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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gillanders v. Campbell [1884] ScotLR 22_206 (11 December 1884) URL: http://www.bailii.org/scot/cases/ScotCS/1884/22SLR0206.html Cite as: [1884] ScotLR 22_206, [1884] SLR 22_206 |
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Page: 206↓
Sheriff of Ross, Cromarty, and Sutherland.
Held that a parish minister is liable to be assessed for school rate in respect of his manse and glebe, under the Education (Scotland) Act 1872, sec. 44.
Hogg v. Parochial Board of Auchtermuchty, June 22, 1880, 7 R. 986, followed.
This was an action at the instance of William Gillanders, collector of parochial rates for the parish of Lochs, in the island of Lewis and county of Ross, against the Reverend Ewen Campbell, minister of the parish of Lochs, for payment of £89, 6s.9d., being the school rates for the years 1880–83 inclusive, imposed, in terms of the Education (Scotland) Act 1872, on the defender in respect of the manse and glebe. The defender had been assessed in respect of the manse, glebe, and the shootings over the glebe (which last were let), as owner, and as occupier of the manse and glebe.
Section 44 of the Education (Scotland) Act 1872 provides—“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, not later than 12th 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 relief of the poor, and to lay on and assess the same, one-half upon the
Page: 207↓
owners and the other half upon the occupiers of all lands and heritages, and to levy and collect the same along with the assessment for relief of the poor where that assessment is so imposed and levied, and to pay over the amount to the school board; …. 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 defender pleaded—(4) “The defender not being an owner or occupier of lands and heritages in the sense of the 44th section of the Education Act 1872, he is not liable for the school rate laid on by the pursuer's board. (6) The laws applicable for the time to imposition, collection, and recovery of poor's assessment practically exempting the defender from payment of poor's rates in respect of alleged ownership or occupancy, he ought to be exempted from school rates.”
The Sheriff-Substitute ( Black) on 28th March 1884 granted decree as concluded for.
“ Note— …. On the merits, the sole question raised at the debate was whether the defender as a parish minister, and so free from liability to be assessed for poor's-rates as owner and occupier of his manse and glebe, is not in like manner free from liability to be assessed for school rates imposed in terms of section 44 of the Education (Scotland) Act 1872. In so far as this Court is concerned, the case is ruled by the case of Hogg v. The Parochial Board of Auchtermuchty, 22d June 1880, 7 R. 986.”
The defender appealed, and argued—Before the Poor Law Act of 1845 ministers were exempt from payment of poor's-rates— Heritors of Cargill v. Tasker, February 29, 1816, F.C. By implication this exemption was continued in the Act of 1845, and this had been directly decided— Forbes v. Gibson, Dec. 18, 1850, 13 D. 341, affd. June 14, 1852, 1 Macq. 106. On a construction of sec. 44 of the Education Act the school-rate was to be imposed and levied along with the poor's-rates, and therefore ministers were exempt.
The pursuer replied—The terms of sec. 44 referred only to the manner of collection, not to the persons on whom the rate was to be laid. It was necessary to go to the Valuation Act of 1854 for the meaning of the word “owner.” It included ministers— Cowan v. Gowan, July 9, 1868, 6 Macph. 1018. The present question had been decided in terms by the Second Division in Hogg v. The Parochial Board of Auchtermuchty, June 22, 1880, 7 R. 986.
At advising—
I think it may be laid down as a general rule that where a tax or public burden is imposed by statute upon certain defined classes of persons, or in respect of a particular class of property, no person within the class can claim exemption unless the statute gives him that exemption. There is but one execption to this rule, so far as I am aware, and that is the case of Crown property—an exception which depends not upon exempting words in the statute imposing the rate, but upon the constitutional principle that the Crown cannot be taxed without its consent.
A good deal of confusion and loose language was at one time introduced in regard to the nature of the occupation of public buildings which rendered them liable to assessment, and there was a difference of opinion on the question between the decisions of this Court and those in England. But at length it came to be settled that the question of beneficial occupation by individuals or by a corporation was not the test of assessability of subjects held for the use of the public, and thus all the cases of public docks, harbours, and others were decided adversely to the claims made for exemption, except in the case of Crown property. The rule accordingly is, that there must be an express statutory exemption from liability.
The peculiarity of the present case is, that the parish ministers of Scotland are exempted from payment of poor's-rates, and it is said, therefore, that according to a true interpretation of the Act of 1872 they are also exempted from the education rate.
It is necessary, in the first place, to understand on what ground the admitted exemption from poor's-rates rests. Prior to the year 1845 it was established upon authority that parish ministers were not liable to pay poor's-rates. That depended upon the construction of various statutes of a much earlier date than the Act of 1845, the terms of which it is needless to examine, the result being that it is fixed by the case of Cargill, Feb. 29, 1816, F.C., that ministers are not heritors, nor tenants, nor possessors, within the meaning of these statutes. But when the Act of 1845 was passed, an opportunity occurred for taking away the exemption, and accordingly the leading enactment would have been sufficient to abolish that exemption. By that Act (section 34) it is enacted that “when the parochial board of any parish or combination shall have resolved to raise by assessment the funds requisite, such board …. shall resolve as to the manner in which the assessment is to be imposed, and it shall be lawful for any such board to resolve that one-half of such assessment shall be imposed upon the owners, and the other half upon the tenants or occupants, of all lands and heritages within the combination, rateably according to the annual value of such lands and heritages,” or to raise it in the modes there pointed out.
That rate is to be laid on and assessed one-half upon the owners and the other half on the occupiers of all lands and heritages. This would have included the parish ministers in
Page: 208↓
Is this exemption continued, or, more properly speaking, is it introduced into the statute which imposes for the first time what is called a school-rate? The education of the parish before the Act of 1872 was provided for by a tax imposed upon the proper heritors of the parish, viz., those with valued rent, and it was imposed according to the valued rent. Down to the year 1872 no one who was not a heritor in the proper sense of that term was burdened at all with the cost of education in the parish. But the revolution effected by the Act of 1872 was this: The peculiar burden laid upon the heritors was taken away, and in place of it a rate according to the real rental of the parish was substituted, to be paid by all the inhabitants according to their rental. This was a tax imposed for the first time upon that class. Is there any exemption of any persons belonging to that class? This is the question submitted to the Court.
It is said that there is an exemption by reason of the forms of expression contained in the 44th section of the Act, — an exemption of parish ministers precisely corresponding with the exemption which they enjoyed under the Act of 1845. The question depends upon the construction of the 44th section. But I take leave to observe, that a clear ground for the exemption must be found within the corners of the statute which imposes the rate. It cannot be said that section 44, or any other section, confers an exemption in express terms. Is there, then, an implied exemption as in the Act of 1845?
It is not necessary to read the whole section, but it is worthy of notice that it sets out thus,— “Any sum required to meet a deficiency in the school fund, whether for satisfying present or future liabilities, shall be provided for by means of a local rate within the parish or burgh in the school fund of which the deficiency exists.” There is not in these words any indication of an intention to make the imposition of the local rate partial, or to exempt individuals belonging to a certain class. It is then enacted that the school board shall make up their minds to provide for the deficiency in the school fund for the year, and shall fix upon a slump sum, which they shall require the parochial board to add to the next assessment for relief of the poor, and to lay on—the one-half upon owners, and the other half upon occupiers—and to collect along with the poor's-rates. The imposition and the levying of the tax are to be carried into execution by the parochial board. Where no poor's-rates are levied, or where they are not laid one-half on owners and the other half on occupiers, the enactment is that the school board is to be entitled, and is bound, directly to assess for and levy the rate in the same manner as if it were poor's-rates, upon the owners and occupiers of all lands and heritages within the parish.
Would it be possible to find in that section some ground of exemption lurking, or to find any implied exemption such as was found in the Act of 1845? It is only in certain cases—no doubt the major number—that the parochial board is applied to to make the assessment. Poor's-rates being levied within the parish, it is highly desirable, in order to avoid expense, to get the parochial board to levy the school-rate, and this fact affords the only possibility for saying that the exemption of the parish minister from liability for poor's-rate in respect of his manse and glebe shall extend to school-rate. It may be that there are exemptions in the case of the poor's-rate which are not enjoyed in the case of the other tax, and the circumstance that the same board has to levy both rates is not sufficient to found the implication that the exemptions, whatever they may be, shall extend from the one case to the other. I see no reason for this result, but yet this is the whole foundation for the argument which has been presented to us. It is said that because there is a class of rental from which the operation of the poor's-rate is excluded—viz., manses and glebes—that therefore neither can the school-rate be levied upon that portion of the rental of the parish.
I think it is a mistake in language to say manses and glebes are not included in the rental on which poor's rates are imposed. Rental under the Valuation Acts includes all lands and heritages, not omitting manses and glebes. A minister claims exemption from poor's-rate because he is the minister of the parish, and is under the Act of 1845 exempted from the payment of poor's-rates. How is it to be said that the exemption of the Act of 1845 shall extend to a tax imposed by an Act which makes no reference to the exemption at all? It certainly was the general purpose of the legislation of 1872 that the school-rate should be levied on all lands and heritages, and there is nothing to show any intention to exempt the parish minister.
The Poor Law and the Education Act appear to me to present a most complete contrast to one another. The one contains by clear implication an exemption of the parish minister from liability. In the other there is no such implication. I therefore see no reason for doubting the soundness of the view taken by the Second Division in the case of Hogg, to which I entirely assent.
Page: 209↓
That being so, the question comes to be, whether there is anything in the position of the parochial clergy that will take them out of sec. 44 of the Education Act of 1872, by which the assessment is to be imposed, one-half on owners and one-half on occupiers of all lands and heritages. Those words are broad enough to include the clergy, and unless there is an exemption elsewhere in the Act, express or implied, they will fall under the assessing words. It is admitted that there are no such words in the Act of 1872 as there were in section 49 of the Act of 1845, but I understand that the argument rests on the implication derived from the phraseology of the section. Section 44 appoints the school-rate to be levied and collected along with the assessment for relief of the poor, but that is merely a description of the manner in which the rate is to be levied. It does not affect the character of the parties on whom the assessment is to be imposed.
Then if the position of matters is such that either there is no assessment for the poor in the parish, or that the assessment is not laid half on owners and half on occupiers, then the school board is entitled and bound to assess for and levy the school-rate.
On these grounds I concur with your Lordship.
The Court refused the appeal and affirmed the judgment.
Counsel for Pursuer (Respondent)— Trayner— Lorimer. Agents— Stuart & Stuart, W. S.
Counsel for Defender (Appellant)— Pearson— Dickson. Agent— W. G. L. Winchester, W.S.
