Mackay v Davies [1904] HCA 20; (1904) 1 CLR 483 (29 August 1904)

HIGH COURT OF AUSTRALIA

Mackay Appellant; and Davies Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

29 August 1904

Griffith, C.J., Barton and O'Connor, JJ.

Dr. Cullen, (with him Mocatta), for the appellant.

Mocatta followed.

Kelynack (Robson with him), for the respondent.

Dr. Cullen in reply.

The judgment of the Court was delivered by

Griffith, C.J.

This case has been very fully and ably argued, and all the authorities have been carefully discussed. Nothing, therefore, would be gained by our taking time for consideration, The question arises upon the construction of sec. 15 of the Cattle Slaughtering and Diseased Animals and Meat Act, 1902, entitled "An Act to consolidate the enactments relating to the slaughtering of cattle, the destruction of animals dying of disease, and diseased animals and meat." The Act deals with these subjects in three groups of sections. The section in question is contained in Division 1 of Part II., which deals with cattle slaughtering. Division 1 contains general provisions on the subject, secs. 3 to 17 inclusive. Division 2 of the same Part contains provisions for the local control of cattle slaughtering. Division 1, after defining "inspector" in sec. 3, proceeds, in sec. 4, to authorize councils to appoint inspectors of slaughter-houses and of cattle, prescribes the method of appointing them, and enumerates their duties. Then sec. 5 requires "every person intending to slaughter any cattle in any city, town, district, or municipality, in which an inspector has been appointed" to give notice in writing to such inspector of his intention, otherwise he will be liable to a penalty. The section also provides that, whenever cattle have been slaughtered in any such place without having been previously inspected, notice shall be given of the fact to the inspector, and the skins kept or preserved for three days and produced to the inspector upon demand, under a penalty of five pounds. The inspector is to keep a book in which he must register full particulars of all cattle slaughtered in his district, and to produce the book to the Court of Quarter Sessions or to the justices of his district when required, and to make a weekly return to the justices of the numbers slaughtered. By sec. 6 every keeper of a licensed house or place for slaughtering cattle, in a district where there is no inspector, must keep a book and enter in it particulars of all cattle slaughtered at the place, and make a monthly report of those particulars to the justices of the district. Those provisions do not apply to persons slaughtering at their own residences or farms for private purposes (sec. 7). Sec. 8 provides that the proprietors of establishments for the extraction of tallow from the carcasses of cattle, or salting beef for exportation, which are licensed under the Act, shall give notice of their intention to slaughter cattle, and that no inspection or registration of the cattle slaughtered there shall be necessary. It is provided in sec. 9 that "any justice may demand the skins of any cattle that have been slaughtered within a month" previously, or a satisfactory account of the manner in which the skins have been disposed of, and a penalty is imposed on any person failing to produce the skins or give a satisfactory account of their disposal. Then in secs. 10 and 11 there are provisions against cutting out or defacing brands or skins, and purchasing skins that have been so treated. Sec. 12 provides for entering and searching licensed places in order to inquire whether stolen cattle have been slaughtered there. Sec. 13 imposes penalties upon persons who hinder justices or others in such search. Sec 14 provides that if at any time it is made to appear to any justice that there is reasonable ground to suspect that any "sheep, calves, pigs, or other animals are slaughtered in violation of any law in force relating to slaughter houses or the slaughtering of cattle," he may issue a search warrant, &c. Then comes the provision in question in section 15, [His Honor read the section[1]]. Section 16 makes it an offence punishable by fine to discharge any firearm in any road, street, or market place, or town, "under the pretence of killing or maiming any cattle," and sec. 17 provides that a licence shall become null and void after the conviction of the holder for an offence against Division 1 of Part II.

The question for our determination is whether the word "cattle," as used in sec. 15, is to be construed in the limited sense as including only horned cattle, as distinguished from sheep and small cattle, or in the wider or generic sense, including practically all the four-footed animals dealt with in the various parts of the Act. The very next section, 18, in Division 2, provides that in that Division the term "cattle" shall include "sheep, lambs, pigs, and goats and bovine cattle"; and sec. 33, in Part III. of the Act, defines "animal" in that part as including "horses, cattle, sheep, pigs, calves and lambs." In this very Act, therefore, there are several variations of the sense in which the word "cattle" is used by the legislature. In Part III. it is used as meaning something different from horses, sheep, pigs, calves and lambs, because the word "animal" is defined as including them all. In Division 2 of Part II. it includes sheep, lambs, pigs and goats, and bovine cattle. In Division 1 itself, sec. 14 speaks of "sheep, calves, pigs or other animals," using the words in contradistinction to the word "cattle" as used in the same section and in the same part of the Act. Turning to other sections, we find that the cattle in respect of which provision is made are cattle which not only must not be slaughtered without inspection, but whose skins must be preserved and shown to the inspector under a penalty of £5. It was suggested that that provision applies just as well to sheep and pigs as to horned cattle. But it was pointed out that it would be a very singular provision that persons who slaughtered pigs should be obliged to skin them and keep the skins. Primâ facie one would say that that section was only intended to apply to animals the skins of which are usually separated from the carcass and preserved when the animals are slaughtered. Other sections there are which plainly apply only to animals such as it is possible and usual to brand upon the skin, inasmuch as they prohibit the cutting out or defacing of the brands upon the skins of the cattle slaughtered. Then we find that in sec. 15 a uniform fee of threepence per head is to be charged for all cattle slaughtered. Now, if the word "cattle" is to be construed in its wider sense, the result will be that, for all these different kinds of animals, bullocks, calves, lambs, sheep, pigs, and even sucking pigs, a uniform fee of threepence per head is to be charged, which it is very improbable that the legislature intended. Under these circumstances, if we looked simply at this part of the Act, we should have no hesitation in saying that it is manifest from the whole purview and scheme of its provisions, that they were intended to apply only to horned cattle. But we are asked to reject that construction for two reasons. One reason, which seems to have greatly impressed the learned Judges of the Supreme Court, was that other provisions of the Act might very reasonably have been made to apply to sheep and pigs, and that it was imputing want of intelligence to the legislature to assume that it had not included those animals as well as horned cattle. I confess that I fail to appreciate the force of that reasoning. The fact that a provision might have been made to comprehend all kinds of cattle in the wider sense of the word is no reason for coming to the conclusion that the legislature intended it to do so. For instance, it is no doubt just as dangerous to shoot sheep and pigs in the streets as to shoot bullocks; but if the legislature has not thought it proper to provide against the former danger, we cannot for that reason construe the provisions dealing with the latter so as to extend them to the former.

The other argument used for the respondent was that this is a consolidating Act, that these sections are a mere reproduction of the Act, 5 Wm. IV. No. 1, and that the words of that Act had received judicial interpretation, in which the construction now contended for was given to them. No doubt it is a general rule of construction that, when particular words in a Statute have received judicial interpretation, and the Statute is subsequently repealed and re-enacted in identical terms, the words in the new enactment should be construed in the sense previously attributed to them by the judiciary. But I think that rule only applies to cases of considered decisions upon the meaning of particular words in a Statute. Now the question whether the prohibition in that Act against unlicensed slaughtering extended to sheep and pigs never seems to have been really decided by the Supreme Court. The first reported case in which the point was mentioned was before Innes, J., in 1887, Ex parte Hop Sing, 4 W.N. (N.S.W.), 59. He did not, however, decide the point expressly. He made some observations on the subject, and after remarking that slaughtering pigs might be as great a nuisance as slaughtering cattle, said he did not see why they should not be included in the term "cattle." He referred to two cases decided in England, in one of which, R. v. Chapple, it was held by all the Judges that the word "cattle" in a certain Statute included pigs, and in the other, R. v. Whitney, it was held to include "asses." But he did not refer to the Statutes that were under consideration in those cases, or he would have seen that from the context it followed that the wider meaning must be given to the word "cattle" as there used. He then went on to say that the facts of the case did not bring the defendant within the words "cause to be slaughtered." There was, therefore, no necessity for him to decide what was the proper construction of the word "cattle." In the later case, R. v. Charley Mong, 4 W.N. (N.S.W.), 163, the same point was submitted to the Court, whether pigs were included in the meaning of the word "cattle" in sec. 1 of 5 Wm. IV. No. 1. The case was not argued on either side, but the learned Judges thought that Innes, J., in the previous case, had decided that pigs were "cattle." But, according to the report, he had not so decided. However, the Court appeared to think that he had, and they said that the justices ought to have followed his decision. The point was not argued, and other matters were not put to them which might have influenced their decision; for instance, the point of view of the taxpayer, who would have to pay threepence per head on all small animals slaughtered in his establishment. The exact point under that section, i.e. whether the word "cattle" includes sheep and pigs, has therefore never been solemnly decided. Another case, Wright v. The Commissioner for Railways, 12 (N.S.W.) S.C.R., 5, was referred to in argument, in which Stephen, C.J., made some observations arising out of the case before him. He remarked: "By 5 Wm. IV. No. 1 (the Cattle Slaughtering Act of 1834), it was enacted that no person should keep a slaughter-house or place for slaughtering cattle, within the city, unless he were duly licensed; and throughout the Act cattle was the only term used, and of it there was no definition whatever." He went on to refer to the Statute then under consideration and said that he thought that in it the word "cattle" included sheep, adding "as without doubt the word usually bears that construction." But the point now raised was not before him. The law at that time was that no cattle, sheep or pigs should be slaughtered, except at a licensed slaughter-house, within the city (13 Vict. No. 42). Apart from actual decisions of the Supreme Court, we should desire to follow considered expressions of opinion, if possible, and to give to the terms of the consolidating Act the construction that has been even incidentally put upon the Statutes consolidated, if we can do so without disregarding the manifest intention of the legislature.

Now, the first Act dealing with the subject was passed in 1830, 11 Geo. IV. No. 4. It is important, I think, to read the title and preamble of that Act; because it is fair to assume that, whatever the legislature meant then, they meant in 1902, in the Act consolidating the earlier ones. It is entitled "An Act for regulating the slaughtering of cattle and for preventing the improper driving of the same through the streets of Sydney and for other purposes." It then recites that "it is expedient to establish proper regulations respecting the slaughtering of cattle with the view of checking the depredations to which they are now subject and for averting the danger which ensues from the improper driving of cattle through the streets of Sydney." There is little doubt that the word "cattle" was used in the same sense in both parts of that preamble, and there can be no doubt what was meant by it in the second part. The second object was only dealt with in sec. 13, which provided that no cattle should be driven into the town of Sydney north of the cattle market except between the hours of twelve at night and six in the morning, under a penalty of ten shillings per head for all cattle so driven. The first section required that "no person shall keep a slaughter-house or place for slaughtering cattle intended for sale or barter without being duly licensed," &c. There are various other provisions in the Act, very much the same as those contained in Division 1, Part II. of the Act of 1902. That was a temporary Act, and was twice continued in force by short Acts of Parliament. It was superseded by the Act 5 Wm. IV. No. 1, which recites the title of 11 Geo. IV. No. 4, and the continuance of that Act, the date of its expiration, and that "it is expedient to continue" and "amend the same." Then it was enacted that, "after the 31st day of August, 1834, no person shall keep a slaughter-house or place for slaughtering cattle intended for sale or barter or for shipping without being duly licensed, and that if after the said 31st day of August, 1834, any person" should slaughter cattle in breach of that provision, he should be liable to a penalty of ten pounds per head of cattle so slaughtered. That was a general Act applying to the whole of the colony. The other sections are substantially the same as those in Division 1, Part II. of the Act of 1902. The only provision for licence is in regard to slaughtering cattle. We are told that it was never at that time thought of by anyone to charge the fee of threepence for animals other than horned cattle, that the question never arose whether it was payable in respect of them and that it was never claimed until quite recently. Many statutes have been passed since that time, dealing with cattle in one way or another. Many of them contain definitions of the term—in one Act one sense, and, in another, another being given to it. In 1849 the first of these was passed, 13 Vict. No. 42, entitled "An Act to amend the law relating to the licensing of slaughter-houses within the city and suburbs of Sydney and for the prevention of other nuisances within the same." (The Act 5 Wm. IV. No. 1 applied to the whole colony.) The preamble recites the Act 5 Wm. IV. No. 1, and that "in pursuance thereof divers licences have been granted for such purposes for various places in the City of Sydney," and that "such slaughter-houses and places for slaughtering cattle have become nuisances to the health and comfort of the inhabitants of the said city and it is intended that the same shall be hereafter removed," and that "it is expedient that in the meantime no new slaughter-house should be licensed within the said city or within the distance" prescribed later on in the Act. It then proceeded to enact that no new licences should be granted to slaughter-houses or places for slaughtering cattle within the city or within a distance of two miles from its limits, and continued liberty to those already existing to carry on the business as before. Now, according to the construction that is sought to be put upon it by the respondent, sec. 1 of 5 Wm. IV. No. 1 absolutely prohibited the slaughtering of sheep or pigs except at licensed slaughter-houses. This Act was to amend that earlier Act, and it specially provided in sec. 3 that it shall not lawful, after 1st January, 1850, "for any person to slaughter or cause to be slaughtered any sheep, calves or pigs in any house or place within the limits of the said city other than in such slaughter-houses or places for slaughtering as are now licensed and shall continue to be licensed under the provisions of the" Act 5 Wm. IV. No. 1. But, if the respondent's contention is correct, that was already the law, not only with regard to Sydney but to the whole colony, and yet the legislature apparently thought it necessary to make special provision for Sydney. It is clear that if anyone had been asked in 1849 what was the law he would have said that sheep and pigs could not be slaughtered in Sydney except in licensed slaughter-houses, but that there was no law dealing with them outside the limits of the city. Apart altogether from the argument that may be based on the provision as to the keeping of the skins, here we have express legislative recognition of the fact that there was no law in force on the subject as to the smaller animals sometimes included in the term "cattle." The Act 41 Vict. No. 14, passed in 1850, contains a definition of the word, "cattle." In 14 Vict No. 30, which is a similar Act, the word "animal" is used to include horses, bulls, oxen, sheep, pigs, and many other kinds of animals, but the generic word "cattle" is not used, although, on the respondent's contention, that word would have been quite sufficient to include horned cattle, sheep and pigs. The Act 14 Vict. No. 36 defines "cattle" as including sheep, pigs, and goats. None of these supply any argument for holding that the word "cattle" includes in its natural meaning other animals than horned or bovine cattle. It will be noticed that in the definitions the word "include" is used, which connotes that the word whose meaning is being defined is used in the Statute in a sense larger than that which it primarily bears. Reading these Acts together, it appears to me, even more clearly than upon reading sec. 13 of 5 Wm. IV. No. 1 standing by itself, that the word "cattle" is there used in the restricted sense. Against that construction we have the cases in the Supreme Court that were referred to in argument. What has pressed me more than anything else in the course of the argument is the question of what weight we should attach to those cases. I have already indicated what I think is the true construction of the older Acts. But if there were any doubt about the matter, I think it has been removed by the legislature itself in the new collocation of the sections dealing with the various subjects in the Act of 1902. The best that could be said for the respondent was that it was doubtful whether in sec. 13 of the Act of Wm. IV. (sec. 15 of the Act now under consideration), the word "cattle" included sheep and pigs. But when we find that section and other sections put together in a new collocation including sec. 14, in which sheep, calves, and pigs are spoken of in contradistinction to cattle, or which is taken from an Act (15 Vict. No. 13), in which the word "animal" was used to include all kinds of horned cattle, sheep, and pigs, &c., and we are then asked to say whether in the next section the word is to have the wider meaning, the conclusion is irresistible that, construing sec. 15 in the light of these other sections, the word "cattle" in that section means horned cattle only, and that, therefore, the fee of threepence per head can only be charged in respect of such cattle.

It is not suggested that the case R. v. Charley Mong has ever been acted upon to the extent of charging fees for the slaughtering of sheep and pigs before this particular instance.

For these reasons we think that the decision of the learned Judges of the Supreme Court was erroneous, and that the rule nisi for a prohibition should be made absolute with costs.

Appeal allowed. Order of the Supreme Court discharging the rule nisi for a prohibition set aside and rule nisi made absolute with costs, so far as the order of the justices relates to charges in respect of sheep and pigs. Respondent to pay the costs of the appeal.

Solicitor, for the appellant, S. J. Bull.

Solicitor, for the respondent, The Crown Solicitor of New South Wales.

[1] The section is printed ante p. 483.