United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

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(1792) 3 Paton 265

CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.

Error in the Court of Exchequer in Scotland.

No. 57

David Patrick, Plaintiff in Error

v.

His Majesty's Advocate, Defendant in Error

House of Lords, 23d April 1792.

Subject_Construction of Statutes — Duties on Malt Liquors — Exemption Clause. —

Where the exempting clauses in the previous statutes were omitted in a new act, remodelling the duties on the sale of malt liquors: Held that, in order to continue such exemptions, it was not necessary that these should be expressly repeated in the new act.

An information was filed against the appellant, in the Court of Exchequer, to recover a penalty of £50, for having

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retailed certain spirituous liquors and strong waters, without first taking out a license. Trial was led, and a special verdict settled, stating that the defendant did, within the period mentioned in the information, retail spirits made and

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distilled from malt, in Scotland commonly called and known by the name of Aqua Vitæ or Whisky, but not other spirituous liquors. Against this special verdict the defence stated was, that in regard to such spirits made from malt, there was an exemption under the acts of parliament.

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By the act 9 Geo. II. c. 23, licenses were required to be taken out by all retailers of spirituous liquors, with two exceptions in favour of, 1st Physicians, apothecaries, surgeons, or chymists, as to any spirituous liquors they may use in

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making up medicine; and, 2d “That nothing in this act contained shall extend to charge with any of the duties directed to be paid or levied as aforesaid, any spirits made or distilled from malt, and retailed and consumed in

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Scotland, commonly called or known by the name of aqua vitæ” By a subsequent act the above act was repealed, and a new license duty of 20s. imposed instead of £50. This act contained express exemptions in favour of

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physicians, &c. and the retailers of liquors made from malt, called aqua vitæ. The acts 17 Geo. II. c. 17, § 17; 24 Geo. II. c. 40, make further regulations; and in the last of which there is an express exception in respect of spirits distilled from malt, retailed and consumed in Scotland under the name of aqua vitæ. The subsequent acts 19 Geo. III. c. 25; 21 Geo. III. c. 17; 22 Geo. III. c. 66; and 27 Geo. III. c. 30, increased the amount of license duty; but they did not contain, as in the former acts, the express exemption or provision with respect to spirits distilled from malt. But by a subsequent act, 30 Geo. III. c. 38, § 2, the previous acts 16 Geo. II. and 24 Geo. II., and also the 21 and 22 Geo. III. were declared to cease and determine, and in room thereof other regulations regarding the rate of license duties were imposed. Nothing was mentioned with respect to spirits made from malt, called aqua vitæ, but there was a clause expressly declaring, “That all powers, authorities, rules, regulations, restrictions, exceptions, provisions, clauses, matters, and things which in, or by acts of parliament, in force immediately before the passing of the act for the regulating the retailing of the said liquors respectively, and not being expressly altered, repealed, changed or controuled by this act, or not being repugnant to any of the matters, clauses,

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provisions and regulations in this act contained, shall be and continue in full force.” On this general saving clause exemption was pleaded, under the previous acts, in favour of liquors made from malt, called aqua vitæ. But judgment went out in favour of the plaintiff, His Majesty's Advocate.

Against the judgment of the Court of Exchequer in Scotland the present appeal was brought in the form of a Writ of Error.

Pleaded by the Appellant.—When the legislature has once created an exemption, exception, or provision, saving from payment of a tax, in favour of any particular article or description of persons, to which and to whom, independent of such exception or provision, the act imposing the tax would apply, and comes afterwards to increase or diminish the duty, or to regulate the exaction thereof, there is no necessity, in order to continue the exemption, that it should be verbatim repeated in the new statute. If the former act is not repealed, the exemption will remain in force without any new provision or express clause to that effect; and although the legislature, in remodelling such duties, may find it necessary to repeal the former acts, yet the exemptions or exceptions therein may be effectually renewed by a general clause, declaring, as is done in the present case, that all exceptions or exemptions in the former acts not hereby expressly repealed, shall continue in force; and therefore it is a position quite untenable, that all former exemptions in previous acts, not expressly renewed and inserted in the later act are to be considered as abrogated or repealed.

Pleaded for the Respondent.—The last act, 30 Geo. III. c. 38, repealed all former duties on excise licenses for retailing distilled spirituous liquors, and imposed a new duty in lieu thereof. This new duty is imposed in the most general words, “That all and every person or persons who shall retail distilled spirituous liquors;” and no exemption whatever is inserted in the act. The general saving clause in 30 Geo. III. can only be held to apply to the exemption in favour of physicians—the universities—the vintners' company in London, and other corporate towns, but not to the exemption applicable to liquors made of malt retailed and consumed in Scotland. Exemption was not to be implied or to be deduced by any inference from the words of the act. It must expressly appear, and cannot be admitted where the meaning of the legislature is not clear beyond all doubt. Besides, the reason which existed for the exemption

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when the tax was first imposed no longer applies. The license duty then was £50; now, it is scarcely so many shillings. In the circumstances, it would be unjust to hold that the legislature meant to tax one class of retailers and exempt another. The principle, therefore, ought to hold, that wherever the exemption of the previous acts is not renewed by the later, they ought to be considered as virtually repealed.

After hearing counsel, it was

Ordered that the judgment in the Court of Exchequer in Scotland be reversed, and that judgment be given for the defender in the original action.

Counsel: For Appellants, Henry Erskine, Allan Maconochie, Wm. Dundas.
For Respondents, Arch. Macdonald, R. Dundas, Sir J. Scott.

1792