Scottish Court of Session Decisions

This was a suspension and interdict at the instance of Joseph C. Wakefield against the Commissioners of Supply of the county of Renfrew, and James Caldwell, Clerk of Supply of the county, and also against Andrew Hoggan, clerk to the Renfrewshire Road Trustees, for his interest. The complainer (who was himself a Commissioner) sought to interdict the respondents other than Hoggan from applying any part of their funds to pay the expense of opposing certain bills introduced into Parliament in 1876 and 1877 for the alteration and amendment of the law in regard to the management of roads and bridges in Scotland.

The following statement of the circumstances in which the case arose is taken from the note appended by the Lord Ordinary ( Curriehill) to his interlocutor:—“In 1876 there was introduced in Parliament by the Lord Advocate and the Home Secretary a bill, one of the chief purposes of which was the abolition of tolls on roads and bridges in Scotland, and the substitution therefor of an assessment on lands and heritages to be paid by the owners. At the general meeting of the Commissioners of Supply for Renfrewshire, held on 1st May 1876, certain persons were appointed as a deputation to meet with the Lord Advocate with the view of getting Lanarkshire and Renfrewshire exempted from the operation of the bill; and, failing this, to oppose the bill in Parliament, with power ‘to require the attendance in London of Mr Hoggan, clerk to the County Road Trustees, to assist in carrying out the object of the meeting.’ The bill did not pass. In 1877 another bill of the same object, and in terms similar to the bill of 1876, was introduced into Parliament by the Lord Advocate and the Home Secretary; and another bill also regarding roads and bridges was introduced by the members for Lanarkshire and Renfrewshire, and at the annual meeting of the Commissioners of Supply for Renfrewshire on 30th April 1877 both these bills were remitted to a committee, ‘with full power to take such proceedings thereanent as they may consider advisable for the protection of the interests of the county.’ The bill did not pass. The respondent Mr Hoggan assisted the deputation of 1876 and the committee of 1877 in conducting the opposition to the first two bills mentioned, and he did so on the employment or with the authority of the Commissioners of Supply, who on 25th October 1877 ordered his accounts, amounting to £595, 6s. 1d. to be paid. The only funds under the control of the Commissioners of Supply are derived from a ‘county general assessment,’ levied by them from the owners of land and heritages in the county under powers conferred upon them by the ‘County General Assessment (Scotland) Act 1868’ (31 and 32 vict. cap. 82), and the complainer, as owner of lands and heritages in

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the county liable to be assessed under the Act, objects to any part of the assessment being applied in paying any part of Mr Hoggan's accounts.

“The statute referred to declared it to be unlawful for the Commissioners of Supply of any county to continue to collect ‘rogue money,’ but empowered them, for the purposes of the Act, to impose annually upon all lands and heritages in the county a county general assessment,’ to be paid by the owners of such lands and heritages. The assessment is to be sufficiently large to cover the expenses of management and collection, and arrears of former years, and the purposes to which it may be applied are distinctly specified in section 3 of the statute. The words of the section are as follows:—‘III. The following salaries, fees, outlays, and expenses, viz. (1) The salaries or fees of clerks, treasurers, collectors, auditors, and other officials necessarily employed in conducting the affairs of each county, together with the necessary outlays of such officials in so far as not covered by their salaries or fees. (2) The salaries or fees and necessary outlays of procurators-fiscal in the Sheriff and Justice of Peace Courts, and clerks of Justice of Peace Court, in so far as such salaries, fees, and outlays are at present in use to be paid by each county. (3) The expenses incurred in searching for, apprehending, alimenting, prosecuting, or punishing criminals.’ (4), (5), and (6) The expenses connected with court-houses and buildings, and striking fiars prices, and damage caused by riots, &c. ‘(7) All expenses or payments presently directed by any Act of Parliament to be defrayed out of the “rogue money;” in so far as any of such salaries, fees, outlays, and expenses are not by law or usage payable or provided from other funds than those raised by the Commissioners of Supply, may be defrayed by the said commissioners out of the County General Assessment to be made and levied by them in terms of this Act.’”

The Commissioners of Supply in their statement of facts averred that their opposition to the bills was promoted on two grounds—First, that the bills, if passed, would impose certain new and important duties on their body; and secondly, that the proposed assessment would fall with undue severity upon Renfrewshire, owing to its proximity to Glasgow, the inhabitants of which made use of the roads to a very large extent.

The complainer pleaded—“(1) It being ultra vires of the Commissioners of Supply of Renfrewshire to apply their funds in the payment of the accounts foresaid, the complainer, as a ratepayer of said county, is entitled to interdict as craved.”

The respondents pleaded—“(1) The note of suspension should be refused, with expenses, in respect that Mr Hoggan having been necessarily employed by the other respondents for the purpose of conducting the affairs of the county of Renfrew in the matters above set forth the said accounts fall to be paid out of the County General Assessment in terms of the Statute 31 and 32 Vict. cap. 82. (2) The said respondents are entitled to apply their funds in payment of the said accounts, in respect—1. That it was within their powers as Commissioners of Supply to order the said work charged for to be done; and 2, and separatim, that the said work was of a class which has hitherto by immemorial usage been authorised by the Commissioners of Supply throughout Scotland, and in particular in Renfrewshire, and paid without objection out of the county rogue money, and thereafter out of the county general assessment. (3) The said accounts having been bona fide incurred for the purpose of preventing a radical alteration of the duties of the Commissioners of Supply, and the imposition of fresh burdens on the county of Renfrew, the said respondents were entitled to order them to be paid as aforesaid.”

The note of suspension had been passed by the Lord Ordinary in the Bill Chamber ( Adam), and on a record being made up, the Lord Ordinary ( Curriehill) subsequently pronounced an interlocutor sustaining the reasons of suspension, and declaring the interdict already granted perpetual, &c. In his note, after stating the facts as quoted, supra, he proceeded—“The questions thus raised are of great general importance, and before a satisfactory answer can be given to them, it is necessary to ascertain the position and duties of the body known as the ‘Commissioners of Supply’ of a county prior to the Act of 1868—the purposes to which the ‘rogue money’ was directed to be applied—and the changes and alterations in refer-to both these matters made by the Act of 1868.

“The Commissioners of Supply owe their existence solely to statute. They were first appointed by the Act of Convention of 1667; and thereafter in each successive Act granting supply a special body of commissioners was appointed to carry the Act into effect. For a time their powers and duties were confined to assessing and levying the cess or land-tax so voted by Parliament for the service of the Crown, and to dividing the valued rent of the county among the various land-owners. In 1798 the tax was made perpetual, and the commissioners therein named were made permanent, additions to their number being made by Parliament from time to time to supply vacancies. At length in 1854, by the Valuation of Lands Act, the qualification for Commissioners of Supply was finally regulated; and in 1856, by the Act 19 and 20 Vict. cap. 93, it was declared that all persons having the requisite qualification should be Commissioners of Supply for the counties in which their lands respectively lay, without the necessity of being named in any Act of Parliament. But during the period of nearly two centuries which had elapsed between 1667 and 1856 various additional duties and functions had come to be imposed upon the Commissioners of Supply of counties. Thus by the Act of 1686, cap. 6, they were authorised to act with the Justices of the Peace in maintaining bridges and ferries within their counties, and their duties in these matters continued until transferred to the trustees under the General Turnpike and Statute Service Acts. They were and are Judges of Appeal under the Assessed Taxes Statutes and under the Valuation of Lands and Heritages Acts. They were also charged with certain duties in reference to the election of parochial schoolmasters. One of their most important fuuctions was in connection with the ‘rogue money,’ which was an annual assessment originally imposed and levied by the freeholders of counties under the Act 11 Geo. I., cap. 2S, for defraying the charges of apprehending criminals and alimenting them in prison until conviction or liberation. By the Act 2 and 3 Gul. IV. cap. 65 all the powers, duties, and functions vested in or exigible from the free-holders

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were transferred to the Commissioners of Supply; and by the Act 2 and 3 Vict. cap. 65, the commissioners were empowered to levy an assessment additional to the ‘rogue-money’ for the maintenance of a police force within their respective counties. It is alleged by the respondents—and the truth of the allegation may for the purposes of this case be assumed—that the Commissioners of Supply have been in use for upwards of forty years to defray out of the ‘rogue-money’ the expenses of clerks and of the officials for managing the affairs of the county, and such expenses as they might consider beneficial in promoting the interests of the county, whether by opposing bills in Parliament or otherwise. But usage, however inveterate, and however it may be pleaded as to past transactions, will not sanction a continuance in an illegal application of trust funds; and it appears to me that the application to general county purposes of funds levied by authority of Parliament for special parposes was not lawful, and that it was in order to put a stop to these irregularities, and to provide funds for such general purposes as the Legislature considered to be proper county purposes, that the County Assessment Act of 1868 was passed. Now, I confess that I am unable to see any ground for maintaining, as the respondents do, that opposing in Parliament a public bill for the abolition of tolls on roads and bridges can be held to be necessary or incidental to the proper performance of the duties of the Commissioners of Supply under any of the Statutes, from which alone they derive their existence or power of acting. In the first place, it is quite clear that by the Act of 1868 the county general assessment, in so far as it comes in the place of ‘rogue money,” is not to be applied to all the purposes to which that fund may have been previously applied, even by inveterate usage. On the contrary, it is to be applied only in defraying such expenses as were by prior statutes directed to be paid out of that fund; and it is not, and cannot be maintained, that the expense of opposing bills in Parliament was ever authorised by any statute to be so paid; and, in the second place, I can see nothing either in the previous history of the Commissioners of Supply or in the Act of 1868 (by which they are for the first time constituted a corporation) to indicate that the opposing in Parliament bills of the nature of the Road Bills of 1876 or 1877 is incidental to their statutory duties as trustees of the funds which they are authorised to levy, or is necessary for the proper conduct of the affairs of the county. The grounds upon which they opposed these bills, and upon which they now maintain that they are entitled to apply ther statutory funds in defraying the expenses of the opposition are twofold—viz., that in these bills it was proposed (1) to alter and enlarge their own statutory duties by making them managers of the roads and bridges in their respective counties; and (2) to impose upon the lands and heritages in the county an assessment in lieu of tolls for the future maintenance of the roads and bridges.

Now, as regards the first of these grounds, I am of opinion that the objection of the Commissioners was truly one of a personal nature. As I have said, they are a purely statutory body, called into existence for the discharge of certain statutory duties, and if they felt aggrieved by the proposal to alter or increase these duties, they were fully entitled to use all proper constitutional means for bringing their grievance before Parliament. The necessary expenses might have been raised by them as individuals, or by voluntary subscription, but it appears to me to be quite illegal to attempt to secure their own personal and individual relief from additional duties at the expense of the general body of the ratepayers of the county. And as regards the second ground — viz., that additional burdens were proposed to be laid upon the lands and heritages in the county—I am unable to see in what respect the Commissioners of Supply are the proper protectors of these subjects against proposed taxation. The proper objectors to such threatened burdens are the owners of the lands and heritages proposed to be affected, or such of them as might object to be so burdened. The Commissioners of Supply are no doubt themselves all owners of lands in the county, and as such are liable to pay all assessments imposed on their lands, but they are not the only owners of lands and heritages, and they in no sense represent the general body of landowners. Many of these proprietors may, like the complainer, have preferred the new assessment to the old burden of tolls; and it would be contrary to the well-settled principles applicable to such cases to allow the Commissioners, as statutory trustees, to apply the trust-funds levied by them from other persons, especially from persons whom they do not even represent, in defraying expenses which are not authorised by the statute under which alone they became the custodiers of the funds in question.

It is true that by these bills it was proposed that certain of the preliminary expenses should be defrayed out of the ‘county general assessment,’ and the respondents pleaded that this would have been an injury to the fund under their management, and that they were bound to protect that fund against any such encroachment. But this argument is fallacious. The assessment was authorised by the Act of 1868 for certain specified purposes, the rate was unlimited, and the Commissioners were entitled to raise as much money as might be required for these purposes. But the proposed bills which were introduced by the Government, and which had they become law would have been: public Acts, would not have in any way encroached upon the assessment. They would certainly have added by the authority of Parliament one more to the specified purposes to which the county general assessment was to be applied, but they would not in the slightest degree have prevented the Commissioners from carrying out all the purposes of the Act of 1868. It might have been necessary for the Commissioners to raise a somewhat larger sum as the county general assessment, but their power of assessment and their area of assessment would not have been in any way curtailed.

The respondents founded strongly upon the case of Brighton v. North, 13th February 1847, 16 Law Journal (Chancery) 255, in their contentions. But that case in no respect resembles the present. A private company had applied to Parliament for power to reclaim land from the Wash, into which the river Ouse falls, and they were opposed by the Commissioners, who had been appointed by an Act of Parliament for the purpose of maintaining the banks of the Ouse for the protection of the adjoining lands, and who had power to levy

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rates for that purpose. The ground of opposition was, that the operations of the private company under their bill, if it passed would seriously damage the banks of the Ouse and endanger the lands adjoining. While the opposition was still proceeding, two landowners, liable to be rated, applied for an injunction against any part of the rates being applied by the Commissioners towards the expense of the opposition; but it was held that the proposed application of the rates was not ultra vires of the Commissioners, as it was their duty to protect the estate under their charge at the expense of their statutory funds; and that such duty, though not specified in the statute under which they were acting, was clearly incidental to their specified duties. In the present case, as I have already explained, the assessments entrusted to the respondents—which is the only trust-estate held by them—would not have been encroached upon even had the bills passed into law, and it was not their right or their duty to apply their funds— i.e., the money of the general body of the ratepayers—in opposing a measure which could not diminish all these funds though it might have rendered necessary an increased assessment. The present case appears to me to fall within the principle of the cases of Cowan and Mackenzie v. Law, March 8, 1872, 10 Macph. 578, and The Queen v. The Mayor of Sheffield, June 1871, 6 L.R., Q.B. 652, in one of which it was held that statutory trustees could not apply the trust-funds in promoting measures for the enlargement of their powers, and in the other of which it was held that such trustees could not apply their funds in opposing measures where such opposition though beneficial to the community was not authorised by the statute creating the trust.

On the whole matter, I am of opinion that although the respondents may have acted—as I have no doubt they did act—in a bona fide belief that the proposed legislation would have been disadvantageous to the interests of the county, and although their opposition may have been successful in delaying the proposed measures, and may have thereby benefited the great body of the ratepayers (a matter on which I express no opinion), it is ultra vires of them to apply any part of the county general assessment in defraying the expense of opposition. The complainer must therefore have the remedy which he seeks in this suspension, with expenses.”

The Commissioners of Supply reclaimed, and argued—Mr Hoggan's accounts were payable out of the county general assessment funds under section 3 of the Act of 1868, as he was “necessarily employed in conducting the affairs of the county.” The expense was incidental to the duties of the Commissioners, and their action in opposing bills was not ultra vires. For (1) the bills objected to sought to impose new duties on the Commissioners of Supply; and also (2) to lay unfair burden of assessment on the county of Renfrew.

An additional argument was pleaded in the Outer House to the effect that the expenses were of a class paid by immemorial usage out of the county “rogue money,” and thereafter (since the 1868 Act) out of the county general assessment, but was not stated to the Court.

Argued for the respondents — The expenses could not be paid out of the county general assessment, for the Commissioners being a statutory body had no power to spend county money except on the purposes to which it was destined by statute. The objection as to new duties sought to be opposed was a purely personal one, and did not interest the Commissioners as a corporate body. The opposition to the bills, if made at all, should have been made by private petition to Parliament, and by the owners of lands and heritages in the county, not by the Commissioners of Supply in their corporate capacity.

Authorities— Brighton v. North, February 13, 1847, 16 L.J. (Chan.) 255; Cowan and Mackenziey. Law, March 8, 1872, 10 Macph. 578; The Queen v. The Mayor of Sheffield, June 1871, 6 L.R. Q.B. 652.

At advising—