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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lord Advocate v. Young [1898] ScotLR 35_589 (15 March 1898)
URL: http://www.bailii.org/scot/cases/ScotCS/1898/35SLR0589.html
Cite as: [1898] ScotLR 35_589, [1898] SLR 35_589
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
[
v.
Facts:
Held that rabbits are not “vermin” within the meaning of sec. 7, sub-sec. (4), of the Gun Licence Act 1870.
Gosling v. Brown, March 9, 1878, 5 R. 755, distinguished.
Opinions of Lord Justice-Clerk Moncreiff and Lord Gifford in Gosling v. Brown, ut sup., disapproved.
This was a special case submitted for the opinion and judgment of the Court under
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the Court of Exchequer (Scotland) Act 1856 (19 and 20 Vict. cap. 56), sec. 8. The parties were the Lord Advocate for the Inland Revenue, pursuer, and William Young, farmer, Drumskelly, Kirkcudbright, defender. The case stated that on 24th November 1897 Mr Young, the tenant of Drumskelly farm, in a field on the said farm carried and used a gun without having a licence under the Gun Licence Act 1870. The case further stated that on the said date Mr Young “killed a rabbit on a field on his said farm, and was carrying and using said gun for the purpose only of killing rabbits on his farm.”
The questions of law for decision were the following:—“(1) Whether rabbits are vermin within the meaning of the proviso numbered four in the seventh section of The Gun Licence Act, 1870? (2) Whether, upon the facts above stated, the defender incurred the penalty of £10 imposed by the seventh section of the said Act?”
The Gun Licence Act 1870 (33 and 34 Vict, cap. 57), sec. 7, enacts:—That “every person who shall use or carry a gun elsewhere than in a dwelling-house or the curtilage thereof without having in force a licence duly granted to him under this Act shall forfeit the sum of ten pounds: Provided always that the said penalty shall not be incurred by the following persons, namely:..……(4) By the occupier of any lands using or carrying a gun for the purpose only of scaring birds or of killing vermin on such lands, or by any person using or carrying a gun for the purpose only of scaring birds or of killing vermin on any lands by order of the occupier thereof, who shall have in force a licence or certificate to kill game or a licence under this Act.”
On 19th February 1898 the Lord Ordinary (
Stormonth Darling ) answered the first question in the affirmative and the second in the negative.Opinion.—“The question here is, whether rabbits are vermin within the meaning of sec. 7 of The Gun Licence Act 1870?
If I were free to act on my own opinion, I should have no hesitation in answering that question in the negative. I should hold that ‘vermin’ is an ordinary popular term, with no special legal signification, and that it means noxious wild animals which everybody is agreed to destroy, not for the sake of any value which their carcases possess, but in order to get rid of them. I should reject altogether the notion that the meaning of the term ought to vary according to the interest of the person who uses it, and that, therefore every animal is to be considered vermin to a farmer which is destructive to his crops; for this, as it seems to me, would lead to a number of animals being included under the term which nobody except a farmer would think of so describing. I should indeed be prepared to hold that no animal can properly be described as vermin which is extensively used as food for man.
Moreover, I should hold as a matter of statutory construction that the Legislature, which had for centuries dealt with rabbits under their proper name, was not to be presumed as including them, in one solitary case, under the generic term of ‘vermin.’ In some statutes they are expressly referred to as ‘game’; in others they are placed along with deer, woodcock, snipe, and other animals in the same category as game; and in the most recent of all they are described as ‘ground game.’ In legislative phraseology, therefore, I should hold that they had uniformly been treated in an entirely different category from vermin.
But I am not free to act on my own opinion. I am bound by the case of Gosling v. Brown, 5 R. 755, in which the late Lord Moncreiff and Lord Gifford (Lord Ormidale dissenting) held that the word ‘vermin,’ in section 7 of the Gun Licence Act, included rabbits. I must therefore answer the first question in the affirmative, and the second in the negative.”
The pursuer appealed, and argued—1. The Lord Ordinary's opinion was sound, though his interlocutor was wrong. Rabbits had never been treated by the Legislature as vermin. A long train of statutes had placed them on quite a different footing. The Act 1457, cap. 88, anent the slayers of hares in snow time and destruction of cuninges, declared that to be a point of dittay; the Act 1551, cap. 12, in fixing the price of wild meats, enumerated the cunning among them; the Act 1567, cap. 16, classed cunninges with the doe, roe, hart, hind, dove, heron, and river fowl; and the Act 1587, cap. 59, included cunnings along with hart, hind, doe, roe, and hares among the wild beasts to slay which was theft. In more recent times the Night Poaching Act 1828 (9 Geo. IV. cap. 69), the Day Trespass Act 1832 (2 and 3 Will. IV. cap. 68), and the Night Poaching Act 1844 (7 and 8 Vict, cap. 29), all concurred in ranking the rabbit with game. The Prevention of Poaching Act 1862 (25 and 26 Vict. cap. 114), sec. 1, enacted that for the purposes of the Act the word game should include rabbits. The Game Laws (Scotland) Amendment Act 1877 (40 and 41 Vict. cap. 28), sec. 3, repeated that enactment. Finally, the Ground Game Act 1880 (43 and 44 Vict. cap. 47), which defined ground game to mean hares and rabbits, and conferred a right to kill ground game upon the occupier of land, fixed a close time in the case of lands not arable (sec. 1 (3)), and expressly provided that nothing in the Act should exempt any person from the provisions of the Gun Licence Act 1870 (sec. 4). Against this long series of legislation nothing could be set up but the case of Gosling v. Brown, March 9, 1878, 5 R. 755. Whether the decision in that case was sound or not, its date was prior to the Ground Game Act of 1880, which was the last word of the Legislature on the subject. If the defender's contention were well-founded, the exemption under the Gun Licence Act would cover a much larger class than tenant-farmers, e.g., sporting tenants, and even proprietors themselves. But that could surely not be the intention of the statute. 2, If Gosling v. Brown, ut sup., were wrong decided, it
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was not binding on the Court in the present case. A single decision by one Division on an important question did not make the law of Scotland— Shanks v. United Operative Masons Association, March 11, 1874, 1 R. 823, per L.P. Inglis, at p. 825. The same view was expressed by Lord Young in Earl of Wemyss v. Earl of March, November 18, 1890, 18 R. 126, at p. 130. [ Lord Kinnear referred to an observation of Lord Rutherfurd's to the effect that not even one judgment of the House of Lords would fix the law of Scotland— Dickson v. Halbert, Feb. 17, 1854, 16 D. 586, at p. 599.] Argued for the defender—The Lord Ordinary's interlocutor was well-founded. The section of the Act of 1870 must be construed according to its context. The purpose of the Act was plainly to tax a luxury; the purpose of the exemption was to enable a farmer to protect his crops. There was no statutory definition of vermin, but the dictionaries concurred in ascribing wildness, noxiousness, and destructiveness to vermin. These qualities were possessed by the rabbit in a very high degree from the farmer's point of view, and the exemption in the Act was manifestly designed to benefit the farmer. Moncrieff v. Arnot, February 13, 1828, 6 S. 530, and Inglis v. Moir's Tutors, December 7, 1871, 10 Macph. 204, distinctly settled the point that rabbits were not game. But if they were not game they must be vermin. There was no recognised intermediate class in which they could be put. (2) In any event, Gosling, ut sup., decided the very question here at issue. It would not be in accordance with practice for the Division to overrule that decision without calling in a larger Court. In Shanks, ut sup., L. P. Inglis distinctly stated that there would be consultation with the other judges.
At advising—
I agree entirely with the views expressed by the Lord Ordinary on this question. But as the matter is important, and as those views are opposed to the opinions of two distinguished Judges of this Court, now deceased, it is right that I should discuss the question in detail.
We are concerned with the meaning of words occurring in a particular section of an Act of Parliament; and the more closely those words are examined in relation to their place and purpose, the more am I convinced as to the result. But as the word “vermin” is undefined by statute and is to be construed in its ordinary and proper sense, the superficial view—the view of first impression—is not to be disregarded. Now, apart from the secondary use of the word vermin as a term of vituperation, in which sense it may, according to the disposition of the speaker, be equally applicable to everything living, without distinction of genus or species, I think that anyone out of a law court who was asked whether rabbits were vermin would be rather surprised to hear the question put and would certainly say “No.” The rabbit is so well-known and vermin are so well-known that the person whom I suppose to be interrogated, quilibet e populo, would probably, if asked for his reasons, be unable to give them, or at least to give them so clearly as the Lord Ordinary. But the idea of noxiousness is the dominant idea implied in the word vermin, extinguishing the thought of any small value which such animals when captured may possess in their skins or otherwise, and most vermin have, roughly speaking, no value at all. The primary idea about the rabbit, on the other hand, is that of value both for food and for sport. A rabbit is worth a considerable sum of money, and rabbits, as an article of food, constitute a substantial item in the wealth of the country. It is superfluous to say that they are also prized and preserved for sport.
It is true that the rabbit is graminivorous, and in gratifying this appetite does not distinguish between meum and tuum; and when the present question is sifted this will be found to be the real ground upon which the defender proposes to class him with vermin. It is said that to the farmer the rabbit is vermin. Now, in the first place, this is not true in fact. When the farmer shoots a rabbit he does not throw him away, as he does the vermin which are enemies of his farmyard or of his crop, but, on the contrary, eats him for dinner or sells him to the poulterer. Even if the gain thus made be less than the damage done, this does not prove that the rabbit is vermin, although it might show that (as a consumer of crops) he is as bad as vermin. If, on the other hand, it be said that to the farmer the rabbit is vermin while to other people he is not, then it becomes apparent that the word is being used in the secondary sense as a term of vituperation, and not in its primary sense as descriptive of certain animals. The angry farmer, or for that matter the angry gardener, does not mince matters in speaking of rabbits, and very likely calls them vermin, while, on the other hand, the gamekeeper not only calls certain domestic animals belonging to the farmer or the gardener vermin, but sometimes acts up to his opinions. This, however, is not the spirit nor the vocabulary of legislation.
The argument which justifies the inclusion of rabbits in vermin by the fact that they eat crops proves a great deal too much; for it would also include all the other birds and beasts which eat crops, and notably hares and pheasants. The answer made is that these are game; but this is really no answer at all, except in a sense destructive of the defender's argument. If it be meant that, as the Legislature has dealt specifically and in a particular way with game, it cannot be supposed to have intended to include game in the word vermin, then exactly the same argument
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I have spoken hitherto of the question as one of popular language about rabbits; now let us look at the language and the acts of the Legislature.
On the statute immediately under consideration there is one not unimportant point to remark. The sub-section in question sets forth an exemption. From its nature and from the context one would suppose that the reason of the exemption is that this particular use of the gun is not of itself remunerative. Certainly this is so in the case of what are admittedly vermin, and also in the case of scaring birds. But the war against the rabbit is at least self-supporting and could afford a gun licence; while, if the exemption applies, it franks all rabbit shooting by occupiers, whether the purpose be sport or gain or mere protection, for there is nothing in the section to draw a distinction.
Passing to a more general view, I find it to be clear that the Legislature has systematically recognised rabbits by name and made special provisions about them; has protected them; has constantly assimilated them to game, alike when protecting them as when protecting farmers against them; and this body of legislation is, in my judgment, irreconcileable with the theory that in the Act now under consideration Parliament meant to include rabbits in the general class vermin, which is wholly alien and external to what, for shortness, I shall call the Game Acts. The circumstance that those statutes generally class rabbits not within but along with game does not in the slightest degree affect the cogency of the argument any more than do the decisions of Moncreiff v. Arnot or Inglis v. Moir.
I need not do more than refer to the old Scots Statutes which protect rabbits; but a glance at the Day Poaching and the Night Poaching Acts shows that the protection given in those comparatively modern statutes expressly applies to rabbits as well as to the other animals which are sometimes specifically enumerated and sometimes described as game. In this rapid review, however, it is well to pause at the Act 7 and 8 Vict. cap. 29, and to observe that the preamble sets forth the failure of the existing law to prevent the destruction of game and rabbits, as well as its failure to prevent serious crime, as a moving cause of further legislation, although to the latter is naturally accorded the greater emphasis.
I am now to notice two other statutes which stand in a different position, for two reasons. The first reason is, that whereas the previous Acts have been purely protective to rabbits and game, those now to be considered are protective to the farmer against the depredations of rabbits and game. The second reason is that both statutes are subsequent to the Gun Licence Act, and therefore give rise to the question with which of the two theories of the Gun Licence Act now before us are they the more consistent.
I take first the Game Law (Scotland) Amendment Act 1877. We are now in the region of compensating the farmer for injury to his crops; and it is a remarkable fact that so completely does the Legislature assimilate rabbits to the other protected animals in this relation, that it makes the term “game” apply to rabbits for the purposes of the Act. It is superfluous to point out that this is a theory of the rabbit's place in rural economy irreconcileable with its having in 1870 been consigned to the class of capita lupina.
The other Act is the Ground Game Act of 1880; and the title tells its own story. This is the darkest hour in the legislative history of the rabbit; but his fortunes are still linked with those of the hare. Every provision in the Act applies to both animals, and both incidentally gain a close time on moorlands, although it must be confessed that they appear to owe this privilege less to favour for either of themselves than to a regard to the safety of the grouse. Still I own to finding it inconceivable that the Legislature should have shown all this ceremony towards the rabbit in 1880 if he had already in 1870 been cast out among the vermin.
The result of this examination of the Acts relating to rabbits is, in my judgment, to show that the theory that rabbits are vermin is as repugnant to the methods of the Legislature as to popular thought and language. In what I have said I have met on its own ground the argument on which the defender's case rests, that the relation of the farmer to the rabbit is alone to be considered in ascertaining the meaning of the word vermin. But for complete accuracy it is as well to remember that the word “occupier” includes an occupying proprietor and that the word “lands” is not confined to arable ground; and the sense of the word “vermin” must be one common to all the persons on whom the exemption is concerned, as well as to the rest of the world. Accordingly, a proprietor who takes a farm into his own hands and cultivates rabbits is within the exemption, whatever it means.
Apart from authority, then, it seems to me that the Grown are entitled to prevail; and the question is, whether the case of Gosling stands in the way of effect being given to this opinion. Now, even if that case were a decision of this question, we are not bound by one decision on the construction of a statute. But further, the question in Gosling was whether the
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In these circumstances I hold that we are entitled to give effect to our own judgment on the question before us, and that the Lord Ordinary's interlocutor must be recalled, the first question in law answered in the negative, and the second in the affirmative.
I think that the decision given in the case of Gosling may be held to be supported by the facts of that case as set forth in the statement by the justices on which the appeal was taken. In any view of the case it must be acknowledged that one decision, and especially a decision depending on the opinions of two Judges against one, is not final and conclusive on the interpretation of a statute. As we are informed that the present action is instituted by the Lord Advocate for the purpose of obtaining a rehearing on a question of considerable importance to the Revenue, I think that the Court of Exchequer ought to consider the case on its merits, and to decide the question in conformity with the opinion of the Court on the merits of the case.
If the question were now raised for the first time I confess I should come without hesitation to the conclusion to which the Lord Ordinary has given expression, that when an exemption from licence-duty is declared in favour of the occupier of land using a gun for the purpose of scaring birds or killing vermin, the word vermin ought to be interpreted according to the ordinary use of language, and ought not to be extended so as to include animals which are usually shot for sport or for the value of their carcases. It is not to my mind a satisfactory answer to say that a farmer may wish to kill rabbits because they are destructive to his crops. That may be a very good reason for giving him the right to kill them, but it does not follow that he is to use his right without obtaining the necessary licence to carry a gun. I must also say that I think the argument proves too much; because if it was a good argument it would equally entitle the occupier of land to kill hares without a gun-licence, on the ground that they commit depredations on his turnip fields, and are therefore vermin from the point of view of the farmer.
But it was not contended that animals falling within the description of game could be treated as vermin in the sense of this Licensing Act, and the distinction was taken that rabbits are not technically game, and therefore that by a liberal construction of the word they might be classed as vermin. The distinction appears to be a very thin one. Rabbits, although not game, have, in common with roe-deer and various species of birds, been considered as having a certain value to the owners of the land; and in the various statutes giving protection to landowners against trespass in pursuit of game, rabbits are specially named, and their pursuit by trespassers is made a punishable offence. But this is not all. In the Ground Game Act of 1880, which was passed for the purpose of enabling the occupiers of land to protect themselves against injury by ground game, the right given by the statute is a right to kill hares and rabbits. Now, if rabbits were vermin, I do not suppose that it would be necessary to go to Parliament for authority to kill them. It is a little difficult to treat this part of the case seriously. What I mean to point out is, that it is just because rabbits are not vermin in the proper and primary meaning of the word that the occupier of the land was not entitled to interfere with them until Parliament for reasons of public policy (which took no account of the distinction between game and not game) gave the right of killing them as a right inalienable and inseparable from the occupation of land.
In reference to what I have said on the subject of the Ground Game Act, I must guard myself against being supposed to refer to the language of the Act for the purpose of construing an Act of Parliament of earlier date. I only refer to it in common with the series of Acts relating to game and animals, ejusdem generis, for the purpose of showing that rabbits have been uniformly treated as having a certain economic value to the owner of the land, and not as vermin which a tenant was entitled to destroy in virtue of his occupation, and by a right which is independent of agreement or statutory privilege. I think that the questions should be answered in conformity with the argument for the Crown.
The
The Court answered the first question in
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Counsel for the Pursuer— Sol.-Gen. Dickson, Q.C.— A. J. Young. Agent— P. J. Hamilton Grierson, Solicitor of Inland Revenue.
Counsel for the Defender— Dundas, Q.C.—Constable. Agents— Purves & Barbour, S.S.C.