` famous stout (laughter), or Wincarnis, or anything else. It would be
hard indeed to apply such an Order to such a case as this. He said it was a
condition precedent to the making of this Order that the Town Council should
first be satisfied that the occupiers of two thirds of the shops of the class
approved of the Order. They excluded the licensed victuallers in arriving at a
decision. His point was this; that they could not have it both ways. If they
were one of the classes to be prosecuted, then they were one of the classes who
had the right to vote. The Corporation could not fasten them with the
responsibility and at the same time deny them the privileges of the section.
The Town Council, obviously motivated by the best motives – no-one questioned
that – had not, in fact, taken reasonable steps to be satisfied that they had a
two thirds majority, or if they had done so, then obviously they never intended
to include public houses, because they had not been given an opportunity of
having voted. If they included licensed victuallers, they had not a two thirds
majority of the trade. They had been entirely ignored. They could not ignore
people whom they held were responsible under the Act. Either they were
responsible under the Act, or they were not responsible, in which case they
were excluded and had no vote. In conclusion, he pointed out that the licensed
victuallers were conducting a trade in which they were bound to keep open; they
were under an obligation to the brewers to do so, and there was certainly no
attempt on the part of the Corporation as a local authority to stop the sale of
intoxicating liquors on the weekly half-holiday. It was almost impossible, if
they worked it out, to say that a man was to sell behind the counter beer and
whisky, lemonade and ginger beer, and could not sell at the same time a
cigarette, or, as in his case, a cigar. His (Mr. Mowll`s) suggestion was this,
and he did it on his own responsibility. That was a new Act. He could not help
thinking that the local authority, when they made this Order, were under a
misapprehension. Either they did not appreciate what the Order really was going
to mean, or did not realise that licensed victuallers should be on the register
and given an opportunity to vote. His suggestion was that instead of coming to
a decision that day in deciding to convict or otherwise, they should postpone
the matter for a short time, say three months, and give the licensed
victuallers an opportunity of approaching the Corporation and requesting that
they might be pleased to revoke the Order which they had made. He alluded to
the powers to revoke the Order, and said he thought that if the matter was put
before the Corporation in the light he had suggested they would agree to revoke
the Order, and so they would be saved the necessity of coming to a decision on
rather a difficult point of law. Then there remained the question of whether they
convicted or not. A conviction was always an objection to a licensed
victualler, and he maintained that it would be the best course to let the
licensed victuallers approach the Corporation to say whether this Order, which
was really rather absurd, could not be revoked, and thereby put an end to the
whole thing.
Mr. Kidson, in reply, said that even had the licensed
victuallers had notices sent, they would not have been entitled to vote.
Continuing, he said that if the matter was sent to the Council he raised no
objection. He would only say this, that if an adjournment were made, there
should be no sales in the meantime. There was no desire on the part of the
Corporation to be unfair to the licensed victuallers.
Mr. Holme said he would prefer that they should have a
decision that day.
After the Magistrates had returned from a lengthy
consideration of the matter, Col. Fynmore said the Bench were unanimously
satisfied that the case was proved, but inasmuch as the parties suggested a
reconsideration by the Council of the position of the licensed victuallers
under the Act, they refrained from imposing a penalty, and dismissed both cases
on payment of the costs (8s. 6d. in each case).
Mr. Holme said he begged to state a special case.
The Magistrates` Clerk pointed out that there was no
conviction.
Mr. Holme expressed the opinion that it was very
inconvenient. They would be no nearer getting an authoritative decision from
the High Court.
The summonses against Mrs. Julia Willson and Mr. Edward
Wm. James were withdrawn.
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