Scottish Court of Session Decisions

The parish of Kilmarnock contains a population of 20,000 persons, of whom about 18,000 reside in the manufacturing town of Kilmarnock, which is not a royal burgh, and about 2000 reside in the rural district of the parish. The population of the town is rapidly increasing. The actual rental of the town very largely exceeds the actual rental of the rural part of the parish. The valued rent of the rural district amounts to £6768, 4s, 8d. Scots; the valued rent effeiring to the town is £68, 6s. 7d. ^* Some of the principal country heritors, such as the Duke of Portland, and others, are not resident within the parish, so that it is only on their heritage, and not on their moveable means and substance that they are assessable.

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* These were the statements of the suspender, and though disputed by the charger, appeared to be substantially correct.

An annual assessment has been levied for the poor of the parish at least as far back as 1767, with occasional intermissions of several years, when the poor were supported by voluntary contribution. The mode of assessment was marked by various peculiarities, which apparently arose from an attempt to adjust the respective interests of the town and country portions of the parish. Latterly; dissensions arose at the meetings of heritors respecting the mode of assessment which should be adopted, and on February 2, 1836, the following motion was proposed:—“That in laying on the assessment for the maintenance of the poor of this parish for the current half-year, the one-half of the necessary funds to be laid on and levied conform to the original valuation of the whole lands in town and parish; the other half to be assessed on the whole inhabitants of the parish, according to means and substance, considering the houses built upon lands feucd in town and neighbourhood as included in the means and substance of the haill inhabitants.” An amendment was moved by another heritor for continuing an arrangement, of the nature of a compromise between the town and the country, which had been previously entered into, by which four-tenths of the assessment were laid on the country heritors and their tenants, to be raised as they should agree among themselves, and the remaining six-tenths were laid on the town, one-half thereof payable by the heritable property within burgh, and one-half from the means and substance of the whole inhabitants. The motion above quoted was carried, many of the persons who voted as heritors being small feuars, and proprietors of grounds or houses within the burgh.

William Howieson Crawfurd of Crawfurdland, one of the country heritors, who contended that gross injustice would be done, unless the actual real rent, including all lands and houses within the parish, were adopted as the basis of assessment, presented a bill of suspension (on caution) as of a threatened charge by Alexander Harkness, collector and treasurer of the poor's assessment for the parish, for the amount imposed on the suspender in terms of the above resolution.

Answers were lodged, and the Lord Ordinary (Fullerton), “in respect that this is a suspension of a charge, said to be threatened by the treasurer of the poors' fund of the parish of Kilmarnock, and that the assessment for which the charge is threatened was laid on by a majority of the heritors according to a principle generally understood to be within their discretion, refused the bill; found the suspender liable in expenses, &c.; reserving to the suspender to challenge the legality of the mode of assessment complained of in an action of declarator, or any other competent action, directed against the feuars and burgh heritors of Kilmarnock, and them to their defences against the same.” ^*

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* “ Note,—It cannot be pretended that there is here any incompetency or absolute illegality in the mode of assessment by valued rent, adopted by the general meeting of the heritors of the parish of Kilmarnock. On the contrary, it is one of the modes of assessment which it is confessedly, in the general case, within the discretion of such a meeting to select. It may be possible, perhaps, for the suspender and the other landward heritors to establish from the particular circumstances of this parish such a special case of inequality and oppression, as arising from the mode of assessment by valued rent, as to warrant the interference of a court of justice for their protection. But it appears quite clear to the Lord Ordinary that this is to be sought for, not in the form of a suspension directed against the Treasurer of the Poors' Fund, which, of course, would stay the collection, and be litigated in the first instance at the expense of those funds, but in an action brought directly against the parties properly interested in support of the assessment, namely, the feuars or burgh heritors of the parish.”

Crawford reclaimed, and stated that he was willing to remove every impediment to the interim collection of the assessment, by making payment or otherwise, in the mean-time, as he only desired to have the question at issue tried and decided as to the fairness and legality of the mode of assessment complained of, in the special circumstances of the parish of Kilmarnock.

The Court allowed him to lodge a minute, stating that “the form of suspension was adopted in the present instance for the purpose of trying the question at issue between the landward and town heritors in the least expensive and most expeditious manner; that the suspender had no desire to withhold his share of the assessments in the mean-time; but was willing to pay his share of the assessments along with the other heritors until the issue of the present suspension.”

The Court thereon, “in respect of the minute now lodged, recalled the interlocutor reclaimed against, and remitted to the Lord Ordinary to pass the bill.”

Under the expede letters, cases were ordered, and the suspender pleaded (1st), A process of suspension, in which the collector or treasurer of the poors' assessment was the charger, was a competent form of process for trying the present question. And if competent it was eminently expedient, as there were several hundred heritors and feuars within the parish, many of whom were minors, &c. It would, therefore, be attended with very great trouble and expense to serve any summons upon all these. The only reason which could be stated against the process of suspension was, that of its impeding the collection; but that was removed by the minute which had been lodged in process when the bill was passed. In very many previous cases it was by suspension that similar questions had been tried and authoritatively settled. (2.) The parish of Kilmarnock, as the town was not a royal burgh, was just a landward parish, in the present question. The point in dispute regarded solely that half of the assessment for the poor which was to be levied from the heritors. It was not imperative on the meeting of heritors to adopt either the old valued rent, or the actual present rent, as the basis of the assessment; and perhaps they even possessed a discretionary latitude of departing from either of these modes, and adopting a different basis, if justice and equity required it. But it was imperative, not only that one rule should be applied to the whole class of heritors, but that the rule should not be plainly and grossly inequitable in its operation. If the meeting of heritors adopted such a rule, though it might be so far legal and regular, as to be good while unchallenged, it was competent to any heritor to complain, and if he showed that gross injustice was done, to obtain redress from the controlling power of the Court. ¹ It was true that the Court might not incline to alter the decision of the majority of the meeting which fixed the mode of assessment, if not ex facie illegal, unless there were strong grounds in equity and justice for interfering; but where such grounds existed the Court might and should interfere and grant redress. (3.) Great injustice would be suffered by the country heritors unless the Court altered the existing basis of assessment, and directed it to be the actual present rent, always allowing, in the case of house-property, a just deduction from rents, on account of the cost of repairs, &c. On the one hand, the population of the town-district was nine times as great as that of the country-district, and produced at least nine times as many paupers. On the other hand, the old valuation effeiring to the country, as compared with that of the town, was as ten to one. It thus appeared that, if the valued rent were taken as the basis of assessment, the country district would contribute ten times as much as the town, though the town produced nine-tenths of the whole paupers for whom the assessment was made. And, great as this injustice was, it was every year increasing rapidly in proportion as the town extended. The fact that some of the country heritors were not resident within the parish could not affect the law or equity of the question either one way or another. There were direct precedents for adopting the real present rent, in similar circumstances; and there were strong analogies for doing so, to be found in the case of assessments for building a church, imposed on the

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¹ Dunlop's Paroch. Law, p. 392, 411, 412 (ed. 1835).

real present rent, in place of the valuer rent. ¹ (4.) At the meeting where the assessment was imposed, a majority of those who imposed it, consisted of small feuars, and owners of houses within burgh, who were a class which had grown up, in landward parishes, since the date of the statutes and proclamations, on which the system of the poor-laws rested. These parties were not truly comprehended within the class of “heritors” entitled to impose assessments, and vote at meetings, under these laws. And if they were suffered to usurp the privileges of heritors, it was evident that they must, in numerous cases in Scotland which were similar to the parish of Kilmarnock, swamp the larger heritors, and, however small in point of value, could assess the larger heritors according to a rule which nearly exempted the heritors of the town, by doubly burdening those of the country. That, however, was directly contrary to the spirit and fair operation of the poor-laws.

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¹ Scott, Jan. 19, 1773 (10577)—Gammell, May 31, 1822. Dunlnp's Paroch. Law, Appx. p. 547—Heritors of Cargill, Feb. 29, 1816 (F.C.)—Magistrates of Dunbar, and of Lanark, July 4, 1833 (ante, XI. 879), and April 10, 1835. 1 S. and M'L's. Appeals, 134—Dunlop's Paroch. Law, p. 9.

The charger answered, (1.) A suspension, especially if the collector or treasurer of the poor's assessment was the only party charger, was not a competent mode of trying this question. The minute lodged at passing the bill merely served the purpose of getting rid of one very obvious and fatal objection to that form of process; it did not remove any other objection. And it was plain that the collector, where only an insignificant sum was at stake, might waive very important pleas, rather than undergo the expense of discussing them at the risk of being disallowed that expense in his accounts. Or he might plead the cause insufficiently from various motives. No point could therefore be held conclusively settled, so as to affect, perpetually, the administration of the poor-law throughout Scotland, in consequence of any decision in a process to which such collector was the sole contradictor. And as the assessment for the poor should not be burdened with the cost of trying questions, by which nothing was conclusively settled, the present process of suspension should be declared to be incompetent, reserving to the suspender to bring any other action which he might be advised to raise. (2.) It was within the discretion and competency of the meeting of heritors to impose that portion of the assessment which was in question, either according to the old valued rent, or the actual present rent. They had, on due consideration of the circumstances, selected the valued rent as the basis of assessment. And as they were truly a Parliamentary board, the assessment which was imposed by them could not be set aside, unless they had gone ultra vires, or committed some irregularity, which was not the case ² here. (3.) Even if the

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² 1663, c. 16—1579, c. 74—Dunlop's Paroch, Law, 229 (1st ed.)—Monypenny on Poor Laws, 112. Bell's Princ. § 1139 (ed. 1833.)— ¹ Ersk. 7, 63 (last ed. p. 218, foot note)—Opinion of Lord Corehouse in Buchanan, Feb. 21, 1827 (ante, V. 390; or 362, new ed.)—Opinions of Lords Mackenzie and Medwyn, in parishes of Dunbar and Lanark, July 4, 1833 (ante, XI. 879)—Heritors of Inveresk, May 28, 1794 (10585).

¹ February 23, 1830 (ante, VIII. 587.)

Court possessed any power of review and control, upon the mere ground that the mode of assessment was not expedient and equitable in the circumstances, it was only in a case of gross iniquity that they would interfere. No such case occurred here. The alleged relative proportions of the town and country population, and valued rent, were not admitted. But at all events, among the town population, every inhabitant was liable to pay not only as a heritor, if he had heritage, but also on his whole moveable means and substance; whereas many of the chief country heritors, such as the Duke of Portland and others, were non-resident, and merely paid on their heritage, and not on their moveable means and substance. The town would therefore be disproportionately burdened, if the actual rent were taken as the basis of assessment, especially as the same nominal amount of rent, drawn from houses, corresponded to a very different amount of property, from that to which it corresponded when drawn from lands. The cost of repairs and of insurance, &c, besides the actual decay of houses, all entered into this question; and if the town increased the number of paupers in the parish, it had doubled or trebled the rental of the country heritors by furnishing a market for the produce of their farms, and a supply of manure for the culture of them to the latter. The case of an assessment for building a church, belonged to a separate class of cases from that of an assessment for the poor, and a judgment as to the former was no precedent as to the letter. In the whole circumstances there was no ground to warrant the Court in subverting the mode of assessment approved by the public body to whom the Legislature had, at least in the first instance, confided that duty. (4.) It was fixed and settled by the case of Robertson1 that every feuar present at the meeting of Feb. 2, 1836, had a right to vote as a heritor.

The Lord Ordinary reported the cases.