Scottish Court of Session Decisions

Lord Chancellor—My Lords, I should have been very glad in this case, and no doubt there would have been considerable convenience, if I had been able to advise your Lordships to go somewhat further than is necessary for the actual decision of the case brought before you, and to express an opinion upon various points which have been argued at your Lordships' Bar with reference to certain contingencies, as to the assessment of other property and other persons, which may hereafter arise. But I think your Lordships will agree with me, that it is always the most safe course, and perhaps the only proper course, to deal with the case which has been brought up for your Lordships' decision, and not to express opinions which might be held to operate in other cases which at present had not arisen for judicial decision.

Now, looking at this case in that point of view, the case appears to me to be an extremely simple one.

The respondents in this appeal are the Trustees of the river Clyde. They are the possessors of certain leasehold property, of which they have leases for a long term of years, which will not expire for several years to come. Those leases were in existance at the time of the passing of the Valuation Act for Scotland 1854, and at that time the Clyde Trustees were the possessors of the leases, and it has been admitted by the counsel for the appellant in their argument, before the passing of the Act of 1854 the Clyde Trustees, as the possessors of those leases, would not have been liable to an assessment of the character of that which the present appellant has been appointed to levy from those who are subject to it.

In that state of things, the Act of 1854 no doubt introduced considerable alteration in the mode of valuation and of assessment in Scotland, but the whole of the enactments of that Act are governed by one clause, which is extremely important with reference to the present argument. The clause to which I refer is the 41st, and it is only necessary that I should read the latter part of it. “Nothing ” (says that clause) “contained in this Act shall exempt from or render liable to assessment any person or property not previously exempt from or liable to assessment.”

Now, as I have already stated, the respondents were persons not previously liable to assessment. Their leases (treating the leases as property) were property not previously liable to assessment; therefore if we accept the whole of the argument at your Lordships' Bar (it is only necessary to accept it for the purpose of argument and not for decision), that by the joint operation of the 6th and the 33d sections, in ordinary cases, the owner of a leasehold exceeding twenty-one years in duration would properly be put upon the valuation-roll as a proprietor, and would properly have assessed upon him the amount of the tax in question as a proprietor—I say, if we assume the whole of that, yet, in reading the 6th and the 33d sections, we should be obliged to read in at the end of either or of both of those sections the words that I have already read, which appear to me to be a saving clause, for the benefit of any person standing in the position of the present respondents. I think it would be violating the letter and the spirit of the Act if, with reference to persons so situated, who were lessees at the time when the Act was passed, and who had made their bargains on the footing of the law as to assessment as it then stood, we were to hold that they, notwithstanding these express words of the 41st section, were now to be liable to an assessment from which they were previously to the passing of the Act exempt. Upon this short and simple ground, my Lords, I would advise and suggest to your Lordships that the interlocutor of the Court below is correct, and this appeal should be dismissed, with costs.

Lord Cranworth—My Lords, I have very little to add to what has been said by my noble and learned friend. The object of the Act, as stated in the preamble, was simply to obtain authority in all time coming for making up a valuation-roll, which should show what was the real value of the lands in Scotland,—a matter which no doubt before the passing of the Act had often given rise to great discussion. It would be a strong thing, indeed, to construe the Act so as to make persons liable to pay the valuation assessment who were not liable to pay it before. I do not think there is any necessity for so construing it. I almost think that, even if there had not been the 41st section, looking at the object of the Act as stated in the preamble, and the object of the 6th section as stated in the first line, that in estimating the yearly value of lands and heritages, such and such a course shall be taken, your Lordships would have felt, even without the 41st section, that you were at liberty to say, that it could not be the intention of the Legislature to do anything so unjust as to make liable to this assessment a class of persons who were not previously liable. But the 41st section, which, as it appears to me, must be read as if introduced into every clause of the Act, makes it abundantly clear.

Lord Westbury—My Lords, I entirely concur in the judgment proposed.

Lord Colonsay—My Lords, I also concur in what has been said.