cases where the inspector has taken action outside his district; but the very object of the Act of 1879 was to extend the powers of inspectors. Under the earlier Act there could only be an offence where there had been a sale; under s. 3 of the Act of 1879 a sample may be procured without payment at the place of delivery, which may not, and in the case of London most probably will not, be in the same district as the retail sale to the consumer, the intention of the Act being to reach wholesale dealers sending milk from a distance. The section contains no limitation except that the delivery must be in pursuance of a contract for sale, and it is difficult to see for what reason the section is wanted if the place of delivery must be within the inspector's district in order to justify his taking of a sample. [Rouch v. Hall (1) was referred to.] Morton Smith, for the respondent. There is no offence under s. 3 unless all the formalities of the section have been complied with. A private person could not prosecute under that section. The only extension of powers given by s. 3 is that, whereas previously there could only be a prosecution after a sale, this section gives power to the persons named to procure a sample without payment and to prosecute as if there had been a sale. It is clear that under the Act of 1875 an inspector could only act in the district for which he was appointed: see Reg. v. Smith (2); and if it had been intended to give by the Act of 1879 such a large extension of powers as is contended for by the appellant, that intention would have been expressed in plain language. The consequence of adopting the appellant's contention would be that an inspector for, say, Westminster, would be at liberty to roam all over England, taking samples anywhere he pleased. A Westminster inspector is not "charged with the execution" of the Act of 1879 in any place but Westminster. The argument that, unless an inspector can act outside his district the section is unnecessary, is not sound, because where the place of delivery under a contract is in the same district as the intended place of sale by the retailer, there would previously to the Act of 1879 have been no power for an inspector to procure a sample without (1) (1880) 6 Q. B. D. 17. (2) [1896] 1 Q. B. 596. 1902 MCNAIR V. CAVE. 1902 MCNAIR V. CAVE. payment before the milk had been delivered to the retailer. [He cited Harris v. Williams. (1)] Bartley, in reply. In Reg. v. Smith (2) Hawkins J. was only dealing with the Act of 1875, and the decision is no authority as to the effect of the Act of 1879. Before an inspector can put s. 3 into operation he must first know of a contract, and secondly of the place of delivery under such contract; and the inspector of the district where the purchaser resides is more likely to have that knowledge than the inspector of any other district. The balance of convenience is, therefore, in favour of the appellant's contention. LORD ALVERSTONE C.J. This case is not free from difficulty; but the point is a narrow one, namely, what are the extended powers given to sanitary inspectors under s. 3 of the Sale of Food and Drugs Act, 1879? I think it is clear that under the earlier Act of 1875 both analysts and inspectors were only authorized to act in the district for which they were appointed. Sect. 13 of the Act of 1875 did at first strike me as indicating that under that Act an inspector might act outside his own district, because the section provides that the inspector shall submit the sample to the analyst of the district for which he acts; but on consideration I think that that is an incorrect inference, because the section goes on to say that, if there is no analyst appointed for the inspector's district, the sample may be submitted to the analyst of another place, and, therefore, I do not think that any argument as to the power of an inspector to act outside his own district can be founded on that section. Now, no doubt s. 3 of the Act of 1879 does give an important increase to the powers of inspectors. Under the earlier Act there must have been a sale, and it was necessary that the sample should have been taken at the time of the sale. Under the Act of 1879 an inspector "may procure at the place of delivery any 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." I am (1) (1889) 6 Times L. R. 47. (2) [1896] 1 Q. B. 596. not much pressed by the somewhat extravagant suggestions made by Mr. Morton Smith as to the consequences that would follow from adopting the appellant's construction of the Act, because the section contains words of limitation, namely, that the milk from which the sample is taken must be in course of delivery in pursuance of a contract for sale, and the sample must be taken at the place of delivery under such contract; and if it be assumed, as I assume, that the intention was that an inspector should only procure a sample of milk which was either being sold or was going to be sold in his own district, these words limit the possibility of an inspector taking a sample from any milk on a mere allegation that it might eventually be sold in his district. But I think s. 3 is required in the case of an inspector acting only in his own district in order to remedy the defect which formerly existed of only being able to obtain a sample by purchase from the retailer. Accordingly the words "may procure at the place of delivery any sample of any milk in course of delivery to the purchaser" are introduced in order to enable the inspector for the district to take a sample at an earlier stage of the transaction, and thus institute a prosecution in the first instance against the real wrongdoer. I agree that if this particular question of an inspector procuring a sample at a place of delivery outside his district had been thought of, it might have been desirable to deal with the common case of milk being delivered at a railway station in one district and intended to be sold in another district. But, having regard to the previous legislation and to the fact that under the earlier Act it is clear that inspectors could only act locally, I think that, if it had been intended to give to inspectors for one district power to procure samples in another district, different language would have been used; and I am unable to say that by the mere use of the words "place of delivery" (which, as I have pointed out, are required for another purpose) power is impliedly given to inspectors to go to any place of delivery under a contract whether it is within their district or not. I think express language would be required to give such powers; and in the absence of any express language I feel 1902 MCNAIR v. CAVE. Lord Alverstone C.J. 1902 MCNAIR v. CAVE. bound, somewhat reluctantly, to come to the conclusion that the decision of the magistrate was right, and that this appeal must be dismissed. WILLS and CHANNELL JJ. concurred. 1902 Nov. 3. Appeal dismissed. Solicitors for appellant: Allen & Son. F. O. R. TROMANS v. HODKINSON. Gaming-Place used for Betting-Bar of Public-house-Betting Act, 1853 (16 & 17 Vict. c. 119), s. 3. The appellant, who was a bookmaker, was in the habit of frequenting the bar of an inn at certain hours for the purpose of carrying on a business of ready-money betting with persons resorting thereto, and the fact of his carrying on that business in the bar was known to those persons. He carried on the business there by the permission of the landlord, but he did not for the purposes of it occupy any specific portion of the bar : Held, that the above facts amounted to a "use" of the bar by the appellant for the purposes of betting in contravention of s. 3 of the Betting Act, 1853. Belton v. Busby, [1899] 2 Q. B. 380, followed. CASE stated by justices of Staffordshire. Informations were preferred against the appellant for having on certain specified dates unlawfully used the Railway Inn, Cradley Heath, for the purpose of betting with persons resorting thereto contrary to s. 3 of the Betting Act, 1853 (16 & 17 Vict. c. 119). The evidence shewed and the justices found that the appellant, who carried on the business of a readymoney bookmaker, was in the habit of frequenting the bar or taproom of the said inn for the purpose of there carrying on, and that he carried on in the bar or taproom at stated hours, a ready-money betting business with persons resorting thereto, the carrying on of which in the said bar or taproom was known to such persons, and pursued under some arrangement or undertaking come to with the landlord of the inn. There was no evidence that the appellant when at the inn obtained refreshments or used the house for that purpose or was a customer thereof, nor did it appear that the appellant had any interest in the inn or the business of the inn, or that he had any control over or took any part of the management of the inn, or that in the betting business carried on in the bar or taproom he occupied any specific part of the said bar or taproom. On behalf of the appellant it was contended, that the bar or taproom was not a "place" within the meaning of the Betting Act, 1853, and that the use of the bar or taproom by the appellant was not a "use" by him thereof for the purpose of betting with persons resorting thereto within the meaning of the said Act. The justices held on the authority of Belton v. Busby (1) that the bar was a "place," and that the appellant's actions amounted to a "use" of the same, and they convicted the appellant subject to a case for the opinion of the Court. G. W. Stutfield, for the appellant. It is not disputed that the bar was a place within the meaning of the Act, but there was no evidence that the appellant "used" it for the prohibited purposes. Belton v. Busby (1) is admittedly a direct authority against the appellant's contention, but that case, in which the betting-man was not represented by counsel on the appeal, was wrongly decided. It is in direct conflict with the language of Lord Halsbury in Powell v. Kempton Park Racecourse Co. (2) with reference to the meaning of the word "use" in the Act. "It is not," he said, "the repeated and designed, as distinguished from the casual or infrequent, use which the employment of that word imports here, but the character of the use as a use by some person having the dominion and control over the place, and conducting the business of a betting establishment with the persons resorting thereto." The mere fact that a betting-man carries on his business in the public bar of an inn by the leave and licence of the publican does not amount to a "use" of the bar for (1) [1899] 2 Q. B. 380. (2) [1899] A. C. 143, at p. 160. 1902 TROMANS v. HODKINSON. |