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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Henry Jack, Inspector of the Poor of the Parish of Dundee v. Robert Hawker Isdale, Hat manufacturer, Dundee [1866] UKHL 2_Paterson_1367 (12 February 1866)
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Cite as: [1866] UKHL 2_Paterson_1367
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SCOTTISH_HoL
Page: 1367↓
(1866) 2 Paterson 1367
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 41
v.
Subject_Poor (Able Bodied), Right of, to Relief — Statute 8 and 9 Vict. c. 83, § 68 — Right to Demand Relief
Before 1845 able bodied paupers were not entitled to relief; but the kirk session might give relief to them as occasional poor out of the church door collections. By 8 and 9 Vict. c. 83, § 68, occasional poor as well as permanent poor were declared entitled to relief out of the assessments, but nothing was to confer a right to demand relief on able bodied paupers.
Page: 1368↓
Held (affirming judgment), That the “right to demand relief” was the same thing as the “right to relief,” and that no part of the assessment can be given to able bodied paupers since that Statute. 1
The facts of the case were as follows:—The Parochial Board of Dundee were applied to ii June 1863 for parochial relief to two men. One applicant, John Conolly, a weaver, and native of Ireland, had acquired a residential settlement in Dundee, and was a married man with four children. His ground of application for relief was stated to be “a sick wife, and slackness of trade, whereby he cannot get full employment.” The other applicant, Francis O'Neill, was also a weaver, and native of Ireland, residing in Dundee, but having no settlement in Scotland. He was a widower with six children, the eldest being twelve years old. His ground of application was inability to get work, and a numerous family of small children requiring attendance. Both these applicants were in good health, and able bodied. During periods of temporary depression in the weaving trade, the Parochial Board of Dundee had been in the practice of occasionally affording relief to destitute persons willing to work, but unable to procure employment. Accordingly, when the above applications were made, the standing committee of the Parochial Board, on 12th June 1863, came to the following resolutions:—
“Inter alia, the meeting having considered the circumstances of the case of John Connolly, who at present, in consequence of a depression in the branch of trade in which he works, is unable to get employment to support himself and family, by a majority, resolve, in their discretion, to allow him casual relief for six weeks in the mean time at the rate of 3 s. 6 d. a week.
The meeting having also considered the circumstances of the case of Francis O'Neill, at present unable to support himself, by a majority, resolve, in their discretion, to allow him casual relief for six weeks at 4 s. a week in the mean time.”
Mr. Isdale, a member of the Parochial Board, protested against these resolutions of the Board as illegal, and presented a note of suspension and interdict seeking to prohibit the Board from applying the funds in this manner.
The Lord Ordinary (Kinloch), after the case was argued, gave judgment in favour of the suspender, holding, that “the Parochial Board was not entitled to give relief, either permanent or occasional, to persons who, being able bodied, are in destitution or poverty merely from want of employment.” When the case was reclaimed to the First Division, cases were ordered to be laid before the other Judges. In the result, seven of the Judges, viz. Lord Justice Clerk (Inglis), Lords Cowan, Benholme, Mackenzie, Kinloch, Jerviswoode, and Ormidale were in favour of the suspender, and against the Parochial Board; while the other six Judges, viz. Lord President (M'Neill), Lords Curriehill, Deas, Ardmillan, Neaves, and Barcaple, were in favour of the Parochial Board. The final interlocutor was, that the Lords of the First Division adhered to the interlocutor of the Lord Ordinary.
The sections of the Poor Law Amendment Act, 1845, 8 and 9 Vict. c. 83, material to the question, were the following:—
The 33rd, which declares it competent to the Parochial Board “to resolve, that the funds requisite for the relief of the poor persons entitled to relief from the parish or combination, including the expenses connected with the management and administration thereof, shall be raised by assessment.”
The 54th, which enacts—“That in all parishes in which it has been agreed, that an assessment shall be levied for the relief of the poor, all moneys arising from the ordinary church collections shall, from and after the date on which such assessment shall have been imposed, belong to and be at the disposal of the kirk session of each parish: Provided always, that nothing herein contained shall be held to authorize the kirk sessions of any parish to apply the proceeds of such church collections to purposes other than those to which the same are now in whole or part legally applicable.”
The 68th, which enacts—“That from and after the passing of this Act, all assessments imposed and levied for the relief of the poor shall extend and be applicable to the relief of occasional as well as permanent poor: Provided always, that nothing herein contained shall be held to confer a right to demand relief on able bodied persons out of employment.”
And the 91st, which declares—“That all laws, statutes, and usages shall be, and the same are hereby repealed, in so far as they are at variance or inconsistent with the provisions of this Act: Provided always, that the same shall continue in force in all other respects.”
Lord Advocate (Moncreiff), and
Rolt Q.C., for the appellant.—The old Statutes and practice established a well known distinction between the right to demand relief and the right to distribute relief, the two rights not being correlative. One half of the church door collections used to be appropriated among those who were not entitled to demand relief, but who were called the occasional poor as contrasted with the permanent poor. The occasional poor included able bodied
_________________ Footnote _________________
1 See previous reports
2 Macph. 978:
36 Sc. Jur. 484.
S. C. L. R. 1 Sc. Ap. 1:
4 Macph. H. L. 1:
38 Sc. Jur. 221.
Page: 1369↓
Anderson Q.C, and Neish, for the respondents, were not called upon.
Now, what has the Statute said upon that subject? It has said, that after the passing of this Act, all assessments imposed and levied for the relief of the poor shall extend and be applicable to the relief of occasional as well as permanent poor. If the clause had stopped there, supposing that the Lord Advocate, and Mr. Rolt are right in saying, that a person, though able bodied, who cannot get work, comes under the description of “occasional poor,” it would have enabled him to obtain relief. But it does not stop there; it goes on to say, “provided always, that nothing herein contained shall be held to confer a right to demand relief on able bodied persons out of employment.”
It has been already decided almost unanimously in the Court of Sessions, (I do not go into the question now as to whether it has been rightly or wrongly decided, though I believe it has been perfectly rightly decided,) and that decision has been affirmed after great deliberation in this House, that no able bodied person, though he might come under the description of occasional poor, had any right to demand relief. But then it is said, that that is not the present case. The person does not demand relief in this case, or at least if he does, it is not because he demands it, that it is given to him. No doubt he really does demand it or ask for it. But what is said is this, although he could not have demanded it, it is competent to the administrators of this fund to give it to him, whether he demands it or not. That appears to me to be absolutely inconsistent with the notion of a fund levied for a certain definite purpose defined as that purpose is in the 33rd section of the Act of the 8 and 9 Victoria c. 83, which is this, that it shall be lawful for the parochial board, at any meeting to be called for the purpose, to resolve, that the funds requisite for the relief of the poor persons entitled to relief shall be raised by assessment.
Now, is this a person entitled to relief? Clearly not, unless he is entitled to demand relief. I am unable to distinguish or to see any difference in principle between being entitled to relief and being entitled to demand relief. The whole argument rests upon the very subtle distinction, that in that last line of the 68th clause the words are that nothing herein contained shall be held to confer “a right to demand relief” instead of “to relief.” Suppose the words had been a right to relief, there would not have been a shadow of foundation for the argument. But it appears to me, that variation in the language makes no real difference, and although it was not actually the point decided in this House in the case of
M'William v, Adamus, it is impossible not to see, that both
Page: 1370↓
It is not unimportant to observe, that when a discretion was intended to be given for a purpose very similar to this, it is given in the 67th section. It was seen, that it might be very convenient that the administrators should have the power to subscribe to hospitals or objects of that nature, and therefore a discretion is expressly given to them in that 67th section. That seems to exclude the notion, that they could have had any discretion if it had not been so conferred upon them.
In common I believe with my noble and learned friends, I do not in general like to decide a case, however strong my opinion may be, until I have heard it all out. It may be said that that applies particularly to the present, where there has been a minority in the Court below so numerous that it amounts to its being, we may say, nearly evenly balanced. But I confess that the case, turning, as it appears to me to do, not upon any elaborate construction of old Acts of Parliament, but simply upon the construction of two or three clauses in this Act, and being for my part utterly unable to see any distinction in principle between this case and the case decided in your Lordships' House fifteen years ago, I think it is unnecessary to occupy your Lordships' time any further with the consideration of it. And therefore, without any disrespect to the minority of the learned Judges of the Court of Session, I shall move, that this appeal be dismissed.
Before the Act of the 8 and 9 Victoria, the relief of the poor in Scotland was provided for partly by assessment and partly by collections at the church doors. A moiety of those collections at the church doors was blended with the assessments and administered for the relief of the permanent poor. The other moiety, after payment of certain expenses by the kirk session, was distributed by them for the relief of occasional poor, and amongst those able bodied persons out of employment were generally included.
That being the state of things the Act of the 8 and 9 Victoria was passed, and the 54th section of that Act provides, that the whole of the church collections shall remain with the kirk session, shall belong to, and be at the disposal of the kirk session of each parish. So that after this enactment there was no longer a moiety of the collections at the church doors, to be blended with the assessment for the relief of the permanent poor.
A new parochial board was established, and that parochial board was, in the first place, by the 32nd section, to make up every year a roll of the poor persons claiming, and by law entitled to relief from the parish or combination, and of the amount of relief given, or to be given, to each of such persons. Of course, that was a roll which applied merely to the permanent poor, because those were the only persons who were certain.
Then, the 33rd section of the Act provides, that it shall be lawful for the parochial board to resolve that the funds requisite for the relief of the poor persons entitled to relief from the parish or combination, including the expenses connected with the management and administration thereof, shall be raised by assessment. Now, it is quite clear from the words of this section, that that assessment was to be applied to the persons, and applied solely to the persons, who were entitled to relief from the parish. And therefore, if nothing more had been said by the Legislature, it is clear, that the occasional poor would not be included in the persons who were to be relieved out of this assessment. But it was the intention of the Legislature, that a certain class of the occasional poor should have relief, not that they should be entitled to relief, but that they should have relief out of this assessment. Accordingly, the 68th section, upon which the whole question turns, provides, not that the occasional poor, observe, shall be entitled to relief out of this fund, but that “all assessments imposed and levied for the relief of the poor shall extend and be applicable to the relief of occasional as well as permanent poor.” Therefore that gave the parochial board a power to administer relief to occasional poor out of those funds which were originally to be an assessment for persons who were entitled to relief. But then, inasmuch as able bodied persons out of employment had been treated as occasional poor, if nothing more had been said, they would have been included within this prior part of the enactment in the 68th section, and therefore, to guard against that, the Legislature introduces a proviso to this effect: “That nothing herein contained shall be held to confer a right to demand relief on able bodied persons out of employment.”
Now, taking the few sections of the Act which I have brought to your Lordships' attention into consideration, what can be more clear than this, that it was the intention of the Legislature that able bodied persons should not have relief out of this particular fund which was an assessment raised for the relief of persons entitled to relief, and was to be extended only to occasional poor by the provisions of the 68th section. The matter appears to me to be so perfectly clear,
Page: 1371↓
Mr. Anderson,—My Lords, I am instructed by the respondents to say, that they do not ask for any expenses in this case.
Interlocutors affirmedand appeal dismissed.
Solicitors: Appellant's Agents, J. Galletly, S.S. C.: Martin and Leslie, Abingdon Street, Westminster.— Respondents’ Agents, G. and H. Cairns, W.S.: W. Robertson, Duke Street, Westminster.