1902.

October 29.

bigh Court of Justice.

KING'S BENCH DIVISION.

MCNAIR v. CAVE,

Adulteration of Food and Drugs Acts-Milk - Sample taken at place of delivery-Inspector acting outside his own district-Sale of Food and Drugs Act, 1875 (88 & 39 Vict., c. 68) s. 18-Sale of Food and Drugs Act Amendment Act 1879 (42 & 48 Vict., c. 30) s. 3.

Section 3 of the Sale of Food and Drugs Act Amendment Act, 1879, does not empower an officer appointed by and acting under the directions of a local authority to take a sample of milk at a place of delivery outside the district of the authority, even though the milk is consigned to a dairyman carrying on business within that district.

CASE stated by a Metropolitan Police Magistrate.

At the Clerkenwell Police Court, information was preferred by Alexander McNair (the appellant) under the Sale of Food and Drugs Acts, 1875 and 1879, against one Arthur William Cave (the respondent), for that on the 8th day of March, 1902, at the Midland Railway Company's Depot, Euston Road, in the Borough of St. Pancras, in the county of London, and within the said Metropolitan Police District, the said appellant did procure, at the place of delivery, a sample of certain milk in course of delivery by the respondent to the purchaser or consignee in pursuance of a contract for the sale to such purchaser or consignee of such milk, and that suspecting the same to have been sold contrary to the provisions of the Sale of Food and Drugs Act, 1875, the appellant did submit the same to be analysed when the same was found to have been sold by him contrary to the provisions of the said statute, that is to say, the same was sold by him to the prejudice of the purchaser, inasmuch as it had been adulterated by the admixture of water to the extent of 21 per cent. over and above the normal quantity of that constituent, so that the same was not of the nature, substance, and quality of the article demanded by the purchaser.

On the 12th day of April, 1902, the said information was duly heard and dismissed by the magistrate.

On the hearing of the said information the following facts were proved :

(a). The appellant is a sanitary inspector appointed for the city of Westminster, in the county of London, and the respondent is a farmer at Shottle Belper, in the county of Derby.

(b.) A contract was entered into between the respondent and Messrs. Pryce and Harris, dairymen of Craven Yard, in the city of Westminster, whereby the respondent agreed to deliver to the

said Messrs. Pryce and Harris, at the Midland Railway Station,

1902.

St. Pancras, 12 barn gallons of new, pure, and unskimmed milk McNair v. Cave. daily.

(c.) The appellant acting under the directions of the Council of the city of Westminster, and in pursuance of the provisions of section 3 of the Sale of Food and Drugs Act, 1879, procured without payment, the said sample of milk from that supplied under the said contract at the Midland Railway Station, in the borough of St. Pancras, being the place of delivery under the said contract, on the 8th day of March, 1902.

(d.) The appellant suspecting that the said milk was sold contrary to the provisions of the Sale of Food and Drugs Act, 1875, duly divided the said sample into three portions, one of such portions being duly forwarded to the respondent, one retained by the appellant, and one submitted to the public analyst for the city of Westminster for analysis.

The following is a copy of the said analyst's certificate:

No. of certificate, 69.

No. of sample, 213n.

City of Westminster.

Sale of Food and Drugs Acts, 1875-1879-1899.

Certificate.

To Mr. A. McNair, inspector under the Sale of Food and Drugs Act, for the city of Westminster.

I, the undersigned, Public Analyst for the city of Westminster, do hereby certifiy that I received on the 8th day of March, 1902, from the above-named inspector, a sample of milk (No. 213n), for analysis, and have analysed the same and declare the result of my analysis to be as follows:

I am of opinion that the said sample contained the parts as under :

This opinion is based on the fact that the sample only contains 6.67 per cent. of non-fatty solids, whereas genuine milk contains at least 8.5 per cent.

The sample had undergone no change which would interfere with the result of the analysis.

As witness my hand this 11th day of March, 1902,

At the Laboratory,

136, Shaftesbury Avenue, W.

CECIL H. CRIBB.

1902.

The appellant and George Annegarn, the manager to the said

McNair v. Cave. Messrs. Pryce and Harris, were called as witnesses.

On the part of the appellant it was contended that on the evidence of the said certificate the offence charged had been committed by the respondent, and he should be convicted.

On the part of the respondent, the admission of the said certificate as evidence was objected to, and it was contended that the inspector for the city of Westminster had no power to procure a sample outside the district for which he was appointed, and therefore had no legal power to go into the borough of St. Pancras and take the sample and also that the analyst appointed for the city of Westminster had no legal power to analyse such sample and give a certificate which would be evidence, and that the place of delivery being in the borough of St. Pancras, and outside the city of Westminster, the proceedings and certificate were nugatory and in violation of the Sale of Food and Drugs Acts, the inspector and analyst being appointed only to act in respect of samples taken within the city of Westminster, and having power under such Acts to deal only with articles sold or procured within their own district, namely, the city of Westminster, and that in respect of such delivery as aforesaid, within the borough of St. Pancras, an inspector appointed for the borough of St. Pancras was the proper person to have procured the sample, and the analyst appointed for the borough of St. Pancras should have analysed same.

The attention of the magistrate was called to sections 10, 12, 13, and 20 of the Sale of Food and Drugs Act, 1875, and to other sections of the Sale of Food and Drugs Acts, 1875 to 1899, and to the case of Reg: v. Smith, 1896, I Q. B. 596.

The said information was dismissed by the magistrate on the grounds put forward by the respondent.

Section 13 of the Sale of Food and Drugs Act, 1875 (38 & 39 Vict., c. 63), provides that:

"Any medical officer of health, inspector of nuisances, or inspector of weights and measures, or any inspector of a market, or any police constable under the direction and at the cost of the local authority appointing such officer, inspector, or constable, or charged with the execution of this Act, may procure any sample of food or drugs, and if he suspect the same to have been sold to him contrary to any provision of this Act, shall submit the same to be analysed by the analyst of the district or place for which he acts, or if there be no such analyst then acting for such place to the analyst of another place. . . .'

دو

Section 3 of the Sale of Food and Drugs Act Amendment Act, 1879 (42 & 43 Vict., c. 30) provides that:

"Any medical officer of health, inspector of nuisances, or inspector of weights and measures, or any inspector of a market, or any police constable under the direction and

at the cost of the local authority appointing such officer, inspector, or constable, or 1902. charged with the execution of this Act, may procure at the place of delivery any McNair v. Cave. sample of any milk in course of delivery to the purchaser or consignee in pursuance of any contract for the sale to such purchaser or consignee of such milk; and such officer, inspector, or constable, if he suspect the same to have been sold contrary to any of the provisions of the principal Act, shall submit the same to be analysed, and the same shall be analysed, and proceedings shall be taken, and penalties on conviction be enforced in like manner in all respects as if such officer, inspector, or constable had purchased the same from the seller or consignor under section 13 of the principal Act."

Avory, K.C. (Bartley with him) for the appellants. The certificate of the Westminster Borough Council's analyst was evidence in this case under section 21 of the Act of 1875. Any private person could have taken these proceedings, and although one of the contentions for the respondent is based on section 10 of the Act of 1875, which deals with the appointment of an analyst for a district, section 12 of the same Act clearly allows one analyst to act in another's district under certain circumstances. By section 20 of the 1875 Act, the proceedings were bound to be taken at the Clerkenwell Police Court, and there is no provision in section 21 that the certificate is to be that of a particular analyst. Section 3 of the later Act of 1879, uses the words" any inspector," and does not adopt the language of section 13 of the 1875 Act, with regard to the "analyst of the district for which he acts." Reg. v. Smith, 1896, I Q. B. 596, relied on by the respondent, is irrelevant to this case except for the obiter dictum of Hawkins J., and is limited to the Act of 1875. There is nothing in the Acts to prevent an inspector from going out of his district and obtaining a sample under section 3 of the Act of 1879, at the place of delivery whether that is within his district or not, although under section 13 he must go to the analyst of his own district. There is no doubt in this case that the place of delivery was in fact St. Pancras. The effect of the decision in Rouch v. Hall (1880), 6 Q. B. D. 17, which dealt with section 3 of the Act of 1879, is to show that section 14 of the Act of 1875 was not incorporated in the later Act of 1879. The Act of 1879 gave further powers, and section 3 is not confined by its own terms to an inspector acting in his own district.

Morton Smith for the respondent. Although the provisions of section 3 of Act of 1879, must be complied with to justify a prosecution, it does not extend the powers of inspectors who have been appointed for their districts only, under the Act of 1875; and the analysts also can only act in the districts for which they have been appointed, except under certain circumstances. The inspector of Westminster became merely a private person, and he had no right to take a sample outside his own district. There is nothing in the

1902.

McNair v. Cave.

Acts to extend the powers of inspectors to act outside their own districts. He cited Harris v. Williams (1889) 6 Times L. R. 47.

LORD ALVERSTONE C.J. The point in this case is a narrow one, namely, what were the extended powers given to inspectors under section 3 of the Act of 1879. The previous legislation may be summarised very briefly; the analysts and inspectors were certainly intended to act locally, because any person who is authorised to act in the place of a person charged with the duty of administering the Act, is to get authority from his superiors so as to act, the police constable or the inspector of nuisances, and so on, in the particular district where there may not be a person actually charged with the administration of the Act. Therefore, I think, all the earlier legis lation points to the local action of the inspector and of the analyst. The 13th section did at first strike me as indicating that the inspector might act outside his district because he is told to take the sample to the analyst of the district for which he acts, but I think I was probably wrong, and that I drew an incorrect inference from that argument. I think that section was required for the purpose that my brother has pointed out, that he is allowed to go there, but is to go to another analyst if there is no analyst for that place. It is quite clear that section 3 of the Act of 1879, does give important increased powers to the inspectors. Previously there must have been a sale, and the person must have taken a sample at a time when a sale was going on, or at the place of sale or contemplated sale. Now the inspector is allowed to procure at the place of delivery, a sample of any milk in course of delivery to the purchaser or consignee in pursuance of any contract of sale to such purchaser or consignee. I must say I am not pressed by the extravagant suggestions made by Mr. Morton Smith as to the consequences of the construction contended for by Mr. Avory, because it seems to me that there are words which would prevent any extravagant or improper act of the inspector. There are the words that he is to take a sample of milk which is "in course of delivery to the purchaser or consignee in pursuance of any contract for the sale to such purchaser or consignee "; and even if we assume, as I do, that the inspector shall act with respect to milk that was either being sold in Westminster, or going to be sold in Westminster, then those words would limit the possibility of the inspector going to inspect any milk on some allegation that it might some day be sold in Westminster or was coming to London. But I think section 3 was necessary in the districts in which the inspectors were acting in order to get over the necessity of the sample being taken at the place of sale; accordingly the words "at the place of