OF ALDGATE of 2nd March, 1857, was made upon an erroneous principle, OVERSEERS both as regarded the sum to be contributed for sewers rate, ST. BOTOLPH, and the sum to be contributed for general rate, and that it was null and void. On the other hand, the board contended that the order was made upon a correct principle, and also that they had determined the proportion of benefit according to their discretion, and that their decision was conclusive. The magistrate, being of opinion that the said order was a good and valid order, as regarded both the said rates, gave judgment for the complainants, and ordered his warrant to issue for levying the amount mentioned in the said order, by distress and sale of the goods of the said overseers. The question for the opinion of the Court was, Whether the said order of 2nd March, 1857, was a valid order: it being admitted that, if the order was valid, the magistrate was right. in directing a warrant to be issued as aforesaid. And it was agreed that no technical objections were to be taken on either side, but the case was to be decided on the merits. Sir Richard Bethell, Attorney-General, for the respondents; [Sir Fitzroy Kelly, contrà. The following cases were cited in argument: Dore v. Gray (1), Masters v. Scroggs (2), Rex v. Commissioners of Sewers for the Tower Hamlets (3), Metropolitan Board of Works v. Vauxhall Bridge Company (4), Hackney and Lamberhurst Tithe Commutation Rent-charges (5), Dorling v. Epsom Local Board of Health (6)]. COCKBURN, Ch. J.: I am of opinion that the decision of the magistrate, upon which this appeal is brought, was right and ought to be affirmed. The appellants contend that, although the parishes subject to the Metropolis Management Act, 1855, have by that Act been united into aggregates called districts, nevertheless the expenditure incurred by a district board is to be so apportioned as that each parish in the district shall contribute the amount, only, of the outlay which takes place within its own limits. This contention is, in fact, that the purpose and effect of the Act were simply to substitute district for parochial management, but not district for parochial expenditure and taxation. I think, however, that the object of the Act was to effect both these substitutions. It unites the various parishes into districts, in each of which a board is to be created by election and representation, to do that which was formerly done by various local bodies, Commissioners, parish officers, and others appointed under (1) 1 R. R. 494 (2 T. R. 358). (2) 3 M. & S. 447. (3) 33 R. R. 249 (9 B. & C. 517). (4) 110 R. R. 915 (7 El. & Bl. 964). WHITE CHAPEL BOARD OF WORKS. [94] [100] OF ALDGATE WHITE- BOARD OF OVERSEERS a variety of Acts of Parliament. The expenses of executing the ST. BOTOLPH, Powers with reference to paving, lighting, watering, sewerage and other matters, conferred by the Act upon these boards, are, by the 158th section, to be levied by each board upon its district, by means of orders directed to the different parishes of which the district is composed, and of which the board is, for these purposes, the governing body. Now, had the *Legislature intended that each parish should contribute to these expenses in respect only of the outlay in each, I think that very different language would have been used in the 158th section. That section provides that the district board shall, from time to time, by order under their seal, require the overseers of the several parishes in their district, to levy and pay over to the treasurer of the board the sums which the board may require for defraying the expenses of the execution of the Act. This language being quite general, and no reference being made to the amount of outlay which may be incurred in each parish, I think that it is clear, upon the whole, that the intention was that the rate to be levied should be a general rate throughout the district, to meet the expenditure incurred for the district at large. Then, in order to avoid any injustice which might be thereby sometimes occasioned to particular parts of the district, sect. 159, which follows, provides that, where it appears to any district board that all or any part of the expenses to meet which the rate is ordered to be levied have or has been incurred for the special benefit of any particular part, or otherwise not for the equal benefit of the whole, of the district, the board may throw the burden upon the parts specially benefited, and may exempt other parts altogether or diminish the amount required from them, even where the part thought entitled to exemption is an entire parish. This section leaves it to the board to take questions of the exemption or relief of parts of the district from the rate into consideration, and shows that it is for the board to decide them, in the exercise of its discretion. That being so, this Court cannot consider whether the board has exercised the discretion, so vested in it, rightly or wrongly. All that we can do is to satisfy ourselves that the discretion has in fact been exercised: for, if the board refused to exercise it, we might interpose to compel them to do so; but that is the extent to which, alone, we could interfere. It is true, as Sir Fitzroy Kelly pointed out in the course of the argument, that instances may occasionally occur in which injustice may be done by the preponderance of some one parish in the district. over others, enabling it to influence unfairly the votes and decisions of the board. That, however, was a matter for the Legislature to take into consideration when forming the various [ *102 ] OVERSEERS OF ALDGATE WHITE CHAPEL BOARD OF WORKS. [ *103 ] districts; and cannot affect the construction proper to be put upon the Act, which, indeed, the Legislature must not be sup- ST. BOTOLPH, posed to have passed without due previous consideration. The only difficulty which I have felt arose upon the question of the sewerage expenses: and has been completely set at rest by the lucid argument of the Attorney-General on this point. Powers relating to sewerage are amongst the powers conferred on the district boards by the Act. They are not distinguished from the other powers; nor is separate taxation to be levied to defray their execution, save in so far as sect. 158 provides that a distinction is to be made, in the orders of the boards, between the sums required for expenses of sewerage and those required for other expenses. Sir Fitzroy Kelly suggested that this provision was in accordance with the ancient principle of law relating to sewers rate, that such property, only, is amenable to it as benefits by the sewers. And he cited, in support of his argument, sect. 164, which preserves the exemption from sewers rate of land theretofore exempt. It is clear, however, that that section operates merely as a direction to the overseers what property in their respective parishes to exempt from the rate; and that it has no reference to the distribution by the board, between the component parishes of the district, of the sums to be levied for the purposes of the Act. It was urged upon us, with much force, that, if the taxation authorized by the Act is to be levied indiscriminately upon the rateable value of the property in the different parishes, two neighbouring parishes may be assessed to sewers rate on the footing of their rateable value to poor rate; although the rateable value of one of them to sewers rate may be far less than that of the other, however much the two are on an equality in respect of rateability to the poor rate. It may be that it would be the duty of the board, in such a case, to take that circumstance into consideration in making an order for the apportionment of sewerage expenses between those parishes, and not, in so doing, to be guided merely by the rateable value of the property in them, respectively, liable to the poor rate. But there is nothing before us to show that this, if necessary, was not done in the present case. It being admitted, therefore, that sewerage expenses come under the head of the expenses to be defrayed as provided by the 158th section, the only objection made to the order of the board seems to be that, in distributing among the constituent parishes the sums required to be levied for the common purposes of the district, they have not taken into consideration the amount of the outlay in each separate parish. It appears to me, however, that they were not bound to do so by the Act, which has altogether superseded the old OF 1860. Q. B. 3 EL. & EL. 103-105. TR.. OVERSEERS parochial system, and to the provisions of which, alone, we must have regard. In my opinion the board have acted in conformity with the expressed intention of the Legislature; and the magistrate was right in coming to that conclusion. ST. BOTOLPH, WHITE- BOARD OF [ *105 ] WIGHTMAN, J.: I was obliged to leave the Court before the conclusion of Sir Fitzroy Kelly's argument. I therefore take no part in the judgment beyond saying that, as far as I have considered the question, I am of the same opinion as the rest of the COURT. CROMPTON, J.: I am of the same opinion. We are bound to say that the magistrate has not acted improperly, unless we can see quite clearly that the rate complained of was invalid. That, however, does not in any way appear. The main question between the parties is, whether, upon the general construction of the Metropolis Management Act, 1855, the Legislature has substituted district management for parochial, both as regards management and as regards taxation and expenditure, or as regards management only. I have felt satisfied, from the outset of the case, that the intention of the Legislature was to substitute the district for the parish in every respect; not to keep the parishes distinct for purposes of taxation and expenditure, though putting them under new management. In my opinion, therefore, the rate in dispute was a district tax. It is said that it ought to be distributed among the parishes composing the district, according to the outlay in each. The Act, it is true, lays down no precise principle by which the distribution is to be regulated. My own opinion, however, is that the Legislature intended to leave the principle of distribution very much to the discretion of each board. It is clear, at all events, that the principle of direct benefit is not that to be applied; the rate is a district rate, and is to be levied for defraying the expenses of the execution of the Act in the district. Nor can the ancient principle with respect to sewers rates, that they are leviable on such property only as is *directly benefited, apply here. A rate levied for defraying what are called sewerage expenses, under an Act of Parliament of the kind before us, is a very different thing from a sewers rate strictly so called, and the indirect benefit arising to a parish in the district from that expenditure may be very much greater than that which is direct. The question, then, comes to this, whether the board, in distributing the rate among their constituent parishes, have complied with the general directions of the statute. The Act does not in terms state how the board are to proceed. I think, however, that the method adopted by the OF ᎪᏞᎠᏩᎪᎢᎬ WHITE CHAPEL BOARD OF WORKS. board, in distributing the rate according to the rateable value OVERSEERS of each parish, was a fair one. It may be that, in determining ST. HOTOLPH, the rateable value of each parish, they ought to take into account the exemptions in favour of certain descriptions of property, contained in sects. 163, 164 and 165 of the Act; but it does not appear that there is any such property in the appellants' parish, or that, if there is, the board have not taken that fact into account. Nor is it shown that the board have acted improperly in any way. By sects. 158 and 159 the Legislature have left it to the board to look at all the circumstances and exercise their discretion thereon; considering, amongst other things, whether or not the principle of direct benefit is to be in any way acted upon. No discretion in the matter is given either to the magistrate or to this Court. Even if the board have not taken all the circumstances into consideration, I think that we cannot interfere if they have exercised their discretion. In the present case they have done so, and it does not appear that they have passed over any matter which they ought to have entertained. Had an application been made to them to relieve from liability a particular part of the district, claiming to be entitled to the benefit of the 159th section, and had they wholly refused to listen to it, we could have interposed to make them consider it. But we have no jurisdiction to interfere with the result at which they, after consideration of all the circumstances, have arrived. BLACKBURN, J.: I am of the same opinion. We have no jurisdiction to do more. than consider the question submitted to us by the magistrate, namely, whether the order of the board of 2nd March, 1857, was valid. It is said that this order was invalid on the ground that it proceeded upon an erroneous principle of apportionment of expenses between the different parishes in the district; and that less ought to have been apportioned to the appellant parish and more to others. But I think that, even if that were so, the order would not thereby be invalidated. The effect of sects. 158 and 159 of the Act is that all the expenses together constitute one fund of district expenses; and the Attorney-General is quite right in saying that the whole amount is to be levied on the whole district, though apportionable among the constituent parishes, in the manner provided by those sections. Sect. 158 says that the board is to make orders on the parishes to levy the sums required by the board for defraying the expenses of the execution of the Act. This section is silent as to the principle on which the sums are to be apportioned between the parishes; and, had the Act contained no further provision on the subject, [*106] |