Scottish Court of Session Decisions

This was a special case presented for the opinion and judgment of the Court by (1) the Police Commissioners of the burgh of Hawick, parties of the first part, and (2) William Watson & Sons, owners and occupiers of a manufactory in Hawick, parties of the second part, for the determination of the question whether the assessments upon manufactories within the burgh in respect of water supply fell to be levied upon the whole value or only upon one-fourth thereof.

In 1882 the Police Commissioners, as local authority under the Public Health (Scotland) Act 1867, introduced an additional water supply into the burgh, under the powers conferred by that Act, at a cost of £24,000. This sum was borrowed in terms of their powers, and was being redeemed by annual instalments, the amount remaining due at Whitsunday 1900 being £14,950.

By the first section of the Public Health Amendment Act 1871 it was provided that the annual value of manufactories should, for the purposes of assessment, be ascertained in the same manner as the value of mines and minerals and quarries was directed to be ascertained in section 94 of the Public Health (Scotland) Act 1867. The said 94th section of said Act provided that mines, minerals and quarries should be assessed only on one-fourth of their annual value; and accordingly until the year 1898 the first parties levied assessments upon the second parties in respect of their said manufactory as occupiers only, and to the extent of one-fourth of the value thereof.

By the Public Health (Scotland) Act 1897 the whole of the Public Health Acts of 1867 and 1871 were repealed and, inter alia, the following provisions were made regarding water supply and the assessments therefor:—Sec. 134—“In any burgh … the expense incurred by the local authority for water supply within the same or for the purposes thereof, and the sums necessary for the payment of any money borrowed therefor, either before or after the passing of the Act, together with the interest thereof, shall be paid out of a special water assessment which the local authority shall raise and levy on and within such burgh … in the same manner and with the same remedies and modes of recovery as are hereinafter provided for the Public Health General Assessment.” … Sec. 136—“With respect to burghs subject to the provisions of the Burgh Police (Scotland) Act 1892, or having a local Act for police purposes—all charges and expenses incurred by, or devolving on the local authority, in executing this Act or any of the Acts hereby repealed, and not recovered as hereinbefore provided, may be defrayed out of an assessment (in this Act referred to as the Public Health General Assessment), to be levied by the local authority along with but as a separate assessment from the assessment hereinafter mentioned; that is to say, the said assessment shall be assessed, levied, and recovered in like manner and under the like powers, but without any limit, except as in the immediately succeeding section provided, as the General Improvement Rate under the Burgh Police (Scotland) Act 1892, or, when there is no such rate, by a rate levied in like manner as the General Improvement Rate under the last-mentioned Act.”

The Burgh Police (Scotland) Act 1892, sec. 21, provides—“Wherever the boundaries of any burgh have been determined in terms of this Act, the whole powers and duties (including the rights to levy assessments) exerciseable by any local authority acting under the Public Health (Scotland) Act 1867 and Acts amending the same within the district or districts comprehended within such burgh shall cease and determine, and the same shall be transferred to and vested in the commissioners under this Act, and all drainage, water, and other works executed in such district or districts by such local authority in the performance of its powers and duties under the said Acts shall be taken over by the commissioners under this Act, who shall be liable for the whole debts and obligations of such local authority applicable to such district or districts.” The Act authorises (sec. 340) an assessment called “the Burgh General Assessment.” It provides further (sec. 347)—“And where the commissioners shall have supplied, or resolved to supply, the burgh with water in terms of this Act, the annual value of all quarries and manufactories within the burgh shall, as regards the Burgh General Assessment, so far as is applicable to water, subject to the exception hereinafter provided, be held to be one-fourth of the annual value thereof entered in the valuation roll.” … Sec. 359—“Whenever the commissioners in any burgh shall resolve, in manner hereinbefore provided for, to make provision for the general improvement of the burgh, it shall be lawful for them to charge, in equal proportions, all owners and occupiers of lands or premises within such burgh, with reference to the said valuation roll, and to all the provisions of this Act applicable to the Burgh General Assessment, which shall apply to the Improvement Assessment as if they were here repeated, with a special assessment not exceeding threepence in the pound of the gross rent or yearly value of such lands or premises, over and above any other assessment or rate to which such persons may be liable under this Act; and such special assessment shall, for the purposes of this Act, be called ‘the General Improvement Rate,’ and shall be leviable either from the owner or occupier of such lands or premises, in equal proportions, or in whole from the occupiers thereof, but in the latter case the occupier shall be entitled, on payment thereof, to deduct from his rent the proportion payable by the owner; and such assessment, so far as the occupier is concerned, shall be recoverable in the same manner as the Burgh General Assessment

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is authorised to be recovered.”

The first parties had assessed the second parties for water rates on the full annual value of their manufactory since the passing of the Public Health (Scotland) Act 1897, and claimed that they were entitled to continue to assess on that footing. In these circumstances questions arose between the parties as to the proper water assessment leviable by the first parties and payable by the second parties. The first parties maintained that the second parties were assessable on the full value of their premises as appearing in the valuation roll, in respect (1) that the restriction by the 1871 Act to one-fourth was repealed by the 1897 Act, (2) that the water provisions of the 1892 Act did not apply, and (3) that in any case the abatement to factories under section 347 of the 1892 Act was limited to water supplies brought in under that Act, or at all events was limited to the Burgh General Assessment, and did not extend to the general improvement rate, which was specially stated to be on the gross rental. On the other hand the second parties maintained that they were only assessable on one-fourth of said value in terms of the sections already set forth.

The questions of law were as follows—“(1) Ought the owners and occupiers of manufactories within the said burgh to be assesssed for water rates only on one-fourth of the value of such manufactories as the same appears in the valuation roll? or (2) On the full value?”

Argued for the second parties—All the powers of the local authority were now vested in the Commissioners of the burgh, in virtue of the Burgh Police Act, and they were therefore supplying the burgh with water within the meaning of section 347. The assessment on manufactories fell accordingly to be made on one-fourth of the annual value, in terms of that section. Even if the assessment were to be levied under the Public Health Act, the special water assessment thereunder was to be levied in the same way and under the same conditions as the Burgh General Assessment, so that the same result was reached.

Argued for the first parties—Section 347 of the Burgh Police Act applied only to the case of the commissioners supplying the burgh with water “in terms of this Act,” and did not apply to the case of a water supply introduced under any other Act, as was done here. The first parties were therefore entitled to assess upon the full value of the subjects.