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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'issac v. Mackenzie [1868] ScotLR 6_402 (3 March 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0402.html
Cite as: [1868] SLR 6_402, [1868] ScotLR 6_402
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SCOTTISH_SLR_Court_of_Session
Page: 402↓
Court of Session Inner House Second Division.
v.
Facts:
Held (Lord Kinloch dis.) that, under the 36th section of the Militia Act, premises rented and used by the Commissioners of Supply for Militia purposes are exempt from poor-rates as regards the proprietor of the premises as well as in respect to the Commissioners.
Certain premises in Campbeltown, belonging to a trust estate on which the defender is judicial factor, are let to the Commissioners of Supply for Argyleshire, as a place for the keeping of the arms, accoutrements, clothing and other stores, belonging to the Argyle and Bute Militia Regiment, and as buildings or premises appurtenant thereto, part being occupied as quarters for the permanent staff of militia, part as a hospital for the militia regiment when it is called out for training and exercise, and thereafter by the permanent staff, and the remainder of said premises consists of a yard or place wherein the men are mustered for the issue and return of their arms, accoutrements, clothing, and other stores, and of a building in which these are kept. The gross rent of the premises is £163.
The pursuer, inspector of poor for the parish of Campbeltown, levied an assessment for poors' rates on these premises on account of the rents paid or payable to the defender, but the defender refused to pay them, on the ground that the same are not liable to be valued and assessed for poors' rates, or county, or burgh or local rates, in respect of the terms of the 36th section of the 17th and
Page: 403↓
18th Vict., cap. 106, the Militia Act, which inter alia declares, “ and no place provided for the keeping of militia stores under this or any former Act, nor any buildings or premises appurtenant thereto, shall he liable to be valued or assessed to any county, burgh, parochial, or other local assessments. The pursuer brought this action to enforce his right.
The Lord Ordinary (Barcaple) assoilzied the defender, adding this note:— “ The Lord Ordinary has no difficulty in holding that the exemption from assessment in the Militia Act applies to poors' rates. The case of Hunter v. Chalmers, 20 D. 1311, and the authorities there referred to, are conclusive on that point. The question chiefly argued at the debate was, Whether the defender, as landlord of the premises, is entitled to the benefit of the exemption? The Lord Ordinary has not found this point to be free from difficulty. It is not to be easily inferred that an exemption of premises from assessment conferred for the benefit of the public, is to be available to any private party. Accordingly, if the words of the clause appeared to him to admit of construction on this point, the Lord Ordinary would have thought there was a strong presumption in favour of the more limited meaning contended for by the pursuer. But the provision is so unqualified in its terms, enacting absolutely that ‘no place provided for the keeping of militia stores, under this or any former Act, or any buildings or premises appurtenant thereto, shall be liable to be valued or assessed,’ that he does not think it admits of any limited application. It occurs in the same section that requires the Commissioners of Supply to provide a place for keeping militia arms and stores, and which enacts that for that purpose they may either purchase or hire suitable premises. There is therefore no doubt that the exemption applies equally to rented as to purchased premises. Whether rented or purchased, they are not to be liable to assessment. On the other hand, it is only by the subjects being assessed for poors' rates that the defender can be made liable for the landlord's share of the assessment. The Lord Ordinary thinks that would be a proceeding contrary to the express enactment of the Statute. It is not to be lost sight of that, where the premises are hired, the public may derive benefit from an exemption from taxation in favour of the landlord, as in these circumstances there will probably be a corresponding abatement of rent. If the ommissioners of Supply had purchased the premises they would have been permanently withdrawn from assessment, and it is therefore the less remarkable that, by their temporarily acquiring the use of them for payment of rent, they should be placed in the same position during the currency of the lease.
“ The pursuer's third plea, that certain of the premises being used for other than militia stores, and premises appurtenant thereto, they are not within the exemption, was not made the subject of argument at the debate. The Lord Ordinary has however considered the point, and has come to the conclusion that the plea is not well founded. The phraseology of the clause, as regards this point, is not very clear. Its leading enactment is compulsory on the Commissioners of Supply, requiring them to provide premises for the custody of militia stores. It goes on to enact that the place so provided shall contain an orderly and guard room, and a magazine and mustering yard. Immediately in connection with this enactment, the clause proceeds to provide that it shall be lawful at any time for the Commissioners of Supply ‘to provide such quarters for the permanent staff as may appear to them desirable, together with cells and such convenient premises as may be necessary for the safe custody of the stores;’ and then thero immediately follows the provision that no place provided for the keeping of militia stores, nor any building or premises appurtenant thereto shall be liable to assessment. It appears to the Lord Ordinary that the permissive provision as to providing additional accommodation is so mixed up with the main enactment of the clause, and so connected with the exemption from assessment, that the additional accommodation so provided must be held to be included in the exemption, as being appurtenant to the place for keeping militia stores.”
The pursuer reclaimed.
Fraser and Lancaster for reclaimer.
Millar and Mackenzie for respondent.
At advising—
It is not disputed that the premises in question are in the predicament to which the 36th section of the statute applies, that is, it is not disputed that they are premises which have been provided by the Commissioners of Supply. The Commissioners have provided them by becoming tenants of them. The words in the section are— (quotes). It cannot be contended that if you take these words in their literal meaning they do not comprehend the landlord equally with the tenant. It may be that poorrates are of the nature of personal taxes, but they are so in respect of real property, and if that were not so, the result would be that under that clause neither the tenant nor the proprietor would be exempted. It is only by reading the clause as providing that no one shall be assessed in respect of any premises that you get the tenants comprehended in the exemption, and the exemption of the landlord arises in just the same way. If the argument of the reclaimer were given effect to, it is clear that occupants would not be exempted any more than landlords. The only construction of the words as they stand is, that no one shall be liable in respect of any building used for this purpose, and no such are to be valued, that is, if valued for the purpose of these assessments. If there is a distinction between owners and tenants it must be found somewhere else than there.
There are just two grounds on which it may be said there is such a distinction. The first would be, that in section 36 it is said that the Commissioners may. in their discretion, from time to time resolve either to purchase or hire any suitable buildings or premises, &c., and it may be said that it is only in the former case that there is to be any exemption. There is nothing in the clause to make that a sound construction. The Commissioners may either purchase or take on lease. if it were meant that the Commissioners are not to
Page: 404↓
But, in the second place, it may be said that the reason of the thing applies to the Commissioners, but not to the landlords. That is not a safe ground. The reason of the enactment is not set forth, and is at best only conjectural. Besides, it is far from clear that the reason does not apply equally to proprietors as to commissioners or occupants. It is very plain that the Legislature contemplated that proprietors would not be very much disposed to let their premises for such purposes. The place to be so hired, purchased, or built, is to contain a guard and orderly room, and a magazine. The place is to be inhabited much like barracks, and proprietors would naturally not be very anxious to let their premises for these purposes, particularly if they retained any part of them in their own possession; and it is not wonderful, therefore, that the Legislature held out this inducement that the proprietors would not be liable in these taxes. Besides, that would enable him to take a smaller rent. I admit that the question is one of some delicacy, but I think the Lord Ordinary is right.
But Mr Lancaster ingeniously contended that the tax is a personal tax, and therefore that we must separate the two persons of the owner and occupant, and deal with their interests separately, so that the owner may be liable while the tenant is not. Now I think it is quite true that the tax, at its basis, is a personal tax, but it is so in respect of heritable subjects. It occupies logically the same position which the franchise occupies. The franchise is a personal franchise, but it is in respect of property or tenancy or occupancy. It is the man and not the land or the house that is represented, but it is in respect of the land or the house. And so it is not the house or the land that is liable for poorrates, it is the man, but it is the man in respect of the house who is taxed. Therefore, whether a man is in the position of tenant or owner, it is in respect of the subject that in either character this tax touches him. The incidence of the tax, though different as regards the position of the man, is always in respect of the subjects. In all such taxes there is at bottom a heritable subject, which, though not the thing taxed, is uniformly the measure of the taxation, the man being taxed in respect of the subject. Applying this to the case before us, we find the clause of exemption reads thus— ( reads). It is clear that no one can be liable to pay for rates in respect of premises unless they are liable to be assessed, and no premises are liable to be assessed unless they can be legitimately valued under the statute imposing the assessment. It may be that the premises may be got for a more moderate rent for the public, in consequence of their exemption from taxation; but, at any rate, it is clear that the statute does not make any distinction between the right of owners and tenants. It simply declares that the subjects shall not be valued, and if they cannot be valued for the purpose of the assessment, there can be no taxation.
The state of the question is this. The respondent is, as judicial factor, proprietor of certain house property in Campbeltown. He has let this property to the Commissioners of Supply for Argyllshire, for behoof of the Argyll and Bute Militia, drawing, it is said, a rent of £163 per annum. It is admitted that no assessment for the poor is chargeable in respect of this occupancy against the militia or any one representing them. But the defender maintains that not only are the occupants free from poor-rates, but, in respect of this occupancy by the militia, he, the proprietor, is exempt also from owner's assessment. He rests this conclusion on the 36th section of the Militia Act, 17 and 18 Vict. c. 106, which provides that, “ no place provided for the keeping of militia stores, under this or any former Act, nor any buildings or premises appurtenant thereto, shall be liable to be valued or assessed to any county, burgh, parochial, or other local rates or assessments.”
The words of the statute are unquestionably very broad and unqualified. But I think the Act must be interpreted reasonably, and with reference to the fairly presumable intention of the Legislature. I am the more disposed to adopt this mode of interpretation that the passage relied on is expressed in very loose and inaccurate terms. In strict legal construction, more especially with reference to poor-rates, there is no assessment on the property itself,—the assessment is on the owner or occupant respectively, in respect of the property. The assessment leviable is “ one-half imposed upon the owners, and the other half upon the tenants or occupants of all lands and heritages within the parish or combination, rateably according to the annual value of such lands and heritages.” The 36th section of the Militia Act, after providing that, in certain specified circumstances, the Commissioners of Supply shall furnish accommodation for the militia, declares that they may do so either by purchasing or renting premises,—that is, either by becoming proprietors and occupants, or occupant's simply. When the clause, after making this provision, goes on to declare that the premises shall not be valued or assessed for local or parochial rates, I think its true intendment is that it shall not be valued or assessed against the parties so purchasing or renting. I conceive that, with reference to the proper legal character of the assessment, this is the true reading of the statute. The exemption will, in this way, be limited to the proper object of legislative favour, the militia, or those acting on their behalf. When the commissioners of Supply purchase the property, and it is occupied by the militia, they will be free from assessment, whether as owners or occupants. When they merely rent the premises, they will be free from the occupant's assessment. But the owner of whom
Page: 405↓
I do not think that this construction does any violence to the language of the statute. It does nothing more than restrain the exemption to those who had been previously referred to as owners or occupants of the premises. At the same time, it avoids what I cannot but think a great anomaly, viz., that the fact of the militia being occupants of the premises should not only relieve the militia from the occupant's assessment, but, by a reflected privilege, very unusual in the annals of taxation, should relieve the owner from the owner's assessment as well. I can perceive no adequate or sufficient reason for the privilege being so extended. I cannot bring my mind to the conclusion that the object of the Legislature was not only exemption to the militia, but exemption also to any proprietor to whom the militia might be paying rent. I think that this conclusion may be avoided by an interpretation of the Militia Act which is both reasonable and admissible.
Solicitors: Agents for Pursuer— Murray, Beith, & Murray,W.S.
Agents for Defender— J. W. & J. Mackenzie, W.S.