1903 FARMER v. GLYN-JONES. Wills J. malady, ailment, disorder, or complaint incident to or in anywise affecting the human body." The schedule continues as follows: "Special Exemptions," of which the first is, All drugs named in the book of rates referred to in the Act of Tonnage and Poundage of 12 Car. 2, c. 4, or in another book of rates referred to by the Act 11 Geo. 1, c. 7; secondly, All drugs "uttered or vended entire without any mixture or composition with any other drug or ingredient whatsoever by any surgeon, apothecary, chemist, or druggist," or other person duly qualified as therein specified; thirdly-and this is the part of the exemptions more expressly material in the present case -"All mixtures, compositions, or preparations mixed or compounded with or prepared from medicinal drugs, medicated or chemical preparations," &c., " bearing different denominations or having different properties, qualities," &c., "which shall be uttered or vended by any such surgeon, apothecary, chemist, or druggist," or other such person as aforesaid, "the different denominations, properties," &c., "of which mixtures," &c., "are known, admitted, and approved of in the preservation [sic], cure, or relief of any disorder, malady," &c., " affecting the human body, and wherein" (a) "the person mixing, compounding, preparing, uttering, or vending the same hath not nor claims to have any occult secret or art for the mixing, compounding," &c., "the same, nor" (b) "hath nor claims to have any exclusive right or title to the mixing, compounding," &c., "of the same, and which mixtures," &c., "have not been, are not, nor shall hereafter be prepared, uttered, vended, or exposed to sale under the authority of any letters patent under the Great Seal, nor at any time heretofore have been, now are, or shall hereafter be by any public notice, advertisement, or by any written or printed papers or handbills, or by any labels or words written or printed and affixed to or delivered with any such packet, box, bottle," &c., "held out or recommended to the public by the owners, proprietors, makers, compounders, original or first vendors thereof, as nostrums or proprietary medicines, or as specifics or as beneficial for the prevention, cure, or relief of any such distemper, malady, ailment, or complaint as aforesaid.” It is found in the case as follows: [The learned judge stated the findings as above set out.] Unless, therefore, the respondent by affixing the label in question has brought himself within the description contained in the last portion of the "Special Exemptions" of the schedule to 52 Geo. 3, c. 150, and is "owner, proprietor, maker, compounder, original or first vendor thereof," the tincture he has sold falls in every respect within the "Special Exemptions." The difficulty is to ascertain who are the persons meant in the "Special Exemptions" by the "owners, proprietors, makers, compounders, original or first vendors thereof," i.e., of "the mixtures, compositions, or preparations" to which the clause refers, for it is clear that such words as makers, compounders cannot refer to the immediate antecedent, which includes "bottle," "pot," and "phial," their application to which would be absurd. 66 Great light seems to be thrown upon this question by the words "at any time heretofore have been, now are, or shall hereafter be . . . . held out or recommended to the public" as beneficial for curative purposes. For it is plain that whoever the owner, proprietor, &c., may be, if he once issues an advertisement or affixes a label containing a recommendation of the preparation as of curative efficiency, the subject-matter of such advertisement or recommendation, or rather the bottle, &c., containing it, is affected with a perpetual liability to stamp duty. This consideration alone seems sufficient to shew that a retail chemist, who buys in the ordinary course of business an article which till it got into his hands was within the exemption, cannot be within the designation of the "owner, proprietor," &c., of the preparation. Indeed, the SolicitorGeneral was driven to the argument that "owner, proprietor," &c., referred to the last antecedent, and meant the owner, &c., of each particular bottle or phial sold. It has been already shewn that that application of the phrase would make the passage absurd. It cannot be supposed that the maker of the glass bottle can by any act of his determine its liability or non-liability to duty when containing a substance which he 1903 FARMER V. GLYN-JONES. Wills J. 1903 FARMER v. GLYN-JONES. Wills J. could have no object in puffing, and which the owner of the bottle and the substance could not prevent him from puffing if he were so minded. Thus far we have dealt only with the very words of the exemption itself. It is desirable to go more deeply into the matter, and see whether the view expressed is consistent with and borne out by the rest of the legislation on the subject. We may start with the Act of 42 Geo. 3, c. 56, because that Act recited that the earlier Act (25 Geo. 3, c. 79) had been much evaded, and repealed not only the former duties, but all powers and authorities contained in that and any subsequent Acts for levying and collecting the same. Sect. 2 of 42 Geo. 3, c. 56, granted ad valorem duties on every packet, box, bottle, &c. (using the same language in this respect as the Act of 52 Geo. 3), containing any drugs, herbs, pills, &c., or other preparations or compositions whatsoever, used or to be used externally or internally as medicines or medicaments for the prevention, cure, or relief of any disorder affecting the human body. The duties were the same in amount as those now chargeable. Sect. 3 provided that the duties should be payable by the owners and proprietors, or makers and compounders, or original and first vendors of such drugs," &c., or other preparations or compositions as aforesaid, and should be charged upon and payable and paid in respect of every packet, box, bottle, &c., with any such contents as aforesaid before the same should be first sold or delivered out of the custody or possession of the owners, proprietors, makers, compounders or original and first vendors thereof, for sale, either wholesale or retail, either for foreign or home consumption or otherwise, and before the same should be in any way uttered or vended, or exposed to sale or offered to, or kept ready for sale and not in bulk in any shop, house, or other place by any such owner, proprietor, maker, compounder, or original and first vendor aforesaid, or any person on his behalf. 66 This is still the law. The 4th and 5th sections contain exemptions closely resembling, if not identical with, those now appearing as "Special Exemptions," and provide (s. 4) that nothing in the Act shall extend to charge any drug or drugs named in the two books of rates referred to in the Acts 1903 FARMER Wills J. of 12 Car. 2, c. 4, and 11 Geo. 1, c. 7, nor any medicinal drug unmixed and sold by a regular surgeon, apothecary, &c., nor (s. 5) any mixtures, compositions, &c., compounded of ingre- GLYN-JONES. dients bearing different denominations or having different properties, qualities, &c., uttered or sold by any surgeon, apothecary, &c., as aforesaid, the different denominations, properties, &c., of which mixtures, &c., are known and approved as curative, and wherein the person mixing, compounding, &c., the same has not nor claims any occult process or exclusive right or title to mix, &c., and which have not been, are not, nor shall be prepared, uttered, &c., under letters patent under the Great Seal, nor at any time heretofore have been, now are, or shall be by public notice, &c., held out or recommended as curative "by the owners, proprietors, makers, compounders, original or first vendors thereof." It seems impossible to doubt that the owners, proprietors, &c., here designated are the same persons as those mentioned in s. 3 as the persons who are to pay the duties before they put the wares into circulation; and it surely must be for them to say whether or not they will, by advertising it as possessing curative properties, at once obtain the advantages of such advertisement, and subject the article at once and for all time to the disadvantage of having to pay duty. Sects. 8 and 10 of the same Act require persons making, compounding, preparing, uttering, vending, or exposing to sale or keeping ready for sale any drugs, &c., or any packets, boxes, bottles, &c., with such contents as aforesaid, which are subject to the duties, to take out licences, and to procure from the Commissioners of Stamps covers, wrappers, or labels to be affixed to the packets, boxes, &c., in which the dutiable articles are sold. Sect. 19, in order to obviate doubts on the subject, provides that all articles enumerated in a schedule to the Act shall be dutiable, and all similar articles, and also all preparations wherein the person preparing, selling, &c., the same has or claims a secret process or exclusive right, or articles prepared, &c., under letters patent, or which heretofore have been, are now, or shall be advertised in any way as curative by "the 1903 FARMER v. GLYN-JONES. Wills J. makers, vendors, or proprietors thereof," and the persons uttering and selling the same, shall be charged with the duties imposed on licences. It will be observed that this section, though giving an extensive application to substances or articles to be charged with the duty, makes no change as to the persons who are to pay the duties, and that the incidence, so far as relates to persons, is still regulated by s. 3. The importance of this remark is emphasized by the fact that the section does enlarge the class of persons required to take out licences. Seeing that by s. 3 the duties imposed by the Act are to be paid by the "owners and proprietors, or makers and compounders, or original and first vendors" of the dutiable articles, and that if they are once so advertised by the makers, vendors, and proprietors, they become permanently affected with duty, it cannot be doubted that, notwithstanding the difference of language, the "makers, vendors, or proprietors" meant the same persons as those designated by the fuller phrase of owners and proprietors, or makers and compounders, or original and first vendors" of the drugs or preparations. By 43 Geo. 3, c. 73, the Act of 42 Geo. 3 was amended. By s. 1 an amended and enlarged schedule (like the former schedule only a list of specific preparations made by the Act specifically liable to duty) was substituted for the former schedule. By s. 2 it was provided that any person who should receive from any proprietor, compounder, or original or first vendor (a phrase obviously meant to have the same scope as the longer phrase in s. 3 of the Act of 42 Geo. 3), or any agent of such person, any article subject to the duty for the purpose of selling again without the proper label affixed, and who should not within ten days either return the article to the person from whom he received it or give information to the Commissioners, should be liable to a fine, thus obviously carrying out the idea that the duties were to be paid by the person who first put the article into circulation. The framework of these Acts was altered by the Act of 44 Geo. 3, c. 98, which repealed all the duties under the care |