McNicol and Anor v Pinch

[1906] 2 K.B. 352

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(Judgment by: Darling J)

Between: McNicol and Anor
And: Pinch

Court:

Judges: Bray J

Darling JRidley J

Subject References:
REVENUE
Excise Licence
Manufacture of Saccharin
Prescribed Book

Legislative References:
Finance Act, 1901 (1 Edw. 7, c. 7) - s. 9
Revenue Act, 1903 (3 Edw. 7, c. 46) - s. 2
Regulations (No. 633 of Statutory Rules and Orders, 1904) -

Judgment date: 22 June 1906

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Judgment by:
Darling J

I am of the same opinion. The question arises upon the words prohibiting the manufacture of glucose, saccharin, or invert sugar except by persons holding a licence.

The appellants, who, it is said, should have a licence, obtained something which was properly called saccharin when they got it, and they subjected it to a process at the end of which it differed in certain respects from what it was before; but it was saccharin still. It began by being saccharin, and it remained saccharin; it was not converted into something else, and to call it anything but saccharin after the process would be to misdescribe it. In these circumstances the question is whether the appellants manufactured the saccharin. In my opinion they did not. It seems to me that the words "manufacture" and "make" in the Finance Act, 1901, are used as though they were absolutely synonymous. A licence is required to manufacture glucose or saccharin under s. 9 of the statute. By s. 5, sub-s. 1, a duty is payable on glucose and on saccharin made in Great Britain, and in sub-s. 2 the duty on glucose may be charged either on the quantity actually manufactured or by reference to the quantity ascertained in other ways. It is perfectly plain that the word "manufactured" is there used as synonymous with "made." Those words are used in the Hame section. The word "manufactured" is used in respect of glucose; the word "made" is used in respect of glucose and saccharin; and the word "manufactured" in the section is not used in regard to saccharin, because it is not necessary to go through that process which is gone through with regard to glucose in order to ascertain the duty chargeable. That is all.

I do not say that to use the word "manufacture" as exactly synonymous with the word "make," or to use the words "to manufacture" as exactly synonymous with the words "to make," is strictly grammatical, but I think that is what the statute has done. I think it possible that in a literary sense "to make" and "to manufacture" may not have precisely the same meaning. One can put cases where the word "manufacture" might be used in a somewhat strained way, but perhaps a little more scientifically. Take the case of a carpenter. A carpenter uses wood; he begins with wood; he makes the wood into boxes.

What would you say if you wanted to talk of his manufacturing? Ordinary people would not say that he manufactured wood; they would say he manufactured boxes. But I am not quite sure it might not be strictly said that he manufactures the wood. He applies a process to it. I suppose etymologically "to manufacture" is "to make by hand." Everybody knows that you cannot absolutely make a thing by hand in the sense that you can create matter by hand, because in that sense you can make nothing: "Ex nihilo nihil fit." You can only make one thing out of another. I think the essence of making or of manufacturing is that what is made shall be a different thing from that out of which it is made. Even if it could be strictly said that the carpenter "manufactures" wood it could not be said that he "makes" wood. The same with a man who makes boots; he takes leather, and he makes it into boots. If he simply made leather into leather nobody could possibly say that he was a leather manufacturer, but it would be possible to say that a man who took leather and made it into boots manufactured leather but made boots. I think it would be possible to say that, and I am not sure it would not be strictly accurate, but I cannot read this statute in that way.

Whether it would be possible to read "manufacture" etymologically as something very different from "make," I think the Act of 1901 uses "manufacture" and "make" as being convertible terms, and that a man who manufactures saccharin under s. 9 is doing the same thing as is called the making of saccharin under s. 5, or the manufacturing of glucose or saccharin under sub-s. 2 of s. 5, and that the appellants did not make saccharin, because they began and ended with saccharin. They did not "make" saccharin, and in my opinion, from the way in which the word is used by the statute, they did not manufacture saccharin, and therefore did not require a licence.