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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> William Allan, Esq. of Glen v. Peter M'Craw, Collector of the Assessment for the support of the Poor of the Parish of South Leith, and J. C. Beadie and Others, a committee of the Heritors of the Parish [1841] UKHL 2_Rob_507 (06 October 1841)
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Cite as: [1841] UKHL 2_Rob_507
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SCOTTISH_HoL_JURY_COURT
Page: 507↓
(1841) 2 Rob 507
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1841.
2d Division.
(No. 20.)
v.
[Heard,
Counsel: [
Attorney-General —
Pemberton.]
[
Lord Advocate —
Knight Bruce.]
Statute. — Construction of.
Statement.
In 1756, Grant obtained from George Heriot's Hospital, a feu charter of lands in the vicinity of Edinburgh, containing a proviso, that in case the royalty of the city should be extended, so as to embrace the lands feued, he, “or the proprietors of the ground for the time, should not only be obliged to build according to a fixed plan, but likewise the houses to be built thereon shall be subject and liable to pay the same public burdens, as the other inhabitants of the city are subject and liable to pay.”
In 1767, the 7 Geo. III. cap. 27, was passed. That act recited among other things, that “the extending the limits of the city of Edinburgh had been found necessary, as well for the benefit of trade and commerce, as for the conveniency and health of the inhabitants:” that the grounds in the act mentioned, were without the royalty of the city; and it was just and reasonable that
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By the second section, after reciting, that ““several parcels of the lands feued out as aforesaid, by the Governors of George Heriot's Hospital, and comprehended within the said royalty, were granted by the said Governors, and acquired by the purchasers for the purpose of building thereupon country houses and offices, with gardens and enclosures adjoining; and it being reasonable that the parcels so granted shall not be subjected to the city burdens and taxations, so long as they shall continue to be used and occupied in the manner, and for the purposes originally granted;” be it therefore enacted, by the authority aforesaid, that nothing in this act contained shall be understood to subject to the said city burdens and taxations, any country house or offices, built or to be built on such parcels of land as aforesaid, in any case where the owner of such country house is possessed in property of at least three acres of ground, adjoining to such country house and offices, including the areas of the same, and on which there shall be no other buildings except the country house and offices aforesaid.”
By the 10th section it was enacted, “that the said Magistrates and Town Council of the city of Edinburgh shall have full power to appoint stent-masters to levy from the proprietors and possessors of all such
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By the 12th section it was enacted, “That the several lands hereby annexed to the royalty of the city of Edinburgh shall, besides the cess to be levied by the collector of the town, for and in respect of the houses and buildings, remain liable and be subjected to the payment of a rateable proportion of the cess and land-tax, and other public taxes imposed, or to be imposed, on the shire of Edinburgh, for and in respect of the ground, to be levied in the same manner as formerly, any thing in this act to the contrary notwithstanding.”
By the 15th section it was enacted, “That the aforesaid grounds hereby annexed to, and comprehended within, the royalty of the city of Edinburgh, shall be, and they are hereby for ever after disjoined from the parish of Saint Cuthberts or West Kirk, and South Leith, and are hereby annexed to the parish of Saint Giles within the city of Edinburgh.
And by the 16th section it was provided, “That the lands hereby disjoined from the parishes of Saint Cuthberts and South Leith, and the heritors thereof, shall remain liable and be subjected to the ministers o stipends and other parochial burdens; and that the tythes payable out of the lands hereby annexed shall be, and the same are hereby saved and reserved to the true owners thereof, in the same manner as if this act had never passed.”
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The father of the appellant acquired the lands feued to Grant, while there was yet but a mansion-house upon them, and pleasure grounds surrounding it. He possessed the lands in this condition until the year 1823. In that year he began to feu out the lands for building, and laid out large sums of money in preparing the lands by common shores and otherwise for this purpose.
From time immemorial, the Parish of South Leith, within which Grant's lands were situated, until they were disjoined by the 7 Geo. III., had been in use to levy an assessment for the poor, in respect of these lands, and the assessment was paid by Allan, Grant, and their predecessors, until the year 1830, in which year the Magistrates of Edinburgh exercised the powers of the statute, by having the boundaries of the lands ascertained by the Sheriff, and declared to be within the royalty of the city. From this time Allan refused to pay the assessment, on the ground, that an assessment for the poor had also been made by the city of Edinburgh, and that he was liable to the city, and to it alone. By this time the land had been nearly covered with houses.
In these circumstances, the respondents brought an action against Allan, concluding to have it declared, that they had a good right to assess the houses built on Allan's ground, for the support of the poor, and that Allan should be decerned to pay the half of the assessment falling upon him, as proprietor, from the year 1830, to the date of the action — the other half being payable by the occupiers of the houses.
Allan pleaded in defence, — I. That his property could only be liable for one rate, it being contrary to law, as well as to a true construction of the statute, to assess the same property twice for the same tax.
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II. At least, according to the true construction of the statute, he was liable in poors'-rate to the parish of South Leith only for the solum, but not for the houses, which were rateable by the city of Edinburgh.
The Lord Ordinary, (15th November, 1838,) on advising cases for the parties, repelled the defences, and declared and decerned in terms of the libel, and issued at the same time the following note. 1
The appellant reclaimed to the Inner House, but his
_________________ Footnote _________________
1 “
Note.—It is supposed that there can be no doubt that the clause in the Act of 7 George III. c. 27, by which it is enacted that the lands thereby disjoined from the parish of South Leith and the heritors thereof, shall notwithstanding ‘remain liable for ministers’ stipend and other ‘parochial burdens, in the same manner as if this act had never passed,’ means that they were to remain so liable to the parish of South Leith, and as poors'-rates are certainly parochial burdens, it necessarily follows that the defender is liable in some payment of poors' money to the pursuer. His attempt to make out that this liability is only to the parish of St Giles, is too extravagant to require any observation. It is equally certain, and does not seem, indeed, to be disputed, that he must also pay, not only cess, annuity, and watch-money, but poors' money for his annexed property, to the Edinburgh collector; and it necessarily follows, therefore, that this property is liable to some extent to a double assessment, or to contribute to the poors' funds in two separate parishes, though finally disjoined from one, and annexed quoad omnia to the other. The defender, however, makes an anxious, and no doubt a very ingenious, attempt to escape from the consequences that appear at first sight to flow naturally from these premises. Founding upon certain alleged peculiarities in the phraseology of the statute, he contends that it does not import a double liability for poors'-money to the two parishes, but only a division of his original liability between them; and admitting that he must now be assessed (as he was always) both for his houses and the ground on which they stand, he maintains that Edinburgh is only entitled to the assessment due for the houses, and Leith to that for the solum on which they are erected. The Lord Ordinary is sorry that he cannot give his sanction to this elaborate hypothesis, and is afraid that there is nothing but the great hardship of the case that could entitle it to a serious consideration. In the first place, such a partition or distribution of an assessment for the poor, it is believed, was never before heard of, and if it was really intended to be introduced by this statute, such an intention must have been very clearly and unequivocally declared and asserted. Cases may no doubt have occurred, where a house was exempted from assessment, while the area or solum was liable, or vice versa. But where both are confessedly liable, it is not to be imagined, without the most express and precise
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“The Lords having heard counsel for the parties, and advised the cause, adhere to the interlocutor of the Lord Ordinary submitted to review;
_________________ Footnote _________________
declaration to that effect, that the assessment should ever be divided and one part of it given to one parish, and the other to another. It may be said to be as unprecedented, that one and the same property should in any shape be made liable to assessments in two parishes, and it probably is so. But the difference is, that there are clear and unequivocal words in the statute, putting the fact of their being a double assessment beyond all question; while there is nothing, either in its general policy and structure, or in its particular expressions, to countenance the notion of such a partition as is here suggested, except upon strained analogies, or fine drawn verbal constructions.
In the first place, the general policy of the act is undeniably to subject those annexed lands contrary to the common rules of law, and apparently to common equity, in the extraordinary burden of double assessments in relation to a variety of other charges, besides that of a provision for the poor, and in all those others, it is plain there is no room for holding that there was merely a splitting of the original burden, it being manifest, beyond contradiction, that the whole of the original burden to the old parish or county, is retained undiminished, and that of the city charges imposed, in addition.
Thus, to take the payment of cess, it cannot be denied that the defender must continue to pay to the county collector the whole amount for which he was chargeable for the properties in question before their annexation, and over and above the same proportion of the city cess as he would have had to pay if the property had always been within the royalty. In short, he pays a full double assessment without relief or partition of any kind. That the county cess is said to he charged for the land, and the city for the houses, is plainly a matter of no consequence, if the result be as has now been stated, and is in fact a mere verbal peculiarity, admitting of an easy explanation. He pays the county cess according to his valuation in the cess-books, which, though popularly said to be a valuation of the lands belonging to him, did undoubtedly proceed upon an estimate of the true worth and value of the houses and buildings on the lands at the time, as well as of the lands themselves. The city cess, on the other hand, was originally imposed as the land tax of the ground, as well as the buildings constituting the original royalty, and although it is now levied from, or constituted by, the owners or occupiers of houses, this is merely an arrangement adopted for the sake of convenience, and to enable the burgesses, or corporation at large, (who are the proper debtors,) to raise, in fair proportions, the sum due for the solum of the royalty, with all that may be built upon it, and the same end would have been attained, which was in view when it was said that the defender's city cess should be paid in respect of the houses belonging to him, if it had been merely declared (as it is declared in the charter) that the cess due for his annexed property should be levied
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_________________ Footnote _________________
in the same way with all the other cess within the royalty. It is also to be observed, that though the cess is said to be levied according to the estimated rental of the houses, there is no doubt that this includes also the estimated rental or value of the areas on which they stand, or which may be possessed along with them. The owner of a house is always the owner of the area also, (for one who builds a house on ground held on lease, will be only a tenant of the house also,) and undoubtedly the additional value (or rent) which a house acquires, by occupying a large area, or even by having a sunk area or garden beyond the walls, is always taken into view in fixing the proportion in which it shall be assessed for the city cess.
The case is, in all respects, the same as the rogue-money and road-money, which the defender must continue to pay to the county without abatement, for his annexed property, and the assessments for watching and paving, which he must also pay, over and above, for similar objects within the city. There is no partition here of the original charge, but a clear duplication of them, exactly as objectionable, in point of principle, as the double assessment for the poor.
And, finally, there is the same duplication, without division or relief, of what he must pay for the support of the clergyman in the two parishes. He must continue to pay stipend (and additional stipend on every new augmentation) to the minister of South Leith, exactly as if his property had not been annexed to the royalty, and he must also pay, over and above, his full proportion of the annuity tax for the clergy of the city, exactly as if he had never been liable for any thing beyond it. The whole analogy and scope of the act, therefore, is in favour of the construction, if it were otherwise doubtful, upon the words which would subject him to a similar duplication as to the assessments for the poor.
But it does not appear to the Lord Ordinary that the construction is doubtful on the words; and, on the contrary, he thinks there are expressions in both the leading clauses on which the question depends, which entirely exclude that suggested by the defender.
Take first the clauses containing the defender's liability to South Leith, which is more immediately the ruling clause in the present question. It is there enacted, that notwithstanding the disjunction of his property from that parish, and its annexation pro toto to another, he shall yet “remain liable and be subjected to parochial burdens, in the same manner as if this act had never passed.” Now, in what manner was he liable to poor-assessments in South Leith before the passing of the act? Was it only for the naked solum which belonged to him within the parish, or for the complex value of the solum, and all that was built or expended upon it, with the effect of increasing its rental or value? It is supposed there can be no doubt that it was for the last. Upon principle, the assessment should always be according to the real rent, and it is to be made upon every heritable
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Appellant's Argument.
The Appellant. — Property can be liable but to one parish in assessment for the poor; that is the general law, Dunlop's Paroch. Law, p. 230,
Hill v. M'Craw, F. C. 44—to make it liable to two parishes, will require express
_________________ Footnote _________________ subject capable of yielding rent, — half upon the owner and half on the occupant, the whole falling at last and substantially on the owner. The defender, therefore, paid poor money to South Leith before the annexation, not merely for this ground, but for the houses that stood on it; and if all additional houses since built, had been so built without any such annexation, he would have been liable for an additional assessment in this his original parish, in proportion to their value. But if the act has distinctly provided, that he shall continue to pay exactly as if there had been no annexation, how can he now propose to withdraw the value of those houses (and, indeed, of all the houses previously existing on the lands, for there can be no distinction,) from the claims of the present pursuer. To say that, but for the annexation, there would have been no such houses, is but a surmise in fact, or a suggestion in equity, and no ground for defeating the clear words of a statute. But even in equity, it is a suggestion of very little weight, since it is plain enough that the close proximity of the lands to the original royalty, and the rapid increase of the town, would have produced just as much building in that quarter, although there had been no annexation, or more indeed, if the poor-rates had any thing to do with the matter, as they would then have been liable but to a single, instead of a double burden. It is plainly impossible, therefore, now for the first time, to restrict the Leith assessments to the naked solum, without entirely disregarding the plain words of the statute, which declare that it shall be continued in the same manner as if the act making the annexation had never passed. What has now been said is enough to settle this question, since it is the claim of the Leith collector only that is now to be disposed of. But the words of the leading clause subjecting the annexed property to the Edinburgh assessment, are at least as strong and unequivocal. They provide that the stent-master and collectors shall “levy from the proprietors and possessors of all such houses as are now built, or shall hereafter be built on the annexed property, an equal proportion of the poors'-money, &c., payable by the rest of the city of Edinburgh, in the same way and manner as the same are now levied within the present royalty,” and by the terms of the original charter to the author of the defender, engrossed and repeated in the statute, it is provided that all such houses (that is, the owners and possessors of such houses) shall be liable to “pay the said burdens and taxations which the other inhabitants of the city are liable to pay.” Now, though it appears that lands within the royalty, if not occupied with houses, or let as pertinents along with a house, are not subject to assessment in this city, it is believed that it was never before surmised that the value or rent of the ground on which the houses actually stand, was deducted from the estimated rentals, according to which this assessment is imposed. The fair annual value of the house, including its site and pertinents, is estimated
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_________________ Footnote _________________
by the stent-masters, merely as a criterion of the means and substance of the owner or inhabitant, and in this view, the idea of distinguishing between the fair value or rent of the house itself, and the plot on which it stands, and of deducting the one from the other, must appear altogether absurd and preposterous. No such thing, most assuredly, is ever thought of in practice, either when a tenant agrees to pay an actual rent, or a stent-master to settle a fair value. In truth, as already observed, no man can, strictly speaking, be the proprietor of a whole house, who is not also the proprietor of the ground it covers. And as this act expressly subjects both proprietors and occupants to poor-assessments, (however they may be levied in practice,) it would seem impossible to distinguish between his proprietorship of the ground and of the house which is built on it, while the condition of the tenant or occupant would be equally inextricable. Those who occupy the house must necessarily occupy the site of the house, and it can by no possibility have any other occupant. Though the fact be so, however, they are said, in common parlance, to be the owners and occupiers of a house only, and the provisions of the statute are merely accommodated to this mode of speaking. The question is indeed of little practical interest to Edinburgh, since their collector can desire nothing more than that he should be allowed to assess the owners and occupants in the extended royalty, “in the same way and manner” in which he assesses those in the old royalty. But it appears to be quite plain that he cannot do this if he allows any deduction to be made from the estimated or stented value of the houses and sites actually occupied in the former, which unquestionably is not allowed in the latter.
The case would certainly be a hard one for the defender, if he could be conceived not to have been aware of the meaning and effect of the contract into which his author entered by accepting of his feu-charter, and consenting to the statute in question. But it does not appear how he could have failed to be aware of this, and volenti non fit injuria. He has cause certainly to regret that he did not take the opportunity afforded by the proceeding in 1809, to come to some such arrangement as was made by the statute of that year with the heritors in a similar situation in the parish of St Cuthberts, the benefit of which the magistrates could scarcely have refused upon equal terms, to him and the other annexed heritors of South Leith. The necessity of the interposition of Parliament, however, in order to get such an arrangement, goes strongly to confirm the decision which has now been given as to those who are not within its advantage, as does also the late judgment in the case of Burns against the Magistrates of Glasgow, in 1837. But upon the merits of the case itself the Lord Ordinary has no serious doubt. Expenses, it is thought, can scarcely be refused to a successful collector of poors'-money.
F. J.”
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II. But, at all events, if the city and the parish of South Leith are both entitled to make an assessment, that by the city must, under the terms of the 10th section, be in respect of the houses, and that by the
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Respondent's Argument.
The Respondents. — I. “Annuity,” not teinds, is
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II. By the terms of the 16th section, the appellant is to remain liable for parochial burdens, as if the act had never passed. And in the parish of South Leith, which is a landward parish, previous to, and since the statute, no distinction has ever been made between the value of a house, and of the ground on which it stands. The assessment is laid on the real rent, is paid one half by landlord, and the other half by tenant; whereas, in Edinburgh, as in all burghs, the assessment is made upon the house, and demanded from the actual occupant, without regard to proprietorship or tenancy, and this will sufficiently account for the difference of phraseology between sections 10 and 16.
Ld. Chancellor's Speech.
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It was argued, that the poor-rate is not a parochial burden. It is a rate to be paid by the heritors or owners, and by the occupiers of lands within the parish. It is therefore parochial, and that it is a burden, will not be disputed; and the 16th section accurately describes it as a parochial burden, to which the lands and the heritors thereof, were, before the passing of the act, liable, and were to remain so, after it had passed.
If the act had never passed, the lands in question, and any houses built upon them, would have been liable to this rate. If the same lands, and the houses built upon them, are not now liable to it, how is the provision of the act carried out, which declares, that the lands shall remain liable to it in the same manner as if the act had never passed ?
The argument, however, that though the land may be liable, the houses are not so, does not require this comment upon the terms of the act to refute it. A distinct parliamentary enactment might, no doubt, subject the land upon which a house is built, and the house itself, to different rules and liabilities. But, in this case, there is no such distinct parliamentary enactment, and the general rule of law must therefore prevail, which considers the house as an accretion to, and as part of, the land on which it is built. This appears to me to be so clearly the true construction of the act, that I cannot but think that the question would not have been raised, had it not been for the case of M'Craw v. Cunningham, reported in 2d Shaw and M'Lean, 773, upon which there was a great difference of opinion. The
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The case of Burns v. Ewen and the Magistrates of Glasgow, is also inapplicable to the present. That case arose under another act of parliament, which separated the lands there in question, from the parish of which they had formed part; but there was no provision as to their remaining liable to the parochial burdens of that parish. The question was, whether such liability was to be inferred from a clause compelling the city of Glasgow to relieve the occupiers of poor-rates, payable by
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Judgment of Court.
Ordered and Adjudged, That the petition and appeal be dismissed this House, and that the interlocutors therein complained of be affirmed with costs.
Solicitors: Archd. Graham — Spottiswood and Robertson, Agents.