Scottish Court of Session Decisions

The state of the question thus presented is admitted to have arisen under the following circumstances: —The station of the North British Railway is beyond the limits of the burgh of North Berwick, and to the westward of the town. The complainer is a servant on a farm to the eastward of the burgh, and was engaged in driving manure from the railway station to the farm. In the transit he passed along one of the streets of the burgh, using an uncovered cart. It is said that a conveyance of offensive matter along a street in such a conveyance is within the prohibition of the Act; it is said, on the other hand, that it is removal of the offensive matter from a part of the burgh along a street of the burgh which is made the subject of statutory provision—a description of conveyance, but one which is said, by the very use of the term, to be limited to a taking away from a particular locality, and the taking away in this case is said to mean, according to a right construction of the Act, a taking away from premises within the burgh.

The particular provision in question, which is § 145, is one of a series commencing with § 132, which forms a section relative to the cleaning of streets. These sections deal with the disposal of dirt, ashes, and manure. The first of the series, vesting what I may call the whole fuilzie, excepting stable and byre dung, in thecommissioners, and providing for the collection and carrying away of all manner of manure. In that and following sections before the 145th, the word removal is used eight times, and, in all of them, undoubtedly in the sense of taking away from the places within the burgh where the fuilzie is generated or collected. The special clause in question following up provisions as to removal of offensive matter provides, in the first place, “that the commissioners may fix the hours at which only it shall be lawful to Temove offensive matter from the premises;” the case of a removal at other hours than the hours so fixed is then provided for, and then follows the provision that, whether the hours be fixed or not, any one who “ uses, for any such purpose” —that is plainly for “the removal of offensive matter from any premises,”—an uncovered cart, shall be liable to a fine of 40s.

Independently of what I consider the impossibility of reading the words “ premises” as applicable to other premises than premises within the burgh, arising from the preceding sections, I think it very plain that it is impossible to read these words without that restrictive meaning, looking to this section alone, because an opposite construction would necessarily infer that the magistrates of any burgh could not only regulate the removal of offensive matter from places within their own burgh, but from places in counties entirely beyond their jurisdiction, nay, from places in other burghs. The words must be read as giving a universal jurisdiction of fixing the times of removal of manure all over Scotland; or as limited to the burgh over which their ordinary jurisdiction extends. If they could regulate the time of removal of manure from the station at North Berwick, they could equally regulate the time of removal at any other station within the county. if they can only regulate the time of removal from premises within the burgh, then the use of an uncovered cart for any such purpose must necessarily mean a purpose of rem oval from such prem ises—th at is to say, the taking away of manure from places where the manure is collected or generated within the burgh.

I cannot extend penal provisions beyond the fair meaning of the expression used in imposing them, because the evils from the offence prohibited and the actual thing done are similar. But I take leave to say that I do not believe that the Legislature ever contemplated to impose on all farmers who might have occasion to drive a single cart of guano or other manure from a railway station or neighbouring seaport through a part of a street of a burgh the necessity of providing a set of conveyances with covers proper for preventing the escape of the contents of the cart or stench therefrom. It is quite right that the carts used in the ordinary process of removing fuilzie in towns, whether by contractors or neighbouring farmers accustomed thus to get supplies of manure from the town, should only perform the removal at stated times, and at all times in covered carts. I do not think that the Legislature meant to deal— and I do not think that they did deal—with any other case than the removal of offensive matter from places within the burgh.

As to the second point, it is unnecessary, in my view of the first objection, to say anything. I may only remark that the complainer would have to meet two difficulties had the offence under the statute been incurred by the conveyance of manure in an uncovered cart along the street—one, that the absence of the expression of the condition on which a farm-servant is liable in the complaint is matter of form, and the other, that the evidence, as a conviction followed, must be taken to have been sufficient to warrant conviction.

The other Judges substantially concurred.