United Kingdom House of Lords Decisions

The magistrates and town council, referring to the separate defences for Messrs. Ewing and Dunn, pleaded that the sole ground on which the pursuers pretend to rest their case against them, is the enactment in section three of the statute, viz., “That the said magistrates and town council shall also, from the funds of the community of the said city, relieve the holders and occupiers of houses or lands in the said extended royalty of the poor's rates payable by them to the said barony parish, as having been a part thereof before passing this act;” and such being the case, they were not liable to the pursuers in the sums pursued for, or in any part thereof.

The cause having been debated in the Outer House, Lord Jeffrey, Ordinary, 15th March 1836, pronounced the following interlocutor, with a relative explanatory note ¹ annexed thereto:—

“The Lord Ordinary,

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¹ Note.—“The Lord Ordinary cannot persuade himself that there is any difficulty in this case, and thinks that it is impossible to read attentively through the fourteen first sections of the act, as they stand in their order, and entertain any doubt as to their true meaning and effect.

The defenders, at the debate, did not find it convenient to proceed in this natural course. They went at once to the eleventh section, which

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having resumed consideration of the debate, with the closed record, productions for the parties,

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provides in general terms for the disjunction of the annexed lands from the barony parish, and their annexation to the parishes of the old royalty: and then, contending that this disjunction, not being in any way qualified or limited in its terms, imported a total separation, and consequent liberation from all future parochial burdens in the parish from which they are disjoined, they went to the second section (as illustrated by the eighth,) to shew that they were accordingly subjected to a new, and, as they maintained, substituted set of burdens, in their new connection; and argued that, as a double liability was in no case to be presumed without express words, this was a conclusive confirmation of their views as to the effect of the absolute disjunction. They then proceeded to point out the very different terms in which the future payments of cess and statute labour money to the county, from which the annexed lands were disjoined, are provided for in the act, and the provisions there supposed to be made for future poor assessments; and concluded by suggesting that these last provisions, which they represented as being merely for relief from contingent and imaginary claims, must have been inserted to satisfy the groundless anxiety or apprehensions of the owners of the annexed property, but could never be held to import that the claims themselves were just or maintainable.

The Lord Ordinary takes a very different view of the object and effect of the statute. It was enacted on the petition of the magistrates, and for the purpose of conferring a great benefit on the city, by putting under its municipal jurisdiction, and subjecting to its burgal assessments, a very wealthy and flourishing quarter of the actual town; at the same time, it was obvious that if this rich assessable district was to be entirely withdrawn from the parish and the county to which it formerly belonged, and exempted from all future contributions to their local taxations, a great loss would be sustained by these communities, and a proportionally heavier burden laid on what remained of them. It was necessary, therefore, to provide for this by special enactments; and it is impossible to read the act, and have any doubt as to the principle on which these are framed. That principle is, beyond all question, that the annexed lands shall be liable to a double assessment, but that the owners or occupiers shall only pay those chargeable for the city, and be relieved of such as continued due to the county or parish, by the public funds, or some particular branch of the public funds of the city. That this is the case as to the cess and all the other proper county burdens, and the statute labour, cannot possibly be disputed; and as there were obviously as strong, if not still stronger, reasons for applying the same principle to the assessments for the poor, the Lord Ordinary would not have hesitated to construe any doubtful or ambiguous words in the provision as to these assessments upon that assumption, and according to the analogy of the kindred provisions, as to which there was no doubt.

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and whole process, finds, that according to the just and true construction of the act of the 39 & 40 Geo. 3.

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But in fact it does not appear to him that the words, even if they stood by themselves, are in the least degree doubtful or ambiguous. The provision as to the cess, &c. (section 10) is, that besides the cess to be levied from the annexed lands for the town, they should also remain liable to their rateable proportion of the county cess, and all other county burdens; ‘which cess,’ &c. it is added, “shall be paid by the magistrates and town council of the said city from the funds of the community.” Then, as to the statute labour, it is specially provided (and obviously in terms of a previous agreement), that an annual sum of 5 l. shall be paid by the said magistrates and town council to the heritors of the barony parish, “as a conversion for the statute labour of the said annexed lands;” and then immediately after, and as the sequel of the same section, follows the provision as to the poor rates, in these words:—“And they (the magistrates and council) shall also, from the funds of the said city, relieve the owners and occupiers of lands and houses in the said extended royalty, of the poor's rates payable by them to the said barony parish as having been a part thereof, before passing this act.” If this does not mean that the annexed lands were still to pay poor's rates (as well as cess and statute labour money) to the barony parish, and that the magistrates were to protect the owners and occupiers, by paying these rates for them out of the public funds, it is not easy to conceive what it does mean.

Accordingly, the defenders are driven to great straits to give it a meaning; and actually maintained, at the debate, first, that the whole of this provision about the poor's rates really had no meaning, and must have been inserted by mistake, or per incuriam; and next, that it could only have been inserted to satisfy the groundless apprehensions of the owners and occupiers as to possible, but evidently incompetent claims on the part of the barony parish; or finally, that it might possibly relate to the arrears of former assessments. It is not thought necessary to make any remarks on these extraordinary suppositions.

The variance in the phraseology, and indeed in the substance of the arrangements as to the cess and other county burdens, the statute labour and the poor's rates, on which the defenders dwelt largely, is very easily explained. The principle, it has been seen, is the same as to all; but the arrangements for carrying it into effect are naturally different, and the expression accordingly varies. The cess being a fixed and invariable sum, the provision is merely that it shall be annually paid over by the city, and there was in that case no need for any other arrangement. The statute labour assessment again was liable to fluctuation, though not to any great extent; and it was quite practicable, therefore, and seems to have been thought more convenient, to fix an average amount in the statute, which should be paid in all time coming, as its conversion. But the poor assessments were liable to great and incalculable

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c. 88., the lands thereby annexed to the royalty of the city of Glasgow, and disjoined from the parish

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variations; and (as the result has shewn) no fixed average could have been taken with any tolerable safety, as the rule of contribution in all time coming. They were, therefore, left to be settled as before by the annual assessments; and as these assessments must necessarily be made on the individual owners and occupiers of the annexed property, the burden taken by the magistrates is correctly expressed as an obligation to relieve those individuals, against whom personally a charge must have been first constituted, before the amount to be paid for them by the magistrates could in any one year be ascertained. The whole provisions, therefore, as to each and all of these county and parish burdens, are not only perfectly congruous and identical in substance, but the particular arrangements and expressions as to each are judiciously adapted for carrying the principle into effect.

After this plain exposition of the words of the act, it can scarcely be necessary to say any thing as to the defenders main argument, that the general terms of the express disjunction of the district in question, from the barony parish, must necessarily import a disjunction quoad omnia. The conclusive answer is, that the statute has not left the nature or effect of that disjunction to inference, but has expressly provided and enacted in what respects, and to what effect, the disjoined property shall still be tributary to the parish from which it is divided, and has, in an especial manner, enacted, inter alia, that it shall still be liable to poor's rates in that parish; in fact, there is no civil burden for which it does not continue liable as before, both to the parish and the county; and while the annexation, with all its consequent liabilities, is complete and total, it may be truly said that the disjunction can extend to ecclesiastical relations only; for there is nothing else left on which it can possibly operate.

One simple and obvious question brings out the palpable fallacy of the defenders whole argument. If it was really intended by the act to exempt the owners of the annexed territory from future poor assessments in the barony parish, why was it not so provided? and above all, why was a clause inserted looking so very like a special provision the other way? It could not be that the framers of the act trusted to the effect of the general words of the annexation and disjunction, for they leave nothing whatever to the operation of these words; every thing is separately and anxiously provided for. They do not rely on the express annexation and consolidation with the old royalty, even for the extension of the magistrates jurisdiction over the new territory; but this, with everything else, is specially enacted. But, unluckily for this trusting hypothesis, there is a special clause about those poor's rates, and the defenders theory is, that it was introduced to quiet the idle fears of the annexed owners, as to the possible insufficiency of the general words to secure their exemption. Whoever else trusted to the virtue of these

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of barony, and the owners and occupiers of the said lands, or of the houses and buildings thereon, are

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words, therefore, it is certain that these owners did not trust to them; and that the legislature knew this, and in order to remove their distrust, is supposed to have put in this clause, binding the magistrates to relieve them from their imaginary perils. The Lord Ordinary must say, that this appears to him to be nothing short of a mere absurdity; if the object was not only to secure these owners from the barony assessments, but to quiet their foolish apprehensions of danger from them, was not the plain way to do this, just to enact that they should be exempted? or is it conceivable that, with this object in view, the legislature, having full power to settle the whole matter by a word, should take this indirect and really unintelligible course to effect it? It is needless to add, that the whole phraseology of the clause excludes this strange hypothesis. The magistrates are there taken bound to give relief, not against possible claims, but against ‘rates payable to the barony parish;’ and this relief is to be given, not by refuting the assessors, but by paying them, not by a successful argument on the effect of the clause of disjunction, but ‘from the funds of the community of the city.’

When the case is so clear upon the construction of the act itself, there is no need to refer to the powerful corroboration which this construction receives from what confessedly preceded its enactment, or from the interpretation which has, till very recently, been put upon it in practice. It is quite certain that when the act was in preparation the heritors of the barony parish required that satisfaction, both as to the statute labour and the poor's rates, which the Lord Ordinary thinks they have obtained by the clauses in question; and it is admitted, that after they had submitted their amendments, they allowed the act to pass without opposition. He is aware, however, that the admissibility of such evidence, however powerfully it may influence the mind, is very questionable, and, therefore, he in no degree rests his judgment upon it. With regard to the subsequent practice, however, he inclines to think, that when it has been uniform, of many years standing, and against the interest of those by whose consent it has been established, it may fairly be looked to for elucidating the true meaning of any doubtful or obscure enactment; against a plain and precise statute, (at least since the union,) no practice can be of any avail, and the Lord Ordinary thinks the statute clear enough here. But the defenders can scarcely deny, that in their view of its meaning, its enactments are full of obscurity, and that it is competent, therefore, to refer to early and long continued practice for their elucidation. Now, the practice in this case amounts to no less than this, that ever since the passing of the act in 1800 down to 1831, the magistrates, upon whose petition it proceeded, have all along recognized their liability under the clause in dispute, and have every year paid over large sums, varying from 300 l. to 1,795 l., their share of the barony poor assessments. In 1811, when the first

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not relieved from their previous liability for the assessments made or to be made for the support of the poor of the said parish, along with the other lands, and the owners and occupiers thereof, within the said parish; and that the magistrates and town council of the said city are bound to relieve the owners and occupiers of the annexed lands and houses and buildings thereon of the whole of the said assessments made or to be made for the support of the poor of the said barony parish, by paying over from the funds of the community of the said city the whole amount of the said assessments as they have or shall become due to the proper officer of the said parish, or person entitled to collect and receive such assessments; and therefore repels the defences set forth and maintained by both sets of defenders: Decerns in terms of the conclusions of the libel against the defenders, James Ewing and

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great increase of these assessments took place, the matter was remitted to a select committee, who gave in a full and well-considered report, expressing their clear conviction, that the increased demand could not be resisted, and this was deliberately adopted by the Council, and acted upon ever after. In 1821, some objections having been taken, not to the general legality of the charge, but to the way of ascertaining its amount, another committee of the town council was appointed to adjust this matter with the barony heritors, which they accordingly effected, and gave in a long and elaborate report to the council, with a scheme for checking the assessor's charges in a particular way, which was also adopted and acted upon down till 1831. In that year a new light broke in upon the magistrates, and it was discovered, that they who framed and carried through the act in 1800 were altogether mistaken as to its meaning; and that their practice, and that of their successors for thirty years was against its true construction, as well as their own interest and duty to the city.

“The Lord Ordinary thinks, that a more extravagant allegation never was brought forward in a Court of Law; and sees nothing but the greatness of the interest at stake, which can explain the conduct of the magistrates in embarking in so unpromising a litigation.”

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William Dunn severally, for the sums of money concluded for against each of the said defenders, with interest upon the said several sums as libelled; and in the event of payment not being made of the said several sums by the said defenders, within twenty-one days after this interlocutor shall be final, decerns also against the other defenders, the magistrates and town council of the said city of Glasgow, and their successors in office, for such of the said sums as may then be unpaid: Finds the whole of the defenders, conjunctly and severally, liable to the pursuers in expenses; allows an account thereof to be given in; and remits the same, when lodged, to the auditor for his taxation and report.”

Judgment of Court, 17th May 1837.

Against this interlocutor a reclaiming note was presented by the defenders (appellants) to the second division of the Court of Session, and after hearing counsel their Lordships ordered cases on the whole cause; and thereafter, upon advising the cases, adhered to the interlocutor of the Lord Ordinary, and found the defenders (appellants) liable in additional expenses.

Messrs. Ewing and Dunn and the magistrates appealed.

Appellants Arguments.

Appellants.—The interlocutor of the Lord Ordinary adhered to by the Court is erroneous in point of form or substantial justice, and it is also ill-founded in its construction of the act. The error in the decerniture against the magistrates was pointed out to the Court, and, though adverted to by the presiding judge, was left uncorrected.

1. The kirk session might have a right to sue, but

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