Pharmaceutical Society v. London Supply Association. [5 Queen's Bench Division, 310.] March 16, 1880. [IN THE COURT OF APPEAL.] 317 THE PHARMACEUTICAL SOCIETY OF GREAT BRITAIN V. Pharmacy Act, 1868 (31 & 32 Vict. c. 121), ss. 1, 15-Corporation acting as Chemist and Druggist-Liability to Penalties—“ Person." In ss. 1, 15 of the Pharmacy Act, 1868-which prohibit under a penalty any person, not being a duly registered pharmaceutical chemist, from keeping open shop for the sale of poisons or using the name of chemist or druggist-the word "person' does not include a corporation, and the penalty cannot be recovered from an incorporated company for keeping a chemist's shop as described in the act. Judgment of the Queen's Bench Division (4 Q. B. D., 313; 28 Eng. R., 775) reversed. APPEAL of the defendants from the judgment of Cockburn, C.J., and Mellor, J., overruling a decision of the judge of the county court of Bloomsbury, in an action for a penalty under the Pharmacy Act, 1868 (31 & 32 Vict. c. 121). The facts of the case are fully set forth in the judgment delivered by Cockburn, C.J. ('); and it is here necessary to make only the following short statement of them. *The defendants were a limited company, regis- [311 tered under the Companies Act, 1862, 1867. Amongst other kinds of business carried on by them, they kept an open shop for retailing, dispensing, and compounding poisons, within the meaning of the Pharmacy Act, 1868. The shop was under the management of a shareholder and two assistants: these three were duly qualified under that statute, but the managing director was not so qualified. Feb. 23. A. Wills, Q.C., and Finlay, for the defendants: The defendants are not liable to be sued for the penalty imposed by the Pharmacy Act, 1868, s. 15; they are registered under the Companies Acts, 1862, 1867, and are a body corperson" within the meanporate; therefore they are not a ing of the Pharmacy Act, 1868, ss. 1, 15. 66 First, it is contended for the defendants that in modern legislation wherever it is intended to apply the provisions of a statute to corporations, either they are included in the enacting clauses by express terms, or a section is inserted declaring that they shall be comprehended in some word It is true that the word "person" may of itself include a corporation, but at the present day this (1) 4 Q. B. D., 313, at p. 315; 28 Eng. R., 775. used in the statute. 1880 Pharmaceutical Society v. London Supply Association. As construction is not to be adopted without good reason. an indication of the intention of the Legislature it may be mentioned that in the act for shortening the language used in acts of Parliament (13 & 14 Vict. c. 21, s. 4) it is not provided that "person" shall include a corporation. 7 & 8 Geo. 4, c. 28, s. 14, which declares that statutes as to criminal matters shall extend to corporations, is not in point for the present case which is a civil proceeding; but it shows that in the opinion of the Legislature express enactment is as a rule necessary to bring corporations within the provisions of a statute. A similar view of the law was adopted by Lord Coleridge, C.J., in Guardians of St. Leanard's, Shoreditch v. Franklin ('). It was held in Harrison's Case (*) that the word "person" in a statute as to forgery did not extend to corporations: this is a decision which goes very far in favor of the defendants, for corporations were clearly within the mischief which it was intended to remedy. In 312] many statutes passed in 1868, and also *before and after that year, an interpretation clause has been inserted declaring that the word "person" shall include a "corporation." The plaintiffs may rely upon 2 Ins., 722; but the passage alleged to be in point is not a decision, it is a mere dictum as to the construction of a particular statute. Secondly, it is submitted that upon a review of the provisions of the Pharmacy Act, 1868, it is clear that the word "person," as used therein, cannot apply to corporations; and in order to ascertain the meaning of the language used in a statute, it is always advisable to look at the context: Walker v. Richardson (). Some of the sections of the Pharmacy Act, 1868, relate to examination, registration, and death of persons; these are obviously inapplicable to corpo rations. Thirdly, even if the statute comprehends corporations, the defendants are protected, inasmuch as those who managed the shop were duly qualified: Raynard v. Chase (*). Feb. 25. Sir J. Holker, A.G., and Lumley Smith, for the plaintiffs: In a statute the word "person," prima facie, includes a corporation, and the intention of the Legislature in passing the Pharmacy Act, 1868, would be defeated, if that word were held to be restricted to individuals. The object of the statute was to regulate the sale of poisons, and the mischief intended to be remedied was the facility with which poisons might be obtained; it was wished to fix upon some one who should be responsible for carrying on the (1) 3 C. P. D., 377. (2) 1 Leach, C. C., 180. (3) 2 M. & W., 882. (4) 1 Burr., 2. Pharmaceutical Society v. London Supply Association. 1880 business of a druggist in a proper manner; but if the construction contended for by the defendants be correct, they may sell poisons in large quantities without incurring any penalty. There is no reason in law why a corporation should not be liable to a penalty in an action: it may be sued for a tort, Yarborough v. Bank of England ('); and it may be indicted for a misfeasance, such as creating a nuisance. If the procedure for recovering the penalty had been by information before justices, the defendants would have been liable by force of 7 & 8 Geo. 4, c. 28, s. 14, and it will be a singular result if the defendants are exempt because the Legislature has directed the penalty to be recovered by an action in the county court. *A. Willis, Q.C., in reply: At the time when the [313 Pharmacy Act, 1868, was passed, probably it was not contemplated that corporate bodies would sell poisons; and if the Legislature had no intention to include them, they ought not to be held liable to the penalties because this court may think that they fall within the mischief aimed at by the statute. Cur. adv. vult. March, 16. The following judgments were delivered: BRAMWELL, L.J.: I am of opinion that this appeal must be allowed. I think the word "person" in s. 15 of the Pharmacy Act, 1868, does not include a corporation. That the word "person" may include "corporation," I will not deny. Though at the same time, considering the way in which statutes are now drawn, that where "corporation" is meant, it is always named, at least there is no modern instance to the contrary,-that when the Legislature made a general interpretation clause that "person" should be male and female, plural and singular, &c., it did not include corporation, I should be reluctant to hold that in any particular statute "person" included "corporation," unless there was strong reason so to do. In this case there is, in my opinion, no such reason, but the contrary. Sections 1 and 15 of the act create an "offence," and provide for its punishment. But for s. 15, s. 1 would create a misdemeanor punishable by indictment, fine and imprisonment. But offences, certainly offences of commission, are the offences of individuals, not of corporations. A corporation cannot have the mens rea. I do not say that a corporation cannot be guilty of an offence of nonfeasance-it certainly can be: but though if the Legislature pleased it might enact that a (1) 16 East, 6. 1880 Pharmaceutical Society v. London Supply Association. corporation should in a certain event be taken to have committed an offence; it must be taken prima facie that in speaking of "offenders" it speaks of individuals. If a statute were to say that any person publishing a libel should be guilty of an offence, or that no person should publish a libel, a corporate printing company publishing a libel would not be guilty in its corporate capacity, but the individuals publishing would be the offenders. So, for instance, as to the sale of beer or of spirits. No doubt if there was strong reason for saying "person" in this statute meant 314] "corporation," one ought *so to hold: as, for example, if the mischief to be prevented could not be otherwise. That is not so here, for the individual offender may be got at. If the servant or shopman of a corporation sells poison, not being a pharmaceutical chemist and registered under the act, it will be no answer to an action for the penalty to say that he did it as servant whether of an individual or a corporation not qualified. If the act is in itself unlawful, it is not the less so because done as servant. If it would be lawful because the servant was qualified, though his employer was not, I think the statute is shown by this construction to be all the more reasonable, as in that case a corporation is on the same footing as a partnership, and there is no reason why it should not be. It may be asked how is the "keeping open shop" to be reached. The servants do not keep it open. No, but the directors or managers do; they are the offenders in that case. I cannot see how they could deny that they kept open the shop. They do. They do it in fact. If they committed a public nuisance by smells, vapors, or otherwise, in the preparation, or (if supposable) in the sale of their drugs, they and not the corporation would be indictable. I see no reason then for including "corporation" in the word "person." I see many the other way. It is remarkable that "person" never includes "corporation" in any other section of this statute. It is manifest that "persons" in the preamble keeping open shops, and "persons" known as chemists and druggists, mean individuals: for they are "persons" who it is expedient "should possess a competent practical knowledge. Then such "persons" are to be examined. are to be examined. It is manifest that "persons" there does not include corporations: why should it in s. 1? So "persons" in s. 3, who have been assistants, cannot include corporations. Nor the "person" in s. 4 who is to be of full age. Nor the "persons" in s. 5 who had been admitted pharmaceutical chemists, for no corporation had been. Nor the "person" in s. 6, for a cor Pharmaceutical Society v. London Supply Association. 1880 poration never could have a "certificate of competent skill." Nor the "person" in s. 10 who is a person that may die. In short, "person" in no other section of this act includes "corporation." Further than this, I am by no means certain that the statute is not levelled at the individual actually acting, and not (at least in all cases), his employer. Who would be liable under s. 15 for *compounding medicines of the [315 British Pharmacopoeia otherwise than according to its formularies: Surely the actual person compounding. Sect. 16 supposes there may be a qualified assistant and not a qualified master again s. 17, which specially provides that for certain matters the master is liable, seems to suppose that otherwise he would not be. Then s. 18 and the following where they use the word "person" clearly do not mean corporation. There is this advantage as I have said in this construction, that it does not exclude a corporation from the benefit of carrying on this business, nor the public from dealing with them. It is not needlessly in restraint of trade, as it otherwise would be, at least not directly. If it does indirectly operate to preclude a corporation carrying on the trade, however qualified all its members may be, it is to be regretted. But then there is no need for making "person" include "corporation," nor for creating the novelty of a corporate offence. It only would operate against a corporation as it would against a partnership. Further, how is this the act of the corporation, if it is unlawful? For if it is, it is ultra vires of the directors. An assistant hired by them to sell these poisons, if so doing is unlawful, could maintain no action against the corporation. They would have a good defence. Of course, if by their articles of association poisons are expressly to be sold, their sale would not be ultra vires, but that does not appear in this case; and at all events the possibility is a reason for fixing the individual, and not the corporation. In the result, considering the way in which modern statutes are drawn, that corporations are specified where corporations are meant, that offences are wilful breaches of law or inattention to its commands, and so the act of the individual offending; that there is no reason for holding corporations to be within the act, that there are reasons to the contrary, and that in no other section of this act does "persons" mean "corporations." I am of opinion that it does not in these sections. I am aware that the penalty is recoverable by plaint in the county court (15 & 16 Vict. c. 56); but the sum recovered is at the disposition of the Crown (s. 14), and it is a penalty, and the act an "offence," and the per29 ENG. REP. 41 |