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MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION. by some tribunal the common superior other appeals. Rate appeals are dealt of all, the Courts are certain to diverge in with expressly by the Justices Acts, someopinion, and there will be diversity of times being separately mentioned and laws in every separate area of a Court of sometimes included under the general general sessions or of a County Court.

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appeals.” In the Justices Act The learned Judges below have no right, of 1876 (No. 565) sections 23 to 33 lay and this Board has no right, to set up down rules relating to appeals, which must practice or policy against clear enact- include rate appeals, because here and ments. But when the Legislature has there the latter are excepted and made spoken with two voices, it is very much to subject to a separate provision. Then the purpose to shew which voice has in section 34 speaking of appeals generally fact been listened to by suitors and by gives to the parties, by mutual consent administrators of the law, and which must and by order of the Supreme Court, power lead to confusion such as all statesmen to state a Case for the Supreme Court desire to avoid.

without requiring any decision by the The most plausible argument in favour Court of sessions. Section 36 is the same of the appellants is that which seeks to with section 139 of No. 1105 in all requalify section 139 of No. 1105 by saying spects except that it confers a power, that it does not apply to rating appeals instead of laying a duty, on the Court of at all; by which process one of the dis- sessions to state a Case. It would be a cordant voices is silenced, while the other very forced construction of No. 565 to speaks. It is urged that the obligation hold that section 36 differs as to its subof stating a Case is laid upon the Court of ject-matter from the group of which it general sessions in substitution for the forms part, and when it speaks of "any writ of certiorari which is taken away. case of appeal” does not include rate The section is mainly directed to criininal appeals. Why then should not the same cases, and is at all events satisfied by con- words be held to include them when fining it to matters within the ordinary transferred to section 139 of No. 1105 ? jurisdiction of the Court of general ses- Moreover, section 36 itself is taken from sions derived from common law. This section 11 of the English Quarter Sesreasoning, however, cuts down the gene- sions Act, 1849 (12 & 13 Vict. c. 45), which rality of the words used not only in the provides for stating a Case on appeal latter part of the section, “any case of against any“ judgment order rate or appeal,” but in the former part, which other matter." The Victorian Legisincludes “any other matter or thing done lature does not enumerate these paror transacted in or relative to the execu- ticulars, but it uses general terms of a tion of any Act”; and its departure from nature and in a context adapted to the literal meaning of the words is hardly, embrace them all. if at all, less than that which is made by As for the other parts of section 139, imposing a qualification on the provisions the model of it is to be found in the for finality.

English Highway Act of 1835. That Then it is suggested that rate appeals Act gives an appeal in rate cases to are the creation of the Local Government quarter sessions, and makes the decision Acts, which require finality ; whereas the on appeal binding and conclusive on all duty of stating Cases is found in the Jus- parties to all intents and purposes whattices Acts, which are mainly directed to soever-section 105. Afterwards come other matters; and that in case of con- sections 107 and 108, which take away flict the directions which relate to the the general right of certiorari, but give more specific matter should prevail. But power to the quarter sessions to state a there is too much blending of rate appeals Case “ in any case of appeal,” and on that with other appeals for the successful use a writ of certiorari may issue. It is true of this argument. It is not the case that that the subject-matter of the English a series of Local Government Acts lays statute puts it beyond doubt that rate down one set of rules for rate appeals, and appeals are included. Still the mode of a series of Justices Acts another set for drafting adopted is to provide in the most MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION. emphaticand unqualified terms for finality; The 14th paragraph of the scheduled and afterwards to introduce a provision agreement lays down the principal prothe effect of which is to qualify the finality. visions of the lease. The company is to And unless the Victorian Legislature in- pay to the Trust interest on the capital tended to bring about the same result, it borrowed by the Trust (sub-section 1). is strange that in these two simultaneous It is also to pay to the Trust annual instatutes they should have used forms of stalments to form a sinking fund in reducwords corresponding with the English tion of the loan-namely, during the first model.

ten years of the lease 13 per cent. on the All these lines of enquiry lead up to borrowed capital, during the next ten the conclusion that in section 139 “ any years 2 per cent., and during the last ten cases of appeal” includes rating appeals ;


per cent. (sub-section 2). It is to mainand so the appellants fail to shew that the tain the roadway on which the rails are statutes speak in their favour without laid to the satisfaction of the Trust (subcontradiction. Their Lordships feel, as

section 3). every Judge who has addressed himself Sub-sections 4 and 5 are as follows: to the subject has felt, the difficulty of “(4) In consideration of the payments the question. It is one of those difficulties aforesaid the Trust shall give to the comin the face of which this Board would pany possession of the several tramway hesitate to disturb the decision of the lines according as such shall be completed Supreme Court on a point intimately con- and shall be available for the running of nected with its own practice, even if their carriages thereon and the Company shall Lordships' minds had been more hardly during the currency of the lease have the pressed by the arguments for the appeal sole right of use of the tramway with than they have been. On the best opinion carriages having fange wheels, or other they can form, the learned Judges below wheels suitable only to run on the rails of have reached the most reasonable con- the tramway and also of demanding and clusion of which these unskilfully drawn taking the tolls and charges authorised by Acts admit-namely, that the expressions the Act. Provided always that the Comof finality in No. 1243 must be taken as pany

shall not be entitled to exact fares limited and qualified by the provisions of or tolls exceeding those specified in the No. 1105, and that the Supreme Court Act. And the Company shall be liable to had jurisdiction to grant the mandamus no other payment to the Trust or to the of May, 1898.

several corporations represented thereon On the hearing of the special Case, the for proportion of profits or otherwise howlegal position of the parties appeared to soever except for municipal rates." be as follows: The appellant company “ (5) Each corporation within the limits was incorporated in 1864, and obtained of whose municipality any portion of the powers to construct tramways in various tramway shall be, shall during the curmunicipalities. In 1883 an Act was rency of the lease be entitled to rate the passed part of which is an instrument Company in respect of its use of the tramcontained in its Fourth Schedule and way and to receive and recover from the called the scheduled agreement. By it Company all rates due in respect thereof." the municipalities affected received power Section 45 of the Act provides that, to establish a new corporation composed “Notwithstanding anything in this Act of members selected from themselves. contained the Company shall not acquire This was called the Tramways Trust. It or be deemed to acquire any right other was vested with the powers of the com- than that of user of any road along or pany, and was placed under obligation to across which it shall lay any tramway.” construct the contemplated tramways Some variations were afterwards made within five years, and to grant to the as to the number and duration of the company a lease of them for thirty years leases, but they do not affect the question from the time when interest should begin of rating. On June 30, 1888, before to run upon the loan which the trust was which time the tramways now in question to raise.

were completed by the Trust, a consolidated MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION. lease was granted by the Trust to the which have been worked out by the company, running for thirty-two years Courts below. There is no dispute as to from July 1, 1884. In it the company the amount of the gross profit made by covenants to pay interest on the loans

the company.


does not raised by the Trust, then amounting to now claim any of the deductions which 1,200,0001., and the statutory payments Judge Casey, and after him the Supreme to the sinking fund. Those payments

Court, have disallowed.

The city no are to continue to July 1, 1916, unless longer disputes the claims to deductions that fund shall previously be sufficient to which have been allowed by the Supreme meet the whole debt and expenses of the Court. The company has been allowed Trust. If the payments are insufficient all the deductions allowed by the Rating for that purpose the company is to make Acts. The controversy is narrowed down up the deficiency. All those annual pay- to the questions whether Judge Casey ments are to be chargeable as rent, with was right in deducting from the gross the usual remedies for the recovery of profits of the company its payments for rent. The company further covenants to interest on loans and for sinking fund, pay salaries to the officers of the Trust to items amounting to 110,0001., and whether the extent of 1,0001. per annum, and to the valuation of certain engine-houses has pay to the municipalities all such rates, been rightly adjusted. On September 21, taxes, and assessments as shall be lawfully 1899, the Supreme Court issued its final levied or payable to them respectively, in order deciding these matters in favour of respect of the tramways passing through the city, with the effect that for the their municipal districts.

municipal year 1896–97 the value of the The statutes of Victoria have followed company's rateable property in the city is the English statutes in defining the prin- fixed at 10,4231., and the rate at 1,0431. ciples on which property is to be rated. The company contends in this appeal that By Act No. 1112, s. 246, it is enacted : the Supreme Court has erred on the three

“ All land shall be rateable property points in controversy. within the meaning of this Act and of the The first two questions resolve themActs relating to the incorporation of the selves into the prior question whether the City of Melbourne and Town of Geelong, rate levied is the ordinary occupation save as is next hereinafter excepted (that rate or one of a peculiar kind. It is conis to say) :-Land the property of Her tended that ordinary rates do not fall on Majesty which is unoccupied or used for the company because it falls within the public purposes . . . land vested in or in exceptions of section 246 of No. 1112. the occupation of or held in trust for the But though the ownership of land used Municipality or the Council thereof." for public roads is vested in the Crown,

And by section 248 of the same Act, the land now in question is not unoccuamended by section 55 of the Act pied, nor used for public purposes except No. 1243, the property rateable is to be in the sense that the public may use it computed “at its net annual value, that

for payment. It is occupied by the comis to say, at the rent at which the same pany and used for the profit of its memmight reasonably be expected to let from bers. Nor is there any trust for the year to year free of all usual tenants' rates municipality. and taxes and deducting therefrom the The object of the argument just dealt probable annual average cost of insurance with is not to deny the liability to rates, and other expenses (if any) necessary to which is affirmed by the express terms of maintain such property in a state to com- the scheduled agreement and of the lease, mand such rent."

but to help the further contention that No mention is made of


deduction the ordinary mode of finding the value of for interest or money borrowed for, or the property rated is not to be followed, employed in the construction or creation but some other mode more favourable to of the property which is the subject of the company. Accordingly arguments of valuation.

some subtlety have been addressed to It is not necessary to state the figures their Lordships on the wording of sub


MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION, sections 4 and 5 of the scheduled agree- But that is the test which the Acts of ment. The drift of these arguments is, Parliament do apply; nor is it easy to that rating the company in respect of its see what better principle there is to use of the tramway is not the same thing apply, though in the case of unmarketas a simple occupation rate; that the use able property a larger amount of conof the tramway must have regard to the jecture is necessary than in ordinary profit derived from it; that profit cannot

It is true also that in valuing a be made till expenses have been met; that property of this kind, there comes in payments required by the scheduled agree- another element of uncertainty which ment and lease are the necessary con- does not usually exist in the case of ditions of making any profit at all; that houses and land-namely, that of profit. even admitting that the rent obtainable Nobody would take the occupation and from a hypothetical tenant is the true use of a tramway except for the single test of value, nobody would offer any rent purpose of making profit. This diffiuntil he had allowed for the payments in culty, however, has been met by the question.

somewhat inexact and rough, but essenOn careful consideration of these argu- tially just, method of making an allowments their Lordships cannot admit their ance for the supposed profits of the supvalidity. Nothing is clearer than that posed tenant. Both Courts have allowed the company is laid under the obligation the company on this account to deduct of paying municipal rates. Nothing is from their gross profits the amount of 10 more unlikely than that the Legislature per cent. on their capital outlay. should have intended to impose a new and But, whatever the difficulties may be, peculiar kind of rate, without any indica- they hardly affect the present question. tion of the principles to govern it, or of The city claims contribution to its exthe methods to be followed in assessing it. penses from every occupier of land within It is true that the company has not its area according to the value of his acquired any right other than that of occupation. That value is what the thing user of the roads on which it lays its is worth to use, whether it be ascertained tramway, and that the rate is leviable on by the hypothesis of a tenant's rent or nothing but the use of the tramway. otherwise. Its worth to use cannot be But their Lordships do not find in these affected by the bargains which the actual provisions any indication of a departure occupant has made in order to acquire from the principles of municipal rating the occupation. They may be profitable established alike in England and in to him or the reverse, but they do not Victoria. The use of the tramway is the enter into the question between him and occupation of the tramway. The position the rating authority. In the ordinary of the Pimlico dc. Tramway Co. v. Green- case of houses the municipality does not, wich Union (1873] 2 resembles that of the except as a possible help to get at the present appellant. The enactments de- value, enquire what purchase money or fining the position of the two companies rent the occupier has paid or is bound to are almost identical. The Pimlico Co. pay; either of which may be much above was held to be an occupier, rateable as or much below the actual value, which is such, and not the less so because its occu- the object of enquiry. pation was restricted to a particular pur- In this case the company has in effect pose, nor because the public also had undertaken to make good to the Trust all rights over the same ground. Their its expenditure in constructing the tramLordships agree with the Supreme Court

ways, receiving for that consideration the that this company is subject to ordinary beneficial use of the tramways for thirtymunicipal rates.

If it had paid down the It is quite true that there are diffi- 1,200,0001. owing by the Trust at the date culties in applying the test of the hypo- of the lease, it could not have claimed thetical tenant to property which is not that sum or interest upon it as so much subject to the competition of the market. deduction from the value of the occupa(2) 43 L. J. M.C. 29; L. R. 9 Q.B. 9.

tion. The mode of payment actually

two years.

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MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION. adopted, by paying interest on the debt the rating value of the whole concern the and providing a sinking fund, is mere separate rating value of the engine-houses, machinery. It makes the case a peculiar which they have taken at the minimum one in form, but not differing in sub- fixed by statute for rating value, being stance from ordinary acquisitions of rate- 5 per cent. on the fee-simple value. able property. The substance of the The remainder of the rating value of the transaction is that the company shall concern they distribute among the rating have the tramways for thirty-two years areas on the mileage principle; and they on the terms of making good to the Trust allot to a separate area the rate leviable its whole expenditure on the tramways; on the engine-houses within it. This and whether that be a good or a bad appears to their Lordships to be the right bargain for the company, it cannot affect method of dealing with the case. the value of the occupation which it has There is yet another question which bought, and in which the city finds it. arises on the proceedings for obtaining Whether the company's payments on this leave to appeal. On October 4, 1899, the account are called rent or instalments of Supreme Court made an order which was purchase-money, they are equally the dis- corrected on December 21, 1899. It then charge of the consideration for which the took the form of a declaration that if company obtained its occupation, and within three months from October 4, equally inadmissible as deductions from security should be given by the company rateable value.

in a bond or mortgage or personal recogWithin the city of Fitzroy the company nisance of the value of 4001. for the possesses three engine-houses, and a con- prosecution of an appeal and payment of troversy has arisen how they sbould be all such costs as may be awarded to the rated. The company contend for what is respondents, the appeal shall be allowed. called the mileage principle, which means On January 4, 1900, the Court passed that the houses shall be taken as one item an order which, after referring to certain in the whole concern, and that the aggre- bonds of the company and others, allowed gate rate shall be shared among the the appeal. On February 1, 1900, the different municipalities according to the Prothonotary certified the transcript, and length of tramway in each. The city further certified that the appellants had contend for what is called the parochial given security to the value of 4001. for the principle, by which separate buildings prosecution of the appeal and payment belonging to a single concern whose of costs. On February 9 the City of operations extend over a number of rating Fitzroy appealed from the order of areas are rated separately to the area in January 4, and on the same day the Court which they stand.

passed an order by which, after declaring It is obvious that the mileage principle that the conditions prescribed by the may work unfairly as between the several Order in Council of June 9, 1860, had not areas. In this case it works to the dis- been performed by the company, they disadvantage of Fitzroy, because the mileage charged the order of January 4, 1900, and within that city is about one-twelfth of refused with costs the company's motion the whole, whereas the value of the on which that order was made. This engine-houses within it is more than one- proceeding prevented the company from sixth of the value of all the engine-houses prosecuting their appeal except by special of the company. Chief Justice Madden leave of the Queen in Council. That was lays it down that the parochial principle obtained without difficulty, and at the should be applied wherever reasonably

time the company asked and practicable. Judge Casey applied the obtained leave to appeal from the order mileage principle, for reasons not stated of February 9. in the special Case. The Supreme Court The conditions required by the Order found in the Case materials for applying in Council are as follows : the parochial principle and

“ And in all cases security shall also practical difficulty in doing it.

be given by the party or parties ApWhat they have done is to deduct from pellant in a bond or mortgage or personal

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