Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cowan (Minister of Kelton) v. Gordon (Kirkcudbright Road Trustees.) [1868] ScotLR 5_645 (10 July 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0645.html
Cite as: [1868] ScotLR 5_645, [1868] SLR 5_645
[New search] [Printable PDF version] [Help]
SCOTTISH_SLR_Court_of_Session
Page: 645↓
Court of Session Inner House First Division.
v.
Facts:
Held that a parish minister is assessable on account of his manse and glebe under the Stewartry of Kirkcudbright Roads Act 1864.
This was an action of declarator and interdict at the instance of the Rev. Samuel Cowan, minister of the parish of Kelton, in the Stewartry of Kirkcudbright, against David Hutchison Gordon, clerk of the Road Trustees for said Stewartry. The summons concluded that it ought to be found and declared that the pursuer was not liable, in respect of his manse and glebe, to any assessment under the Stewartry Roads Act 1864, and that the defender was not entitled to insert in the assessment-rolls the pursuer's name as a person liable to such assessment; and also that the defender should be interdicted from so inserting the pursuer's name, and from levying or attempting to levy from the pursuer any assessment for payment of the parish road debts, or for the repair and maintenance of roads, &c., under the Roads Act 1864. The defender maintained inter alia that the pursuer, being proprietor, tenant, or occupier, in the sense of the Stewartry of Kirkcudbright Roads Act, of the manse and glebe of the parish of Kelton, was liable to be assessed in respect thereof.
The Lord Ordinary (
“Combining the two decisions, the Lord Ordinary cannot escape from the conclusion that, in the legal terminology of Scotland, as settled by the decision of her Supreme Court with reference to the matter of taxation, the parish minister does not come under the general description of proprietor, tenant, or occupier. He is not to be considered liable to taxation merely because these words are used in the taxing statute. The practical result is one involving no hardship; it is merely that, when the Legislature intends to tax the parish minister, as such, in respect of his manse and glebe, it must insert a plain and specific clause to that effect, as was done with regard to the stipend in the Poor-law Amendment Act. The question in the present case arises on the terms of the Stewartry of Kirkcudbright Roads Act, 1864. There had been the usual statute-labour in operation, and afterwards its conversion; and various of the roads of the county had been made turnpike, and were under the regulation of the General Turnpike Act. It was agreed on both hands that none of the money levied for support of the statute-labour roads had been ever chargeable on any parish minister in respect of his manse or glebe. In this respect there had been all along an exemption from taxation on the part of the parish minister similar to what was so much relied on in regard to poor rates in the two reported cases already alluded to.
By the Stewartry Roads Act of 1864 it was provided that the roads should no longer be maintained by tolls, but by a general assessment. The assessment leviable was twofold. There was, first, an assessment for paying off the existing road debts; and this was, by section 39, leviable ‘on the proprietors of all lands and heritages.’ There was, secondly, an assessment for the future maintenance of the roads; and this was, by section 51, ‘payable one-half by the proprietors, and the other half by the tenants or occupiers of all lands and heritages.’
According to the principle settled in the two reported cases already mentioned, the Lord Ordinary conceives that these are phrases which do not reach the case of a parish minister in respect of his manse and glebe. The application of the reported cases is direct. It was there fixed that a parish minister was, in a legal sense, neither a proprietor, a tenant, nor an occupier of land, and was not subject to a taxation imposed only on those so designed. There is not in the Kirkcudbright Roads Act any special clause imposing the burden on the clergyman as occurred in regard to the stipend in the Poor-law Amendment Act.
The defender relied much on that part of the interpretation clause of the Kirkcudbright Roads Act which declares, ‘the expressions, lands and heritages, proprietor, tenant, and occupier, shall
Page: 646↓
Another argument employed by the defender was rested on the 63d clause of the Kirkcudbright Roads Act, which specially exempts from the road assessment school-houses and certain other buildings, including amongst others any ‘house for religious worship or charitable purposes.’ The inference was, that manses and glebes, not being specially exempted, must be held comprehended in the assessment. But whatever weight might be given to this inference in a popular point of view, it fails of all legal effect, unless manses and glebes are to be considered comprehended in the previous assessing clause, so as to render necessary a clause of exemption; in other words, unless parish ministers are to be held, in respect of the manse and the glebe, to be proprietors, tenants, or occupiers. This, the Lord Ordinary thinks, they cannot be held to be, consistently with the authority of the reported cases.
It is on these cases that the Lord Ordinary proceeds, in arriving at his conclusion in favour of the pursuer. Looked at by themselves, the expressions used in the Kirkcudbright Roads Act might be sufficient to comprehend the manse and glebe, for they might be reasonably construed to comprehend all lands and heritages whatever, without exemption of any. But in the cases in question the manse and glebe were expressly construed not to fall within the general category, nor the minister within the legal character of proprietor, tenant, or occupant. The construction thus put by the Supreme Court on the statutory expressions must be presumed to have been known to the Legislature, and not ignored by it. When, without any specific enactment applicable to the case of the minister, the same general words are again used, it appears to the Lord Ordinary the necessary inference, that, whatever may be guessed at as being intended, the Supreme Court cannot judicially bring the case of the parish minister more within the enactment now than before.”
The defender reclaimed.
The Lord Advocate and Blair for him.
The Dean of Faculty and Watson in reply.
At advising—
Lord President—The Lord Ordinary has rested his judgment on the authority of two cases, Cargill v. Tasker, and Forbes v. Gibson. (His Lordship then read the first paragraph quoted above from the Lord Ordinary's note.) If I could come to the conclusion that these two decisions settled such an important general principle as that parish ministers enjoy an exemption from local taxation in respect of their manses and glebes, I should do so with much satisfaction, and consider the rule defensible on grounds of reason and expediency. But it appears to me that the Lord Ordinary has misunderstood the import of these judgments. I think both cases apply only to poor law taxation. Under Poor Law Acts parish ministers are exempted. Previously the inveterate usage of Scotland exempted them, and it was in consequence of this inveterate usage that the Poor Law Acts continued the exemption. This is clearly seen from the opinions of the Lord President, and of Lord Fullarton, in Cargill's case. His Lordship seems to say, (1) at the date of the Poor Law Amendment Act there existed a special exemption of ministers, in respect of their manses and glebes; (2) according to the proper interpretation of section 49 of that Act it was not intended to take away that exemption. Lord Cunningham no doubt takes a somewhat broader and more general ground, but the majority adopt the views of the Lord President and Lord Fullarton, and their judgment was affirmed in the House of Lords.
The question now is, whether the present case resembles the case of Poor Law Assesssment? If there were here a similar inveterate usage, and if this statute contained a provision equivalent to the 49th section of the Poor Law Amendment Act there would be similarity in the two cases. But if not, the two decisions quoted by the Lord Ordinary have no application.
The 51st section of the Stewartry of Kirkcudbright Roads Act 1864 provides for the incidence of this taxation. It enacts that one-half shall be payable by the proprietors, and the other half by the tenants or occupiers of the lands and heritages in the Stewartry. Now, what is the meaning of the words “proprietor,” “tenant,” “occupier”? The interpretation clause says they shall have the same meaning as is attached to them in the Act 17 & 18 Vic., c. 91, entitled “An Act for the Valuation of Lands and Heritages in Scotland.” That statute enacts, by section 42, that the word “proprietor” shall apply “to liferenters, as well as fiars, and to tutors, curators, commissioners, trustees, adjudgers, wadsetters, or other persons who shall be in the actual receipt of the rents and profits of lands and heritages.” The 51st section of the Kirkcudbright Roads Act must mean that the assessment shall be paid one-half by the person who has the beneficial interest in the subjects, whatever his title may be, and the other half by the tenant or person in occupation of the subjects.
The 63rd section of the statute is the only one which introduces anything in the shape of an exemption. It expressly exempts certain subjects, not individuals or classes of individuals but subjects. It is therein provided that “no assessments shall be imposed or levied under the authority of this Act for or in respect of any house or building, or portion of a house or building, exclusively used
Page: 647↓
Again, was there anything at the time the Act was passed to give the minister the benefit of the case of Forbes v. Gibson? certainly not.
I hold that there was no exemption of ministers at the time of passing the Act, and nothing in the Act exempting them. I therefore entertain no doubt, that under the Stewartry of Kirkcudbright Roads Act 1864 the pursuer is liable to be assessed in the manner in which he has been assessed, and that the Lord Ordinary's interlocutor should be recalled.
Solicitors: Agent for Pursuer— W. S. Stuart, S.S.C.
Agent for Defender— Hunter, Blair, & Cowan, W.S.