Scottish Court of Session Decisions

The Reverend David Hogg, minister of the parish of Auchtermuchty, in the county of Fife, having been assessed by the parochial board of that parish for school-rate under the Education (Scotland) Act 1872 (35 and 36 Vict. c. 62, sec. 44), in respect of his manse and glebe, was sued for the amount in the Small Debt Court of the Sheriff of Fife; decree was pronounced against him by the Sheriff ( Crichton), reversing the judgment of the Sheriff-Substitute ( Bell), on 16th September 1879. He accordingly raised an action of declarator in the Court of Session against the school board and the parochial board of the parish, craving that the decree might be reduced, and that it should be declared that he was exempt from liability for school-rate in respect of his manse and glebe.

He founded on section 44 of the Act of 1872, and pleaded—“(1) The said decree being illegal and unjust, in respect the pursuer, as a parish minister, is exempt from liability for school-rates, the pursuer is entitled to decree of reduction as concluded for. (2) The pursuer, as minister of the parish of Auchtermuchty, being exempt from school-rate or assessment, under ‘The Education (Scotland) Act 1872,’ in respect of his manse and glebe, is entitled to decree of declarator in terms of the conclusions of the summons.”

The defenders, on the other hand, pleaded that—(1) The action was a declarator of the meaning of an Act of Parliament, and should be therefore dismissed. (2) The decree sought to be reduced was in all respects regular and well founded.

Section 44 of the Education (Scotland) Act (35 and 36 Vict. c. 62) enacts—“Any sum required to meet a deficiency in the school fund, whether for satisfying present or future liabilities, shall be provided by means of a local rate within the parish or burgh in the school fund of which the deficiency exists. The school board of each parish and burgh shall annually, and not later than the 12th day of June in each year, certify to the parochial board or other authority charged with the duty of levying the assessment for relief of the poor in such parish or burgh, the amount of the deficiency in the school fund required to be provided by means of a local rate, and the said parochial board or other authority is hereby authorised and required to add the same under the name of ‘school-rate’ to the next assessment for the relief of the poor, and to lay on and assess the same, one-half upon the owners and the other half on the occupiers of all lands and heritages, and to levy and collect the same along with the assessment for relief of the poor when that assessment is so imposed and levied, and to pay over the amount to the school board; and where any burgh, parish, or school district with a school board under this Act, shall include two or more parishes or parts of two or more parishes having separate parochial boards under the Act of the eighth and ninth years of the reign of Her present Majesty, chapter eighty three, the school board shall certify to the parochial boards of such parishes respectively the amount of the rate on each pound of rental which they shall lay on and collect as ‘school-rate’ along with their several assessments for the relief of the poor within such burgh, parish, or school district for which the school board acts; and any surplus in the school-rate which may arise in any one year shall be applied for the purposes of the succeeding year, and in like manner any deficiency which may occur in any year may be included in the assessment for the succeeding year; and should there be no assessment for the poor, or should that assessment not be laid one-half on the owners and the other half on the occupiers of all lands and heritages within such parish or burgh, the school board shall be entitled and bound directly to assess for and levy the said school-rate in the same manner as if it were poor's assessment duly authorised to be assessed and levied in the same manner, and for that purpose shall have all the powers and authorities of any parochial board or other authority with respect to assessing, levying, and collecting poor's assessment, and the school-rate shall in all cases be levied and collected in the same manner as poor's assessment, and the laws applicable for the time to the imposition, collection, and recovery of poor's assessment shall be applicable to the school-rate.”

The Lord Ordinary ( Curriehill) found in terms of the declaratory conclusion of the summons, and added the following note:—

“ Note….… The pursuer during the debate intimated that he did not now insist on the reductive conclusion, but he pressed for decree of declarator—while the defenders, who are the School Board of Auchtermuchty, the parochial board of that parish, and the collector of the rates, maintain (1) that the declarator is incompetent in respect it asks the Court to declare the meaning of an Act of Parliament, and (2) that on the merits the pursuer is not entitled to exemption.

In support of their plea of incompetency the defenders found upon the cases of Todd and Higginbotham v. Burnet, 16 D. 794; and Stewart v. The Parochial Board of Keith, 8 Macph. 26. It is true that in these cases opinions were pronounced by the Court unfavourable to the competency of an action for declaring the meaning of an Act of Parliament, but I am inclined to think that in the case of Todd the Court were mainly influenced by the fact that proceedings were at the time in dependence in the Dean of Guild Court in Glasgow, in which the question

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was competently raised, as to the scope and operation of the Act in question, viz., a Smoke Prevention Act, and they declined to anticipate the decision of that Court. It would also seem that the Court were to some extent influenced by the very broad terms in which the decree was there sought. In the case of Steuart, in like manner, the Court refused to pronounce decree of declarator as to the mode in which a parochial board should fix the deductions authorised by the Poor Law Act of 1845 to be made from the gross rental before imposing assessment for poor-rates. But in that case the Court thought (1) that the construction which the pursuer sought to place on the statute was erroneous; (2) that the remedy of suspension to which the pursuer had actually resorted was in the circumstances the proper remedy; and (3) that the declarator was an attempt on the part of the pursuer to dictate to the parochial board the manner in which they should exercise the discretionary power of making deductions conferred on them by the statute.

On the other hand, the pursuer refers to the case of Cowan v. Gordon, July 9, 1868, 6 Macph. 1018, as an instance in which the Court, in an action of declarator at the instance of a parish minister seeking exemption from a road assessment under an Act of Parliament, seem to have considered such an action competent; see also the Edinburgh Street Tramway Company v. Torbain, 3 R. 655. It humbly appears to me that the present question is competently raised by the pursuer in this action of declarator. The question is a simple one, involving no specialties, and the decision, whatever that may ultimately be, will regulate the future practice in almost every landward parish in Scotland. Hitherto the practice has been very conflicting, the Sheriffs of several counties having decided the question in favour of the ministers, while as many have decided it the other way. And as the amount of assessment on the minister is generally of small amount, the review of this Court cannot be obtained by way of suspension or reduction. It appears to me to be desirable that the question should be settled once for all by an authoritative judgment of this Court. I am therefore for repelling the objection to the competency of the declarator.

On the merits the pursuer maintains that he is exempt from the burden of school-rate, and that the parochial board have exceeded their powers altogether in imposing any assessment upon him. In approaching the consideration of this question it is necessary to bear in mind that under the laws in force for the relief of the poor prior to 1845 parish ministers had by long usage been exempt from the burden of poor-rates in respect of their manses and glebes, or of their means and substance. And in the case of Cargill v. Tasker, February 29,1816, Fac. Coll., the Court pronounced a judgment to that effect, holding that in the sense of the earlier statutes the minister was neither an ‘heritor,’ a ‘tenant,’ nor a ‘possessor.’ After the passing of the Poor Law Act of 1845 (8 and 9 Vict., cap. 83) the question was again raised in the case of Gibson v. Forbes ( 1 Macq. App. p. 106), and the House of Lords, affirming the judgment of this Court, held that parish ministers were not liable to be assessed for poor-rates under that statute in respect of their manses and glebes. That statute authorised assessments for the relief of the poor to be imposed in various ways, one of these being by an assessment on all lands and heritages in the parish, whereof one-half should be laid on the owners and the other half on the occupants thereof, ‘owners' being declared to include the ‘persons actually in receipt of the rents and profits of the lands,’ &c. According to another mode, the assessment might be imposed upon the inhabitants according to their means and substance, and it was expressly enacted that ministers should be liable to be assessed in respect of their stipends, which were regarded as forming part of their means and substance. The House of Lords held that while the term ‘owners' might of itself be held to be wide enough to include ministers, the express enactment that ministers should be liable to be assessed upon their stipends showed that it was not intended to do away with the exemption from assessment in respect of their manses and glebes which they have from time immemorial enjoyed.

Such being the position of parish ministers under the existing poor laws, the Education (Scotland) Act 1872 was passed, which provides in section 44 that any deficiency in the school fund is to be provided by means of a local rate within the parish or burgh in which the deficiency exists. The school board is annually to certify the amount of deficiency to the parochial board or other authority charged with the duty of levying the assessment for the relief of the poor, and the parochial board or other authority is to add the local rate under the name of school-rate to the next assessment for the relief of the poor, and is to ‘lay on and assess the same—one-half upon the owners and the other half on the occupiers of all lands and heritages—and to levy and collect the same along with the assessment for relief of the poor when that assessment is so imposed and levied, and to pay over the amount to the school board.’

If there had been nothing more in the Act I should have had much difficulty in holding that ministers were not liable as owners or occupiers of their manses and glebes, which are undoubtedly lands and heritages producing profits. But the subsequent portion of sec. 44 appears to me to have the effect of restricting the assessment for school-rate to the owners and occupiers of lands and heritages assessable for poor-rates. Thus it is provided that ‘where any burgh, parish, or school district with a school board under this Act shall include two or more parishes or parts of two or more parishes having separate parochial boards under the Act of the eighth and ninth years of the reign of Her present Majesty, chapter 83, the school board shall certify to the parochial boards of such parishes respectively the amount of the rate on each pound of rental which they shall lay on and collect as “school-rate” along with their several assessments for the relief of the poor within such burgh, parish, or school district for which the school board acts.’ It appears to me that the ‘rental’ on which the school-rate is to be ‘laid on’ is just the rental on which the poor-rate is assessed, i.e., the whole rental of the parish, excluding the rent of the manse and glebe; whereas, if the defenders are right, it must mean the rental of the parish, including the rent of these subjects. This I do not think can have been intended, and it would be contrary to what I conceive to be the sound construction of the statute.

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But section 44 goes on further to enact that ‘should there be no assessment for the poor, or should that assessment not be laid one-half on the owners and the other half on the occupiers of all lands and heritages within such parish or burgh, the school board shall be entitled and bound directly to assess for and levy the said school-rate in the same manner as if it were poor's assessment duly authorised to be assessed and levied in the same manner, and for that purpose shall have all the powers and authorities of any parochial board or other authority with respect to the assessing, levying, and collecting poor's assessment, and the school-rate shall in all cases be levied and collected in the same manner as poor's assessment, and the laws applicable for the time to the imposition, collection, and recovery of poor's assessment shall be applicable to the school-rate.’

Now, the first observation suggested by the words just recited, and especially by the words which I have italicised, is, that if the words ‘owners and occupiers of all lands and heritages’ in the early part of the section are to be read as including parish ministers, they must be read in the same sense in this part of the section. But the result of so doing would be to throw upon every school board in the kingdom the duty of assessing for school-rate independently of the parochial board, because in no parish is any part of the poor-rates raised by assessment on ‘all lands and heritages’ if manses and glebes are to be held to be lands and heritages within the sense and meaning of the Education Act of 1872. In short, the object of the statute, which was to avoid the expense and complication of double assessments and collection, would be entirely frustrated. I think that the words ‘owners and occupiers of all lands and heritages’ must be read in all parts of section 44 in the restricted sense in which they are obviously used in the latter part of it, viz., as embracing only those owners and occupiers who are liable to assessment for poor-rates.

The second observation suggested by this part of the Act is entirely constructive of the first, because the powers given to a school board which may find it necessary to assess directly for school-rate are co-extensive with, and neither more nor less than, those which are vested in parochial boards in connection with the assessment for the relief of the poor. Without repeating the words of the section which have been already recited, I am of opinion that the school board could not in the circumstances supposed lay an assessment for school-rate upon any person upon whom the parochial board would not have power to lay an assessment for the poor; and as the laws applicable to the imposition, collection, and recovery of the latter assessment by parochial boards do not reach ministers in respect of their manses and glebes, it seems to follow that they cannot authorise the imposition of school-rate upon ministers when that rate is to be imposed by the school board. In short, I am of opinion that this part of section 44 not merely indicates the machinery by which school-rates are to be imposed and levied, but defines the limits within which the tax is to operate. Liability for poor's rate is to be the measure of the liability for school-rate, and those persons who are by law exempt from liability for the former are likewise exempt from liability for the latter.

The pursuer will therefore obtain decree of declarator with expenses, but subject to modification in respect of his failing to maintain the reductive conclusions of his summons.”

The defenders reclaimed, and argued—(1) It was incompetent to bring an anticipatory action of declarator to interpret an Act of Parliament. The proper course was to wait till charged to pay, and then bring a suspension of the charge— Todd and Higginbotham v. Burnet, 16 D. 794, and 26 S.J. 374; Stewart v. Parochial Board of Keith, Oct. 16, 1869, 8 Macph. 26. (2) Under the existing poor-laws ministers have in respect of their manse and glebe been exempt from the burden of paying poor-rates laid on the owners and occupiers of lands and heritages. The Education Act of 1872 by enacting that “the school-rate shall be in all cases levied and collected in the same manner as poor's assessment, and the laws applicable for the time to the imposition, collection, and recovery of poor's assessment shall be applicable to the school-rate,” clearly meant to extend their exemption to the case of school rates—the word “imposition” refers to the incidence of the assessment, and is equivalent to “liability for.”

The pursuer argued—(1) The action of declarator was competent— Cowan v. Gordon, July 9, 1868, 6 Macph. 1018; Edinburgh Street Tramway Company v. Torbain, May 18, 1876, 3 R. 655—aff. July 6, 1877 (H.L.), 4 R. 87; The University of Edinburgh v. Greig, July 20, 1865, 3 Macph. 1151; Gardiner v. Commissioners for the Harbour and Docks of Leith, June 17, 1864, 2 Macph. 1234—aff. March 12, 1866 (H.L.), 4 Macph. 14; Wallace v. Fraserburgh Harbour Commissioners, Jan. 27, 1877, 4 R. 368. (2) The privilege of exemption from poor-rates, which was a class one, depending for its existence not on statute but on immemorial usage, was not extended by section 44 of the Education Act. The word “imposition” referred to the rating authority and the machinery for laying the rate on those subject to it.

At advising on the preliminary plea for the defenders—