1906. Manchester Overseers z. Saints' Church within the meaning of the said 33rd section of 58 Geo. III. c. 45, and was not in any case a place exclusively appropriated to public religious worship within the meaning of the said Act 3 & 4 Will. IV. c. 30; (2) that the respondent was the occupier of the whole cemetery, and derived annual profits therefrom, and was therefore liable to be assessed upon the whole of such profits according to the decisions in Reg. v. St. Mary Abbots, Kensington, Inhabitants (1840) 12 A. & E. 824; and Reg. v. Abney Park Cemetery Co. (1873) L. R. 8 Q. B. 515; 42 L. J. M. C. 124. I held that the said cemetery or burial ground buildings and hereditaments were exempt from rating under the provisions of the said statute 3 & 4 Will. IV. c. 30, and allowed the appeal with costs, subject to a case for the opinion of the King's Bench Division of the High Court of Justice. The question for the opinion of the Court is whether I was correct in my holding that the said hereditaments were exempt from rating under the said statute. [The case concluded by stating that according to the decision of the Court the decision of the recorder was to be upheld or reversed; and set out, as an appendix, a copy of the scale of charges and rules and regulations referred to in paragraph 12.] Section 1 of the Poor Rate Exemption Act, 1833 (3 & 4 Will. IV. c. 30), provides that- No person or persons shall be rated or shall be liable to be rated, or to pay to any church or poor rates or cesses, for or in respect of any churches, district churches, chapels, meeting houses, or premises, or such part thereof as shall be exclusively appropriated to public religious worship, and which (other than churches, district churches, and Episcopal chapels of the Established Church) shall be duly certified for the performance of such religious worship according to the provision of any Act or Acts now in force: Provided always, that no person or persons shall be hereby exempted from any such rates or cesses for or in respect of any parts of such churches, district churches, chapels, meeting houses, or other premises which are not so exclusively appropriated, and from which parts not so exclusively appropriated such person or persons shall receive any rent or rents, or shall derive profit or advantage. SUTTON for the appellant overseers. The freehold of the burial ground is in the incumbent, but it is submitted that the land is not premises exclusively appropriated to public religious worship, as it must be in order to be exempt from the poor rate under the Poor Rate Exemption Act, 1833. A graveyard is not ejusdem generis with churches, chapels, &c.; and on that ground does not come within the Act. Further, it is submitted that public religious worship in that Act means devotional worship. The expression has reference to the devotions of the public in church or chapel which it is the duty of everyone to render. 1906. A graveyard is not exclusively devoted to worship in that sense at all. The land is a cemetery, and the sale of graves by Manchester the incumbent is a source of profit to him. He makes a commercial Overseers z. Winstanley. profit from it in the same way that an ordinary cemetery company make a profit. He also derives profits from fees for the erection of memorials to the dead and charges for re-opening graves and planting and keeping the turf in order. All these matters are sources of annual profit to the incumbent, and he is in consequence properly rated to the poor rate in respect of them. The object of the consecration of the ground is to bring it within the jurisdiction of the Ecclesiastical Courts. But consecration does not in itself prevent land from being rateable: Oxford Poor Rate Case (1857) 8 E. & B. 184; 27 L. J. M. C. 33. The respondent puts a sum into his pocket annually in respect of this piece of ground, and is rateable upon the principles laid down in Reg. v. St. Mary Abbots, Kensington, Inhabitants (1840) 12 A. & E. 824; and Reg. v. Abney Park Cemetery Co. (1873) L. R. 8 Q. B. 5153 42 L. J. M. C. 124. 310. MACMORRAN, K.C. (RHODES with him) for the respondent, the incumbent. Apart altogether from the Poor Rate Exemption Act, 1833, a parish churchyard is not rateable. Such a churchyard is in the same position as the church, and no one has ever thought of rating a parish churchyard any more than of rating the church itself. Neither church nor churchyard is the subject of beneficial occupation, and neither is rateable: Wright v. Ingle (1885) 16 Q. B. D. 379; 55 L. J. M. C. 17; Robson V. Hyde (1783) Cald. The exemption of churches from rates does not depend upon the Act of 1833, but has existed from the first; and the object of that Act was to put dissenting places of worship on an equality in this respect with churches of the Established Church. The receipt of fees does not put the respondent in the position of a beneficial occupier. The fees are not profits of the land. [RIDLEY J. called attention to Wolfe v. Surrey County Council (Clerk of), 1905, 1 K. B. 439; 3 L. G. R. 407 ; 74 L. J. K. B. 161.] If the respondent is not a beneficial occupier apart from the fees, the fact that he takes those fees will not turn him into a beneficial occupier. The effect of the Church Building Acts is to put a churchyard provided under them to all intents and purposes in the position of an ancient parish churchyard. [He also cited Re Bateman (Baroness) and Parker's Contract. W. N. (1899) 30; and Plumstead District Board v. Ecclesiastical Commissioners, 1891, 2 Q. B. 361.] SUTTON in reply. Cur. adv. vult. Nov. 5. RIDLEY J. read the judgment of the Court (consisting 1906. Manchester of himself, Lord Alverstone C.J., and Darling J.), as follows:- In this case the question is whether the respondent, the rector of All Saints', Manchester, is rateable to the poor rate in respect of an additional burial ground acquired under the Church Building Acts. It appears that the old churchyard of All Saints' Church was closed in 1854, and that in 1855 and in 1883 two sites contiguous to each other were acquired under those Acts, and now constitute the burial ground used in connection with All Saints', although at a distance of three hundred yards from the church. The fee for the performance of burials has been fixed at two shillings, under the Parish of Manchester Division Act; and in 1886 there was drawn up and issued by the then incumbent of the parish a scale of charges for the purchase of graves in the burial ground. These included charges for the purchase of freehold graves, for single interments in public graves, for placing memorials, for planting, painting, and other matters; and it is found in this case that in the year 1904 the receipts from these sources, all included, came to the gross sum of £210 16s., and to the net sum of £100 7s. 2d., which was received by the respondent, and retained by him to his own use. The appellants had rated the respondent as the occupier of the burial ground at the rateable value of £83 10s., that is, on the before-stated sum of £100 7s. 2d. less one-sixth; and the respondent appealed against such rate to the quarter sessions of the City of Manchester on the ground that the burial ground in question was used as an additional burial ground to All Saints' Church, and was therefore exempt from rating. On the appeal coming on for hearing, the appellants contended that the burial ground was not exclusively appropriated to public religious worship within the meaning of 3 & 4 Will. IV. c. 30; and secondly, that the respondent was the occupier of the whole cemetery and derived annual profits therefrom, and was liable to be assessed upon them according to the decisions in Reg. v. St. Mary Abbots, Kensington, Inhabitants (1840) 12 A. & E. 824; and Reg. v. Abney Park Cemetery Co. (1873) L. R. 8 Q. B. 515 ; 42 L. J. M. C. 124. The recorder held that the burial ground or cemetery was exempt from rating under 3 & 4 Will. IV. c. 30, and allowed the appeal, subject to the case stated for our opinion. With regard to 3 & 4 Will. IV. c. 30, which, it was contended, relieved the burial ground from rateability as a place exclusively devoted to public religious worship, we think that there can be no doubt that, having regard to the character of some portions of the burial service which is conducted at the place of interment (e.g., the prayer), that the burial ground would be a place so used, though it would be doubtful if it could be said to be exclusively devoted to such 1906. purpose. But we have considerable doubt whether, looking at the words "churches, district churches, chapels, meeting-houses, or pre- Manchester mises, or such part thereof as shall be exclusively appropriated to public Overseers v. Winstanley. religious worship," it has any operation except upon buildings used for religious worship. It must be remembered that the statute, although it purports to relieve all churches, chapels, &c., from rateability, was in reality passed to extend to the latter the immunity already enjoyed by the former. It might be said, indeed, that "premises " is a word large enough in its full meaning to include churchyards; but in our opinion it should in this passage be read as a phrase ejusdem generis with “churches and chapels." But however that may be, as far as we know, no parish churchyard has ever been held rateable to the poor rate, and the question we have to decide is whether this burial ground is to be classed with parish churchyards on the one hand or on the other with the cemeteries which were the subject of the decisions quoted for the appellants. The parish churchyard is the freehold of the parson; and although he is entitled to rights, such as the cutting of grass growing in it and to customary fees for burials, he has never been held to be in occupation of it so as to make him liable to poor rate as a beneficial occupier. We think this principle must extend to additional spaces of ground acquired by gift or purchase, and annexed to original ancient churchyards which have become full. It would also, we think, certainly extend to similar spaces which, although acquired and added to the original churchyard, are not immediately contiguous to it, and that it would include this burial ground, unless there is anything in the Church Building Acts to place such additional burial ground in a different position. But we can find no provision of that kind in those Acts. By 58 Geo. III. c. 45, s. 33, the Commissioners for Building New Churches may accept and take lands, tenements, and hereditaments proper for sites of additional churches and chapels and providing a churchyard, and every such site when conveyed to the Commissioners is devoted for ever thereafter to ecclesiastical purposes only, in order that the same may be consecrated by the bishop to public worship according to the rites of the Church of England; and by 8 & 9 Vict. c. 70, s. 13, it is enacted that the freehold of every church and burial ground so conveyed shall vest in the incumbent for the use of the inhabitants of the place for which such burial ground is acquired. It does not appear to us that the burial grounds acquired under these enactments are, for the purposes of rateability, in any different position from an ordinary parish churchyard, nor that the parson is constituted the rateable occupier of them. But it was argued 1906. Manchester before us that the taking of fees by the vicar for the grant of places of The observations made by the Court in the case of Beswick v. Alker (1872) L. R. 8 C. P. 265; 42 L. J. C. P. 26, tend still more strongly in the same direction. In that case the question was whether a parson who had claimed a freehold vote for a county "for freehold land and pew-rents," and who was in receipt of such pew-rents by way of stipend, was to be regarded as in occupation of such pew-rents so as to be dis |