Scottish Court of Session Decisions

By the Poor Law Amendment Act of 1845 (8 and 9 Vict. cap. 83), sec. 33, it is enacted—“That it shall be lawful for the parochial board of any parish or combination assembled at such meeting, or at any adjournment thereof, or for the parochial board of any parish or combination, at any meeting of such board called for that purpose, and of which due notice shall have been given by letter, advertisement, or otherwise, to all the persons entitled to attend, to resolve that the funds requisite for the relief of the poor persons entitled to relief from the parish or combination, including the expenses connected with the management and administration thereof, shall be raised by assessment, and if the majority of such meeting shall resolve that the funds shall be raised by assessment, such resolution shall be final, and shall be forthwith reported to the Board of Supervision, and it shall not be lawful to alter or depart from such resolution without the consent and authority of the Board of Supervision previously had and obtained.” Sections 34 and 35 of the said Act set forth the modes in which the said assessment may be made.

By the 69th section of the Education (Scotland) Act 1872 it is provided that “It shall be the duty of every parent to provide elementary education in reading, writing, and arithmetic for his children between five and thirteen years of age, and if unable from poverty to pay therefor, to apply to the parochial board of the parish or burgh in which he resides, and it shall be the duty of the said board to pay out of the poor fund the ordinary and reasonable fees for the elementary education of every such child, or such

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part of such fees as the parent shall be unable to pay, in the event of such board being satisfied of the inability of the parent to pay such fees.”

By the 22d section of the Education (Scotland) Act 1878 it is provided that “If a parent is unable from poverty to pay for the elementary education in reading, writing, and arithmetic of his child or children between five and thirteen years of age, and if, upon application, the parochial board of the parish or burgh in which he resides refuses to pay out of the poor fund the ordinary and reasonable fees of such child or children, it shall be the duty of the School Board to apply to the Sheriff, who, after inquiry, may, if he shall think fit, grant an order on such parochial board to pay the said fees, and such order may dispose of all question of expense.”

Under the foresaid provisions of the Education Acts various claims were made by the School Board of the parish of New Monkland on Andrew Ferrier, the inspector of poor in that parish, for behoof of and as representing the parochial board of the said parish, for the payment of fees for the elementary education of children of poor persons not legally entitled to parochial relief. These claims he resisted on the ground that the Act of 1845 gave him no power to assess for the purposes of the Acts of 1872 and 1878; and finally he raised this action against the School Board of the parish for the purpose of having it declared that they had no right under the Acts of 1872 and 1878, either by themselves or by means of an order from the Sheriff, in terms of the provisions of the last-mentioned Act or otherwise, to ask or demand that payment should be made by the pursuer, as inspector foresaid, from the assessment made under the Act of 1845, of any school fees or any part thereof for the elementary education of any child or children whose parent or parents were not legally entitled to parochial relief.

He pleaded that he “was not entitled or bound to make payment from the poor-rates to the defenders for the school fees of the children of any persons except those who were legally entitled to parochial relief.”

The defenders, on the other hand, pleaded—“(2) The construction sought to be put by the pursuer on the statutes libelled being erroneous, the defenders are entitled to absolvitor, with expenses. (4) The parochial board, in fixing the amount of the assessment for relief of the poor, are entitled and bound to provide funds sufficient to pay the said fees, and are entitled and bound to pay the same out of the poor fund, whether raised by assessment or otherwise.”

The Lord Ordinary (Fraser) sustained the fourth plea stated for the defenders, and therefore assoilzied the defenders from the action, and decerned.

He added the following note:— To give effect to the conclusion “that the parochial board has not received powers from the Legislature to impose an assessment for this new purpose to which the poor's funds are to be applied would be to entirely defeat the provision in the Education Act. No doubt that Act is defective in this respect, that while declaring it to be the duty of the parochial board to pay from the poor funds the fees of children whose parents are unable to do so, it does not go on to authorise an assessment to be imposed for that purpose, or in the case of the sixty-six parishes in Scotland where there is yet no assessment, to declare that the persons liable in poor-rates shall make provision for the purpose. A duty is thus imposed upon the parochial board, and the question comes to be, whether the necessary means for fulfilling that duty shall be held as having been impliedly granted?

“In construing Acts of Parliament courts of law have no power to supply a casus omissus, of which there is an illustration in M'Lean v. Rankine, 5 R. 1053; and then there is another rule with regard to taxes, to the effect that these cannot be held to be imposed except by express words. ‘A taxing Act,’ said Lord Cairns, L. C., ‘must be construed strictly; you must find words to impose the tax, and if words are not found which impose the tax, it is not to be imposed’ ( Fox v. Rabbits, L.R., 3 App. Ca. 478). Now, undoubtedly, there is no authority expressly given to the parochial board to impose an assessment beyond the purpose of the Act of 1845, as construed by the above-mentioned decisions, which limit the application of the assessment to the relief of aged and impotent poor. Can such a power be implied in regard to a case where a duty is imposed which cannot be fulfilled without the exercise of such implied power?

The Lord Ordinary is of opinion that such a power is here implied. The object to be served is in the same direction as that to which the poor's funds are devoted. Where the alternative lies between supplying words or powers by implication, or adopting a construction which deprives existing words of all meaning or force, it is legitimate to adopt the implication, although it imposes an additional burden in the shape of taxation. The maxim is applicable to such a case as this which says, Quando lex aliquid concedit, conceditur et id sine quo res ipsa esse non potest. Therefore the Lord Ordinary has come to the conclusion that parochial boards must, in fixing upon the amount of the assessment to be imposed for the current year, or where there is no assessment, in fixing upon the amount to be levied under the Poor Law Act, make provision for probable demands to be made upon them for the payment of school fees on account of the children of parents who are not paupers, but who are unable to pay for education, or, if they do not think it proper to anticipate such demands, they are entitled to lay on an additional or supplementary assessment when they are made if there be no funds to satisfy them.”

The pursuer reclaimed.

At advising—