71. [(1) Offences (7) against sub-section 1 of section Penalties 54 (s) of this Act shall be punishable (†) on summary conviction as follows (u) :

for contravention of sec. 54 (1).

whether the different warrants of commitment are issued in default of payment of a penalty or of distress for same, or in carrying out the penalty for a second or subsequent offence under this section or otherwise, the terms of imprisonment are to follow each other and are not to be contemporaneous.

For warrant of commitment see Sch. J.

(r) Offences." See note (x) to sec. 68.

(s) Sub-sec. 1 of sec. 54 prohibits the sale or disposal of intoxicating liquors, in places where such liquors are or may be sold, during the hours between seven o'clock on Saturday night and six o'clock on Monday morning, or during the time such places are to be closed under any Statute in force in the Province, or by any by-law of the Municipality, and also prohibits the drinking of liquors on any such premises during such time. See notes to that section.

(t) "Shall be punishable." See notes to sec. 70.

(u) Whenever it is stated that an offender is liable, " on summary conviction," to any punishment, the meaning is that he is so liable on summary conviction before one or any greater number of Justices of the Peace, or before any person having the authority of two or more Justices of the Peace: R. S. C., c. 174, s. 2 (b): c. 178, s. 5. Hatton's case, 2 Salk. 477; Dalt., c. 6, s. 8; R. v. Weale, 5 C. & P., 135; cited in Burbidge's Dig., 1. According to this definition offences against sub-sec. 1 of sec. 54, may therefore be tried before one or any greater number of Justices of the Peace, or before any Stipendiary, or Police Magistrate, within the limits of their jurisdiction. But by sec. 96, all prosecutions for the punishment of any offence against the provisions of sec. 54, &c., may take place before any two or more Justices of the Poace having jurisdiction in the county or district in which the offence is committed. See notes to sec. 96. The offences punishable under sub-section 1 of section 71, apply only to places where liquors are or may be sold by wholesale or retail.

The punishment for the first offence is a fine of not less than $20 and not more than $40, besides costs, and the Justices shall order that the same and any sums also awarded for costs may be recoverable by distress and sale of the goods and chattels of the defendant, and that in default of sufficient distress the offender may be imprisoned in the County gaol of the County in which the conviction is made for a period not exceeding fifteen days. See sub-sec. 2 of this sec. See also notes to sec. 70.

For a second offence the penalty is a fine of not less than $40 nor more than $80, besides costs, or in the alternative twenty days imprisonment.

A conviction imposing both fine and imprisonment would be bad. It will be noted, however, that when imprisonment is awarded, it is to be imprisonment with hard labor. Magistrates have no discretion in this matter as in the case of a conviction under sec. 70. The Magistrate shall also adjudge that the penalty and costs may be recoverable by distress, etc., as in the case of a first offence, and that in default of sufficient distress the offender be imprisoned for twenty days. See sub-sec. 2. See also notes to sec. 70.

In the case of a second offence in was held that a conviction imposing a fine of $40, and in default of sufficient distress, imprisonment for ten days at hard labor, was bad: R. v. Black, 43 U. C. R., 180; and it would still be bad as the penalty imposed was not authorized. See notes to sec. 70.

For the third offence the penalty is not less than $80 and not more than $100, besides costs, or fifty days imprisonment with hard labor. As in the case of a conviction for a second offence, the Magistrates cannot award two penalties

First offence.

Second offence.

Third offence.

(a) For the first offence, by the imposition of a penalty of not less than $20, and not more than $40, besides costs.

(b) For the second offence by the imposition of a penalty of not less than $40 and not move than $80, besides costs, or twenty days' imprisonment with hard labor.

(c) For the third offence by the imposition of a penalty of not less than $80 and not more than $100 besides costs, or fifty days' imprisonment with hard labor (v), and such conviction for a third offence shall in addition to any other punishment by law provided, ipso facto (w), operate as a forfeiture (x) of the license held by the person so convicted (y), and disqualify (2) him from obtaining a license for two years thereafter (a).

under this clause. They may adjudge that the defendant pay the pecuniary penalty, which must not exceed $100, or they may adjudge that be be imprisoned for fifty days with hard labor, but they have no power to order the infliction of both penalties. But if the pecuniary penalty is awarded, then they shall also adjudge, as in the case of a first and second offence, that the same and any sums also awarded for costs may be recoverable by distress, etc. See sub-sec. 2.

See also notes to sec. 70.

And in addition to any other punishment, the conviction for a third offence, of itself, and without any further adjudication or proceeding being taken, works (1) a forfeiture of the license by the person convicted, and (2) his disqualification for holding or obtaining a license for two years.

Convictions imposing increased penalties for second and third offences are bad, unless proceedings have been taken for the first offence: R. v. Rodwell, 5 O. R., 186. See also sec. 101, ss. 4.

(v) As to imprisonment and the infliction of "hard labor " as a penalty. See note (o) to sec. 70.

As to conviction, see note (j) to sec. 70.

(w) "Ipso facto means 'by the very act itself "-originally a censure of excommunication in the Ecclesiastical Court, immediately incurred for divers offences after lawful trial: see Wharton, 389.

(x) "Forfeiture." See note (o) to sec. 11, p. 23 and note (m) sec. 37, p. 80. (y) "License held by the person so convicted," applies to any license over which the Legislature has control. It could not apply to licenses issued by the Dominion Government. See notes on pages 1 and 15, note (tt) p. 72 and notes to sec 51.

(2) "Disqualify." See notes to secs. 68 and 69. .

(a) Two years thereafter, means two years from the date of conviction. See note (g) p. 14 and note (r) p. 24.

1

In the section as originally enacted, it was provided that in case of conviction, the penalty "shall be recoverable from and leviable against the goods and chattels of the person or persons who are the proprietors in occupancy, or tenants or agents in occupancy of the said place or places, who shall be found by himself, herself, or themselves, or his, her, or their servants or agents, to have contravened the enactment in the preceding section," &c, and it was held that the clause aimed wholly against licensed places and that the proprietors, tenants and agents in occupancy were the persons to be proceeded against. That the proprietor, merely as such, was not liable. He should be also the proprietor in occupancy. The license to sell is granted to the person in occupancy and not to the mere owner of the property. The occupant who is licensed is amenable to certain penalties for acts done, or omitted to be done, on the premises in the conduct of the business. The owner of the house or land has no such liabilities merely from his being such owner. Therefore, where it was stated in a conviction," that one G. P. of, &c., Innkeeper, after the hour of seven in the evening and before the hour of twelve of the night of Saturday," &c., "in and at his tavern at, &c., being a place where intoxicating liquors are allowed to be sold by retail, did unlawfully sell and otherwise dispose of, and permit and allow to be drunk, &c., one glassful of beer," &c., it was held that the conviction was bad, as not necessarily bringing the defendant within the class of persons against whom this section was aimed, for the word Innkeeper" only amounts to a mere description and not to an averment of his filling such a character; and the words "in and at his tavern," would not necessarily mean the proprietor in occupancy, &c., to whom the license is granted, and who alone is liable, but would also include the owner or proprietor, even if he were not the occupant: R. v. Parlee, 23 C. P., 359. But the section as amended, and as it now stands, simply provides that "offences against subsection 1 of sec. 54, shall be punishable on summary conviction, as follows:" In other words, sub-section 1 of sec. 54 describes the offence, and sub-section 1 of this section merely prescribes the penalty.

་་

See notes to secs. 49, 54 and 70, and see especially remarks in notes to sec. 73 as to the liability of master, servant, and manager.

An information stating that defendant, "a licensed hotel-keeper in the town of P., did, on Sunday, the 2nd July, 1876, at the hotel occupied by him in the said town, dispose of intoxicating liquor to a person who had not a certificate therefor," etc., and the conviction thereunder stated that the defendant was convicted" upon the information and complaint of J. R., the above-named complainant, and another, before the undersigned," etc., "for that the defendant," etc., in the words of the information. Held that the person to whom the liquor was sold should have been named and described, but as such an objection, under 32, 33 Vic., c. 29, sec. 32, D. (now R. S. C., c. 174, s. 143), which applies to informations, was only tenable on motion to quash the information when before the Magistrate. Quære, whether 32, 33 Vic., c. 31, sec. 5, D. (now R. S. C., c. 178, s. 28, ss. 1), which enacts that no objection to any information for any defect in substance or form therein shall be allowed, would not be a sufficient answer to the objection. Held also that it sufficiently appeared that the hotel was a licensed hotel at which liquor was allowed to be sold; that a sale "at" the hotel was equivalent to a sale" therein, or on the premises thereof; " and that it sufficiently appeared that the defendant was the proprietor in occupancy, or tenant or agent in occupancy." Held also that the words "and another" could be treated as surplusage, it appearing that J. R. was the only complainant: R. v. Cavanagh, 27 C. P., 537.

Where in a conviction it was not shown that defendant had a license or that the place where the liquor was sold was one where intoxicating liquors were or might be sold by wholesale or retail, it was held the conviction was bad: R. v. Rodwell, 5 O. R., 186; see also sec. 101, ss. 4.

Recovery of penalties by distress.

Penalty for contravention of sec. 58, 88. 1.

(2) Where in any such conviction (6) a penalty in money (c) is imposed under the preceding sub-section, the Justices shall order or adjudge that the same (d) and any sums also awarded for costs may be recoverable by distress and sale of the goods and chattels of the defendant, and that in default of sufficient distress, the offender be imprisoned in the county gaol of the county in which the conviction is made, for a period not exceeding fifteen days in the case of a first offence, twenty days in the case of a second offence, and fifty days in the case of a third offence, in each such case with hard labor, unless in each such case the penalty and costs by the conviction adjudged to be paid, and all costs and charges of the distress and also the costs and charges of the commitment and conveying of the defendant to prison, (the amount thereof being ascertained and stated in the warrant of commitment) are sooner paid (e).

(3) Every person convicted of an offence against subsection 1 of section 58 of this Act shall be liable to a penalty for each offence of not more than $10 and not less than $2, besides costs (f). 53 V. c. 56, s. 6.]

(b) This sub-sec. applies only to convictions for offences against the provisions of sub-sec. 1 of sec. 54. See that clause in the Act and the notes thereto, also note (e) infra.

6.

(c) A penalty in money." For a first offence the penalty is a pecuniary one, but subsequent offences are punishable either by fine or imprisonment. See note (e) to sec. 30, note (n) sec. 46 and note (u) supra.

(e) This sub-section was evidently introduced in consequence of the decisions in R. v. Menary, 19 O. R.. 691, and other cases cited in notes to sec. 70, maintaining the inability of the Justices to adjudge that the fine and costs be recoverable by distress, etc., or that the imprisonment be dependent upon payment of the fine, etc., and it completely alters the law respecting these questions. Now, in case a money penalty is imposed for a violation of sub-sec. 1 of sec. 54, the Justice is not only empowered, but he is required to order or adjudge that such money penalty and any sums awarded for costs, may be recoverable by distress, etc., and in default of sufficient distress, that the defendant be imprisoned for a period not exceeding fifteen days for a first offence, twenty days for a second offence, and fifty days for a third offence, in each case with hard labor, and that the imprisonment is to be dependent upon payment of the penalty and costs awarded by the conviction with all costs and charges of the distress and the costs of the commitment and conveying of the defendant to prison, all of which were declared by the Courts to be beyond the jurisdiction of the convicting Justices, previous to the amendment of the section.

It must be noted, however, that this sub-section does not apply to secs. 49 and 70. It is only applicable to secs. 71 and 54, ss. 1.

(f) See notes to sec. 58, ss. 1.

Besides costs. See note (k) to sec. 70.

Penalty

72. Every tavern keeper (g) failing or refusing (h), Profuseither personally or through any one acting on his behalf, ing lodging, etc. except for some valid reason (i), to supply lodging (j),

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(g) "Every tavern keeper." At common law a common inn-keeper is one who makes it his business to entertain travellers and passengers and provide lodgings and necessaries for them, their horses and attendants: Add. on Con., 298. By the Statute, R. S. O., c. 154, s. 1, an “inn" is made to include an hotel, inn, tavern, public house, or other place of refreshments, the keeper of which is now by law responsible for the goods and property of his guests, and an "inn keeper is defined as the keeper of any such place. "Tavern" includes 66 hotel: "" City of St. Louis v. Siegrist, 46 Mo., 594, cited Browne on the Interpretation of Words, etc., 450. Tavern," hotel," and public house are, in this country, used synonymously, and while they entertain the travelling public, and keep guests, and receive compensation therefor, they do not lose their character, though they may or may not have the privilege of selling liquors. The distinction, as respects inn and tavern-keepers, observed in England under the common law, does not exist with us, and different names are applied to them, though "hotel" and "house are usually and commonly used to denote a higher order of public house than the ordinary tavern or inn. The Legislature, in making use of the word "tavern,' undoubtedly and manifestly intended to apply it to the whole class, and make it comprehend all hotels and houses that entertain and accommodate the public for compensation: per Wagner, J., in St. Louis v. Siegrist, supra. See notes to sec. 2, ss. 2, and note (a), p. 19. As to meaning of "every," see note (t) to sec. 58, p. 135.

(h) "Failing or refusing." The term "failing or refusing" is, it is thought, synonymous with "neglecting or refusing." Failure implies the state or condition of being wanting; a falling short; deficiency or lack; defect; want; absence; default; defeat: Anderson's Dict., 445. A tavern is required by sec. 28 to be a well appointed and sufficient eating-house with the appliances requisite for daily serving meals to travellers, and these requirements are applicable to all taverns or houses of entertainment without any exception whatever. It is quite clear, therefore, that it is intended, that the simple omission to comply with the requirements of the Statute in this respect should be an offence. The phrase used in relation to the same offence at common law is "neglects or refuses."

The inn-keeper is liable also, if such omission or refusal is his own or his agent's. See notes to sec. 73.

(i) "Except for some valid reason." The only reasons which would relieve a tavern-keeper of his liability are set forth in the judgment of Coleridge, J., in R. v. Ivens, 7 C. & P., 219, in which it was stated that "an indictment lies against an inn-keeper who refuses to receive a guest, he having at the time room in his house, and either the price of the guest's entertainment being tendered to him or such circumstances occurring as will dispense with that tender. "He has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received." But, "if a person came to an inn drunk, or behaved in an indecent or improper manner, I am of opinion that the innkeeper is not bound to receive him." Coming to the inn at a late hour of the night was held to be no excuse, nor was the refusal of the guest to disclose his name and abode. Neither was the fact that the guest was travelling on Sunday sufficient excuse, and the use of the expression "and be damned to you" by the guest, was no sufficient reason for keeping a man out of his bed who had been travelling till midnight (see also Fell v. Knight, 8 M. & W., 276), nor can the inn-keeper discharge himself of the duty imposed on him by the common law by express notice to his guest: Morgan v. Ravey, 6 H. & N., 265; nor