Scottish Court of Session Decisions

Gavin Paisley, collector and treasurer in and for the burgh of Partick under the General Police and Improvement (Scotland) Act 1862, sued John Marshall, portioner, for £30, 13s. 6d., as the amount of assessments due by him in respect of certain premises belonging to him in Partick, under the said Act, and under the Public Health (Scotland) Act 1867, which provides, section 95, that the public health assessment shall in burghs like Partick be levied in like manner and under like powers as the said police assessments.

The said Act of 1862 provides (section 84) that “Once in each year the commissioners … shall assess all occupiers of lands or premises within the burgh, according to the valuation roll made up and completed in terms of the Acts in force for the valuation of lands and heritages in Scotland, subject to the exceptions hereinafter provided, in the sums necessary to be levied for the police purposes of this Act, in so far as the same may have been adopted, and for the purposes to which the police assessment authorised by any

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Act in force in such burgh at the time of such adoption might have been applied, and shall fix a day on which the same shall be payable, and the rate of assessment and day so fixed by the commissioners shall be published by hand-bills posted in the burgh, and by advertisement in any newspaper circulating therein (if any be), or otherwise in some newspaper circulating in the county in which the burgh is situated; provided always that such assessment shall be imposed as from the fifteenth day of May in any one year to the fifteenth day of May in the following year, and shall not in any year exceed a rate equal to two shillings and sixpence in the pound of the gross yearly value of such lands or premises where the enactments of this Act with respect to water have been adopted.” … .

Section 89 provides—“The assessments herein-before authorised to be imposed shall be levied from the occupiers of lands or premises, but deduction shall be allowed by the commissioners of assessment for any period during which any lands or premises shall not be let or occupied for three months consecutively in any one year, and owners who shall let for rent, or hire lands or premises for less than a year, shall themselves, as well as the occupiers, be responsible for the said assessment applicable to any period less than a year, and the same may be recovered from such owners or from such occupiers as the commissioners shall judge expedient.”

The pursuer averred—“The premises of which the defender is owner are situated at Nos. 152, 142, 138, 130 Castlebank Street, 13 Graham Street, 61, 65, and 62 Merkland Street, 2 Marshall Place, and 52 Merkland Street, all within the bounds of the burgh of Partick. These premises were all, during the year ending 15th May 1880, from time to time let by the defender as owner for rent or hire, on monthly or other tenancies, for periods of less than one year. All the said premises were occupied during the said year by monthly tenants, or other tenants for periods less than a year; and none of the said premises stood unlet or unoccupied for three months consecutively during the said year. The rents for the said premises are each £4 and upwards per annum, conform to statement herewith produced, showing the rents and occupiers of all the said premises as appearing on the valuation roll for the said year.”

The defender's answer was as follows:—“Admitted, under reference to the statement produced, and subject to the explanation that the great proportion of the defender's tenants occupied their houses for the whole year in question consecutively, although holding under contracts of tenancy for periods short of a year. Explained further, that at the date of laying on the assessments sued for, none of the premises had been vacant for a period of three months or upwards during the year to which the assessments applied. The defender produces and refers to a detailed statement showing the periods of occupation of the different tenants during the year.”

On 8th September 1879, and for the service of the year 15th May 1879 to 15th May 1880, the Commissioners of the burgh of Partick resolved to lay an assessment of id. per £ of police assessment and 4d. per £ of public health assessment on all occupiers of lands or premises within the burgh. In imposing these assessments they declared that the owners of all premises let for less than a year should themselves, as well as the occupiers, be responsible for these assessments and rates applicable to such premises, and that the same should be recovered from such owners in the event of the occupiers failing to pay the same within two months after they fell due. They further fixed a day (3d November) on which said assessments should be payable, and gave the statutory notices by hand-bills and newspaper advertisements; and sent special notices, pursuant to secs. 106 and 107 of the said Act, to all owners as well as occupiers assessed.

The pursuer averred—“All the occupiers, according to the said valuation roll, of the premises of which defender is owner as aforesaid, received special notices of the amount of their respective rates for the said police and public health assessments, of the time for appeals, payment, and other matters. A first notice was issued to them on or about 6th October 1879, a second on or about 2d December 1879, and a third and final notice on or about the month of February 1880, all in the terms set forth in the printed forms herewith produced. Notwithstanding these notices, and of the simultaneous notices to the defender after mentioned, these occupiers of the said premises have all failed to pay the said police and public health assessments, which amount together to the sum of £30, 13s. 6d. now sued for, conform to the said statement herewith produced, wherein the said assessments are separately set forth in detail for each of the said premises. The pursuer, by special notice sent to the defender as owner of the said premises, on or about 24th September 1879, intimated the said assessments on the occupiers of premises, payable on 3d November 1879, and the resolution of the Commissioners to hold the owner responsible therefor in terms of section 89 of the statute above quoted, and the defender was thereby required to pay to the pursuer accordingly, on the 4th day of January 1880, such of the said rates and assessments as the occupiers should at that date have failed to pay. Intimation was also thereby given of the opportunity allowed to owners for appeals, all conform to a printed form of the said notice herewith produced.”

The Lord Ordinary (Curriehill) decerned against the defender in terms of the conclusions of the summons.

His Lordship added this note—“This action has been raised by the collector and treasurer of the burgh of Partick for the purpose of having an authoritative judgment of this Court as to the true meaning of the 89th section of The General Police and Improvement (Scotland) Act 1862. The form of the action is that of an ordinary petitory action, in which the pursuer asks decree against the defender, as owner of certain houses and premises within the burgh, for payment of certain police and other assessments imposed on these subjects by the Commissioners of the burgh for the year from Whitsunday 1879 to Whitsunday 1880, for the purposes and under the powers conferred by said statute. The liability of the defender depends upon the applicability of the 89th section of the statute to his case.

“The statute provides by section 84 that once in each year the Commissioners shall, for the

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year then current, i.e., from Whitsunday to Whitsunday, assess all occupiers of lands or premises within the burgh, according to the valuation-roll made up and completed in terms of the Acts in force for the valuation of lands and heritages in Scotland, subject to the exceptions hereinafter provided, in the sums necessary to be levied for the police purposes of this Act.’

A question which I shall afterwards advert to is raised, as to whether the assessments sued for were properly imposed according to the valuation-roll for 1878–79. But the main question is, whether the defender as ‘owner’ of the subjects in question is liable for these assessments which the Act, section 84, directs to be ‘imposed’ upon ‘occupiers?’

Now, the statute, section 89, directs the tax so ‘imposed’ upon ‘occupiers’ to be also ‘levied’ from them; but it contains an exception from the general rule in cases where the premises are let for less than a year. The words are—‘The assessments hereinbefore authorised to be imposed shall be levied from the occupiers of lands or premises, but deduction shall be allowed by the commissioners of the assessment for any period during which any lands or premises shall not be let or occupied for three months consecutively in any one year, and owners who shall let for rent of hire lands or premises for less than a year shall themselves, as well as the occupiers, be responsible for the said assessment applicable to any period less than a year, and the same may be recovered from such owners or from such occupiers as the commissioners shall judge expedient.’

It is admitted that none of the premises belonging to the defender are let for a whole year. They are all let to tenants on contracts of tenancy, for periods short of a year, although in some—perhaps in many—cases these contracts are from time to time renewed, so that in point of fact the same tenant may and does occupy his house for an entire year. None of the houses were unlet or unoccupied for three months consecutively, so that the present question turns upon the construction of the latter part of the 89th section.

The defender maintains that as the premises were de facto let for the whole year 1879–80, he does not come within the scope of the 89th section at all, while the pursuer maintains that he does, and points out that a decision in favour of the defender would in very many cases lead to the result that the assessments could not be recovered except to a very limited extent. A tenant under a monthly contract might often find it difficult, and would almost certainly refuse, to pay a whole year's assessments, especially as he has no means of recovering any part of it from his landlord or from succeeding tenants.

It must be admitted that the enactment is not very well expressed, and that the meaning of the words used is by no means clear; but after hearing and considering a very able argument from both sides of the bar, my opinion is in favour of the pursuer's view. I think that as the defender's houses are admittedly let for periods less than a year, the defender as well as his tenants are responsible for the assessments applicable to the several periods less than a year for which they are respectively let to the tenants. Thus, let it be supposed that one of the defender's houses is let for a month to A, then for a month to B, and so on to other ten tenants, each for a month. In such a case it could not be maintained with success that within the meaning of the statute the defender has not let his house for rent or hire for several distinct periods each less than one year. If so, it follows not only that the ‘occupiers’ would be responsible each for at least one month's assessment, but that the defender would also be responsible for each and all of the assessments, i.e., for the whole year's assessments, and that these would be recoverable from him if the Commissioners of the burgh should choose to exercise their option of proceeding against him. Now, does it or can it make any difference that instead of having twelve tenants each for one month, the defender lets his house to one tenant twelve times during the year for one month at a time? I think not, and I am therefore of opinion that the defender is responsible for the whole year's assessment. And I fail to see any force in the defender's argument that the pursuer is not entitled to assess both him and his tenants. He may not recover the assessment from both, for that would be taking payment twice over; but he is surely entitled, if not bound, to intimate the assessment both to the defender and to his tenants, in order that all parties may know the amount of their responsibility, and that the defender as owner may in letting his premises be able to arrange matters so that the rates are taken into account in fixing the rent.

But then the assessment must be duly imposed in terms of the statute, and the defender says that instead of imposing it according to the valuation roll for 1879–80, made up and completed,’ the Commissioners imposed it on 8th September 1879, whereas the roll was not completed till after that date. I do not, however, think the objection well founded. It is not said that an excessive assessment has been imposed upon the burgh collectively, or that the defender's houses are assessed upon values higher or other than that which appears in the roll for the year current at the date of the resolution of the Commissioners to assess. By the 8th September annually the new roll must be made up by the county assessor and lodged with the town-clerk if there be one, or with the Sheriff of the county if there be no clerk. It is no doubt subject to revision on appeal, and until that is concluded the roll is not completed in terms of the Valuation Acts.’ But when the roll leaves the assessor's hands and passes into public custody on 8th September, it is sufficiently accurate to enable the Commissioners of the burgh to estimate what sum will be required for public purposes. It is always necessary to allow a margin in laying on such assessments; perfect accuracy is unattainable. There may be in the course of the year irrecoverable arrears, or houses, &c., unlet, or exemptions, which unless a moderate margin is allowed would leave a deficiency to be met either by a supplementary assessment or by an increased assessment in the following year. Unless, therefore, it can be said (and it is not here pretended) that the Commissioners of this burgh have assessed for an unreasonably large aggregate sum, I am of opinion that they have followed the directions of the 84th section of the statute, seeing that the assessments for 1879–80 imposed in

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respect of the defender's houses, and now sued for, are imposed according to the annual value thereof appearing in the valuation roll made up and completed for that year.

On the whole matter, therefore, decree is given to the pursuer in terms of the conclusions of the summons, with expenses.”

The defender reclaimed.