Scottish Court of Session Decisions

By the Local Government (Scotland) Act 1889, it is, inter alia, enacted as follows, sec. 26, sub-sec. 4—“If the county fund is insufficient to meet the expenditure, rates (in this Act referred to as the owner's consolidated rate, and the occupier's consolidated rate, and together as the consolidated rates) may be levied to meet such deficiency for general county purposes upon all rateable property in the county, or, in the case of expenditure for the management and maintenance of highways, the administration of the laws relating to public health, or other special purpose as hereinbefore mentioned, upon all rateable property within the several districts or parishes of the county as the case may be, in the manner and subject to the conditions in this Act provided.”

Sec. 27, sub-sec. 1—“The county council shall annually fix the rate in the pound of the rateable property which will be necessary to meet the deficiency in the county fund in respect of each branch of expenditure subject to its control, or for which it is responsible in whole or in part, and such rate shall be imposed upon all lands and heritages within the county, except that the rate for the management and maintenance of highways, the administration of the laws relating to public health, and any other special purpose as hereinbefore mentioned, shall be imposed upon all lands and heritages within each division, or district, or parish, as the case may be. The rate in respect of each branch of expenditure, for which provision is made under an Act of Parliament in force at the passing of this Act, shall be deemed to be imposed under the powers, and subject to the provisions of that Act, except in so far as these are inconsistent with the provisions of this Act. The rate necessary in respect of any branch or branches of expenditure for which no provision is made, as last mentioned, shall be imposed as a general purposes rate under this Act.”

Sec. 105—“In this Act, if not inconsistent with the context, the following terms have the meanings hereinafter respectively assigned to them—that is to say, the expression ‘county’ means a county exclusive of any burgh wholly or partly situate therein, and does not include a county of a city. The expression ‘burgh’ means any royal or parliamentary burgh.”

On 18th November 1895 the Corporation of the burgh of Galashiels raised an action against the County Council of Selkirk for declarator that “the defenders are not entitled to levy County General Assessment on lands and heritages belonging to the pursuers lying within the boundaries of the said burgh of Galashiels.”

The burgh of Galashiels adopted the Police Act of 1850, and maintains a police establishment. It is also a parliamentary burgh, and has a population of about 18,000.

The pursuers pleaded—“(1) In respect the lands and heritages belonging to the pursuers within the burgh of Galashiels do not

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form part of the assessable area from which the defenders are empowered to levy County General Assessment, the pursuers are entitled to decree of declarator as concluded for.”

The defenders maintained that as successors of the Commissioners of Supply, under the 11th section of the Local Government Act, they were entitled to impose this assessment on lands within the burgh.

On 11th March 1898 the Lord Ordinary ( Kincairney) granted decree in terms of the conclusions of the summons.

Opinion.—“This is an action by the Corporation of the burgh of Galashiels against the County Council of the county of Selkirk, in which Galashiels is situated, and the question raised is whether the county council is entitled to levy the tax known as County General Assessment on lands within the burgh, this particular case relating of course directly only to subjects belonging to the burgh.

The question has already been decided in favour of Galashiels in an action raised before Lord Low. Lord Low's judgment is dated 23rd February 1892. It was not taken to review, and is not reported in the ordinary reports. I was furnished with a print of his judgment, and referred to a report of the case in the Poor Law Magazine for 1892, p. 204.

A similar question has since been raised between the Police Commissioners of Oban and the County Council of Argyllshire, in a case also called before Lord Low, who decided that the County General Assessment for Argyllshire was not leviable on lands in the burgh of Oban. But that interlocutor was recalled by the Second Division, and the case was decided in favour of the county council—reported 9th March 1894, 21 R. 644, and more fully in 31S. L.R. 510. I am bound to follow that judgment, and to hold it as correcting Lord Low's interlocutor in the Oban case. It has been maintained by the County Council of Selkirk that that judgment overrules the judgment of Lord Low in the action between the present parties; and that in respect of it judgment should be given in favour of the defenders, the County Council of Selkirk. Res judicata is not pleaded.

It is certainly true that Lord Low's grounds of judgment in the Galashiels case were, to a certain extent, the same as his grounds of judgment in the Oban case, with which the Second Division did not concur. Such grounds of judgment were no doubt applicable to both cases; and, as I am preluded from founding on those grounds of judgment which were common to both cases, the argument was stated on the footing that these grounds for a judgment in favour of Galashiels could not be re-opened before me, and they were not argued—the pursuers of course reserving right to re-open them if the case should go further.

I am, however, of opinion that the case of Oban differs in an essential particular from this case, a difference clearly expressed in the judgment in the Inner House; and that Lord Low's judgment in the previous case was well founded and may be supported in complete consistency with the judgment in the Oban case. That essential difference is, that Galashiels is a police burgh under a Police Act, which maintains a police of its own out of a burgh police assessment, which was not the case with Oban. The facts that the population of Galashiels is above 7000, and of Oban under 7000, are of importance in regard to certain provisions in the Local Goverment Act. The ground on which I reach a conclusion in favour of Galashiels may be narrow, but I think the point reasonably clear.

The powers of assessment of the county council depend, of course, primarily on the Local Government Act 1889 (52 and 53 Vict. cap. 50). By section 27 of that Act the county council is empowered to fix the rate of assessment in respect of each branch of expenditure, and to impose the rate upon ‘all lands and heritages within the county,’ with certain exceptions which do not affect this case. By section 105, the expression county is defined to mean ‘a county exclusive of any burgh,’ and the term burgh is defined to mean any royal or parliamentary burgh, which interpretation of the word ‘burgh’ comprehends Galashiels being a police burgh. Hence it appears to be clear enough that section 27 of the Local Government Act does not authorise the assessment in question on property within the burgh of Galashiels. I do not pursue this point further, because I did not understand that the defenders maintained that they could rest their power to assess on that section, or on any new powers of assessment conferred by the Local Government Act. They rested their case on section 11 of the Act, whereby the powers of the commissioners of supply are transferred to the county council, and whereby it is declared that ‘the provisions of any Act of Parliament conferring, imposing, or regulating the powers and duties’ transferred shall remain in full force and effect so far as not repealed by or inconsistent with’ the Act.

That clause they say carries the question back to the County General Assessment Act 1868 (31 and 32 Vict., cap. 82), whereby the commissioners of supply are empowered to impose the County General Assessment, which is the assessment now in question. That statute is in part repealed by section 12 of the Local Government Act, but the assessing clauses are not repealed. The defenders therefore, as I understand, maintain that the question depends on the County General Assessment Act; and, in any case, I am of opinion that it does.

That statute abolishes ‘rogue money,’ and imposes the County General Assessment ‘in lieu thereof,’ and it provides, section 10, that ‘nothing herein contained shall confer on the commissioners of supply of any county the right to levy assessments under this Act on any lands or heritages, upon which it is not now competent for the commissioners of supply to levy rogue money.’

It is therefore perfectly plain that if in 1868 the commissioners of supply were

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not entitled to levy rogue money on lands within the burgh of Galashiels, then they were not empowered, and are not now entitled to levy County General Assessment on lands within the burgh; and the converse is also obvious, that if they were entitled to levy rogue money on the lands in the burgh, then they were authorised to levy County General Assessment. I do not know that the pursuers would admit that, even if that power was conferred on the commissioners of supply, it is now resident in the county council. My impression is that it would be; but I do not require to determine that question, because I am of opinion that in 1868 the commissioners of supply were not entitled to levy rogue money within the burgh.

Liability to be assessed for rogue money thus becomes the test of liability for the general county assessment, and it is therefore necessary to consider the statute in regard to rogue money.

Rogue money was first imposed by the Disarming Act 11 George I., cap. 26, by which the freeholders of ‘every shire, county, or district’ were empowered to assess the several shires and stewartries, where their estates lay, in sums to be applied in defraying the charges attending the apprehension, subsistence, and prosecution of criminals. I do not know when this assessment first received the name of rogue money, but the power to levy it was transferred, under that name, from the freeholders to the commissioners of supply in 1832. by the Reform Act (2 and 3 Wm. IV., cap. 65), sec. 44.

The first General Police Act for burghs was 3 and 4 Wm. IV., cap. 46, 1833, but it contains no reference to rogue money or county police assessment.

The Act 2 and 3 Vict., cap. 65, 1839, proceeds on a narrative of the Disarming Act, 11 George I., cap. 26, and of the Reform Act, and sets forth that the rogue money had hitherto been raised by assessment on the valued rent, and that it was expedient to authorise the commissioners of supply, if they thought fit, to extend the purposes of that assessment, and to adopt other modes of assessment. The Act therefore empowered the commissioners of supply to make an additional assessment ‘for establishing and maintaining an efficient constabulary and police force,’ and for other purposes; and the Act declared that this additional assessment should be deemed and taken to be and should be levied and collected as part of the rogue money. It was further provided that ‘the rogue money and additional assessments to be so assessed and collected shall be applied for the purposes of the said herein recited Act of His Majesty King George the First, and of this Act, and to no other purposes.’ It is to be noticed that the Act does not only provide that the additional assessment should be levied and collected with the rogue money, but that it should be taken to be part of the rogue money, and that the rogue money and additional assessment—or rather the whole rogue money—should be applied to the same purposes; and these, if not wholly, yet in part, were undoubtedly police purposes. There were not two taxes levied under this Act, but only one, namely, the augmented rogue money, which thus became the county police assessment.

It was provided by section 3 that ‘the said commissioners shall not be entitled, for the purposes of this Act, to assess any lands, houses, or other heritages situated within the boundaries of any royal burgh, or to assess any lands, houses, or other heritages within the boundaries of any burgh or town which either has a Police Act, or which has taken the benefit of’ the Act 3 and 4 William IV. cap. 46.

The General Police Act 1850 (13 and 14 Vict. cap. 33), section 376, provides ‘that no burgh in which a police is maintained by assessment upon such burgh, under the provisions of this Act, shall be liable for any assessment for the police purposes of the county in which such burgh is situated, anything in any Act or Acts of Parliament to the contrary notwithstanding.’

Now, it is averred and admitted that in 1850 Galashiels adopted this Police Act, and has since maintained a police within the burgh.

At that time Galashiels was situated partly in Selkirk and partly in Roxburgh; and it is clear that at that date it became exempt from any assessment for the police purposes of either of these counties. What then was the assessment for police purposes in counties at that date? It could be nothing but the augmented rogue money. It is not said that there was any other county police assessment, or any county police assessment which was not rogue money. If that be true, the important conclusion is reached by inferences which seem otherwise inevitable, that no rogue money was leviable on land in the burgh of Galashiels, after it had adopted the Police Act of 1850 and undertaken the provision of its own police.

By the County Police Act of 1857 (20 and 21 Vict. cap. 72), the Act 2 and 3 Vict. cap. 65, was repealed, and as a consequence the additional assessment thereby authorised necessarily fell. But the whole of the rogue money was not thereby abolished, but only a part of it. The rest of it—that is to say, the original rogue money—remained, as is clear, could there be any doubt about it, from section 32. It may be that thereafter the rogue money could only be applied to the purposes specified in the Disarming Act, but there certainly is nothing in this County Police Act which can be supposed to reimpose it on a police burgh with a police of its own. The 29th section authorises an assessment on heritages within a county. But it appears from the interpretation clause that a burgh such as Galashiels was certainly not included in the word ‘county,’ as used in the County Police Act.

The Police Act of 1850 was repealed by the Act 25 and 26 Vict. cap. 101, section 1, but burghs which had adopted the Act were excepted from the operation of this repeal. That Act, so far as regarded Galashiels,

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stood operative and unrepealed in 1868, when the General County Assessment Act was passed, and therefore at that date rogue money was not leviable out of land in the burgh of Galashiels, and therefore the general county assessment was not imposed on it.

Other arguments were stated on behalf of the burgh of Galashiels; such as, that, as it was not represented in the county council, it was presumably not subject to their power of assessment; and that the opposite view involved a double assessment of the lands in the burgh. It appears to me, however, simpler and safer to proceed on the plain words of the various statutes than on presumptions and inferential arguments; and, so far as I am able to see, they determine the question very clearly in favour of the pursuers. I am therefore of opinion that decree must be pronounced as concluded for.”

The defenders reclaimed, and argued—The case was ruled by that of Oban Police Commissioners v. County Council of Argyllshire, where the very point in dispute was settled. Under the older Acts this assessment was leviable. There was no exemption from it conferred by the Local Government Act upon burghs in express terms, and the Court would be slow to recognise such an exemption as being conferred by implication. On the contrary, by the 11th section all the powers of the commissioners of supply, which included the power to make this assessment, were conferred on the county council, while in the 27th section certain rates were to be imposed upon the whole county, and were “to be deemed to be imposed” under the older Acts. But under these older Acts the defenders' predecessors had assessed burghs, and accordingly the defenders were entitled to. The definition clause perhaps seemed to limit the assessable area, but there were saving words in it, viz., “if not inconsistent with the context,” which prevented the clause from being conclusive against the defenders' contention.

Argued for respondents—The defenders had no power under the assessing clauses of the Local Government Act to assess a parliamentary burgh. The territorial area assessable was clearly defined by the assessing sections read along with section 105, the defining section, and from it parliamentary burghs were expressly excluded. The defenders had no other powers of assessing except under these sections. It was true that under section 11 the defenders had their predecessors' powers transferred to them, but these powers were also transformed, and they were bound under section 33 to consolidate the rates. They now proposed to cross the burgh boundary, pick out one of the items from their consolidated rate, and assess the burgh for it with the aid of the burgh valuation roll. They had absolutely no authority for such a proceeding. In the Oban case the assessing clauses of the Local Government Act had not been brought before the Court or the decision would have been different. The present point had been rightly decided by Lord Low in the case of The Burgh of Galashiels v. Selkirk County Council, quoted by the Lord Ordinary.

At advising—