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K.B.] CHURCHWARDENS OF ST. STEPHEN v. GREAT NORTHERN & CITY RAIL. Co. [K.B.

On the 24th Dec. 1900 the respondent Thomas Gee applied to the appellants for a transfer of the licence to him from Samuel Turner, who was about to give up possession of the premises and to cease to carry thereon the business of a grocer. The respondent was willing, if the transfer was granted, to take over and continue to carry on upon the premises the business of a grocer as theretofore carried on by Samuel Turner.

Thereupon the appellants refused to grant the transfer from Samuel Turner to the respondent on the ground that the transfer was contrary to the second of the above conditions inasmuch as Samuel Turner would, in the event of the transfer being granted, leave the premises and cease to carry on the grocery business upon the

same.

It was contended before the quarter sessions on behalf of the appellants that they sitting as a court of special sessions of His Majesty's justices of the peace for the purpose of granting and transferring licences as aforesaid could lawfully in their discretion impose the above conditions on the original grant of the licence to Samuel Turner, and could lawfully refuse the transfer from Samuel Turner to Thomas Gee on the ground that such transfer was in contravention of the second of the conditions.

It was contended on behalf of the respondent that the appellants sitting as such court as aforesaid had no such power vested in them.

The Court of Quarter Sessions held the contention of the respondent to be right, and reversed the order of the appellants and granted the

transfer.

Acland for the appellants.

F. H. Mellor for the respondent.

Lord ALVERSTONE, C.J.-We agree with Mr. Acland that the real question for our decision, or the real grounds on which the magistrates acted in the statement of this case, are not very clearly stated in the special case. It is only because stating the special case seems to me to be only consistent with one view that we think we see our way to decide this case. It seems to us that the objection must have been taken before the licensing justices, not that they could take this matter of the previous conditions into their consideration amongst other circumstances, but it was urged that they had no power to grant the transfer, because of the pre-existing conditions. They having adopted that view, there being, we are told, no dispute as to the suitability of the applicant, or the other necessary conditions upon which justices exercise their discretion. When it came to a matter of appeal it was again contended on behalf of the present appellants that the pre-existing condition which had been imposed some four or five years before, but renewed, or taken to have been renewed, on the occasion of every renewal of the licence, prevented the licensing justices from having power to grant this transfer. That point was taken as going to the root of the jurisdiction of the justices. We think that, although it was a circumstance which could be taken into the consideration of the justices, it was not an objection which prevented the justices entertaining the application for a transfer of the licence. If that is so, the quarter sessions have set the matter right by holding that it was not a bar on the power of

the licensing justices to grant the transfer, but
only a circumstance to be taken into considera-
tion. In my opinion, as the question of transfer
must be dealt with judicially, no condition of
this kind would bind future justices. This the
quarter sessions considered was not a bar, and
they granted the transfer to the respondent.
Therefore we think that this appeal should be
dismissed.

DARLING, J.-I am of the same opinion.
CHANNELL, J.-I agree.

Appeal dismissed.
Solicitors: H. Booth and Sons, Oldham; R. M.
Sixsmith, Oldham.

Monday, Feb. 24, 1902.

(Before Lord Alverstone, C.J., Darling and CHANNELL, JJ.)

CHURCHWARDENS OF ST. STEPHEN (apps.) v. GREAT NORTHERN AND CITY RAILWAY COMPANY (resps.). (a)

Rating Distress warrant Objection before justices on application for-Jurisdiction to rate -Appeal.

By sect. 69 of the Great Northern and City Railway Act 1892 it was enacted: "The company shall in respect of all lands and buildings acquired by them under the powers of this Act be liable to and pay all the consolidated sewer and other rates and contributions leviable in respect of such lands and buildings as if the company were assessed in respect of such lands and buildings in the valuation list in force for the parish or place within which such lands and buildings are situate at the time the company acquire such lands and buildings, whether such lands and buildings be occupied or vacant, and shall continue liable to and pay all such consolidated sewer and other rates and contributions until the undertaking shall be completed and assessed or liable to be assessed to the beforementioned rates and contributions, or until such of the said lands and buildings as may not be required for the purposes of the undertaking shall have been otherwise duly assessed or liable to be assessed and become liable to the beforementioned rates and contributions."

The railway company acquired certain land under this Act upon which buildings formerly existed but had been pulled down before the railway company had acquired any interest in the land. Held, that the railway company were not liable to be rated in respect of these buildings under sect. 69.

Held, further, that as the objection raised by the respondents as to their liability went to the jurisdiction to rate, that objection could be entertained by the justices upon an application for a distress warrant.

CASE stated by two justices for the city of London.

On the 20th July 1901 complaint was made on behalf of the appellants, the church wardens and overseers of St. Stephen, Coleman-street, that the respondents, being duly rated and assessed in two poor rates, amounting to 451. Os. 4d., had not paid and refused to pay the same.

(a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law.

K.B] CHURCH WARDENS OF ST. STEPHEN v. GREAT NORTHERN & CITY RAIL. Co. [K.B.

The following facts were proved or admitted before them :

The respondents were incorporated under the Great Northern and City Railway Act 1892. Under that Act and the Acts incorporated therewith the company were authorised to acquire lands for the purposes of the works thereby authorised.

The respondents on the 1st Jan. 1900 acquired certain land in the parish of St. Stephen, upon which premises consisting of a shop, offices, and warehouse, formerly known as 30, Finsbury-pavement, had existed, but they did not take actual physical occupation until Oct. 1900. The shop. offices, and warehouse were pulled down about May 1899, at which time the railway company had no interest therein.

At the time the respondents acquired the land in Jan. 1900 no business of any kind was carried on upon it. It was a piece of vacant land.

In the valuation list in force in Jan. 1900, being the quinquennial valuation list made in 1895, the premises were assessed at 2927. rateable value.

In 1899 a supplemental valuation list was made for the parish pursuant to the Valuation (Metropolis) Act 1869, by which this property was proposed to be taken out of rating, as it was then vacant land. The list was duly confirmed pursuant to the said Act on the 24th Nov. 1899, but did not come into operation until the 6th April 1900.

Before that date-viz., on the 4th April 1900— a provisional list continuing the property in the valuation list was made for the parish, which was confirmed by the Assessment Committee of the City of London Union, in which the parish is situate, on the 31st Oct. 1900. In this provisional list premises therein described as No. 30, Finsburypavement were inserted at the rateable value at which the premises formerly known as No. 30, Finsbury-pavement were assessed and rated before the shop, offices, and warehouse were demolished -viz., 2921.

A poor rate was duly made and published on the 8th May 1900, and another on the 5th Nov. 1900. The rate-books were produced, in which the respondents were rated in respect of premises described as "shop, offices, and warehouse," upon the rateable value at which the premises described as No. 30, Finsbury-pavement were assessed in the said provisional list-viz., 2921.

Payment of the sums claimed under the said rates was duly demanded, but the amount was not paid. At the dates of the rates respectively, the undertaking of the respondents had not been completed and assessed or become liable to be assessed to consolidated sewer and other rates, nor had such of the lands and buildings acquired by the respondents as were not required for the purposes of the undertaking been otherwise assessed or become liable to be assessed or become liable to the said rates and contributions.

On behalf of the respondents it was contended: (a) That their liability (if any) in respect of the said property was enforceable only by action to recover the amounts charged by the said rates, and was not enforceable before justices, and Fourth City Mutual Building Society v. Churchwardens and Overseers of East Ham, (1892) 1 Q. B. 661), Farmer v. London and NorthWestern Railway Company (59 L. T. Rep. 542; 20 Q. B. Div. 788), and sect. 69 of the Great

Northern and City Railway Act 1892 were referred to; (b) that at the time the rates in question were made the land was vacant land, and the respondents were not liable to be assessed in respect of it; (c) that the respondents were only liable to be rated (if at all) in respect of the land as if they were assessed in respect of it in the valuation list in force for the parish at the time they acquired the land.

On behalf of the appellants it was contended that under sect. 69 of the Great Northern and City Railway Act 1892 the respondents were rightly rated in respect of the property in question and were liable to pay the rates whether the lands and buildings were occupied or not, and that, as the respondents had not appealed, the justices were bound to enforce the payment.

The justices overruled the contention of the respondents that the amount could only be recovered by action, and they held that they had jurisdiction to go behind the rate-book and inquire into the validity of the rate, and on the ground that at the time when the rate was made there were no such premises in existence as were described in the rate-book, and had not been when the respondents acquired their interest, but the property was then only vacant land, they declined to issue a distress warrant.

Ryde for the appellants.-In this case the clause of the special Act is somewhat like sect. 133 of the Lands Clauses Consolidation Act 1845. Thee questions arise-namely, whether the proceedings by distress warrant were right; what is the construction to be placed upon sect. 69 of the Great Northern and City Railway Act, and whether the respondents should have_appealed against the rate to quarter sessions. You can take objections before the justices upon a summons for a distress warrant. No doubt under the Lands Clauses Consolidation Act there would be no liability to pay this rate and these proceedings would be wrong, but although the present section is somewhat like the section in that Act, it differs, and the respondents are liable to pay this rate. He referred to

Mayor of London v. St. Andrew, Holborn, 16 L. T.
Rep. 665; L. Rep. 2 C. P. 574.

In the light of that decision and of the Lands Clauses Consolidation Act, it is clear that there is a liability under sect. 69 of the present Act. Under this the company must be rated, otherwise the effect of the section is nil. As to the liability to pay the rates. This point cannot be taken before the justices, but must be appealed to quarter sessions. He referred to

Marshall v. Pitman, 9 Bing. 595; 2 M. & S. 745. If there is jurisdiction to rate, then you cannot take any objection on the application for a distress warrant, but you must appeal. He

referred to

Reg. v. Justices of London, 80 L. T. Rep. 286; (1899) 1 Q. B. 532.

Cunningham Glen for the respondents.-The railway company could show before the justices that the premises did not exist. Existence or no existence is a matter for the justices. In Fourth City Mutual Building Society v. Overseers of East Ham, (1892) 1 Q. B. 661) it was laid down that justices sitting to hear an application for the issue of a distress warrant for the nonpayment of

K.B.] CHURCH WARDENS OF ST. STEPHEN v.

poor rates are not necessarily exercising a ministerial duty, but are authorised to inquire into the validity of the objections taken by the party summoned. There could not have been an appeal here against the provisional list. The respondents are not rendered liable by sect. 69 at all. The liability contemplated by the section is not a liability to be rated or assessed, but merely a liability, if any, to pay, and an action should be brought and not proceedings taken before the justices.

Ryde in reply.

Lord ALVERSTONE, C.J.-In this case we have to construe a most obscurely worded section. There is this additional difficulty to my mind, that I think one can see very clearly what the persons who framed the section wanted to enact and were driving at; and therefore one is rather tempted to try and construe words which I do not think will bear that construction. They were enacting in respect of other rates than the poor rate, a substitution for sect. 133 of the Lands Clauses Consolidation Act. I think they had in their minds that they wished the railway company to pay what would have been paid if they had not acquired the property. But when you come to apply these words to the actual state of facts found, in my opinion the language is not sufficient to enable the company to be made liable in respect of this particular rate, and that will be found to be important when we deal with the question of the right to raise this point in answer to an application for a distress warrant. The words are: "That the company shall in respect of all lands and buildings acquired by them under the power of this Act be liable to and pay all the consolidated sewer and other rates and contributions leviable in respect of such lands and buildings as if the company were assessed in respect of such lands and buildings in the valuation list in force for the parish or place within which such lands and buildings are situate at the time the company acquire such lands and buildings, whether such lands and buildings be occupied or vacant." Now, it is contended by Mr. Ryde that, because in the valuation list for the year 1895 these buildings when they existed stood at 2927., it must be taken that the company must be liable not only to be assessed, but to be rated in respect of that land because they had taker the land on which the buildings had stood. In my opinion the section, if that was the intention of it, does not carry it out. I think that argument overlooks the cardinal fact that prior to the time of the land and buildings being taken the buildings had ceased to exist, and it is not denied by Mr. Ryde, who has argued the case perfectly fairly, that in the hands of the then owners, the company, they were entitled, either by means of the overseer doing his duty, or by means of an appeal against the supplemental list, to have said: "There is no rate leviable in respect of this property now, because the building is pulled down, and therefore the land is not liable; it is vacant land, and we have no buildings upon it." Applying this section to that state of things, it seems to me that further words would be required than those which are in this section. It seems to me that the words required are: "The company shall be liable to be assessed and to be rated at the amount at which this land and

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GREAT NORTHERN & CITY RAIL. CO. [K.B. building stood in the last valuation list, even although it had been pulled down before the company took possession"; and I must say I think, inasmuch as the primary object of the Legislature was to substitute provisions for making good, you would not expect to find the company made liable to pay more than the persons from whom they bought the property paid. Mr. Ryde says that difficulty is met by the words "whether such lands and buildings be occupied or vacant." I cannot think that those words were intended to apply to the state of things we are now considering, the governing words being "rates leviable in respect of such lands and buildings." The words "whether such lands and buildings be occupied o vacant are necessary to apply to the interim state of things when the company pull down the buildings and may leave the land vacant for considerable time. Those words are wanted, it seems to me, in order to show that, though the company have no beneficial occupation out of the land, if they have taken possession of the land and buildings they are to be liable to be rated in respect of the same rateable value as the parish could have enforced and exacted from the owners from whom they bought. I think it is not established on the facts here that there was a rate or contribution leviable in respect of these lands at the time the company was assessed to the extent of 2921. or any sum. In order to meet that difficulty, Mr. Ryde's next point is that this ought not to be raised by way of an answer to an application for a distress warrant, which was only a ground for appeal as I understand it. The principle has been stated more than once by my brother Channell. If the objection raised in answer to the application for a distress warrant is, "You have no jurisdiction to make us liable in respect of this rate at all," that is an objection which can be taken, but if, on the other hand, it is," You ought not to have assessed us in respect of this property at this amount," or on some other ground which is a ground for an appeal, that cannot be taken. In this case this rate is for shops, offices, and a warehouse at 30, Finsbury-pavement which were in the occupation of the Great Northern and City Railway Company. There were no shops, offices, or warehouses in their general occupation. What can

be said is that there once had been there shops and offices, and that they levied rates in respect of the assessment. If the rate had purported to be, on the face of it, a rate in respect of making good a deficiency, I think it would have been a difficult point as to whether or not it could be raised in answer to an application for a distress warrant, but I think this was an objection which went to the jurisdiction of the rating of the Great Northern and City Railway Company for the shop, offices, and warehouse that they did not exist at the time of the rate, and that they did not exist at the time when they acquired the property, although there was a pre-existing state of things in respect of which they could not be properly assessed. With regard to the contention which Mr. Glen raises-namely, that the company could be rated or could be assessed-I should have thought it was right, and that, having regard to the words of the section, the company could not be sued by means of an action, but I do not wish to express a final opinion

K.B.] CHURCH WARDENS OF ST. STEPHEN v. GREAT NORTHERN & CITY RAIL CO. [K.B.

about that, because I think there are difficulties with regard to it. For the reasons I have given I think on this section the appellants have failed to make the company liable on the bypothetical theory that they are still occupying houses which were in fact pulled down some months before they acquired the property. The appeal will therefore be dismissed.

DARLING, J.-I a am of the same opinion. The liability of the railway company depends upon the effect to be given to sect. 69 of the Great Northern and City Railway Act 1892, and there is no doubt that the payment of this rate, which it was said the company was liable to pay, might have been escaped from by the people from whom the company bought that land, because the buildings upon that land had been pulled down, and those who were the owners before the company bought could have escaped payment of the rate, and could have escaped it very justly and properly, for the simple reason that it is not fair to make people pay rates upon buildings which have ceased to exist. Now, the company acquired the land, and the section which makes them liable says: [Reads it.] Now, it seems to me that they are not liable in respect of this, because they never did acquire the buildings at all. The buildings had been pulled down before they had acquired the land. They did not acquire land and buildings. They acquired land and no buildings. If it is said that they are to be made liable on the valuation list in force, when is it to be in force? It is put in force at the time the company acquired such lands and buildings. No such list ever was in force, because there was no time when they acquired lands and buildings, since they never acquired buildings at all. It is perfectly obvious I may say in passing, that to hold otherwise than what we are going to hold would be to do the company a manifest and gross injustice, because it would be to make them pay on what other people would not have had to pay on. would be to make them pay on the value of buildings which they never had got. It is said that

It

this necessarily follows from the section, which I will not read, and, to show that it follows, these words are relied upon: "Whether such lands and buildings be occupied or vacant." Now, it seems to me that the expression liable for buildings, whether occupied or vacant, does not apply, for the were no buildings at all, either occupied or vacant, and the expression "occupied or vacant' is not confined to the land at all, but it is applied to the land and buildings. If it had been applied to the land alone, I think it would have been possible to say that shows that Parliament in 1892 was bent upon doing a gross injustice, and used language applicable to it. But, short of words from which one could not escape, I should not feel inclined to hold any such thing.

CHANNELL, J.-I think this appeal must fail and substantially upon the ground upon which the justices appear to have decided-namely, that at the time the rate was made there were no such premises in existence as those described in the rate-book, and that at the time when the Great Northern and City Railway Company acquired their interest it was only vacant land. Now, the section undoubtedly was intended to make up to the local authority a deficiency in the consolidated

sewer and other rates which might be occasioned by the act of the company. So far as the poor rate was concerned, that was provided for in the Lands Clauses Consolidation Act, and the Lands Clauses Consolidation Act was incorporated with this Act. The main object of this section, I cannot help thinking, was to include the other rates. It may or it may not have been intended to alter the machinery by which the local authorities were to get their deficiency in respect of the poor rate; but the difficulty is that, when one comes to look at the section, it is absolutely impossible to understand the machinery by which it was intended that the local authorities should get their deficiency, or this additional rate, or to understand what it was that they were to do. I myself feel quite unable to understand the section. I think it arises very possibly from the clause being hur riedly drafted; I do not know. But it arises from the fact that the draftsman, whose language of course it is, although adopted by the Legislature, certainly did not understand clearly the machinery of rating-namely, what the effect of putting a name in the valuation list was, or what the effect of property being vacant, and so on, was. It is quite clear he did not understand it, or it impossible that the words could have been used that are used here, and inasmuch as the local authorities, in order to get this money, have got to show us what the meaning is. If we cannot understand it we can only say they fail.

Was

But, apart from technical grounds and the difficulty of understanding the machinery. there is a point of substance. There is not a word in that section to indicate anything more than an intention to make the company liable for a loss arising from their own act. What was contemplated no doubt was that the company coming will pull down the buildings, will leave the land vacant for a considerable time, and will in consequence cause loss. But there is not a word here indicating any intention that the company shall pay anything more than the rates which would have been paid if everything had remained exactly as it was at the time when they acquired their interest. At the time they acquired their interest, if things had remained exactly as they were, there would have been none of these rates leviable, and consequently it seems to me that in point of substance it cannot be made out on this section that the company have got to pay anything more than the former owners would have paid if the state of things had continued exactly as it was on the date in Jan. 1900 when the company acquired the property. That is all I have to say on that point of substance, but, as far as construing the section is concerned, I am quite sure I do not understand it, and I cannot give any judgment on that ground, except to say that anybody who has to show the court the meaning of this section in my opinion fails. Appeal dismissed.

Solicitors: Roche and Son; Le Brasseur and Oakley.

K.B. Div.]

STOURBRIDGE MAIN DRAINAGE BOARD v. SEISDON UNION.

Monday, Feb. 24, 1902.

(Before Lord ALVERSTONE, C.J., DARLING and CHANNELL, JJ.)

STOURBRIDGE MAIN DRAINAGE BOARD (apps.) v. SEISDON UNION (resps.). (a) Rating-Sewage farm-Lease to tenant-Sewage works on farm-Occupation by sewerage board. The S. M. D. Board acquired a sewage farm, and laid down thereon certain carriers and other sewage works and plant.

They leased the farm to one C., reserving the right of entry thereon for the purpose of constructing, maintaining, altering, and repairing the works as might be requisite for using the farm as a sewage farm.

C. was to irrigate by means of the works on the farm, and was to keep the pipes and carriers properly flushed and cleaned.

The board kept the works in repair, and from time to time their surveyor and agents went on the land to see that the sewage was properly distributed and treated, and to do repairs. Held, that the board were rightly held not to be in occupation of these carriers and other sewage works and plant, and so not legally rateable in respect thereof.

CASE stated by quarter sessions.

The appellants are a sewerage board duly consti tuted for the purpose of dealing with sewage from the urban district of Stourbridge.

For the purpose of carrying out the duties imposed on them they acquired a farm, and laid down upon the farm certain sewage works and plant, consisting of a valve-house, carriers, distributing chambers, effluent drain, and other accessories, all of which were necessary for the purpose of enabling them to carry out their statutory duties by dealing with the sewage in their district.

The hereditaments which formed the subject of the rate were (a) a rising main to the valve-house on the farm, and the valve-house, and (b) the carriers and other sewage works and plant.

The appellants were rated by a poor rate made the 29th Oct. 1900 in respect of both these here. ditaments, and upon appeal to quarter sessions it was held that they were legally rateable in respect of (a), and no appeal was brought therefrom, but in respect of (b) the quarter sessions held that the appellants were not legally rateable, and they allowed the appeal and reduced the rate.

By a lease dated the 9th Dec. 1897 the appellants let the farm to one Chatham, and under its provisions all the farm lands were demised, together with the appurtenances, but the right of entry was reserved to the board and their agents to construct, maintain, alter, or repair the main outfall chambers or outfall sewers, the rising main, valves, sluice chambers, sewers, drains, carriers, and other works as might be requisite for the purpose of the user by the board of the farm as a sewage irrigation farm; and the board were to have full and sole possession and control of the main outfall valve chambers and the valves and fittings therein, and the rising main or outfall sewer.

It was further provided that Chatham should during his tenancy keep the lands well cultivated as a sewage irrigation farm, and that he should (a) Reported by W. DE B. HERRERT, Esq., Barrister-at-Law.

[K.B. Div.

properly irrigate to the satisfaction of the board surveyor every part of the farm with sewage, so far as he could, by a proper use of the sluices, pipes, carriers, and other works, and he was, so far as he was able, by a reasonable and proper use of the sluices, pipes, carriers, and other works to receive, pass, and distribute on the lands all the sewage pumped by the board, and he was, at his own cost, to keep the sluice chambers, pipes, carriers, and catch-pipes to all the effluent pipes and drains freed from deposit or sediment, and to keep the pipes and carriers properly flushed and cleansed.

By further provisions in the lease the board were to keep the outsides and insides of the valve chambers and carriers in substantial repair, and to cause the sewage to be pumped up into the outfall chambers.

By the rate appealed against Chatham was rated by the respondents in respect of the farm, apart from the hereditaments referred to above as (b).

The valves in the valve-house worked automatically and regulated the flow of sewage upon the farm. The key of the valve-house was kept by Chatham as a convenient depository for the same, and the various officials of the appellants obtained access to the valve-house when they required to enter to inspect or do necessary works to the apparatus in the valve-house. It was not necessary for Chatham to enter the valve-house for the purposes of the farm or to carry out the covenants of the lease.

From the valve-house the sewage flowed through the various distributing carriers upon the farm, and Chatham, by means of sluices and other proper apparatus connecting with the distributing chambers, could and did, subject to the provisions of the lease, but otherwise without interference from or control by the appellants, turn the sewage upon and to such parts of the farm as he required it, and could with the appellants' consent sell it.

The provisions of the lease were generally carried out in practice between the appellants and their tenant Chatham.

The surveyor and other officials of the appellants went upon the farm from time to time to see that the sewage was properly distributed and treated upon the farm and that the works were in order, and for the purpose of doing the necessary repairs thereto.

The appellants from time to time, as they were required for the purpose of efficiently dealing with the sewage, made alterations and extensions in the works.

Upon the facts aforesaid the appellants contended that they had not such occupation of the sewage works and plant as to be rateable in respect thereof, but that Chatham was the occupier of such sewage works and plant, and was the person to be rated in respect thereof.

The respondents, on the other hand, contended that Chatham was in occupation only of the farm as an agricultural tenant; that the sewage works and plant were a distinct hereditament created by the appellants to enable them to carry out their statutory duties, and that in law they could not part with the possession, control, or occupa tion of such works and plant; and that if such works were in the physical possession, control, or occupation of Chatham, he was a mere agent of

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