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the driver of one of the firm's motor carriages. The charges against the managing director are: (1) his failure to exhibit on a motor belonging to the firm the excise licence referable to it; and (2) his altering of the identification mark of another of the firm's motors. The charge against the driver is one of driving a motor belonging to the firm without having a plate back exhibiting the identification

at

mark.

contained in an Act, or part of an Act, relating HIGH
COURT
to the revenue of excise.
OF JUSTI-
CIARY.

By section 1 (1) of the Roads Act, 1920 (10
& 11 Geo. V. cap. 72), the levying of excise
duties on carriages and motors is transferred
bodily from the Commissioners of Excise and
their officers to the County Councils and their
officers. And to enable the County Councils
to perform this function it is provided by
section 1 (2) of the Roads Act that-" for the
The main point taken for the appellants is purpose of levying the duties aforesaid "—the
common to all three cases. It is that the County Councils are to have "the same powers,
Procurator-Fiscal on whose instance the com- duties, and liabilities as the Commissioners of
plaints proceed had no title to prosecute, and Customs and Excise" have with respect to
that the sole title belonged to the County (first) "duties of excise," (second)
"the issue
Council or some officer of theirs duly instructed and cancellation of licences on which duties
for the purpose.
are imposed," and (third)" other matters under
The way in which the point arises is this. the Acts relating to duties of excise and
The excise duties for carriage licences-excise licences." "All enactments," it is
whether the carriage be horse- or mule-drawn, declared, "relating to those duties, and to
or whether it be propelled by mechanical punishments and penalties in connection there-
power-were regulated by section 4 of the with, shall apply accordingly." It follows that
Customs and Inland Revenue Act, 1888 (51 the title to recover any penalty, of which it
Vict. cap. 8), until, by section 86 (1) of the can be predicated that it is contained in an
Finance (1909-10) Act, 1910 (10 Edw. VII. Act relating to the revenue of excise, which
cap. 8), the duties for the latter class of vehicles was formerly vested in the Commissioners of
were revised. These duties were again revised Excise, is now vested in the County Councils.
by section 13 of the Finance Act, 1920 (10 & Giving the appellants the benefit of the assump-
11 Geo. V. cap. 18), in accordance with the tion I have already made in their favour, the
schedule to that Act. So far, all these excise exclusive title to recover the penalties to which
duties not only continued to form a part of the present cases relate must therefore be held
the revenue of excise, but they were collected to be vested in the County Councils, if those
as such under and in terms of the Acts relating penalties are penalties contained in an Act, or
to that revenue-that is to say, by officers of part of an Act, relating to the revenue of excise.
excise acting on the orders of the Commissioners
of Customs and Excise and using the forms
and ways of proceeding provided and directed
by the Excise Acts. Those Acts contain a
number of penalties and forfeitures for the
protection of the revenue, and for the enforce-
ment of excise duties; and proceedings for the
recovery of these by the officers of excise may
be ordered by the Commissioners. None of
the provisions of the Acts relating to the revenue
of excise, dealing with these matters, were
cited to us from either side of the bar. But I
shall assume in favour of the appellants (first)
that the effect of those Acts-and particularly
of such enactments as that contained in section
21 of the Inland Revenue Regulation Act, 1890
(53 & 54 Vict. cap. 21)-is that the exclusive
title to recover duties, penalties, and forfeitures,
contained in Acts relating to the revenue of
excise, or in such parts of any Act of Parliament
as relate to that revenue, is, in the general case,
vested in the Commissioners and their officers;
and (second) that no exception to this general
rule is provided in any of those enactments
which would apply to the present cases-if,
that is to say, those cases, or any of them, should
be found to relate to penalties or forfeitures

The difficulty is to determine whether the penalties in question are penalties so contained. The penalty in the first case is provided by section 12 (4) of the Roads Act, 1920, and turns on Article 4 of the Road Vehicles (Registration and Licensing) Regulations, dated 9th March 1921, issued by the Minister of Transport under the powers given him by section 12 (1) (h) of the Roads Act, with reference to the matter referred to in section 5 (5) of that Act. The fine in the second case is provided by section 13 (4) of the Roads Act. The penalty in the third case is provided by section 6 (2) of the said Act, and turns on section 6 (1) thereof, and on article 22 of the foresaid Road Vehicles (Registration and Licensing) Regulations made by the Minister of Transport under section 12 (1) (h) of the Act. It is true that in the first case the complaint also refers to section 13 of the Finance Act, 1920, but this is only because the excise licence taken out by the accused is, as it were, the foundation of his obligation to exhibit it on the motor to which it refers. A perusal of the title of the Roads Act shews that the Act is a hybrid, dealing in part with the revenue of excise, and in part with the regulation of road traffic. It contains a number

M'Millan v. Grant. Rippie v.

Grant.

November 28,

1923.

HIGH

OF JUSTI-
CIARY.

v. Grant.

Grant.

1923.

66

of penalties and forfeitures, and in section 13 not favoured with any reference to those Acts, COURT (5) all of these without distinction are directed and I cannot pretend to any acquaintance with to be paid into the Exchequer. The words them in detail. The expression is used in the are: all penalties and forfeitures recovered rubric of section 70 of the Excise Act, 1827 (7 & 8 M'Millan under or in pursuance of this Act, whether by a Geo. IV. cap. 53), to mean penalties imposed county council or by any other person, shall be by the Acts relating to the revenue of excise. Rippie v. paid into the Exchequer in such manner and in Apart from this use of it, such is the meaning accordance with such directions as may be which the expression naturally bears. I rather November 28, contained in any Order in Council made under think that, though the phrase may have no this Act." We were supplied with copies of actual statutory sanction, it is not infrequently an Order, dated 7th February 1921, made in used in this sense. The penalties contained in pursuance of this section, which deals only with sections 8 (3), 11 (2), and 13 (1) of the Roads sums recovered by County Councils. The Act are very similar to those which are appellants contended that this section means characteristic of the Excise Acts, and which that only County Councils have a title to are regularly enforced by the Commissioners recover any of the fines, penalties, and forfeitures of Excise. They are in each case described as contained in the Roads Act. The section" excise penalties." excise penalties." But those contained in certainly does not say so; and, while I am very sensible of the difficulties which the construction of the statute presents, it seems improbable that the intention was to give a County Council in Scotland, and its officers, the sole title to prosecute offences which are in the nature of road offences, and such as are ordinarily cognisable by the police under whose observation the commission of them naturally comes -the offence charged in the third of the bills of suspension, for instance. There is, no doubt, a certain connection between the system of excise licences and the requirements of exhibiting the licence on the licensed vehicle and of shewing the registration mark, unaltered and unobscured, at the back of it. But the observance of these requirements is not a necessary incident of the levying of the excise duties, and it will be remembered that the levying of the duties is the purpose for which the functions of the Commissioners of Excise are transferred to County Councils. It is fair, however, to point out that, in the Excise Act of 1825 (6 Geo. IV. cap. 81), section 25, there was a requirement that traders in licensed premises should exhibit their names thereon, with the word "licensed " added, and that a forfeiture was attached to failure in compliance with it. This requirement presents a certain analogy to that of exhibiting the excise licence itself on a licensed motor car; and I do not doubt that the forfeiture under the Act of 1825 was one recoverable by the Commissioners of Excise, or by an officer of theirs duly instructed, for it was contained in an Act relating to the revenue of excise and to nothing else.

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sections 6 (2), 12 (4), 13 (2), and 13 (4) are
described as "penalties on summary conviction."
Of these the first two are mainly concerned
with offences connected with identification
marks and registration; while the other two
relate to falsehood, forgery, and fraud in
connection with applications for licences, or
the use of licences identification marks and
registration. Some of these offences are closely
related to the Department of Excise; but
they are all highly appropriate for prosecution
by the Procurator-Fiscal in the ordinary way. I
can imagine no reason for thus separately
labelling the penalties contained in the Roads
Act, unless it was to distinguish by the name
"excise penalties "those which were to be
regarded as properly belonging to the Depart-
ment of Excise, and therefore recoverable by
the County Council and its officers, from those
which were left to be the subject of prosecution
by the Procurator-Fiscal as ordinary statutory
offences. If I am right in this, then it follows
that the instance of the Procurator-Fiscal is
good in all three complaints, because the offence
libelled in each of them is contained in a section
which describes the penalty, not as an
"" excise
penalty
but as a penalty on summary
conviction."

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Another point was made with regard to the first and third of the bills of suspension. It was that the two offences charged, against the licensee in the first bill, and against the driver in the other, were really one, having been committed on the same day, and at the same place, and with reference to the same motor carriage. The answer is that the offences are distinct-in respect of the licensee's failure to exhibit the licence in the manner prescribed by regulation under section 12 (1) ̊(h), with reference to section 5 (5), in the first bill-and in respect of the driver's failure to have the registration mark properly exhibited under section 6 (2) and the relative regulation made under section 12 (1) (h), in the second bill.

E

A separate point was taken with reference to the second of the three bills, namely, that no specification of locus even of the widest kind is given in the complaint. The charge is against the managing director of a firm (whose address is given), as the person who was in charge of the firm's business at the date of the offence, and the offence is stated as having been committed "between Saturday, 31st March, and Monday, 2nd April"; but, so far as the statement in the complaint is concerned, the alleged alteration of the identification mark may have been made at any place to which the motor carriage could have gone between these dates. Specification of locus is essential not merely for the reasons given in Hume (Vol. II. p. 209), but because the jurisdiction of the Court before which the complaint is brought depends upon it. It might have been enough, if the place of the offence was unknown to the prosecutor, to avail himself of the latitude of the Sheriffdom. It was suggested that as Rothesay is in Bute, and as Bute is an island, it was unnecessary to give any further specification of locus than is implied in the address of the managing director's firm. But so important a matter as the locus delicti cannot be left to inference in that way; and in any case we cannot know anything of the possibilities of transit to the mainland. I think the entire absence of any specification of locus, such at least as to determine the jurisdiction of the Sheriff, amounts to a case of incompetency within the meaning of section 75 of the Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII. cap. 65), and that however little the accused may have been actually misled or prejudiced-the conviction which followed on a complaint so deficient as this is ought to be quashed.

If your Lordships agree in the conclusions which I have reached, the first and third of the three bills will fall to be refused; but, in the second, the bill should be sustained and the sentence suspended.

Lord Cullen.-I concur.

Lord Sands.-The only ground of suspension stated in the first case which appears to me to merit serious consideration is the contention that the Procurator-Fiscal had no title as such to prosecute.

As was pointed out by Lord Justice-Clerk Macdonald in the case of Cameron v. MacNiven (1894, 21 R. (J.) 31), the Sheriff Court has a common law jurisdiction to try a charge of an alleged statutory offence. This proposition involves no paradox. The Sheriff Court is the King's Court in the Sheriffdom, and the King's Court has jurisdiction at common law to take cognisance of any offence against the King's

HIGH

COURT

OF JUSTICIARY.

peace within the Sheriffdom, unless its jurisdiction to do so is expressly excluded by statute. An offence against a statutory enactment is an offence against the King's peace, and accordingly the Sheriff Court has, at common law, M'Millan jurisdiction to take cognisance of it. This V. Grant. consideration, as it appears to me, involves that Rippie v. the Procurator-Fiscal, as the representative of the Crown in the Sheriff Court, may prosecute November 28 any offence cognisable by that Court, unless his title to do so has, either expressly or by necessary implication, been withdrawn by statute.

The question accordingly arises whether, under the provisions of the Roads Act, 1920 (10 & 11 Geo. V. cap. 72), title to prosecute in the Sheriff Court for contravention of that Act is withdrawn from the Procurator-Fiscal.

The complainer relies upon the provisions of section 13 (5): "All penalties and forfeitures recovered under or in pursuance of the Act by a county council or by any other person shall be paid into Exchequer."

This subsection recognises that penalties may be recovered by the County Council. But the suggestion that the privative character of the right of the County Council to prosecute for penalties under the Act is necessarily implied appears to me to be unstateable. The implication is to the very contrary.

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The complainer, however, appeals to section 1 (2) of the Act: every county council and their officers shall, as from 1st January 1921, have within their county for the purpose of levying the duties aforesaid the same powers, duties, and liabilities as the Commissioners of Customs and Excise and their officers have with respect to duties of excise, and to the issue and cancellation of licences on which duties of excise are imposed, and other matters under the Acts relating to duties of excise and excise licences, and all enactments relating to those duties and to punishments and penalties in connection therewith shall apply accordingly."

The complainer contends that the effect of this provision is to vest in the County Council the sole right to prosecute for punishments and penalties under the Act, and that accordingly the instance of the Procurator-Fiscal is by plain implication excluded. I am unable to accept this view. The provision, as it appears to me, places the County Council as regards prosecution in the place of the Revenue Authorities whose right of prosecution is limited to revenue cases. Under the Roads Act with which we are dealing offences are created which have no relation to the collection of revenue and I am unable to entertain the suggestion that an exclusive title to prosecute for such offences has been conferred upon the County Council qua revenue collectors.

Grant.

1928.

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HIGH

OF JUSTI

CIARY.

I shall assume, however, that the effect of COURT this provision is to confer upon the County Council a privative right to prosecute for the recovery of penalties or additional duties in respect of failure in payment of the duties prescribed. I say I assume it, because affirmance of it would involve an examination of different revenue statutes to which our

M'Millan v. Grant.

Rippie v. Grant.

November 28, attention was not directed in argument. But this assumption being made, the question arises, whether the penalty here said to have been incurred was a penalty for failure to pay a duty imposed by the statute.

I am of opinion that it was not. So far as appears in the present case the duty had been duly paid. The offence was failure to exhibit in a conspicuous place on the car, in the manner prescribed by statute and regulation, the revenue licence issued for the car. I recognise that one of the objects of this requirement may have been to facilitate the collection of the duty. But the Legislature may have had other objects in view. I am unable to regard the penalty incurred as a penalty or additional duty for failure in payment of a duty imposed by statute, and, in my view, any privative right the County Council may have to prosecute qua revenue collector does not extend to such a contravention. Accordingly, I reach the result that the instance of the Procurator-Fiscal as such is not excluded and was here sufficient. In regard to the two other cases I agree with your Lordship in the chair.

Counsel for Complainers, Maclaren, K.C., Garson; Agents, Balfour & Manson, S.S.C.Counsel for Respondent, Fenton, K.C., A.-D., Kinross, A.-D.; Agent, John Prosser, W.S., Crown Agent.

M. G. F.

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Justiciary cases-Statutory offence-Sale of Food and Drugs Act, 1875 (38 & 39 Vict. cap. 63), section 6-Sale of Food and Drugs Act Amendment Act, 1879 (42 & 48 Vict. cap. 30), section 2-Article of food exposed for sale in a shop window and ticketed" butter mixture "-Demand by customer for "1 lb. of that butter in the window"-Customer having read the ticket describing the article as above, and having knowledge of the terms of the ticketHeld (diss. The Lord Justice-General) that the article sold to the customer, being de facto margarine, "not of the nature, substance, and quality of butter, "the article demanded," and that the

was

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description of the article on the ticket as butter mixture was not sufficient to convey to a customer of ordinary intelligence that the commodity was not butter.

Stated Case.

John M'Kay, grocer, 40 North Street, Dalry, a partner of the firm of J. & J. M'Kay, grocers, there, was charged in the Sheriff Court of Ayrshire at Kilmarnock on a complaint at the instance of William James Robertson, Procurator-Fiscal, Kilmarnock. The complaint set forth :

You are charged at the instance of the complainer that (1) on 8th May 1923, in your shop at 40 North Street, Dalry, aforesaid, by the hands of Elizabeth M'Kay, your wife, employed by you, you did in response to a demand by him for 1 lb. of butter sell to David Andrew, sanitary inspector for the Northern the Local Authority of the said county appointed District of the County of Ayr, Beith, an inspector of under the Sale of Food and Drugs Acts, 1875 to 1907, 1 lb. of margarine, contrary to the said Sale of Food and Drugs Acts, and particularly the Sale of Food and Drugs Act, 1875, section 6, as amended by the Sale of Food and Drugs Act Amendment Act, 1879, section 2, whereby you are liable to a penalty not exceeding £20, and in default of payment thereof to imprisonment in terms of section 48 of the Summary Jurisdiction (Scotland) Act, 1908. A certificate Biggart, 29 Cathcart Street, Greenock, public of analysis, dated 24th May 1923, by John William analyst for the county of Ayr, is attached hereto, and a copy thereof will be served upon you along with a copy of this complaint; and (2) time and place above libelled, by the hands of the said Elizabeth M'Kay employed by you, you did sell by retail to the said David Andrew, an inspector as aforesaid, 1 lb. weight of margarine and deliver the same to him in a word "Margarine" in capital block letters not less paper wrapper on which there was not printed the than half-an-inch long and distinctly legible, contrary to the Margarine Act, 1887, section 6, as amended by the Sale of Food and Drugs Act, 1899, section 6, whereby you are liable to a fine not exceeding £20, and in default of payment to imprisonment in terms of the Summary Jurisdiction (Scotland) Act, 1908, section 48.

The Sheriff-Substitute (W. J. Robertson) found the respondent not guilty.

The appellant obtained a stated case for the opinion of the High Court of Justiciary. The stated case set forth, inter alia:

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Evidence was led, and the following facts were admitted or proved: (1) That the respondent, in partnership with his brother James M'Kay, carries on at the aforesaid address in Dalry the business of grocer under the firm name of J. & J. M'Kay, grocers, Dalry," and that the said Elizabeth M'Kay, wife of the respondent, is employed by him in the said shop; (2) that on the said date certain butter mixture was exposed for sale in the window of the said. shop, and ticketed "Butter Mixture, Is. 2d. per lb."; (3) that on the date libelled the said David Andrew,

food and drugs inspector, in the course of his duty, accompanied by James Russell Clarkston, assistant inspector, entered the respondent's shop where the said Elizabeth M'Kay was in attendance at the counter, and the respondent was present; (4) that the inspector on entering the respondent's shop pointed to the aforesaid butter mixture exposed in the window, and said to the respondent's wife: "I want 1 lb. of that butter in the window"; (5) that the respondent's wife turned to the shelves behind her for the purpose of supplying to the said David Andrew a made-up 1 lb. packet of the aforesaid “butter mixture." For the convenience of serving customers there was already made up and on the shelves numerous packets in wrappers of the said butter mixture weighing 1 lb. and lb. respectively; (6) that the inspector refused to accept the made-up packet tendered, and, pointing again to the portion exposed as aforesaid in the window, repeated his request, "I want 1 lb. of that butter in the window" "; (7) that the said Elizabeth M‘Kay thereupon divided a portion of butter mixture from the quantity of butter mixture exposed in the window designated and indicated by the inspector, this she put on a sheet of grease paper and took it to the scales at the back of the shop for the purpose of weighing an exact pound, while the inspector, desirous of seeing that nothing else was substituted, accompanied her to the scales and supervised the weighing; (8) that after weighing out 1 lb. of the said butter mixture, the said Elizabeth M'Kay returned to the counter near the window, accompanied by the inspector, for the purpose of moulding the same on the greased paper, folding it up therein, and enclosing it in a wrapper for delivery to the inspector. The latter, however, before she wrapped up or delivered the butter mixture, informed her that he was an inspector under the Food and Drugs Act, and took possession of the 1 lb. of butter mixture; (9) that the inspector took possession of the butter mixture upon the sheet of greased paper only, and paid 1s. 2d. as the price thereof, which is the price not of butter but of margarine. He then divided the butter mixture into three portions and enclosed and labelled it in the glass receptacles for analysis. At the same time he asked for butter and got two parcels of lb. each, priced ls. 8d. per lb. and 2s. 2d. per lb. respectively. These parcels were genuine butter; (10) that the butter mixture purchased as above set forth was sent to the public analyst for the county of Ayr and duly analysed by him, the result of his analysis being as follows:

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He reported further as follows: The figures of the above analysis shew that this sample is normal in the amount of water which it contains. The Wollny No. and the other tests we have made shew that this is a margarine containing less than 10 per cent. of butter fat"; (11) that the butter mixture exposed for sale by the respondent as above set forth was superior margarine in respect that it was margarine with a certain percentage of butter mixed therewith; (12) that the respondent had no wrappers in his shop on which there was printed the word “ Margarine."

On the facts above admitted or proved I held that the first charge was not proved, and acquitted the

CIARY.

respondent thereof, in respect that (1) the inspector HIGH asked for and indicated a particular article, and got COURT what he demanded; and (2) that any misdescription or JUSTIwas the misdescription of the buyer and not of the seller. I further, on the facts above admitted or Robertson proved, held the second charge not proved, and v. M‘Kay. acquitted the respondent thereof, on the ground December 15, that (1) the butter mixture purchased was not 1923. delivered to the purchaser in any wrapper; and (2) that the fact that the respondent had no wrappers in his shop for the delivery of margarine conform to statute was irrelevant to the charge as libelled.

The Questions of Law for the opinion of the Court were:

"(1) Was I entitled on the foregoing facts to find the respondent not guilty of the first charge libelled?

"(2) Was I entitled on the foregoing facts to find the respondent not guilty of the second charge libelled?"

The Sale of Food and Drugs Act, 1875 (38 & 39 Vict. cap. 63), enacts:

Section 6. No person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser, under a penalty not exceeding £20.

Section 8. Provided that no person shall be guilty of any such offence as aforesaid in respect of the sale of an article of food or a drug mixed with any matter or ingredient not injurious to health, and not intended fraudulently to increase its bulk, weight, or measure, or conceal its inferior quality, if at the time of delivering such article or drug he shall supply to the person receiving the same a notice, by a label distinctly and legibly written or printed on or with the article or drug, to the effect that the same is mixed.

The Sale of Food and Drugs Act Amendment Act, 1879 (42 & 43 Vict. cap. 30), enacts:

Section 2. In any prosecution under the provisions of the principal Act for selling to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser, it shall be no defence to any such prosecution to allege that the purchaser, having bought only for analysis, was not prejudiced by such sale. Neither shall it be a good defence to prove that the article of food or drug in question, though defective in nature or in substance or in quality, was not defective in all three respects.

The case was heard before the High Court of Justiciary on 29th November 1923, when the appellant did not insist in his appeal on the second charge in the complaint.

Argued for the Appellant: The article sold could not legally be described as butter (the Margarine Act, 1887 (50 & 51 Vict. cap. 29), section 6; the Butter and Margarine Act, 1907 (7 Edw. VII. cap. 21), section 8). The words butter mixture" suggested a mixture

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