Scottish Court of Session Decisions

By section 34 of the Poor-Law Amendment Act 1845 it is enacted—“That when the parochial board of any parish or combination shall have resolved to raise by assessment the funds requisite [for the relief of the poor], such board … shall resolve as to the manner in which the assessment was to be imposed, and it shall be lawful for any such board to resolve that one-half of such assessment shall be 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.”….

By section 36 it is enacted—“That where the one-half of any assessment is imposed on the owners and the other half on the tenants or occupants of lands and heritages, it shall be lawful for the parochial board, with concurrence of the Board of Supervision, to determine and direct that the lands and heritages may be distinguished into two or more separate classes, according to the purposes for which such lands are used and occupied, and to fix such rate of assessment upon the tenants or occupants of each class respectively as to such boards may seem just and equitable.”

At a meeting of the Parochial Board of the parish of Cardross held on 16th April 1846 it was resolved that there should be an assessment, and that the mode should be that one-half of such assessment should be imposed upon the owners and the other half upon the tenants and occupants of all lands and heritages within the parish. The classification then fixed was—“Class 1, lands let for farming; class 2, houses let as dwelling-houses or shops, the rate on class 1 to be at the rate of one-sixth of the annual rent of the land and houses let along with it, and the rate on class 2 on the whole annual rent.” This classification received the sanction and approval of the Board of Supervision. At this period there was no railway in the parish of Cardross, although it was made matter of admission in this case that the Caledonian and Dumbarton Junction Railway Company had given Parliamentary notice in November 1845 that an application would be made to Parliament for power to make a railway through Cardross. Under an Act in 1851 a railway from Balloch to Bowling was constructed, and under the Glasgow, Dumbarton, and Helensburgh Railway Act 1855 a railway from Dumbarton to Helensburgh was constructed. These two lines passed through Cardross. Under Acts passed in 1862 the two companies owning them were amalgamated with the Edinburgh and Glasgow Railway Company. The latter railway was amalgamated with the North British Railway Company in 1865.

After the introduction of the railway system into Scotland numerous applications were made to the Board of Supervision for their sanction to the alteration of classifications, and on 10th December 1868 the Board issued a circular to the various parochial boards in Scotland, in which they stated that their practice in giving effect to the principle on which they thought applications to amend classifications ought to be dealt with was to approve of a classification of lands and heritages into (1) dwelling-houses, (2) shops and manufactories, railways, fishings, mines, and quarries, (3) agricultural subjects. The first of these classes paid at the full rate assessed, the second at two-thirds of the rate paid on dwelling-houses, and the third at one-fourth or one-fifth of the rate paid on dwelling-houses. Where, however, as was the case with Cardross, a board did not apply for a new classification the principles explained in this circular could not receive effect.

On the introduction of railways into the parish of Cardross the Parochial Board dealt with them as falling under class 2 of their original classification in 1846, and assessed them as if they were “houses let as dwelling-houses or shops,” at their full annual value.

This action was raised in March 1886 by the North British Railway Company against William S. Paterson, Inspector of Poor of the Parish of Cardross, to have it declared, inter alia, “that the following classifications of lands and heritages in the said parish, viz., ‘Class 1, lands let for farming; class 2, houses let as dwelling-houses or shops,’ which was adopted by the Parochial Board of said parish with the concurrence of the Board of Supervision on or about the 29th May 1846, is not now a legal and valid classification under the 36th section of the Poor-Law Amendment Act 1845, in respect it does not comprehend or include the whole lands and heritages in the said parish,” and that “unless and until a legal and valid classification of the whole lands and heritages in said parish, distinguishing the same into two or more separate classes according to the purposes for which they are used or occupied, has been adopted by the said Parochial Board with the concurrence of the Board of Supervision, in accordance with the 36th section of said Act, the said Parochial Board are not entitled to impose on the pursuers, or levy from them as tenants or occupants of lands and heritages within the said parish, any assessment at a higher rate than is imposed by the said Parochial Board for the same period on the tenants and occupants of any other lands and heritages within the said parish;” and there was a conclusion for

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interdict against assessing under the existing classification, and an alternative conclusion that in the event of the existing classification being sustained the pursuers’ railway should be placed under class 1, lands let for farming, and not class 2, houses let as dwelling-houses or shops.

The pursuers stated that the classification in 1846 was not now a legal and valid classification, and was, in particular, incomplete in respect that it did not comprehendrailways. The inclusion of railways under the second head of the classification embracing “housesletas dwelling-houses or shops” was totally unauthorised and unwarranted. Such a description could not be held to apply to or embrace such subjects according to any fair or reasonable interpretation of the language employed in the classification. Under the classification they were assessed at the full annual value of their property, while according to the existing practice of the Board of Supervision they should only be assessed on two-thirds of that value. In 1846 the lands now used as railways were used as agricultural subjects, and were embraced in class 1, and so long as there was no change in the classification they fell to be dealt with in the same way, and not transferred to class 2.

In answer the defender stated that the principle of classification was reasonable, in respect it proceeded on the distinction between lands and heritages used for agricultural purposes only and those used for other and in particular for commercial undertakings. The railways were opera manufacta on the surface of the land, and ought not to be classed with agricultural land.

The defender pleaded—“(2) The said classification having been made by the Parochial Board of Cardross with concurrence of the Board of Supervision in terms of the statute, and being a legal and valid classification, the defender is entitled to be assoilzied with expenses. (3) The pursuers' undertaking not consisting of lands let for farming is properly included in and assessed under class 2 of said classification.”

The Lord Ordinary ( Fraser) after proof pronounced this interlocutor—“Finds that there is no legal classification as under the 36th section of the Poor-Law Amendment Act 1845, nowin force in the parish of Cardross, of the tenants and occupiers of lands and heritages liable to be assessed for poor-rates: Therefore finds, decerns, and declares in terms of the first declaratory conclusion of the summons: Interdicts, prohibits, and discharges in terms of the conclusion to that effect, and decerns, &c.

“ Opinion.—… This classification was made in 1846, and was approved by the Board of Supervision, and has remained unaltered ever since, although attempts have been made to get it altered. The Board of Supervision approved of it, at a time when that Board had very little experience in regard to the matter of classification, and they would certainly not approve at the present day, a classification so inequitable as this. Their later practice was to classify lands and heritages into four classes—(1) dwelling-houses, (2) shops and manufactories, (3) railways, fishings, canals, and quarries, (4) agricultural subjects. The first of these classes paid at the full rate, the second at two-thirds, the third at one-half, and the fourth at one-fourth. Therefore dwelling-houses paying 1s. per pound of assessment, the second class would pay only 8d., the third 6d., and agricultural subjects only 3d.

“In 1846, when the classification for the parish of Cardross was approved, no railway went through the parish, and the omission of any mention in 1846 in the classification of railways is thus accounted for. It is made matter of admission by the parties that the Caledonian and Dumbartonshire Junction Railway Company had given Parliamentary notice in November 1845 that an application would be made to Parliament for power to make a railway through Cardross. But no such railway was in existence when the classification was made in 1846, and the railway company had at that time no heritable property in the parish. The adherence to the classification, and the refusal to take means to change it, now that a railway runs through the parish, are based upon considerations of pecuniary advantage which can scarcely be called fair dealing.

“The assessment imposed upon the railway is upon the whole annual rent, and the company are brought in under class 2. Having got such a classification with reference to so wealthy a parishioner as the railway company, the Parochial Board are very unwilling to let go their hold. They know perfectly well that if they made any change upon the classification the Board of Supervision would not approve of a classification which made railways assessable at the same rate as dwelling-houses, and they know that the Board of Supervision has no initiative power in this matter, and cannot compel them to take action so as to remedy a most inequitable classification. Nor can this Court do so. But this Court can declare whether or not there has been a classification within the meaning of the statute.

“The ground upon which I hold that there has been here no legal classification is this, that properties liable to assessment have not been classified, such as railways, fishings, quarries, lime-works, dyeworks, chemical works, and there are all such properties within the parish. An improper classification of this sort does not fulfil the purpose of the statute, and it was ultra vires of the Parochial Board to make it, and of the Board of Supervision to sanction it.

“The principles upon which classification ought to have been made were very ill understood by the parochial boards, and hence in the year 1868 Sir John M'Neill, the chairman of the Board of Supervision, at the request of the legal members of the board (Mr Edward Gordon, Mr Schank Cook, and myself), drew out the instructive explanatory circular, of date 10th December 1868, which has been put in evidence, and which, in regard at least to the parish of Cardross, seems to have failed in its intended effect. It was laid upon the table of the Parochial Board, the inspector states, and there it lies still—a dead letter. Its advice, with the explanations which accompanied it, were more successful with other parochial boards, who had got illegal classifications sanctioned in the early days of the Board of Supervision, and who gave concurrence to modification and amendment. But notwithstanding this, one of the reforms still needed (when there is an amendment of the Poor Law Acts) will be the giving to the Board of Supervision the power of enforcing equitable classifications, instead of the mere negative power of amendment and disapproval which they at present possess, and this only in the case

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where application is made to them by a parochial board. The individual ratepayer is helpless. His appeals to the Board of Supervision were answered, and must always be (until an Amendment Act be passed), in the same way—‘We have no power to help you.’

“The Parochial Board brings the railways under the head of ‘Houses let as dwelling-houses or shops. But this is to do inadmissible violence to the English language, and for which there is no justification whatever in the circumstances of the case. A railway is neither a dwelling-house nor a shop. No doubt an arbitrary and non-natural meaning may be attached to a word, but if that be intended there must be a clause de interpretatione verborum. It may be allowed to a man to use his own glossary provided he furnishes the translation, or to write in a cipher provided he furnishes the key to it. He may declare that by ‘houses’ he means ‘railways,’ and by ‘lands let for farming’ he means ‘dyeworks.’ But unless this be done by way of glossary, a court of law must give to words the meaning which they commonly bear, and therefore the only conclusion I can come to is, that there is no existing legal classification in the parish of Cardross, and that therefore this case must be dealt with on the footing that none such exists.

“Now, the result of this must be, of course, that all property shall pay at the full rate under deductions allowed by section 37 of the Poor Law Act. Consequently farmers must pay at the same rate as all other ratepayers, a result also very inequitable, but which is the consequence of the non-existence of a legal classification. But the imposing such liability on farmers will have the good effect of very speedily forcing the Parochial Board to adopt a classification more in accordance with justice than the existing one.

“I am unable to adopt the contention of the railway company (which is sought to be given effect to in the alternative conclusion of the summons), viz., that ‘railways’ come under the first class of ‘Lands let for farming.’ That contention is just as absurd and untenable as the contention of the Parochial Board that they come under the second class of ‘Houses let as dwelling-houses or shops.’”

The defenders reclaimed, and argued—The classification in question was legal and valid. It was equivalent to a classification into (1) lands let for farming, (2) all other lands and heritages. The intention of the board in making the classification must be looked to rather than the words used, and that intention was to embrace in class 2 all other lands and heritages except those embraced in class 1. The object of the board was to give a special exemption to farmers in preference to all other occupants of lands and heritages. This appeared from the minutes of the board and the communications passing between them and the Board of Supervision at and before the date when the classification was adopted. The words “lands let as dwelling-houses and shops” used in the minute of the Parochial Board adopting the classification were intended rather as an example of the class to which no exemption is given than as a definition of it. Further, the Parochial Board had always so interpreted the classification, and had assessed the parish on that footing since its introduction without question from any ratepayer till the present proceedings. The introduction of a new subject into the parish such as railways could not render invalid a classification which was legal and valid when it was adopted.

The pursuers replied—The classification never was legal and valid. The intention of the Board could only be gathered from the words used, and these did not embrace all the lands and heritages in the parish at the date when the classification was adopted. The fact that the Parochial Board had assessed upon this classification since its adoption could not give validity to a classification which was and had always been illegal and invalid. Even if the classification were held to have been exhaustive at the date of its adoption, it ceased to be so on the introduction of railways into the parish, they being a new subject of assessment which could not in any view be embraced within the classification, as they did not fall under its terms. Not being then in existence they could not have been within the intention of the Board when it was made.

The Court after hearing counsel directed the process to be laid before the Board of Supervision, requesting the Board to inform the Court whether they continued to concur in the classification complained of as in their opinion just and equitable.

The following minute was lodged in answer to the request:—“The Board beg very respectfully to state that they have been in use to regard the duty devolved on them by the Poor-Law Act, in the matter of assessments, as of a judicial character, and have not considered it consistent with their statutory duty to determine as to any classification submitted to them by a Parochial Board without affording to the parties, supporting or opposing the classification submitted, an opportunity of being heard thereon. They therefore regret that they are unable to give the Court a definite answer to the question put to them in the remit, as by doing so, they might be held to have prejudged the question, if it were hereafter to be submitted to them in the manner contemplated by the statute. Subject to this explanation, the Board have to state that they have been in the habit of approving of classifications as just and equitable in which railways have been placed in a class between houses and shops on the one hand and agricultural lands on the other. But they have not adopted any inflexible rule to the effect that railways must always be so classed, and would consider it their duty to have regard to the whole circumstances of a parish in each particular case.”

At advising—