CIARY. 1923. 66 HIGH of different kinds of butter. In England the COURT description "coffee mixture" had been held OF JUSTI to constitute an offence (Star Tea Co. Ltd. v. Neale, (1909) 73 J.P. 511). The only possible Robertson defence was that the sale was not to the v. M'Kay. prejudice of the purchaser," because he had December 15, sufficient intimation of the nature of the article which he was buying. Where a standard for food was laid down by statute the notice exhibited must shew that the purchaser volenter et scienter got something other than the standard food (Soutar v. Lean, 1903, 4 Adam 280; Wilson & M'Phee v. Wilson, 1903, 4 Adam 310; Pearks Gunston & Tee Ltd. v. Houghton, [1902] 1 K.B. 889; Pearks Gunston & Tee Ltd. v. Ward, [1902] 2 K.B. 1; Higgins v. Hall, (1886) 51 J.P. 293; Frew v. Gunning, 1901, 3 Adam 339; Brander v. Kinnear, 1923 J.C. 42; Sandys v. Small, (1878) 3 Q.B.D. 449). Argued for the Respondent: There was no sale because there had been no delivery; and, therefore, no offence had been committed. But, even if a sale had taken place, there was no offence because the customer had got what he asked for and had suffered no prejudice. At the conclusion of the debate the Court remitted to the Sheriff-Substitute to state whether it was proved that at the time when the demand was made for "1 lb. of that butter in the window " the inspector demanding it saw or had knowledge of the terms of the ticket describing the article as "Butter Mixture, 1s. 2d. per lb." ingly be added to those narrated as held proved in the stated case. 66 66 The exposure of the article in question in the respondent's shop was equivalent to an offer of the sale of it to any customer frequenting the shop. What was so offered was unmistakably described by a ticket with the words butter mixture upon it. In my opinion no ordinarily intelligent customer would understand an offer of butter mixture to mean the same thing as an offer of "butter." It was, in terms, an offer of a mixture, that is to say of a compound, not of any single article, nor (to use the words of the Act) of an article of any single "nature, substance, and quality." Nor, in my opinion, would any ordinarily intelligent customer conceive the idea that by "butter mixture" it was meant to describe a blend of genuine butters of various brands or qualities. I think an ordinarily intelligent customer would, however, have been entitled to infer-he would, I think, have understood— that butter was an ingredient of the compound offered him as butter mixture.” I am perhaps myself too sophisticated to make a good specimen of the ordinarily intelligent customer, but butter mixture would mean to me just a mixture in which butter was mixed with something else: and that is precisely what the article in fact was a mixture of genuine butter and other fats. If the ordinarily intelligent customer had enlarged his mind by a study of the Margarine Acts, he would have known that the respondent was probably committing an offence under that Act by selling a compound which resembled butter in appearance-and which anyhow consisted of a mixture of butter with something else otherwise than as margarine. But the respondent is not charged with any offence under the Margarine Acts: he is charged with the sale of "butter which was not of the nature, substance, and quality of "butter." butter." Now, what did the purchaser demand? He had seen the offer of "butter mixture at 1s. 2d. per lb. in the The Lord Justice - General (Clyde).—This window, and he entered the shop and demanded appeal was presented with regard to the first 1 lb.-not of "butter "--but of “that butter in charge only. At the conclusion of the debate the window"; and, in order to make no before us, we remitted to the Sheriff-Substitute mistake about the matter, he pointed to the to state whether it was proved in the case that article exposed for sale in the window with the at the time when the demand was made for name "butter mixture" ticketed upon it, and "1 lb. of that butter in the window" the then insisted on being supplied from the actual inspector demanding it saw or had knowledge piece of the article which was so exposed and of the terms of the ticket describing the article ticketed with that name. In so insisting, he "Butter Mixture, 1s. 2d. per lb." The repeated the words already used by him: "I Sheriff-Substitute has reported that it was want 1 lb. of that butter in the window." Now, proved in the case that, previous to the time unless I am mistaken in my view that an offer when the demand in question was made, the of "butter mixture is not the same thing inspector had seen the ticket describing the as an offer of "butter," it does not seem to me article as above, and had knowledge of the just or reasonable to hold on the facts of this terms of the ticket. These facts must accord-case that the purchaser's demand for that The Sheriff-Substitute having reported that the inspector, before making the demand in question, had seen the description on the ticket and had knowledge of its terms, the Court, on 15th December 1923, in respect that the appellant did not insist in his appeal on the second charge, answered the second question of law in the affirmative, and (The Lord JusticeGeneral dissenting) answered the first question of law in the negative. as 66 COURT CIARY, 1923. butter in the window " (made by a purchaser who And, as the article here in question is proved to HIGH is fully aware that the article in the window is have been margarine, it follows from the not offered to him as " butter," but as something statutory definition that it resembled butter. OF JUSTI else, viz. 'butter mixture") was a demand These things being so, I think that an ordinary for butter.' If butter mixture really reader of the words "butter mixture would Robertson was, in the mind of an ordinarily intelligent be justified in assuming that the article was V. M'Kay. customer, a name or description for "butter,' some form of butter. On this footing, I do December 15, then a demand by a customer for "butter not think that the Sheriff was entitled to infer mixture," met by a supply of the article which from the facts proved that the purchaser's the respondent offered as such, would appar- demand for " 1 lb. of that butter in the window ently have afforded all the material required was not truly a demand for butter. The words for a complaint. In my opinion, therefore, the which the purchaser so used import, prima Sheriff-Substitute was entitled to find the facie, a demand for butter, and the Sheriffrespondent not guilty. Substitute, in my opinion, did not have before him facts which entitled him to hold that the demand was of a different character. Lord Cullen.-The respondent's counsel endeavoured to maintain that the facts found proved did not shew that any transaction of sale took place, but I think this view quite untenable. I am accordingly of opinion that the first question in the case should be answered in the negative. The appellant did not insist in his appeal quoad the second charge in the complaint. În respect thereof, the second question should be answered in the affirmative. The article sold to the purchaser was de facto margarine. If what was demanded by the purchaser was 1 lb. of butter, then the article sold was not of the nature and quality of the article demanded. What has been held by the Lord Sands. It was conceded in argument by Sheriff-Substitute comes to this, that the pur- Mr Patrick for the respondent that if a customer chaser's demand was not truly one for butter. were to ask for butter and be supplied with marNow the facts are that the margarine in question garine an offence would be committed under was exhibited in the window and ticketed as the Food and Drugs Act, albeit the customer, in 'butter mixture," instead of being ticketed as giving his order, pointed to something that had margarine, under which name alone it could the appearance of butter and said: "Give me a legally be sold; that the purchaser saw and pound of that butter." It is sought, however, had knowledge of the terms of the ticket; to differentiate the present case on the ground that with this knowledge he entered the shop that there was exhibited upon the article as a and demanded "1 lb. of that butter in the description of it the words "butter mixture." window," pointing to the ticketed article; These words so exhibited were, it is said, a and that in response to this demand there was sufficient indication that the commodity was sold to him 1 lb. of the ticketed article which not butter, and although the supply of margarine was in fact margarine. I am unable to see how under such circumstances would have been an it can be said that the purchaser's demand, offence under the Butter and Margarine legismade in the terms and form above stated, waslation, it was not an offence under the Food and not one for butter, unless it can be said that the Drugs Act. In my view this attempted words butter mixture certiorated him that differentiation and resultant defence fail unless the article so ticketed was not butter, so that it can be shewn that the descriptive words were when he used the word "butter " in his demand such as to convey to a customer of ordinary he did no more than say that what he wanted intelligence that the commodity was not butter. was a supply of the article in the window, I am of opinion that they were not such, parirrespective of its nature and quality. We do ticularly in view of the fact that (as the cusnot know what meaning the purchaser in fact tomer must be presumed to have known) it attached to the words "butter mixture when is illegal so to describe a mixture of butter he read them. The question is whether these and margarine, the only commodity, so far words fall to be regarded as being such as should as I am aware, likely to be mixed with have conveyed to the mind of any ordinary butter, so as to produce a compound rereader of them that the article so named sembling butter. Apart, however, from this was not butter. I am unable so to regard them. specialty butter mixture might, I think, There is nothing to shew that these words- bear the meaning either of mixed butter (i.e. 'butter mixture —are in use to be employed a compound of more than one kind of butter), in this line of business and have any recognised or butter mixed with some other commodity. meaning. One thing the ordinary reader of But it is enough for the determination of the them must be assumed to know is that margarine case that a customer of ordinary intelligence is not saleable under the name of butter mixture. might quite reasonably, particularly if he were 66 HIGH CIARY. a smoker, accustomed to the expression "tobacco ment, in terms of section 48 of the Summary COURT mixture," take it to mean the former. In these Jurisdiction (Scotland) Act, 1908, and to have OF JUSTI- circumstances, as it appears to said licence revoked or suspended, and you have the merchant me, been previously convicted of a contravention of said Burgh Act as per schedule annexed, whereby additional penalty not exceeding forty shillings or you are liable in respect of said aggravation to an thirty days imprisonment without the option of a fine in terms of section 465 of said Burgh Act. 1928. 66 is guilty of a contravention of the Act libelled Robertson if, in response to a request for that butter,' v. M'Kay. he supplies the commodity without satisfying December 15, himself that the customer knows that it is not butter. If, as is here conceded, in the absence of a descriptive label an offence would have been committed, the label, to furnish a ground of defence, must in my view be such as to make it clear to the purchaser that the commodity is not butter. Justiciary cases-Statutory offence-Burgh-Boat-hiring licence Conditions Ultra vires - Burgh Police (Scotland) Act, 1892 (55 & 56 Vict. cap. 55), section 304 (1) Conditions "for the safety of the lieges". Licence issued containing condition that boats were not to be hired on Sunday-Circumstances in which held, in a summary prosecution for infringing the condition, that it was not clear that the prohibition of hiring on Sunday had not been inserted with a view to the public safety, and therefore that it was not ultra vires. Stated Case. Campbell Blair, boat-hirer, residing at 32 Windmill Street, Saltcoats, was charged in the Police Court of the burgh of Saltcoats on a complaint at the instance of Thomas Smith, writer in Saltcoats, Burgh Prosecutor, which set forth : You are charged at the instance of the complainer that on Sunday, the 8th day of July 1923, from the seabeach within the burgh of Saltcoats and at a part thereof opposite Eglinton Place in said burgh, you did let a rowing-boat for hire for the purpose of rowing for pleasure to James Baird, piano tuner, residing at 48 Argyle Road, Saltcoats, in contravention of the terms and conditions of a licence granted to you in that behalf by the Magistrates of said burgh of date 28th June 1923, contrary to the Burgh Police (Scotland) Act, 1892, section 304, subsection (1), whereby you are liable to a penalty of five pounds and in default of payment to imprison The Magistrates convicted the appellant of the contravention charged. The appellant obtained a stated case for the opinion of the High Court of Justiciary. The stated case set forth, inter alia : The appellant was cited to appear within the CourtHouse, Saltcoats, on Saturday the 14th day of July 1923 at 9.30 o'clock forenoon, on which day the complaint was heard by us-two of the Magistrates of Police of the said burgh. On the complaint being read over, Mr Joseph Kirkland, solicitor, Saltcoats, for the appellant stated the following objections to the relevancy and competency of the complaint: Firstly.—That the complaint libelled no crime or offence either at common law or in virtue of statute in respect that condition No. 5 of the licence granted to the appellant on 28th June 1923 by the Magistrates of the Burgh of Saltcoats, in virtue of section 304 of the Burgh Police (Scotland) Act, 1892—which condition the appellant was alleged to have contravened-was ultra vires of the said Magistrates and illegal. Secondly. That the complaint was irrelevant from lack of specification, in respect that it did not libel specifically the condition or conditions of the said licence alleged to have been contravened. Thirdly. That the complaint was incompetent in respect that the appellant was stated to be liable, on conviction, to have his licence revoked or suspended, that not being matter within the jurisdiction of the Police Court of the burgh of Saltcoats, and Fourthly.-That the complaint was incompetent in respect that a previous conviction was libelled in terms of section 465 of said Burgh Act as an aggravation of the alleged offence or contravention set forth in the present charge, which previous conviction was not libelled, and was not for a like offence or contravention to the alleged offence or contravention set forth in the present charge. Having heard the respondent in reply to said objections we repelled them. The appellant then pleaded not guilty and the case went to trial. The following facts were proved: 1. That upon the 28th June 1923 an application by the appellant for a licence for hiring boatsin terms of section 304 (1) of the Burgh Police (Scotland) Act, 1892, was granted and a licence was issued to the appellant in the form which was produced in evidence by the respondent and is printed in the appendix to this case together with the appellant's application. 2. That the said licence contained, inter alia, the following condition to which no objection was taken by the appellant when he received the licence, videlicet: "5. No boat licensed under this permission shall be let for hire on Sundays." 3. That in imposing the said condition of the said BURGH OF SALTCOATS. LICENCE FOR PLEASURE BOATS. HIGH COURT OF JUSTICIARY. The Magistrates of the Burgh of Saltcoats do Blair v. licence the magistrates, having regard to hereby license Campbell Blair, boat hirer, 32 Smith. Windmill Street, Saltcoats, to let for hire pleasure December 15, the safety of the lieges, thought it necessary, for the safety of the lieges, that such a condition should be imposed, in view of the fact that certain facilities available for rescue in the event of accident on other days of the week were not available on. Sundays. On every day of the week except Sunday motor boats are constantly in and about the West Shore plying for hire and otherwise, and are immediately available in the event of accident. Moreover, there are other agencies for rescue on week days which are limited on Sundays. 4. That on Sunday, 8th July 1923, the appellant let from the seabeach within the burgh of Saltcoats a rowing-boat (one of the number referred to in his licence) for hire for the purpose of rowing for pleasure to James Baird, piano tuner, 48 Argyle Road, Saltcoats. We accordingly convicted the appellant of the contravention charged. The previous conviction libelled we also found proved. We fined appellant five pounds and in default of payment twenty days' imprisonment. The Questions of Law submitted for the opinion of the High Court were: "1. Were we right in repelling all the objections to the relevancy and competency of the complaint? "2. Did the facts proved warrant the conviction?" The Burgh Police (Scotland) Act (55 & 56 Vict. cap. 55) enacts : Section 304 (1).-No boat or vessel shall be let for hire by any person for the purpose of sailing or rowing for pleasure from the seabeach or any pier or jetty within the boundaries of the burgh, except under licence from the Magistrates, who shall have power to require that every boat or vessel let for hire as aforesaid shall be made good and seaworthy to their satisfaction, and to impose such other conditions in granting a licence as they may think necessary for the safety of the lieges, and such licence, when granted, shall continue in force until the term of Whitsunday in each year, and no longer, unless sooner revoked or suspended, which the magistrates are hereby authorised to do on legal conviction of any violation of any conditions of such licence; and if any person shall within the burgh let for hire any boat or vessel for the purpose aforesaid, without having first obtained a licence, or after the revocation or suspension thereof, or shall contravene the terms of such licence, such person shall for each offence be liable to a penalty not exceeding five pounds. | boats as described in the annexed schedule at the West Shore in the burgh of Saltcoats, until the 15th day of May next following the date hereof, on the following conditions: 1. Every boat licensed under this permission must be maintained in a good and seaworthy condition. 2. Every motor and sailing boat must carry a person thoroughly skilled and fully competent to take charge of it. 3. Every boat let for ground fishing must be provided with proper anchor and sufficient cable. 4. The number of persons to be carried by each boat shall be painted in some conspicuous place in the inside of such boat, and no boat shall be hired to carry a greater number of persons than the number painted thereon. 5. No boat licensed under this permission shall be let for hire on Sundays. This licence may be revoked or suspended if any of the conditions thereof are violated. Every person who shall, within the burgh, let for hire any boat or vessel for the purpose of sailing or rowing for pleasure without having first obtained a licence or after the revocation or suspension thereof or shall contravene the terms of such licence shall for each offence be liable to a penalty not exceeding five pounds. Granted at Saltcoats this twenty-eighth day of June nineteen hundred and twenty three. (Sgd.) JOHN M'NAY, Dep. Town-Clerk. The case was heard before the High Court of Justiciary on 27th and 28th November 1923. Argued for the Appellant: The only power of the Magistrates under the Burgh Police (Scotland) Act (55 & 56 Vict. cap. 55), section 304 (1), was to issue licences, and the only conditions which they could impose were such as provided for the safety of the lieges. They could not place restrictions on the freedom of the subject unless expressly authorised to do so The licence granted by the Magistrates to by Act of Parliament (Rossi v. Magistrates of the appellant was in the following terms: Edinburgh, 1904, 7 F. (H.L.) 85). Being ex 1998. COURT CIARY. HIGH facie imposed for a moral purpose the condition which was the subject of the complaint must be OF JUSTI strictly interpreted. On a strict interpretation it was plainly ultra vires. No offence had Blair v. therefore been committed (Calder & Hebble Smith. Navigation Co. v. Pilling, 1845, 14 M. & W. December 15, 76, per Alderson B.; Smart v. Cadenhead, 1894, | 1 Adam 474; M'Gregor and Others v. Disselduff, 1907, 5 Adam 196; Eastburn v. Wood, 1892, 29 S.L.R. 844). 1923. Argued for the Respondent: The contention of ultra vires was unfounded. The prohibition contained in section 304 (1) of the Burgh Police (Scotland) Act was universal in its character and was subject to the qualification that the Magistrates in the exercise of their discretion could relax it. The appellant had no right to demand a licence. He had, however, obtained a licence subject to conditions which he must accept. Rossi v. Magistrates of Edinburgh (cit.) was distinguishable, as was Galloway Saloon Steam Packet Co. and Another v. Kirkcaldy Harbour Commissioners (1888, 25 S.L.R. 732). Avizandum, 28th November 1923. On 15th December 1923 the Court answered the first question in the affirmative, and the second by finding that on the facts proved the Magistrates were entitled to convict. 66 The Lord Justice-General (Clyde).—By section 304 (1) of the Burgh Police Act, 1892, no boat can belet for hire for purposes of pleasure sailing from the seabeach within the boundaries of a burgh except under licence from the Magistrates, who shall have power to require that every boat or vessel let for hire as aforesaid shall be made good and seaworthy to their satisfaction, and to impose such other conditions in granting a licence as they may think necessary for the safety of the lieges; and such licence when granted shall continue in force until the term of Whitsunday in each year and no longer, unless sooner revoked or suspended, which the Magistrates are hereby authorised to do on legal conviction of any violation of any conditions of such licence." The rights of the Crown, the consent of the Board of Trade, and the existing rights of property are reserved. The appellant is a licensee of the Magistrates of Saltcoats under this section. His licence is subject to five conditions: (1) that every boat must be kept in a good and seaworthy condition; (2) that every motor and sailing boat must carry a person competent to manage it; (3) that every boat let for ground fishing must have a sufficient anchor and cable; (4) that on every boat the number of persons to be carried shall be shewn, and that no greater number of persons shall be allowed to be carried on it; and (5) that no boat shall be let for hire on Sundays. It is clear that the first four of these conditions are directed to securing the seaworthiness of the boats and the safety of the lieges, and are therefore such as the Magistrates have express power under the section to incorporate in their licences. But what of the fifth? The appellant contended that, while the section makes a licence from the Magistrates a condition of carrying on a perfectly lawful avocation, it affords no warrant for restricting the freedom of those who desire to engage in it by imposing conditions which are not expressly authorised by the statute. Any such restriction on the common law freedom of the subject to go about his own business in his own way must, the appellant maintained, be distinctly authorised by Act of Parliament, and cannot be derived from an exercise of magisterial discretion, however well intentioned. The decision and opinions of the House of Lords in Rossi v. Magistrates of Edinburgh (1904, 7 F. (H.L.) 85) lend powerful support to this contention, if they are, perhaps, not necessarily conclusive as to its soundness in the circumstances of this particular case. Again, the appellant argued, with much force, that the section limits the powers of the Magistrates to impose conditions to such as concern seaworthiness and public safety, on the principle that inclusio unius est exclusio alterius. The respondents, while asserting a general right to make their licences subject to any reasonable condition they think proper in the public interest, relied mainly on certain of the facts found proved in the case to support the view that the prohibition against letting boats for hire on Sunday falls within the express authority of the section, as being necessary, in the circumstances of the burgh of Saltcoats, for the safety of the lieges. Not without some hesitation, I have come to think that the case can, and ought to be, decided on these findings. They are contained in paragraph No. 3 in the case, and are as follows. It is said to have been proved that the Magistrates "thought it necessary for the safety of the lieges that such a condition (i.e. the condition prohibiting letting for hire on Sundays) should be imposed in view of the fact that certain facilities available for rescue in event of accident on other days of the week were not available on Sunday." If this finding had stood alone, it would not in my opinion have been enough. I do not go on the somewhat technical objection urged by the appellant that, it being impossible to prove the state of the minds of the Magistrates who granted the licence otherwise than by producing the licence with the condition incorporated in it, and by proving the state of facts in which they were called upon to grant it, the finding is open |