1859. Jan. 26.

THE QUEEN v. THE CHURCH-
WARDENS AND OVERSEERS
OF CHIRTON.

Poor-Rate-Dock-Beneficial Occupation-Rateability-Public Purposes.

The Tyne Improvement Commissioners were empowered by act of parliament to make and maintain the Northumberland Docks, and to borrow money upon the security of the rates and dues. The rates and dues were ordered to be applied, first, in payment of the expenses of managing and maintaining the docks, next in paying the interest of the money borrowed, next in creating a sinking fund for the purpose of paying off the money borrowed, and if there were any surplus afterwards, the rates were to be lowered to that extent. The Commissioners were also authorized after the payment of the expenses above mentioned, and after the extinction of the debt for money borrowed, to set apart a sum of money annually to be applied in defraying extraordinary repairs, &c.; and whenever there was any surplus, the Commissioners were to lower the rates and dues so as to reduce them to the annual amount of the expenses of the management, maintenance and working of the docks. The docks, having been built, were used by the shipping frequenting the Tyne, and the rates and dues had amounted to as much as 10,000l. a year:— Held, that the Commissioners were liable to be rated for their occupation of the docks.

SPECIAL CASE stated for the opinion of this Court, by consent of the parties to an appeal to the Sessions against a rate for the relief of the poor.

The case, as far as is material for the purposes of this report, stated that the appellants were the River Tyne Improvement Commissioners; that they had appealed against a rate made upon them as the occupiers of the Northumberland Dock and premises, upon the grounds, among others, that the said dock and premises were not rateable, and that they the appellants had no beneficial ownership or occupancy of the said dock and premises, but that any ownership or occupancy which they might have was for public purposes only. By the 13 & 14 Vict. c. lxiii, cerNEW SERIES, XXVIII.-MAG. CAS.

By section 68. it was enacted, that the rates and dues to be levied should be applied in the first place in the payment of the expenses of or in any way incident to the making, management and maintenance of the said docks, and the works connected therewith; in the second place, in payment of the annual interest of the monies borrowed; and, lastly, in appropriating a sum equal to 21. per cent. upon the whole sum borrowed, or such part thereof as should remain due and owing, and as a sinking fund to be applied in paying off the principal money: provided always, that on and after the expiration of five years after such docks and the works connected therewith, or any part thereof, shall have been opened for the reception of vessels, if after payment of such costs, charges and expenses as aforesaid, and the interest upon the money borrowed or remaining due and owing, and the appropriating and setting apart such sinking fund as aforesaid, and before the complete payment of the principal of the sum borrowed, there shall at any time remain any surplus of the aforesaid rates and dues to be raised in respect of the said docks and works, the Commissioners shall from time to time lower the same rates and dues to the extent of such surplus.

The 70th section provided, "that after the payment in the manner aforesaid, and extinction of the debt for money so borrowed as aforesaid, and subject to the payment of such costs, charges and expenses as aforesaid, the Commissioners shall yearly and every year set apart and appropriate, with and out of the said rates and dues to arise in respect of the said docks, such a sum, not exceeding 1,000l. per annum, as they shall think fit, and shall accumulate the same at compound interest, until the sums so set apart and appropriated and

S

the accumulations thereof, shall amount to the principal sum of 10,000l., and the sums so set apart, appropriated and accumulated shall be invested in the purchase of Exchequer bills or in other government securities, in the name of the Commissioners, and the interest thereof shall be held and applied by the Commissioners, as circumstances may from time to time require, in and for the purpose of extraordinary repairs of the docks and works connected therewith, or other extraordinary expenses incident to the management, improvement or enlargement of the said docks and the works connected therewith, and when and so soon as the whole of the money so to be borrowed as aforesaid shall have been paid off and discharged, and the said sum of 10,000l. shall have been accumulated in the manner aforesaid, if there shall be any surplus of the said rates and dues to be raised in respect of the said docks and works after the payment of such expenses of working, management and maintenance as aforesaid, it shall be lawful for the Commissioners to lower the said rates and dues to such an extent as will reduce the rates and dues to be thereon levied and raised in respect of the said docks and works to the annual amount (as near as may be) of the expenses of the management, maintenance and working of the said docks and works connected therewith."

By the 20 & 21 Vict. c. lxxi. the Commissioners were incorporated under the name of "The Tyne Improvement Commissioners." The Northumberland Dock was completed under the powers of the 15 Vict. c. cx, and is used by shipping frequenting or arriving in the River Tyne. The docks, works and premises which are the subject of the rate are and were at the time of making the rate in the actual and exclusive occupation of the said Commissioners under the authorities and for the purposes of the said acts of parliament solely, and the Commissioners have received as much as 10,000l. per annum in respect of rates and dues levied by them in respect of the said docks and premises. The docks and premises were in the respondent township, and the land upon which they were erected and used, had, before they were so erected and used, been

included in the rates made in that township.

The question for the Court was, whether the appellants were rateable at all in the township of Chirton, in respect of their occupation of the said dock and premises under the several acts of parlia

ment.

Pashley (Davison with him), for the respondents. The Commissioners are clearly rateable, as they are the beneficial occupiers of land, in the township, which is subject to be rated, and which is not occupied solely for public purposes. The Queen v. the Birkenhead Docks (1) is directly in point, and shews that the Commissioners are liable.

[CROMPTON, J.-The appellants must make out that their funds are so appropriated as to exclude them from the liability. LORD CAMPBELL, C.J.-It is settled law, that although they may be trustees, they are rateable unless they are forbidden to pay rates.]

Yes; that is the effect of the judgment in the Birkenhead case above referred to, where Lord Campbell, C.J., in delivering the judgment of the Court, said, as follows:

"Where no one can be found who may be considered the occupier of lands and houses, the Statute of Elizabeth does not extend to them: but where there are occupiers of land and houses within the meaning of that statute, the exemption must rest on some subsequent enactment of the legislature. We apprehend that this doctrine was admitted and acted upon in The King v. the Commissioners of Salter's Load Sluice (2), from the marginal note of which, the exemption on the ground of public purposes takes its origin; the question argued at the bar, and to be considered as decided, was, whether the legislature, by the local act, intended impliedly to exempt the tolls from rateability, although Lord Kenyon, in delivering the judgment of the Court, uses some expressions about there being no occupier, because the Commissioners were merely trustees. The decision can be rested only on the clause in the local act which directed the tolls 'to be applied and disposed of for the several

(1) 2 E. & B. 148; s. c. 21 Law J. Rep. (N.s.) M.C. 209.

(2) 4 Term Rep. 730.

uses and purposes of the said act, and to no other use or purpose whatsoever.' The question was, whether this amounted to a prohibition to apply the tolls to the payment of poor-rates? The Court adopted this construction, instead of holding the meaning of the words to be, that the clear produce of the tolls, after deducting the expense of collecting them and all the charges to which the property was liable (such as poor-rates), was to be applied to these purposes. We think that the decision in the Liverpool case (3) can only be supported by similar reasoning." The appellants are bound by this decision.

Manisty (A. Liddell with him), for the appellants. The principle which is settled. by the cases, and which is applicable to the present case, is, that where property is vested in a body of trustees for public purposes, in which all the subjects of the realm have an interest, and where the funds to be raised are to be applied exclusively to those purposes, with a provision that when they exceed what is necessary for those purposes the rates are to be reduced, such property is not liable to the payment of rates. The appellants are not beneficial occupiers so as to be rateable, for the docks and premises are held by them solely for public purposes, and the provisions of the acts of parliament under which they have been made, shew clearly that the Commissioners have no power to spend the funds in paying rates. The manifest intention was, that no more money should be raised than was necessary for the keeping up of the works, for immediately upon there being any surplus the rates and dues are to be lowered, and there is no power to raise them to the former level, so that there is a distinction between this and the Birkenhead Dock case, which may have been very properly decided upon the facts which were before the Court. It was there said, that it was unnecessary to examine whether the case of The Queen v. Liverpool was affected by The Queen v. Badcock (4), The Queen v. Longwood (5)

(3) 7 B. & C. 61; s. c. 5 Law J. Rep. M.C. 145,

and The Queen v. the Harrogate Commissioners (6); but it is contended that this case comes within those decisions. In The Queen v. Terrott (7) it is said, "The principle to be collected from all the cases on the subject is, that if the party rated have the use of the building, or other subject of the rate, as a mere servant of the Crown or of any public body, or in any other respect for the mere exercise of public duty therein, and have no beneficial occupation of or emolument resulting from it in any personal and private respect, then he is not rateable."

[HILL, J.—All those cases were discussed in the Portsmouth cases, The Queen v. Stewart (8) and others.]

In The Queen v. Shee (9) it was held, that the members of the Royal Academy had no beneficial occupation apart from the purposes of the institution, and might be considered as the ministers or agents of the Crown, and were, therefore, not rateable. In The Queen v. the Harrogate Commissioners the decision was in favour of the rateability because there the benefit was received by only a section of the public; but here all the subjects of the realm participate in the benefit. In The Queen v. Badcock it was said, "To make rateability there must be occupation beneficial in its nature, that is, of a subject-matter producing a valuable return, though not necessarily profitable in any given year on a balance struck of profit and loss. When such an occupation is established, the occupier is rateable in respect of it, unless he is merely a trustee for the public, receiving no individual benefit, except in common with and as one of the public. In such a case the law does not regard him as the occupier, but the public whom he represents." That is directly applicable to this case and to this act of parliament. The Queen v. the Justices of Lancashire (10) is also in point.

[LORD CAMPBELL, C.J.-That will not help you; the occupation was for a public

(6) 15 Q.B. Rep. 1012; s. c. 20 Law J. Rep. (N.S.) M.C. 25.

(7) 3 East, 513.

(8) 27 Law J. Rep. (N.s.) M.C. 81.

(9) 4 Q.B. Rep. 2; s. c. 12 Law J. Rep. (N.s.) M.C. 53.

(10) 27 Law J. Rep. (N.s.) M.C. 209.

purpose connected with the government of the country. How do you distinguish the public purposes for which these premises. were occupied, and the public purposes for which the Birkenhead Docks were occupied?]

It was thought that the Birkenhead Docks were used for private as well as for public purposes.

[LORD CAMPBELL, C.J.-No; there is no difference between the two cases, as far as the purposes for which the docks were used is concerned.]

In that case the proceeds of the rates were not exclusively to be applied to restoring and maintaining the docks, and there was a power to restore the rates to their former level if lowered, and there was no obligation to lower them. The Queen v. Liverpool shews that the appellants are not occupiers in the ordinary sense of the word, or in such a way as to be liable to pay rates.

Pashley was not called upon to reply.

LORD CAMPBELL, C.J.—It would be a great hardship upon this parish, if the land which is now occupied by the dock company were held to be exempt from the payment of poor-rates. Formerly, it was

rated to the relief of the poor, and if it were now exempt it would occasion great injustice. But we must be guided by the law as interpreted by the cases upon the subject. The appellants' counsel admits that The Queen v. the Birkenhead Docks was well decided; and that being so, I am of opinion that it is not distinguishable from the present case. The circumstances under which it was decided are the same. It is true that all persons may have their ships admitted into the docks upon payment of the tolls, but still they are only a particular section of the subjects of the realm who use this privilege, and a sum should be exacted from them sufficient to pay all the lawful charges. The purposes for which these docks were established are not public purposes, such as those for which a post-office is erected, or a place in which military stores are deposited, or where anything is done under the government of the country, but they are the same as those for which the Birkenhead Docks were built, and the

only distinction is, that in this case there is no express power to restore the rates to their former level, but that does not seem to me to impeach the principle upon which the decision was given; and acting upon that case we must give judgment for the respondents.

WIGHTMAN, J.-I am of the same opinion. We decided The Queen v. the Birkenhead Docks after much consideration, and that case is an authority upon the present question. The appellants are in beneficial occupation of the land upon which the docks are built, but it is said that they are not liable to be rated to the relief of the poor because the docks are only built for public purposes. But if the purposes for which these docks were built were of such a public nature as to exempt the occupiers from a liability to pay poor-rates, it would have been so equally in the case of the Birkenhead Docks. It is not suggested that, after payment of the poor-rates, there would not be sufficient funds for keeping the dock in repair. I see no reason or principle for holding that the appellants are exempt, and I think that there should be judgment for the respondents.

case.

CROMPTON, J.-I am of opinion that this case is governed by The Queen v. the Birkenhead Docks, and that we could not hold that the appellants are exempt from the liability to pay poor-rates, without going contrary to that When it was decided, I certainly entertained some doubt, which arose in consequence of the decision in The Queen v. Liverpool, a case which caused a good deal of astonishment in Westminster Hall. It was there held, that where all the receipts were appropriated to public purposes the trustees were exempt from liability, and that view was adopted by the legislature. That occurred to me in The Queen v. the Birkenhead Docks as raising a difficulty, but we decided that case upon the ground put by my Lord that the docks were used by only one section of the public. Then, it is said, that the clauses in the act exclude the payment of poor-rates, but I do not think that that is so. The Birkenhead case goes this length, that where there is a clause enabling the trustees to lower the tolls from time to time, as far as they

rived no direct profit whatever in H, and had no freehold or leasehold interest in the soil of the highway :-Held, first, that the company was rateable to the poor-rate for its mains, being fixed capital vested in land, the company being in possession of the mains buried in the soil, and so, de facto, in occupation of the space in the soil filled by the mains for a purpose beneficial to itself.

Secondly, as to the principle on which the company was to be rated in H. in respect of the plant, engine-houses, buildings, wharfs, mains, lands and premises,—that it was to be rated as for so much land and buildings, with fixtures and machinery at

A waterworks company was empowered by act of parliament to construct works and lay down mains and pipes under certain highways, and to supply certain parishes with water; in the parish of H, not being one of these parishes, the company erected engine-houses and other buildings, containing apparatus for raising water from the Thames, and laid down a main under the highway, which ran about a mile through H, and conveyed the whole of the water supplied by the company to reservoirs in another parish, whence the water was distributed by other mains and pipes to the customers in the several parishes. The company de

from their capacity of being applied to such purposes as those of a water company: such additional value being derived from an increase of demand beyond supply, according to the principle regulating exchangeable value, and not by reference to receipts earned in another parish, beyond assuming that they were sufficient to pay all outgoings, including profits on capital.

On appeal against a poor-rate, made on the 19th of November 1855, for the parish of Hampton, in which the appellants, the Company of Proprietors of the West Middlesex Waterworks, were assessed as follows,