Scottish Court of Session Decisions

This was a suspension by the North British Railway Company and Forth and Clyde Railway Company of a threatened charge at the instance of the respondent, the Inspector of Poor of St Ninians, to pay certain sums of poor, school, and registration and sanitary assessment.

The value of the former company's undertaking in the parish was £437, that of the latter £1801. By arrangement between the companies the former paid the public and local rates and taxes due from the latter, doing so out of the gross traffic receipts. The rates in question were payable one-half by owners and one-half by occupants.

Section 36 of the Poor Law Act 1845 (8 and 9 Vict. c. 83) provides—“That where the one-half of any assessment is imposed on the owners, and

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the other half on the tenants or occupants of lands and heritages, it shall be lawful for the parochial board, with the concurrence of the Board of Supervision, to determine and direct that the lands and heritages may be distinguished into two or more separate classes, according to the purposes for which such lands are used and occupied, and to fix such rate of assessment upon the tenants or occupants of each class respectively as to such boards may seem just and equitable.”

It was admitted by the parties to this action that in 1846 the Parochial Board of St Ninians resolved to impose the assessment for the then ensuing year by assessing “the owners of all lands and heritages within the parish at the rate of £1, 15s. per £100 on the annual value of their lands and heritages; the tenants of the land at the rate £1 per £100 on the annual value of the land occupied; tenants of dwelling-house at the rate of £4 per £100; and the tenants of sale-shops, factories, and minerals at the rate of £2 per every £100 of annual value of the heritages occupied by each respectively.” (Stat. 8) The classification of occupants for the purposes of assessment thus was:—Class I. Dwelling-houses. Class II. Sale-shops, factories, and minerals. Class III. Lands. The Board of Supervision intimated approval of this classification on May 1, 1846, by a letter stating that the Board had approved thereof. The classification thus sanctioned was given effect to and acted on by the Parochial Board for a number of years. In 1857, however, the Parochial Board resolved—“That one uniform rate be assessed on the tenants or occupants of all heritages not being lands used for agricultural purposes.” This resolution was thereafter communicated to the Board of Supervision. In intimating it on behalf of the Board the Inspector stated that “the only effect of this will be that the tenants of minerals, instead of paying one-half as formerly, will pay the same rate as tenants of houses, factories, railways, fishings, &c.,” and on 13th November 1857 the secretary wrote to the inspector of the parish stating that the Board of Supervision had approved of the alteration in the classification of rates resolved on at the meeting of the Parochial Board of St Ninians on 28th October 1857.

Thereafter the Parochial Board acted on the footing that the classification of 1846 had been changed, and that the classification had become—Class I. Houses, shops, factories, or other buildings or premises, minerals, railways, fishings, shootings, and other heritages. Class II. Farm or land used for agricultural purposes. The rate on Class II. to be one-fourth of the rate on Class I. Acting on this classification, the Parochial Board assessed the complainers from 1857 onwards, as tenants and occupants, at the rate applicable to Class I., which was four times the amount of the rate on land used for agricultural purposes. It was according to this classification that the assessments were imposed, of which the complainers complained in this suspension.

The complainers averred—“(Stat. 11) No such classification as that represented by the said Parochial Board to be now in force in the said parish was ever sanctioned or approved by the Board of Supervision, and the foresaid assessments have not been regularly and legally imposed on the complainers in terms of the said Poor Law Act. The classification sanctioned by the Board of Supervision in 1846 has never been validly altered or superseded, and the complainers' undertakings in the said parish fall to be classified and rated as ‘lands’. under that classification. By the foresaid resolution of 28th October 1857 it was proposed only to distinguish the lands and heritages in the parish into two separate classes. The rates of assessment to be imposed on the tenants or occupants on each class respectively, as required by the foresaid section of the Poor Law Act, were not fixed or in any way referred to, and the Parochial Board never had any right or authority whatever to fix the rate of the one class at one-fourth of the rate on the other. The assessments imposed on the complainers by the said Parochial Board, and of which they demand payment as aforesaid, are in excess of what would fall to be imposed on them if the foresaid subjects were properly classified, or the assessments had been imposed in terms of the Poor Law Act, and are wrongful and illegal.”

The respondent denied this averment and “explained that the intention and effect of the resolution adopted by the Parochial Board, and approved by the Board of Supervision in 1857, was to divide the whole heritages in the parish into two classes, viz.—(1) Lands used for agricultural purposes; and (2) all other lands and heritages; the former to be rated at one-fourth of the rate upon the latter. The complainers' railways, &c., not being lands used for agricultural purposes, have been properly assessed.

The complainers pleaded—“(1) The classification under or in terms of which the assessments, of which the respondent demands payment as aforesaid, were imposed on the complainers not having been sanctioned or approved of by the Board of Supervision, the said assessments are wrongful and illegal, and the respondent is not entitled to enforce payment thereof. (2) The said assessments being in excess of what would fall to be imposed on the complainers if the foresaid subjects were properly classified, or the said assessments had been imposed in terms of the Poor Law Act, the complainers are entitled to have the assessments rectified and the proceedings complained of suspended.”

The respondent pleaded—“(1) The classification under which the complainers have been assessed having been fixed by the Parochial Board, with the concurrence of the Board of Supervision, in terms of the Poor Law Act, the note should be refused. (2) The present classification and mode of assessment having been in force in the said parish since 1857, and the complainers having been assessed in terms thereof, without objection, they are barred from insisting on the present suspension.”

A proof was led at which the only witness examined was Mr Skelton, the secretary to the Board of Supervision. He proved that among the documents produced was one dated 13th November 1857, containing the approval by the Board of Supervision in that year of the classification which the Parochial Board had adopted. It was in the terms quoted above.

It also appeared that in 1869 the Board had refused to approve a new classification. They did so because they were not satisfied with the manner in which the Parochial Board proposed to classify agricultural land.

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A minute of the Board of Supervision, dated 18th November 1869, was produced, which bore, relative to the change in the classification of subjects proposed in September of that year, that “the Board decline to approve of the proposed change.”

The Lord Ordinary pronounced this interlocutor:—“Finds that the Board of Supervision, on 12th November 1857, approved of a classification of rates submitted to them for approval by the Parochial Board of St Ninians, which was in the following terms—‘That one uniform rate be assessed on the tenants and occupants of all heritages not being lands used for agricultural purposes:’ Finds that this classification has been in observance ever since by the said Parochial Board: Finds that the assessments of which the Parochial Board demand payment were in conformity with this classification: Therefore repels the reasons of suspension, and decerns, &o.

“ Note.—The classification approved of by the Board of Supervision in 1857 was most inequitable, and certainly was most unusual. To make warehouses and shops and railways pay at the same rate as dwelling-houses was to make a classification which disregards the two principles according to which a classification should be made. The Board of Supervision have no power to take the initiative and compel the Parochial Board to come to a resolution that would be fair and equitable. Their only power is to approve or disapprove of what the Parochial Board propose, and the only remedy in the hands of the suspenders is to attend a meeting of the Parochial Board, and induce them to send up a better scheme for the approval of the Board of Supervision.

That the Board of Supervision did in the year 1857 approve of the classification made before them in that year is clearly established by the excerpts from their books, with the letters produced, and the evidence of the secretary of the Board.”

The complainers reclaimed.

At advising—