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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> The Commissioners of Supply for the County of Lanark v. North British Railway Co. [1870] UKHL 2_Paterson_1855 (11 July 1870) URL: http://www.bailii.org/uk/cases/UKHL/1870/2_Paterson_1855.html Cite as: [1870] UKHL 2_Paterson_1855 |
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Page: 1855↓
(1870) 2 Paterson 1855
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 109
Subject_Railway — Assessment — Exemption — Valuation Act — Prisons Act — General Statute repealing Special Statutes —
Two special railway Acts, passed in 1825, exempted the lands taken for the purposes of the railway from all public and parochial burdens.
Held (reversing judgment), That such exemption was impliedly repealed by the Valuation Acts and Police and Prisons Acts, which imposed burdens altogether new since the passing of the special railway Acts.
This was an appeal from a decision of the First Division. In 1867 the North British Railway Company raised an action of declarator against the Commissioners of Supply for the county of Lanark, seeking to have it declared, that the company was exempt from certain assessments made by the defenders upon the company. The Act for making the Monkland and Kirkintilloch Railway passed in 1825, and expressly provided, that the lands conveyed to the company shall not be liable for land tax, nor any public or parish burden. The Act for making the Slamannan Railway, passed in 1835, also provided, that the grounds should not be liable in payment of cess, stipend, schoolmaster's salary, or other public or parochial burdens, but the same shall be paid by the original proprietors of such grounds. These railways now belonged to the North British
_________________ Footnote _________________
1 See previous report
7 Macph. 201;
41 Sc. Jur. 130.
S. C. 8 Macph. H. L. 141;
42 Sc. Jur. 506.
Page: 1856↓
Sir R. Palmer Q C., and Mellish Q.C., for the appellants.—This interlocutor was wrong, and must be reversed, for the case of Duncan v. Scottish North Eastern Railway Co., ante, p. 1767; 42 Sc. Jur. 410: 4 R. 2 Sc. Ap. 20: 8 Macph. H. L. 53; recently decided by the House, was substantially the same as the present case. In that case it was laid down, that an exemption such as was found in these local railway Acts was no longer applicable to the new state of things under the Poor Law Amendment Act of 1845, which substantially agreed with the language of the Valuation and Prison Acts, and all the series of decisions in the Scotch Courts, on which the present decision was based, had been overruled.
The Lord Advocate (Young), and Anderson Q. C., for the respondents.—This case is not identical with Duncan v. Scottish North Eastern Railway Co., and may be distinguished. In that case the Poor Law Act made many vital changes in the rules of assessment, and introduced new subjects of assessment; but the Valuation and Prison Acts were never intended to interfere with the question of assessability, and all they were intended to affect was the mode of valuation, by making it more uniform. The Acts deal only with the lands and heritages belonging to railway companies, and do not create any new subject of assessment. Therefore the exemption continues, and the judgment ought to be affirmed.
Now, in the case that was before us upon the former occasion, we came to the conclusion, though one of your Lordships (
In truth, according to both these Acts now before us, it would appear, assuming that the Monkland Act left the proprietors of the superiority liable to the charge, that the original proprietor would be left liable to a charge of this description, namely, the charge which he would bear according to the then valued rent, not the actual rental of the property which he had disposed of to the company, and all charges and burdens assessed at that time upon the company. We thought that it was not intended that any different burden, or even any modification of the same burden, which became so complete a modification as wholly to alter the incidence and character of that burden, would be included in that exemption which the company contended they were entitled to. We came to the conclusion in that case, that the company were not exempted on the one hand, and the proprietor burdened on the other, with the payment of an assessment made according to the principles contained in the Valuation Act. Instead of paying upon a valued rent of the property which he had disposed of to the railway company, he would pay an assessment which was wholly independent of the extent of acreage of that land, which was wholly independent, in fact, of what the valued rent of that land had been, but which was
Page: 1857↓
It appears to me, that the vendor, upon the proper construction of this Act, would remain subject to, and that the company would remain exempt from, every burden which was then imposed upon the land, notwithstanding the increased amount of rate that the land might become liable to in respect of the improved value of that land. Supposing, for instance, as I took occasion to observe in the former case, that a cotton mill or some other valuable property had been erected upon the land, the burden in respect of that cotton mill would be a burden which, according to the existing laws, the property was to be taken to be subject to, and which it was well known to be subject to at the time, it being assessable according to its true value, and as long as things remained in that state and no change was made by the Legislature, and no further Act of Parliament was passed in any way to impose a new duty. That would be the state of the obligations between the railway company, on the one hand, and the proprietor who had sold his land to the Railway Company, on the other. But when a new burden was imposed of such a character as I have described, the whole relations of the parties were entirely changed, and to say, that under a Parliamentary contract, to be subject to the burden then existing and to be subject to all such alterations and changes as the existing state of the law would authorize in those burdens, a person was not to be subject to increased burdens consequent upon, and occasioned by, a totally new system of legislation, would have the effect of entirely violating the principles of the contract entered into between the parties.
In this case there is the additional circumstance, that every one of the burdens here is an entirely new burden in this sense, that at the time the Railway Acts were passed the particular charges here in question, namely, those as to weights and measures, and as to persons and police, were not charges at all affecting the land purchased of the different proprietors in the mode in which they have now been made to affect them. They were charges which had to be raised according to a different mode and different course of procedure. In some cases, as I understand it from the facts of the case, the different burghs had to bear certain charges as to the police, and the counties had to bear the charges in a different mode. But the mode adopted in respect to the charge for police in the present Act and the mode of charge adopted in the other Act seem to have been of a totally different character from anything that existed at the time of what I may call this Parliamentary contract being carried into effect.
Therefore, so far as I see, this case is not merely subject to the difficulties which we should have had in holding the railway company to be exempted in the case of Duncan v. The North Eastern Railway Company of Scotland, but it is also subject to other difficulties, and it is not to be distinguished by any sound distinction that can be drawn between the two cases; and the distinctions which have been referred to upon the present occasion I think will hardly warrant us in coming to the conclusion of there being a substantial difference between this case and the case referred to in the respondents' case, with respect to which, after setting out the judgments of your Lordships, it is said, “The two grounds of decision, therefore, in the St. Vigeans case ( Duncan v. Scottish North Eastern Railway Company) were the statutory creation of a totally new subject of assessment under the name of Railway, and the distinct abrogation by the Poor Law Act of 1845 of all laws, Statutes, and usages at variance or inconsistent with its provisions. Neither of these grounds can apply to the present case. It is no part of the purposes of the Lands Valuation Act of 1854 to introduce any new subject of assessment. It merely introduces a new mode of assessment, and expressly declares, that it is not to alter or affect any exemption or liability previously existing. Although, therefore, that Act necessarily alters the statutory value of the lands and heritages belonging to them for police and prison purposes, neither that Act nor the police or prison Acts which adopt it, in any way affect the subject or the character of the assessment, or take away the privilege of the railway company of exemption from the burden.”
I think that distinction is far more in words than in any real principle, because in substance what we said on the former occasion with reference to the mode of valuing the railway, applied exactly in terms to what has been done under these different Acts, viz. the railway is directed to be assessed in a manner totally different, and with a burden totally different from that which, as it appears to me, was created by the original statutory arrangement between the parties.
As to the clause “that it is not to alter or affect any exemption or liability previously existing,” I apprehend, that that does not refer at all to any engagements of a character such as we found in the previous Acts, but to a case where there was a real exemption from all liability past, present, or to come, which, of course, is a conceivable case, where there were certain special grounds of exemption distinctly pointing to the future as well as the past. It was meant that that was not to affect that exemption, or any arrangement of the kind.
The argument was put before us very ingeniously of the possible case of a railway running through a whole county and one county only, in which case the provisions as to valuation would
Page: 1858↓
I think, therefore, in substance, that there is no difference between the two cases, except that, as I have said, there is a somewhat additional circumstance in favour of the view taken by your Lordships in the case of Duncan v. The Scottish North Eastern Railway Company, that the special burdens now before us are burdens which must have been imposed since the passing of the original Acts under which the Monkland and the Kirkintilloch and the Slamannan Railways were constructed and carried into execution. It appears to me, therefore, that the only course we can take upon the present occasion is to reverse the interlocutors complained of, and to pronounce an absolvitor.
Mr. Anderson.—In the other case it was a remit to the Court below. Probably your Lordships will pronounce the same judgment in this case, mutatis mutandis, as in the former case.
I apprehend that the judgment in substance must be, in the first place, as regards the declarator, an absolvitor from the conclusions of the action. And in the next place, as regards the reasons of the suspension, repelling the reasons of suspension. There is an exception with reference to a small sum, some £14 or £15, which is a matter on which the judgment of the Court below is not appealed from. But in the former case I think there was a remit with a declarator by the House of the grounds on which the judgment ought to proceed, and of the results at which the judgment ought to arrive, and perhaps that may be done here. If that be so, it will be necessary merely to remit the case to the Court of Session to repel the reasons of suspension.
Interlocutors reversed, with declaration and remit.
Solicitors: Appellants' Agents, Tods, Murray, and Jamieson, W.S.; Loch and Maclaurin, Westminster. — Respondents' Agents, Hill, Reid, and Drummond, W.S.; Connell and Hope, Westminster.