Alexander v Mackenzie. Mackenzie v Mackenzie
| Jurisdiction | Scotland |
| Judgment Date | 11 July 1947 |
| Docket Number | No. 23. |
| Date | 11 July 1947 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Mackay. Lord Jamieson. Ld. Stevenson.
Statutory Offences—Police Acts—Public Health—Sewers and drains—Discharge of refuse into public sewer—Failure to specify quality of refuse—Relevancy—"Sewer"—"Drain"—Burgh Police (Scotland) Act, 1892 (55 and 56 Vict. cap. 55), secs. 215 and 233.
Statute—Construction—Punctuation.
The Burgh Police (Scotland) Act, 1892, sec. 233, makes it an offence for the owner or occupier of a manufactory to permit "any refuse, refuse water, steam, or other substance fitted to interrupt the free passage of a sewer or to be otherwise injurious thereto, or to be injurious to the health of persons living in the vicinity, to enter a public sewer."
The respective owners of two kippering factories situated in a burgh were each charged on complaints setting forth that they permitted "refuse, namely herring offal, to enter a public sewer which discharges on to the foreshore" in the burgh. In the case of one factory the factory drain led into a public sewer which discharged on to the foreshore, in the case of the other the factory drain discharged directly on to the foreshore after passing under a public street in the burgh.
Held that the qualifying words in the section which followed the words "other substance" applied also to the substances previously mentioned, and that accordingly the complaints were irrelevant in respect that they referred to refuse without any qualification.
Opinions further that in the case of the second factory the drain was not a public sewer, even if under sec. 215 of the Act it had vested in the Commissioners by reason of the fact that it passed under a street in the burgh or for some other reason.
Observations on the effect to be given to punctuation in construing statutes.
Charles Alexander was charged in the Sheriff Court at Stornoway at the instance of Colin Scott Mackenzie, Procurator-fiscal, on a complaint which set forth that "on 15th August 1946, being the owner or occupier of a manufactory, namely, kippering premises situated at…you did cause or permit refuse, namely, herring offal, to enter a public sewer which discharges on to the foreshore…contrary to the Burgh Police (Scotland) Act, 1892, section 233."1
When the case first came before the Sheriff-substitute (C. de B. Murray) on 18th October 1946, an objection was taken to the relevancy of the complaint on the ground that the words "fitted to interrupt the free passage of the sewer" ought to have been stated in the complaint. This objection was repelled by the Sheriff-substitute.
On 6th December 1946, after a trial, the Sheriff-substitute found the accused guilty, and, at his request, stated a case for appeal to the High Court of Justiciary.
The statement of facts contained a description of the way in which herring offal entered a drain in the appellant's premises which was connected with a public sewer which discharged on to the foreshore. The following were the findings in law:—"(1) That it has not been proved that the discharge of herring offal on the foreshore was injurious to health; (2) that the offal is not injurious to the sewer; and (3) that the offal is fitted to interrupt the free passage of said sewer."
The questions of law for the opinion of the Court included:—"(1) Was I right in repelling the objections stated to the relevancy of the complaint?"
John Alexander Mackenzie was charged in the same Sheriff Court on a complaint at the instance of the same Procurator-fiscal in terms identical with those in the complaint against Charles Alexander, except in so far as the premises referred to were different premises.
The same objection to the relevancy of the complaint was stated and repelled, and the accused, after trial, was convicted and obtained a stated case.
The statement of facts disclosed that the offal passed into a drain leading out of the factory; that this drain served the appellant's property only, and that it discharged directly on to the foreshore after passing underneath a street in the burgh. In addition to findings in law in the same terms as the findings in Alexander's case, the Sheriff-substitute made the following finding:—"That where said drain lies below Newton Street it is vested in the local authority in terms of section 215 of said Act and is a public sewer."2
The questions of law were the same as those in Alexander's case.
The cases were heard together before the High Court of Justiciary on 17th and 18th June 1947.
At advising on 11th July 1947,—
LORD MACKAY.—
Case of Charles Alexander.
I feel bound in fairness to say that the answer which (on the pleadings written and oral before us) I feel impelled to advise your Lordships to give is such as to go rather close to eliding a possibly wellfounded attack in fact on a question of public interest as to the proper disposal of offal from fish. The section selected for justifying a prosecution against a "manufactory" for kippering herring—being in fact a kippering establishment—is section 233 of the Burgh Police (Scotland) Act of 1892.8
I turn then to section 233, a section which should be read as a whole and as a mere part of a larger provision for "Public Sewers."
Now in the present charge, out of a section of four hundred and fifty words long, only nineteen words are selected as containing the constitution of the offence. The owner of a manufactory, it is said, "did cause or permit…refuse…to enter a public sewer which discharges on to the foreshore at Newton in said burgh." The last five words (at least) are merely present to indicatelocus; and after the statutory word "refuse" there will be found inserted three words, "namely herring offal," which are exegetical only, and do not occur in the statute. The primary one of three attacks directed to the relevancy of the charge, even if not so well framed as one would wish, yet seems to give sufficient indication of the alleged imperfection founded upon; and is in substance to the effect that it is hopelessly irrelevant for the true purpose of section 233 merely to say (or to prove) the word refuse, and that if, by so doing, the prosecutor should deliberately
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