The Queen v. Recorder of Sheffield. it was held that the Justices had jurisdiction to say what was a street, as incident to jurisdiction over an offence in a street. Have they not jurisdiction to say what is due ?]

They have only jurisdiction to enforce payment when the conditions precedent are in existence.

WILLIAMS, J.-The order which it is desired to bring up by certiorari in this case was made by the stipendiary magistrate and confirmed by the Recorder. The Corporation of Sheffield are the local authority for the borough under the 150th section of the Public Health Act, and they executed works in a certain street, and claimed payment for so doing from the owners in default in such proportion as was settled, upon dispute, by an arbitrator. The argument is, that there were certain conditions precedent to the order being made, and if the Justices act in the absence of facts satisfying the conditions precedent, they cannot thus give jurisdiction to themselves. I fail to see that they are conditions precedent. It is contended that, first, the works were not required to be done in a street; and, secondly, that they were not required to be done in a street not repairable by the inhabitants at large; so that the notice to repair was bad: and if the notice was bad, the Justices are deprived of the power of adjudging. In my opinion that view of the section is not correct. The stipendiary has done what is within the ambit of his jurisdiction. I do not think any of the cases cited conflict with this view.

CAVE, J.—I am of the same opinion. I am not satisfied that the stipendiary magistrate and the Recorder had no jurisdiction. The word "jurisdiction" is equivocal. Either it may mean a state of facts into which the Justices ought not to enquire, or in which they ought not to make the order. It refers either to a condition precedent to entertaining an order at all, or to making an order. Under this section the expenses are to be recovered by summary proceedings. The objection is raised that the notice to pave referred to private property. That may be a reason why the order should not be made, but is not an objection to the jurisdiction of the magis

trate. It is immaterial in this respect whether he came to a right or wrong conclusion. Out of respect for the Recorder who confirmed this order, I must add that, in my opinion, the conclusion at which he arrived was correct. The course for Mr. Wake to take was to appeal to the Local Government Board. The language of section 268 is sufficiently large to cover this case, and The Queen v. The Local Government Board (3), I think, so decides. The case of Hesketh v. The Local Board of Atherton (5) is the only case which made me hesitate, and it was not brought to the attention of the Recorder, and I should certainly have arrived at the same result on the same materials.

SMITH, J.-I am of the same opinion. It is not the question whether the decision was right or not, but whether the magistrate had jurisdiction to entertain the application. Notice was served on Mr. Wake; an arbitration was called for, and an award made; and where an award has been made, the money can be recovered on summary proceedings. It is said that there was no valid apportionment, because a piece of land was improperly included in the notice. Who is to decide that question? I think it is within the principle of The Queen v. Bolton (6) that the magistrate should decide it. I do not think this was a case within Bunbury v. Fuller (4). The point decided is collateral to the merits. As regards Hesketh v. Local Board of Atherton (5), I do not think Mr. Justice Blackburn said anything to preclude the question raised here. Rule discharged.

The

Solicitors Geare & Son, agents for A. E. Maxfield, Sheffield, for the prosecutor; Smith & Wilmer, agents for John Yeomans, Sheffield, for the corporation

The Waterworks Clauses Act, 1847, 8. 68, incorporated in the Birmingham Act, provides that "the water rates shall be payable according to the annual value of the tenement supplied." The respondents had, by the Birmingham Corporation Water Act, 1875, vested in them all the powers of the waterworks company.

The appellant, owner of small houses let at weekly rents, he paying repairs and insurance, and all rates and taxes, and compounding for the poor and borough rates under the Acts permitting such an arrangement, was charged water rate on the following basis:—the weekly rents were multiplied by fifty-two, then the actual amount paid for poor and borough rates was deducted, and the water rate calculated on the difference :

Held, that, subject to there being an allowance made for the average of empty houses in the form of a sum to be deducted from the rents before calculating the water rate, the respondents had adopted the right course in ascertaining the "annual value" or "annual rent" of appellant's houses.

This was a Case stated by the stipendiary magistrate for Birmingham, for the purpose of obtaining the opinion of the Court upon a dispute as to the proper mode of assessing the appellant to the water rates in respect of some house property of which he was

owner.

The judgment fully sets out the facts with reference to the property and the making of the assessment, and the Acts of Parliament under which the respondents (being entitled to make a charge for water VOL. 52.-M.C.

supply) justified the principle upon which this particular assessment had been made. The question mainly was as to the meaning of the words "annual rent" and "annual value" in the Acts.

Hugo Young, for the appellant." Annual rent" in the Birmingham Act of 1855 is by agreement in this case to be taken as being the same as "annual value" in the Waterworks Clauses Act, as held in The Sheffield Waterworks Company v. Bennett (1); and it is contended that although the corporation bought the water company under an Act in 1875, yet their doing so having been authorised by the Birmingham Improvement Act of 1851, s. 109, the purchase must be taken to be subject to the controlling powers in section 124 of that Act. That clause provided that annual value should be ascertained in the manner specified in the Towns Improvement Act, and in that Act, 10 & 11 Vict. c. 34. s. 175, it is equivalent to rateable value. Then the Public Health Act of 1875, ss. 51 to 56, prescribes the powers of charging for water to be exercised by an urban sanitary authority, which the respondents are; and there too the basis is net annual value, meaning rateable value. Secondly, apart from the special Acts and circumstances of this case, it is contended that in the Waterworks Clauses Act "annual value" is rateable value. The point was not decided to the contrary in Dobbs v. The Grand Junction Waterworks Company (2). There are at most obiter dicta adverse to the appellant's view; so it is necessary to see what before 1847 was the meaning of the words "annual value," as it is fair to assume that in that Act they were used in their then known meaning. In The King v. Tomlinson (3) net rent was held to be what went clear into the landlord's pocket; and in Baker v. Marsh (4) the meaning of annual value was decided to be rateable value, where those words appear in section 28 of the Municipal Corporations Act, 1835. In the Water

(1) 41 Law J. Rep. Exch. 233; Law Rep. 7 Exch. 409.

(2) 52 Law J. Rep Q.B. 90; Law Rep. 10 Q.B. D. 357.

(3) 9 B. & C. 163.

(4) 4 E. & B. 144; 24 Law J. Rep. Q.B. 1. M

Smith v. The Mayor, &c., of Birmingham. works Clauses Act itself, section 72, the term is used; and the same words in the same Act must surely be construed as having the same meaning. Looking at other Acts, the Birmingham Improvement Act, 1851, in section 135, the 32 & 33 Vict. c. 69, in section 3, the Public Health Act, 1875, in section 211, the Union Assessment Act, 1862 (25 & 26 Vict. c. 103), in section 14, all shew that annual value is an expression used to denote rateable or net annual value. There should therefore be a deduction here for repairs, insurance, &c., which has not been made. In the present case, however, the respondents are wrong in any view, for they have not even deducted the rates. The appellant compounds, and they have only taken off the composition amount, whereas they should have taken off the full rate. The difference between the full rate and the amount of the composition is not rent; it is in the nature of an allowance for collection. This is clear from The Queen v. Bilston (5). There must also be an allowance for "voids or empty houses, and on this point the magistrate was in appellant's favour.

Alfred Young (R. E. Webster, Q.C., with him), for the respondents.-There is nothing in the contention that the respondents are limited by the Improvement Act, for the simple reason that they did not act under the powers therein conferred. They rest upon their own Act of 1875. Nor does the Public Health Act, 1875, passed after their Act, affect the matter; while the Municipal Corporations Act, in which the principles of the Parochial Assessment Act are involved, of course deals with annual value as equivalent to rateable value. The case of The Sheffield Waterworks Company v. Bennett (1) no doubt decides that rent per annum is equivalent to annual value; and Cleasby, B., says that rent means what the landlord gets as rent under the usual conditions. This assessment is in strict accordance with that decision; the respondents have deducted the amount of rates actually paid by the appellant, the rest of the sum therefore paid by the tenants to him as rent continues in his possession as rent. (5) 35 Law J. Rep. M.C. 97; Law Rep. 1 Q.B. 16.

It is expressly provided in the Union Assessment Act of 1862 that it shall not interfere with compositions as allowed under the previous statutes. In interpreting the words "annual value" in the Waterworks Clauses Act, 1847, which is the real question in this case, it is submitted that the judgment of the Court of Appeal in Dobbs v. The Grand Junction Waterworks Company (2) is conclusive. All the members of the Court express their opinion that "annual value gross estimated rental, and not rateable value.

Hugo Young, in reply.

means

Cur. adv. vult.

The judgment of the Court (Denman, J., and Hawkins, J.) was (on June 6) delivered by

DENMAN, J.—This was a Case stated by the stipendiary magistrate for Birmingham in order that the Court might decide the proper mode of assessing the amounts payable by the appellant for water rates. The Corporation of Birmingham, the respondents, had vested in them by 38 & 39 Vict. c. clxxxiii. (the Birmingham Corporation Water Act, 1875), all the powers and authorities of the Birmingham Waterworks Company.

The power and authority of the Birmingham Waterworks Company as to the supply and charging for water is to be found in section 83 of 18 Vict. c. xxxiv. (the Birmingham Waterworks 1855).

Acts,

By that section it is provided as follows:

"The company shall, at the request of the owner or occupier of any house or part of a house in any street in which any pipe of the company is or shall be laid, or on the application of any person who, under the provisions of this Act, is entitled to demand a supply of water for domestic purposes, furnish to such owner or occupier or other person a sufficient supply of water for domestic use at rates not exceeding the yearly rates hereinafter specified— that is to say,

"Where the annual rent of the house or part of the house or premises supplied shall not exceed 57., the yearly rate of 6s."

Then follows a scale increasing with the

"Where such annual rent shall exceed fifty pounds, at a rate not exceeding 67. per cent. on the amount of such annual rent."

The property in respect of which our opinion is desired consists of small houses let at weekly sums, on the terms that the appellant, who is the owner, pays all rates, taxes and assessments of all kinds charged upon or in respect of the premises, including the charge for water, and pays for all repairs and insurances and other matters relating to the premises. He is rated to the poor rate instead of the occupiers under 32 & 33 Vict. c. 41. s. 4, and is allowed the deduction of thirty per cent. therein provided for; also to the borough and street rates, under the Birmingham Improvement Act, 1851, being allowed the deductions therein provided for (section 135). The appellant has been voluntarily rated instead of the occupiers to the water rates.

The question for our determination is, what is the true meaning of the expres sion "the annual rent" in section 83 of the Act of 1855?

The corporation charged the appellant on the following basis. They multiplied the weekly rents by fifty-two, and deducted from the amount so arrived at the actual sums paid by the appellant for poor and borough and street and water rates, and then charged the water rates in question upon the difference. The appellant claimed further deductions for insurance, repairs and voids. As to the last we understand the Case to mean that the stipendiary magistrate was willing to accede to that contention, but that, being in favour of the respondents on all other points, our opinion is desired as to the whole matter.

The appellant further contends that the Public Health Act, 1875 (which was passed nine days after the Birmingham Corporation Waterworks Act, 1875), has superseded any provisions as to the mode of charging the water rates which are inconsistent with its provisions, and made the "net annual value " the amount upon which the water rate is to be assessed. He also contended that he was entitled by way of deduction, not only to the amounts

actually paid by him under 32 & 33 Vict. c. 41. s. 4, and the Birmingham Improvement Act, 1851, s. 135, but the full rates which would be payable if the occupier paid the rates.

If this case was unaffected by the authority of decided cases, it might seem to admit of a short decision in favour of the respondents. Turning as it does upon the meaning of the words "annual rent," it is possible to arrive at the conclusion at which the stipendiary magistrate has arrived by an easy process. Having ascertained the actual amounts of weekly rents, he has multiplied these by the number of weeks in the year, intimating, however, that he is prepared to allow a proper deduction for voids, and for the actual amounts paid by the appellant for rates. The balance so arrived at he holds, or is prepared to hold, to be the proper sum representing the "annual rent within the meaning of the 83rd section, upon which it is admitted that the question mainly turns. In the case of The Sheffield Waterworks Company v. Bennett (1), an action was brought by the plaintiffs for water rates for water supplied to houses of which the defendant was owner. words of the clause regulating the amount to be paid for water required to be supplied were these, "at the following rate per annum-that is to say, where the rent of such dwelling-house or part of a dwelling-house shall not amount to 7. per annum, at a rate not exceeding 67. per cent. per annum on such rent," and so

on.

The

So far then as concerns the allowance to the landlord of the amount of the rates paid by him, and so far as concerns the calculation of the annual value not being tied down to the actual rents received, we think that the case of The Sheffield Waterworks Company v. Bennett (1) is in the appellant's favour, and shews that the proper rental, not the actual rental, is the test, and that that proper rental is the amount which the landlord would put into his pocket after deducting the rates paid by him. But the appellant contends that in deducting the rates paid by him he is entitled to a deduction of the full amount to which such rates would be payable if paid by the tenants and not by himself that is, to thirty per cent. more than the actual amount paid by him in respect of such rates.

We cannot accede to this contention; the composition into which the appellant enters where he is voluntarily rated, and the per centage allowed by the statutes to the landlord where he pays the rates under the provision of the statutes, are calculated roughly with the view of compensating the landlord for the trouble he incurs and the losses he may sustain by payment of charges prima facie payable by the occupiers of his property; and we do not think that the Legislature intended, nor has it anywhere provided, that in estimating charges which he has to pay, he can deduct, in respect of such outgoings from the annual value upon which he is to be rated, more than the sums which he in fact pays. We think that the stipendiary magistrate was right in disallowing this deduction.

The case of The Queen v. Bilston (5), which was cited to the contrary, turned wholly on the words of the Parochial Assessment Act, which authorised a deduction of the usual tenants' rates, and held that when the landlord compounded he was still entitled to deduct the usual amount paid by the tenants where the

tenants pay rates, in order to arrive at the net annual value of the premises within the meaning of 6 & 7 Will. 4. c. 96. s. 1. But inasmuch as, for the reasons to be given presently, we do not think that that Act applies, we are left to decide the meaning of "annual rent" in section 83 without any assistance from The Queen v. Bilston (5).

The appellant also contended that he was entitled to an allowance for " voids," that is, as we understand the word, that inasmuch as the property is let at weekly rents, the proper "annual rent" was not the weekly rent multiplied by fifty-two, but what, after making a fair calculation of the loss to the landlord by the want of tenants incident to property of the kind let to weekly tenants, would be in practice the total value received in the year for the property in question. Here we think his contention is right, and we understand that the stipendiary magistrate is prepared to hold accordingly, and to vary his decision in that respect.

But, beyond these contentions, the appellant has raised a question of greater importance, and which does not seem to have been expressly decided by the case of The Sheffield Waterworks Company v. Bennett (1) or any other case. His contention is that, in addition to the deductions for rates and voids, he is also entitled to a further deduction for the annual average cost of repairs, insurance and other expenses necessary to maintain the premises in a state to command the present weekly payments of the tenants-in other words, to have the water rate assessed upon the rateable value of the premises, after making all the allowances required by the 6 & 7 Will. 4. c. 96. s. 1, in the case of poor rates.

Reverting to the words of the section with which we have to deal, they are, where" the annual rent of the house or part of a house supplied shall not exceed . . . . the yearly rate of . . . ." and "where such annual rent shall exceed 50%., at a rate not exceeding 6l. per cent. on the amount of such annual rent."

The arguments of the appellant may be stated shortly as follows:-The question, being reduced to whether the words annual rent" in section 83 of the Act of

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