Scottish Court of Session Decisions

The Poor Law Amendment (Scotland) Act 1845 (8 and 9 Vict. cap. 83), section 34, enacts—“When the parochial board of any parish or combination shall have resolved to raise by assessment the funds requisite, such board shall … resolve as to the manner in which the assessment is 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.…”

The Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62), section 44, enacts—“… The school board of each parish and burgh shall annually … certify to the parochial board … the amount in the deficiency of the school fund required to be provided by means of a local rate, and the said parochial board is hereby authorised and required to add the same under the name of ‘school rate’ to the next assessment for relief of the poor, and to lay on and assess the same, one-half upon the owners and the other half on the occupiers of all lands and heritages, and to levy and collect the same along with the assessment for relief of the poor when that assessment is so imposed and levied.…”

A Special Case for the opinion and judgment of the Court was presented by the Glasgow Court-Houses Commissioners, incorporated by the Glasgow Court-Houses Amendment Act 1872 (35 and 36 Vict. cap. vi) ( first parties), and the Parish Council of the Parish of Glasgow, incorporated under the Local Government (Scotland) Act 1894, who administered the Poor Law Amendment (Scotland) Act 1845 and collected the poor rates thereby authorised as well as the school rates authorised by the Education (Scotland) Act 1872 ( second parties).

The following facts were stated in the Case:—The Glasgow Court-Houses Commissioners were charged with the statutory duty of providing court-house buildings for the city of Glasgow and the Lower Ward of the county of Lanark, and also courts for the sittings of the High Court of Justiciary on circuit for the city of Glasgow and

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surrounding districts. The Commissioners incorporated in 1872 came in place of the unincorporated body of Commissioners appointed by the first Glasgow Court-Houses Act 1836, and at the time of this Special Case they administered the following local and private Acts, all relating to the Glasgow Court-Houses—(1) the said Glasgow Court-Houses Act 1836 (6 Will. IV. c. xxiv); (2) The Glasgow Court-Houses Act 1856 (19 and 20 Vict. c. xxxv); (3) The Glasgow Court-Houses Amendment Act 1868 (31 and 32 Vict. c. lxxxix); (4) The Glasgow Court-Houses Amendment Act 1872 (35 Vict. c. vi); (5) The Glasgow Court-Houses Amendment Act 1882 (45 and 46 Vict. c. lxxxii); and (6) The Glasgow Court-Houses Act 1890 (53 and 54 Vict. c. lviii). They also carried out and administered, so far as applicable thereto, the Glasgow Municipal Buildings Act 1878(41 Vict. c. lxxix), and the Public General Statutes relating to Sheriff Court-Houses, cited as the Sheriff Court-Houses (Scotland) Acts 1860 to 1884, viz., 23 and 24 Vict. c. 79, 29 and 30 Vict. c. 53, and 47 and 48 Vict. c. 42. Since 1836 the Commissioners had from time to time acquired lands and heritages, and had built, furnished, and equipped, and were maintaining and regulating, all under said various Acts of Parliament relating thereto, extensive Court-House Buildings known as (1) The County Buildings, Glasgow, and (2) The Justiciary Court Buildings, Glasgow. The County Buildings comprised the whole block bounded by Ingram Street on the north, Brunswick Street on the east, Wilson Street on the south, and Hutchison Street on the west. These buildings were used for (first) the Sheriff Courts of the lower ward of the county of Lanark and the Sheriffs Appeal Court for the whole county, and (second) the Justice of the Peace Courts for the county of the city of Glasgow and also for the county of Lanark. Accommodation was provided within the buildings also for the offices of the Sheriff-Clerk of the county of Lanark and his deputes, the Clerk to the Justices of the Peace for the county of the city of Glasgow and for the county of Lanark, the Procurator-Fiscal of the county of Lanark and the Fiscal of the Justice of the Peace Court, and the subsidiary employees. There was also a dwelling-house consisting of four rooms and kitchen occupied by the superintendent of the buildings, who was a servant of the first parties. Further, under the terms of the Glasgow Court-Houses Act 1890 (53 and 54 Vict. cap. xlviii), section 18, the Commissioners were empowered to sell or let to the County Council of the County of Lanark any portion of the lands, houses, and other property which the Commissioners then possessed or which they might acquire, and under these powers they had leased the following portions of the County Buildings—(1) To the County Council of the County of Lanark for their meetings and general business, three rooms at a gross rental of £121, 2s. 10d. (2) To the said County Council, for use as headquarters of the county police for the Lower Ward of the said county, two rooms at a gross rental of £45. (3) To the District Committee of the district of the Lower Ward of the county of Lanark, for the administration of their sanitary department, three rooms at a gross rental of £100. The gross rentals, however, included payment for the supply of lighting, cleaning, and attendance, and the net rental of the above premises might be taken at £90, £33, and £75 respectively, or £198 in all—the figures agreed to between the Commissioners and the Treasury in settling the annual Treasury allowance for maintenance. The Court-Houses Commissioners also had vested in them the Justiciary Court buildings in Jail Square at the foot of the Saltmarket, Glasgow. These buildings were at the time of the case under reconstruction, but they had been and would again be used for the sittings of the Justiciary Courts in Glasgow, held for the counties of Lanark, Dumbarton, Renfrew, and Ayr, with occasional cases from other adjoining counties. The buildings would also be used for criminal cases tried before the Sheriff and a jury and for pleading diets in Sheriff and High Court cases, and they would also be available for ordinary Sheriff Court purposes should the accommodation in the County Buildings at any time be temporarily overtaxed. A court room with retiring room attached was being provided as an extra Sheriff Court. Board of Trade inquiries and inquiries under special Acts, such as the Fatal Accidents Act, might also be held there in preference to the County Buildings if found more convenient. The Justiciary Buildings also contain a dwelling-house of four rooms and kitchen for the superintendent of the buildings, who was a servant of the first parties. The first parties had not hitherto leased any portion of said Justiciary Court buildings under their powers. The duties of the Court-Houses Commissioners were defined in the series of Acts of Parliament above mentioned, and related solely to the proper provision of court-houses within the city, and their maintenance and regulation.

Under the provisions of the Sheriff Courts (Scotland) Acts, 1860 to 1884, the Commissioners of His Majesty's Treasury made the following annual payments for the maintenance of the Court-Houses Buildings—(1) For the County Buildings, sheriffs' department in Wilson Street and Ingram Street, £2546, 10s. (2) For the Justiciary Buildings then under reconstruction a provisional allowance of £370, subject to readjustment when the Justiciary Buildings were completed. (3) For extraordinary expenditure an annual allowance was made for County Buildings of £143, 10s. No annual allowance was made by the Treasury for the maintenance of the Justice of Peace department, the cost of which was provided from a local assessment. The Commissioners of His Majesty's Treasury voluntarily made an annual contribution to the local assessing authorities in lieu of payment of occupiers' poor and school rates and municipal assessments in respect

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of all property occupied by Government departments. No account was taken by the Treasury of the rates leviable upon owners. The County Buildings and the Justiciary Court Buildings were entered in the valuation roll for the city and royal burgh of Glasgow for the current year as follows, viz.:—

Parish of Glasgow, 1912–13.

Section 1375	Description	Situation	Proprietor	Tenant	Occupier	Yearly Rent Value
105	Sheriff and Justice of the Peace Court-House and offices	149 Ingram Street	Glasgow Court-House Commissioners, per W. Boyd Anderson, 137 St Vincent Street, Glasgow	The Commissioners of His Majesty's Treasury, the Justices of the Peace for the county of Lanark, and the Justices of the Peace for the county of the city of Glasgow	Tenant	£3307	0	0
106	Offices and meeting rooms	Do.	Do.	The County Council of the county of Lanark	Tenant	90	0	0
107	Constabulary offices	Do.	Do.	The County Council of the county of Lanark	Chief Constable for the county of Lanark and police officials	33	0	0
108	Sanitary offices, &c.	Do.	Do.	The District Committee of the district of the Lower Ward of the county of Lanark	Tenant	70	0	0 *
Section 369 1	Building	Saltmarket	The Glasgow Court-House Commissioners, Glasgow	The Commissioners of His Majesty's Treasury	Tenant	150	0	0

_________________ Footnote _________________

^* £75 is the figure adjusted with the Treasury and stated in the case.

In respect of their ownership of the County Buildings and Justiciary Court Buildings the first parties were assessed for the year 1911–12 to the poor and school rates on the sums of £3500 and £150 respectively, which assessments amounted to £204,17s. lid. and £8, 15s. 8d. respectively, making together the sum of £213, 13s. 7d. as the amount of the owners' proportion of said rates. The occupier's proportion of said rates had up to and including the year 1911–12, been met by a contribution by the Commissioners of His Majesty's Treasury, who up to and including that year were entered in said valuation and assessment rolls as sole tenants and occupiers of the whole premises in question, tip to and including the year 1911–12 the first parties had been assessed in the owners' proportion of said rates and had paid the same except for the year 1911–12. In making up the accounts for the maintenance and repair of the court-houses for the three years, upon the average expenditure of which the present amount of the Treasury contribution was fixed, and also in 1908 and 1909, when an application which was made for an increased grant was refused, the owners' rates and assessments were entered as a proper expenditure of the Court-Houses Commissioners; but in 1910 this item of expenditure was objected to by the Treasury on the ground that the buildings being public courts for the administration of justice and for carrying on the business of the country fell within the privilege of the Crown and were not liable to assessment for local rates. This item of expenditure was therefore disallowed by the Treasury as not enforceable, and it was intimated that if paid, it could only be considered as a voluntary contribution to local rates by the first parties. The first parties as proprietors had prior to this case paid the local assessments on owners on the assumption that they were legally liable for them; but they were then advised that the rates leviable by the Corporation of Glasgow and the Parish Council upon owners of property could not be legally charged against them.

The contentions of the parties were—The first parties maintain (1) that the entries in the valuation roll for the year 1912–13, above set forth, represent the facts correctly; (2) that the said buildings were vested in the first parties for purposes required and created by Government for the administration of the government of the country, of justice, and of police; (3) that the Commissioners of His Majesty's Treasury and the justices of the counties of the city of Glasgow and Lanark occupied the parts of the said buildings of which they were entered as tenants for the said purposes or one or other of them; or otherwise that the occupiers of the said parts of the said buildings were the judges, sheriffs, and justices who administered justice there; and (4) that the parts of the said buildings of which the County Council of the county of Lanark and the District Committee of the district of the Lower Ward of the said county were entered as tenants were occupied by them respectively for the said purposes or one or other of them. The first parties consequently contended that they were not liable for any local rates, and in particular for the rates levied by the Parish Council of the parish of Glasgow. The second parties, on the other hand, maintained that the first parties, as proprietors of the lands and heritages in question, had no statutory or other right of exemption from rating, and were liable to be assessed in the owners' proportion of the poor and school rates of the parish of Glasgow calculated upon the annual value thereof entered in the valuation

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roll and parish assessment roll, and that whatever exemption there might be of the tenants or occupiers thereof from payment of the tenants or occupiers' proportion of said rates in respect of the nature of the occupancy, such exemption did not operate to relieve the proprietors of the proportion assessed and levied upon them; that in any event exemption of the first parties in respect of occupancy by them, or alternatively by the Crown for the administration of justice, could only relate to the proportion of the annual value applicable to such occupancy, and the first parties still remained liable in the owners' proportion of the rates due in respect of the rentals paid by the County Council of Lanarkshire. The second parties further contended in regard to the unlet portions of the County Buildings and Justiciary Court Buildings, that the first parties—and not the Crown, or the Treasury as representing the Crown, nor the judges, sheriffs, and justices who administered justice there—were, within the true intent and meaning of the Lands Valuation (Scotland)Acts, the occupiers thereof in respect of the occupation thereof for the purposes of repair and maintenance and regulation, and of supervision thereof by themselves and by their superintendents and servants resident therein, and that in respect of such occupancy the first parties were liable to be assessed in the occupiers' proportion of said rates.

The questions stated for the opinion and judgment of the Court were—“1. Are ( a) the first parties, or ( b) the Commissioners of His Majesty's Treasury as representing the Crown and the Justices of the Peace for the counties of the City of Glasgow and Lanark, or ( c) the judges, sheriffs, and justices who administer justice there, the occupiers within the meaning of the Lands Valuation Acts of the portions of the buildings in question appropriated to the administration of justice? 2. On the assumption that question 1 ( a) is answered in the affirmative, are the first parties liable for ( a) the owners' rates, and ( b) the occupiers' rates assessable in respect of the said portions of the buildings in question? 3. On the assumption that question 1 ( b) or 1 ( c) is answered in the affirmative, are the first parties liable for the owners' rates assessable in respect of the said portions of the buildings in question? 4. Are the first parties liable for owners' rates assessable in respect of the parts of the buildings in question let respectively ( a) to the County Council of the county of Lanark for their general administration, ( b) to the said County Council for their police administration, and ( c) to the District Committee of the district of the Lower Ward of the said county?”

Argued for the first parties—(1) The entries in the valuation roll were correct. The Glasgow Court-House Commissioners were not the occupiers, and consequently were not liable for occupiers' rates. (2) Even if they were the occupiers, they occupied for public administrative purposes. Occupation for such purposes was constructive occupation of the Crown and consequently—the Crown not being mentioned in the Glasgow Court-Houses Acts—they were exempt from occupiers' rates— Coomber v. The Justices of Berkshire, 1883, 9 App. Cas. 61, esp. Lord Blackburn at p. 65 and Lord Watson at pp. 73 and 74 (disapproving of Clerk v. Dumfries Commissioners of Supply, July 16, 1880, 7 R. 1157, 17 S.L.R. 774); Mersey Docks v. Cameron, 1864, 11 H.L. (Clark) 443, esp. Lord Blackburn at 464; Greig v. University of Edinburgh, June 8, 1868, 6 Macph. (H.L.) 97, 5 S.L.R. 620; Clyde Navigation Trustees v. Adamson, June 22, 1865, 3 Macph. (H.L.) 100. (3) The same ground of exemption applied equally to owners' rates— Coomber, cit. sup., Lord Blackburn at p. 69. This applied also to the subjects let (106, 107, and 108), though they admitted they were in a less favourable position for the application of the exemption.

Argued for the second parties—The earlier cases, such as The Queen v. The Overseers of Manchester, 1854, 3 El. and Bl. 336, and The Justices of Lancashire v. The Overseers of Stretford, 1858, El. Bl. and El. 225, were distinguishable from the present, and were decided, not on the ground that there was constructive occupation by the Crown, but on the ground that the premises were occupied as a trust for the public. The later cases, however, of The Mersey Docks ( cit. sup.) and Coomber ( cit. sup.) made it difficult for them to argue that there was not here constructive occupation of the Crown so far as the buildings were used for administrative purposes. But the real test of the exemption was exclusive use for the service of the Crown— Surveyor of Taxes v. Smith, October 25, 1901. 4 F. 31, 39 S.L.R. 20. Accordingly the exemption should not be extended, beyond constructive occupation of the Crown, to constructive ownership of the Crown. The opinion of Lord Watson in Coomber ( cit. sup.) at p. 78 seemed to be against this extension, but there was no direct decision on the matter. If it had been intended to give exemption from owners' rates, that would have been provided for in the Court-Houses Act, as was done by the Militia Act (17 and 18 Vict. cap. 106), as held in M'Isaac v. Mackenzie, March 3, 1869, 7 Macph. 598, 6 S.L.R. 402.

At advising—