Mackay v Davies [1904] HCA 20

Mackay v Davies [1904] HCA 20 - HCA 1904 case summary — Zoe

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previously inspected, notice shall be given of the fact to the in- spector, 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 tothe justices of the numbers slaughtered. By see. 6 every keeper of a licensed house or place for slaughtering cattle, in a dis 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 exporta- tion, which are licensed under the Act, shall give notice of their intention to slaughter cattle, and that no inspection or registra- tion 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 sees. 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 t here. Sec. 13 imposes penalties upon persons who hinder justices or others in such search. See 14 provides that if at any time it is made to appear to any justice that there is reasonable ground

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reported case in which the point was mentioned was before Zimes, - J., in 1887, Bx parte Hop Sing, 4 W.N.(N.S.W.), 59. He did not, - however, decide the point expre: 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 - acertain 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 Znnes, 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 onall 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

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tatute then under consideration and said that he thought that it the word " cattle" included sheep, adding "as without doubt the word usually bears that construction." But the point now vaised was not before him. The law at that time was that no cattle, sheep or pigs should be slaughtered, except at a licensed Jaughter-house, within the city (13 Vict. No. 42). Apart from actual decisions of the Supreme Court, we should desire to follow dered expressions of opinion, if possible, and to give to the ms of the consolidating Act the construction that has been ven incidentally put upon the Statutes consolidated, if we can do o 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 imble of that Act; because it is fair to assume that, whatever the legislature meant then, they meant in 1902, in the Act con- solidating 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 e specting the slaughtering of cattle with the view of checking the predations to which they are now subject and for averting the nger 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 pre- ible, and there can be no doubt what was meant by it in the econd part. The second object was only dealt with in sec. 13, ich provided that no cattle should be driven into the town of sydney north of the cattle market except between the hours of Welve at night and six in the morning, under a penalty of ten illings per head for all cattle so driven. The first section quired that "no person shall keep a slaughter-house or place for slaughtering cattle intended for sale or barter without being lu ly licensed," &c. There are various other provisions in the Act, ery much the same as those contained in Division 1, Part IL. of Act of 1902. That was a temporary Act, and was twice con- tinued in force by short Acts of Parliament. It was superseded y the Act 5 Wm. IV. No. 1, which recites: the title of 11 Geo.

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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 Ist 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. TV. 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 neces- "sary 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 act that there was no law in force on the subject as to the smaller animals sometimes included in the term "cattle." The Act 41 Viet. No. 14, passed in 1850, contains a definition of the word, "cattle." In 14 Vict No. 30, which isa 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 to- gether, it appears to me, even more clearly than upon reading sec. 3 of 5 Wm. IV. No. 1 standing by itself, that the word "cattle" 'isthere used in the restricted sense. Against that construction ve have the cases in the Supreme Court that were referred to in gument. What has pressed me more than anything else in the

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