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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Baillie v. Parochial Board of Sorn [1889] ScotLR 27_6 (29 July 1889)
URL: http://www.bailii.org/scot/cases/ScotCS/1889/27SLR0006.html
Cite as: [1889] ScotLR 27_6, [1889] SLR 27_6
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SCOTTISH_SLR_Court_of_Session
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Court of Session Outer House.
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v.
Facts:
The Act 7 and 8 Vict. cap. 44, sec. 8, which provides for the erection of quoad sacra parishes, enacts—“It shall and may be lawful for the minister and elders of such parish to have and enjoy the status and all the powers, rights, and privileges of a parish minister and elders of the Church of Scotland.”
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Held that by virtue of this enactment the minister of a quoad sacra parish is not liable to be assessed for poor rates in respect of his manse.
This was a process of suspension and interdict at the instance of the Rev. James Gilmour Baillie, minister of the parish of Catrine in the county of Ayr, against the Parochial Board of the parish of Sorn and Robert Buchanan Conner, the Collector of Poor's Assessment and Inspector of Poor of the said parish, in which the complainer sought to suspend certain proceedings at the instance of the respondents for recovery of an assessment for the relief of the poor of the parish of Sorn imposed upon him as owner and occupier of his manse.
The parish of Catrine is a quoad sacra parish, erected under 7 and 8 Vict. cap. 44. Originally it formed part of the parish of Sorn. The endowment of the parish included a manse for the minister, the title to which was taken in the name of trustees, who held it in trust as a dwelling-house for the minister of the parish. The complainer was entered in the valuation roll as owner and occupier of the manse. He was assessed for the relief of the poor for the sum of 18s. 11
d., which he refused to pay, whereupon the proceedings complained of were taken. 1 2 The Statute 7 and 8 Vict. cap. 44, sec. 8, enacts—“It shall and may be lawful for the minister and elders of such parish to have and enjoy the status and all the powers, rights, and privileges of a parish minister and elders of the Church of Scotland.”
The Lord Ordinary (
“ Opinion.—The question raised in this process is, whether a minister of a quoad sacra parish erected under the Statute 7 and 8 Vict. cap. 44, is liable for poor rates in respect of the manse occupied by him?
It was decided by the case of Forbes v. Gibson, 13 D. 341, and 1 Macq. 106, that parish ministers of the Established Church of Scotland are not liable to be rated for relief of the poor in respect of their manses or glebes under section 34 of the Poor Law Act 1845, although under section 49 of that statute they are liable to be assessed in respect of their stipends.
The only question therefore is, whether a minister of a quoad sacra parish is entitled to the same exemption or privilege? It is pleaded in defence that he is not so entitled, because the exemption claimed is not inter sacra, but a civil right or privilege, and that as the parish is only erected quoad sacra the rights and privileges possessed by the complainer are only those which can be regarded as inter sacra.
The complainer founds particularly upon the provision in section 8 of the Act 7 and 8 Vict. cap. 44, to the effect that ‘it shall and may be lawful for the minister and elders of such parish to have and enjoy the status and all the powers, rights, and privileges of a parish minister and elders of the Church of Scotland.’ Those are very wide words, and quite sufficient to cover the exemption claimed unless there is anything in the position of the minister of such a parish which makes it necessary to read the words in a restricted sense.
I am of opinion that the exemption in question must be held to be among the ‘rights and privileges’ declared by the statute to belong to ministers of parishes erected quoad sacra. The words quoad sacra do not necessarily imply that the minister of a quoad sacra parish does not enjoy any of the civil powers, rights, and privileges possessed by other ministers of the Established Church of Scotland. The limitation more properly refers to the obligations and liabilities of the inhabitants of the disjoined parish to the old parish as regards payment of stipend, upkeep of manses and churches, and so forth, which continue in force notwithstanding disjunction. As Lord Medwyn says in Grant v. Macintyre, 11 D. 1387—‘That this parish is one only quoad sacra, and is not declared to be quoad civilia also, does not affect the minister in his ecclesiastical character, nor in any of his proper ecclesiastical rights or duties or privileges. The exception of its not being a parish quoad civilia of course applies only to civil rights, and those not even affecting the minister, but the inhabitants of the original parish out of which the new parish has been taken. Thus, the new parish has no parochial school, and the heritors within it remain liable for the support of the parochial school attached to the parish. The absence of a school neither affects the status of the minister nor influences the character of the parish. Parishes existed throughout Christendom, and in this country, long before the Act 1633 and those in 1693 and 1696 were passed. The same observation applies to the heritors of the old parish who are now within the new, continuing liable for the repairs of the manse and church as before, those matters being otherwise provided for as to the new parish. So also as to provision for the poor. Both of these are burdens on the heritors, laid on with us subsequent to the Reformation, and any duties of the clergy attached to them are extrinsic to and superadded to the proper functions of the benefice.’ And in Cheyne v. Cook, 1 Macph. 969, in which the question was also as to the rights of a minister of a parish erected quoad sacra to participate in the Ministers Widows' Fund, the Lord Justice-Clerk (Inglis) said—‘This, then, is a parish quoad sacra, and the minister is a minister of a parish quoad sacra, and as such he is just in the same position as the minister of a parish quoad omnia, except that he has no right to the teinds. In some respects, for example, as regards the administration of the poor law, a parish quoad sacra differs from a parish quoad omnia, but so far as the minister and his benefice are concerned these differences are altogether unimportant; the single difference is that he has no claim on the teinds, and no claim on the
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Therefore, as regards the character of the parish as forming a benefice, and the status and rights of the minister (except in regard to the matters above mentioned), a parish erected quoad sacra is placed by the statute in the same position as one erected quoad omnia—See opinions of Lord Wood in Grant v. Macintyre, 11 D. 1379–80, and Lord Medwyn, 1387. Indeed, the statute was passed, and the declaration as to the ministers' rights inserted, in a great measure for the purpose of removing the inconveniences attendant on the previous state of the law as shown in the decisions— Gordon v. The Trustees of the Ministers' Widows' Fund, 14 S. 509; Irvine v. The Trustees of the Ministers' Widows' Fund, 16 S. 1024; Stewarton case, 5 D. 427, and other cases.
If then, notwithstanding the distinctive qualifications stated, a quoad sacra parish is held to be a benefice, and its minister is declared to have the full status and rights and privileges of a parochial clergyman, is one of those rights or privileges to be withheld because it is said to be a matter of civil right? I think not.
Although the exemption has civil conquences it is one peculiarly personal to the minister in his clerical character. As Lord Young says in Hogg v. Parochial Board of Auchtermuchty, 7 R. 995—‘It is, I think, undoubtedly a class privilege which the pursuer enjoys only as an individual member of a class, and does not attach to the parish manse and glebe in whose hands soever they may be, but only to his ownership and occupation of them as a parish minister.’ Reference may also be made to the opinions of the majority of the Judges in Grant v. Macintyre, and of Lord Chelmsford in Hutton v. Harper, 3 R. (H. of L.) 14, as showing that if the right claimed is one enjoyed by and personal to parish ministers, and is not in its nature inconsistent with the position of a minister of a quoad sacra parish, the fact that it is of a civil character is no answer to the claim. Indeed, right to participate in a widows' fund is as much a civil right as is exemption from poor rates, and both are personal to the minister in his capacity as minister. In this view Grant v. Macintyre and Cheyne v. Cook are authorities directly in point.
Now, the complainer is in the eye of the law a parish minister, and he claims an exemption personal to parish ministers. I think that I should be putting too restricted an interpretation upon the words of the statute if I were to hold that they do not cover such an exemption.
In so deciding I have kept fully in view the presumption against exemption from taxation. It is true that the result of holding as I have done is to increase the number of persons entitled to exemption, but that also occurs where a parish is disjoined and erected quoad omnia, and I do not understand it to be contended that the ministers of such parishes do not enjoy the exemption.
So far as I am aware this is the first time that the question has arisen for decision in this Court. The only decision to which I have been referred is one by Sheriff-Substitute Cowan at Paisley, of which unfortunately only a very imperfect report exists, in which he decided in favour of the minister's claim for exemption.”
Counsel for the Complainer— Johnston. Agent— J. B. M'Intosh, S.S.C.
Counsel for the Respondents— Low— C. K. Mackenzie. Agents— A. & A. Campbell, W.S.