Scottish Court of Session Decisions

This was an action at the instance of the trustees of the port and harbour of Greenock against the Provost, Magistrates, and Councillors of the Burgh of Greenock for declarator “that the pursuers are exempt from liability for the Public Health General Assessment under the Public Health (Scotland) Act 1897 in respect of their undertaking of the port and harbours of Greenock; and the defenders ought and should be interdicted, by decree foresaid, from imposing or levying the said assessment on the pursuers in respect of their said undertaking in time coming, so

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long as the said exemption remains unrepealed.”

The pursuers averred—“(Cond. 2) Prior to the passing of the Public Health (Scotland) Act 1897 the assessment in Greenock for public health purposes was levied in terms of section 95 of the Public Health (Scotland) Act 1867 in like manner and under like powers as the police assessment. By the Greenock Police and Improvement Act 1865, sec. 42, the Greenock Police Act 1877, sec. 60, and the Greenock Corporation Act 1893, sec. 70, the piers and harbours of Greenock are expressly exempted from assessment for police purposes, and the pursuers were accordingly never assessed for public health purposes under the Public Health (Scotland) Act 1867, and never paid any assessment thereunder. (Cond. 3) The Public Health (Scotland) Act 1867 was repealed by the Public Health (Scotland) Act 1897 (60 and 61 Vict. cap. 38), and section 136 of the latter statute empowering burghs to assess for public health purposes is in the following terms ‘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charges and expenses incurred by or devolving on the local authority in executing this Act or any of the Acts hereby repealed, and not recovered as hereinbefore provided, may be defrayed out of an assessment (in this Act referred to as the Public Health General Assessment) to be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 … that is to say, the said assessment shall be assessed, levied, and recovered in like manner and under the like powers … 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.’ … (Cond. 4) The burgh of Greenock is not subject to the provisions of the Burgh Police (Scotland) Act 1892, and no General Improvement Rate under that or any other Act has ever been levied in Greenock. The Public Health General Assessment under the Public Health (Scotland) Act 1897 accordingly falls to be assessed, levied, and recovered in Greenock by a rate levied in like manner as the General Improvement Rate under the Burgh Police (Scotland) Act 1892 would fall to be levied in Greenock were that Act applicable to Greenock. (Cond. 5) By the Burgh Police Act 1892, and particularly sections 15, 340, 359, and 373 thereof, the imposition of the General Improvement Assessment is expressly made subject to all the provisions of the Act applicable to the Burgh General Assessment, and all assessments imposed by the Act are declared to be subject to existing exemptions from corresponding assessments under the local Police Acts in the burghs to which the Act does not apply. The piers and harbours of Greenock being, as already set forth, exempt under its local Police Acts from the Police Assessment in the burgh which corresponds to the Burgh General Assessment under the Burgh Police (Scotland) Act 1892 would accordingly be exempt from a General Improvement Rate under the latter Act were itapplicable to Greenock, and are thus exempt from the Public Health General Assessment under the Public Health (Scotland) Act 1897.”

Section 137 of the Act of 1897 requires the Public Health General Assessment to be imposed “upon all lands and heritages within the district.”

Section 359 of the Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55) makes provision for the levying of the General Improvement Rate upon “all owners and occupiers of lands or premises within such burgh, with reference to … all the provisions of this Act applicable to the Burgh General Assessment (which is dealt with in section 340), “which shall apply to the Improvement Assessment as if they were here repeated.” …

Section 15 of the Burgh Police Act 1892 provides that any burgh named in Schedule II., and Greenock was there named, might adopt the Act in whole or in part, “Provided that such adoption in part of this Act shall not affect any private interests which shall have been specially regulated by any local Act, and provided further that in every case where Part V. of this Act shall be adopted only in part, such adoption shall include the provisions of this Act relating to incidence of assessments.” Part V. of the Act dealt with rating and borrowing powers, and included section 359, already referred to, and section 373, which enacted as follows:—“No assessment authorised by this Act shall be imposed on any lands or premises exempt by Act of Parliament at the commencement of this Act from any corresponding assessment authorised to be imposed by the general Police Acts or the local Police Acts respectively applicable to the burghs named in Schedule II. of this Act.” …

The Burgh Police Act 1892 was not adopted in Greenock.

The pursuers pleaded—“The pursuers being exempt from liability for the said Public Health General Assessment by virtue of the terms of the statutes condescended on are entitled to decree of declarator and interdict as concluded for with expenses.”

The defenders pleaded—“3. The pursuers are not exempt from liability for the Public Health General Assessment in question, in respect that—(1) Said assessment falls to be levied in like manner and under the like powers as a General Improvement Rate under the Burgh Police (Scotland) Act 1892 would fall to be levied within the burgh of Greenock; (2) the pursuers would not be entitled to exemption from such General Improvement Rate if levied within said burgh; (3) the Public Health (Scotland) Act 1897 expressly directs said Public Health General Assessment to be imposed upon all lands and heritages within the district; (4) separatim, even if the pursuers would be exempt from General Improvement Rate, if levied under said Burgh Police Act, the provisions of that Act cannot be extended so as to give exemption from such Public Health General Assessment.”

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The nature of the statutory provisions relied on by the pursuers, other than those already quoted, are sufficiently disclosed in the opinions of the Judges in the Inner House and of the Lord Ordinary (Low), who on 8th December 1903 assoilzied the defenders.

Opinion.—“In this case the Harbour Trustees of Greenock seek to have it declared that they ‘are exempt from liability for the Public Health General Assessment under the Public Health (Scotland) Act 1897 in respect of their undertaking of the Port and Harbour of Greenock.’

“In Greenock assessments are imposed for police purposes under certain local Police Acts upon occupiers only, and ‘piers and harbours’ are exempted from assessment.

The pursuers contend that that exemption extends to the Public Health General Assessment under the Public Health Act 1897. Whether that contention is or is not well founded depends upon the construction of various statutory enactments.

The Public Health General Assessment is authorised by the 135th and 136th sections of the Public Health Act, the former section referring to districts other than burghs, and the latter section to burghs. By the 137th section it is enacted that the Public General Assessment ‘shall be imposed upon all lands and heritages within the district.’

In regard to burghs it is provided by the 136th section that the expenses of executing the Act shall be defrayed out of an assessment to be called the Public Health General Assessment, and that that assessment shall be levied in like manner as the General Improvement Rate under the Burgh Police (Scotland) Act 1892, or where there is no such rate ‘by a rate levied in like manner as the General Improvement Rate.’

Now, Greenock has not adopted the Burgh Police Act of 1892, and has no General Improvement Rate. The Public Health General Assessment accordingly falls to be raised in Greenock ‘by a rate levied in like manner as the General Improvement Rate,’ which I take to mean in like manner as the General Improvement Rate would have been levied if the burgh had adopted the Police Act of 1892, and had levied a General Improvement Rate under it.

That sends me to the Act of 1892 to see what are the provisions in regard to the General Improvement Rate. These are to be found in section 359 of the Act, by which it is enacted that whenever burgh commissioners shall resolve to make provision for the general improvement of the burgh it shall be lawful for them to charge with a special assessment not exceeding a certain amount ‘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.’

These last words make it necessary to ascertain what are the provisions of the Act in regard to the Burgh General Assessment.

That assessment is authorised by the 340th section. The object of the assessment is there said to be to provide the sums necessary for the general purposes of the Act, and it is provided that the assessment is to be laid upon occupiers only. In that respect therefore the incidence of the Burgh General Assessment differs from that of the General Improvement Assessment, which, as I have pointed out, is levied upon both owners and occupiers. When therefore it is said in the 359th section that the General Improvement Assessment is to be charged ‘with reference to all the provisions of this Act applicable to the Burgh General Assessment,’ it is plain that the provision that the latter assessment is to be levied upon occupiers only is excepted.

The question therefore is, what precisely are the provisions of the Act which are made applicable by reference to the General Improvement Assessment?

At first sight the answer to that question appears to be very plain.

The 340th section is the first of a group of sections running from the 340th to the 358th, which fall under the general heading ‘Assessment for General Purposes.’

As I have said, the first section of that group (the 340th) authorises the Burgh General Assessment to be made to provide the sums necessary for the general purposes of the Act, and then that section, and the succeeding sections in the group provide for a variety of matters in connection with the assessment. Thus notices of the assessment and appeals against assessment, and the method by which the assessment is to be recovered, are provided for; the Commissioners are given power to exempt from assessment in cases of poverty; provision is made for the manner in which certain classes of subjects are to be valued for the purposes of the assessment; directions are given for making up an assessment-roll, and there are various other provisions of a like nature which I need not enumerate.

It is plain therefore that that group of sections is incorporated into the 359th section, and as these are all the sections which contain provisions made only in reference to the Burgh General Assessment, they, and nothing more, are prima facie the sections which are so incorporated.

The pursuers, however, contend that there is another section included in the reference in the 359th section—namely, the 373rd section.

The latter section provides that—[His Lordship then read section 373, quoted supra].

Now, the importance to the pursuers of having the 373rd section read into the 359th section is this. There is in Greenock an assessment corresponding to the Burgh General Assessment, from which piers and harbours are exempt. Accordingly, if the Burgh Police Act 1892 was adopted in Greenock, and a Burgh General Assessment

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laid on under that Act, piers and harbours would still be exempted by virtue of the provision of the 373rd section. Further, supposing that (the Act having been adopted) there was also laid on in Greenock a General Improvement Assessment, then if the 373rd section is to be read into the 359th section, the exemption of piers and harbours from the Burgh General Assessment would be carried forward to the General Improvement Assessment, and as the latter assessment is the model for the Public Health Assessment, piers and harbours would also be exempt from it.

That is a very roundabout way to provide for exemptions from assessment, but I think that the argument is logical if the 373rd section must be read into the 359th section. I am of opinion, however, that upon a sound construction of the Act the provisions of the 373rd section are not among the provisions which are incorporated by reference into the 359th section.

In the first place, the former is a general section applying to all assessments authorised by the Act, and does not contain provisions special to the Burgh General Assessment, which I think are the class of provisions referred to in the 359th section according to the natural meaning of the language used, when read in view of the fact that there is a group of sections containing all the provisions which are special to the Burgh General Assessment, and which are all collected under the general heading ‘Assessment for General Purposes.’

In the second place, it is, as I have said, plain that the general reference in the 359th section does not include the provision that the Burgh General Assessment shall be levied upon occupiers only. Now, I take it that that is a matter of the incidence of the assessment, and so also is an exemption of a certain class of subjects from the assessment, and seeing that the reference in the 359th section to the provisions applicable to the Burgh General Assessment did not include a provision in regard to the persons upon whom it was to be levied, I think that it might, in like manner, be expected not to include a provision in regard to subjects to be exempted. And that, as I read the Act, was what it actually did. It seems to me that the incidence of the General Improvement Assessment was specially provided for by the 359th section and the 373rd section, and what was incorporated by reference into the former section was only the machinery and rules for working out the assessment.

Further, the 373rd section applies to every assessment authorised by the Act, including the General Improvement Assessment. Now, the natural reading of the section is, that the question whether lands are exempt from any particular assessment depends upon whether they are exempt from an assessment corresponding to that assessment. According to the pursuers' argument, however, the question whether lands are exempt from the General Improvement Assessment depends, not upon whether they are exempt from an assesssment corresponding to it, but whether they are exempt from an assessment corresponding to the Burgh General Assessment.

The pursuers, in the next place, argued that as the Public Health Assessment was to be laid on in like manner as a hypothetical General Improvement Assessment, it was necessary, in order to see what the operation of such an assessment would be, to assume that the burgh of Greenock had adopted the provisions of the Burgh Police Act relating to the General Improvement Assessment. If they had done so, then the 15th section of that Act would have made it imperative upon them also to adopt the 373rd section.

I think that that argument is sound; but assuming it to be so, it does not aid the pursuers unless they can show that the effect of the 373rd section would be to exempt piers and harbours from the General Improvement Assessment.

Whether it would do so or not depends upon whether ‘at the commencement’ of the Burgh Police Act—that is, 28th June 1892—piers and harbours in Greenock were ‘exempt by Act of Parliament’ from any assessment ‘corresponding’ to the General Improvement Assessment authorised by the local Police Acts.

The local Police Act which was in force in Greenock at the commencement of the Burgh Police Act 1892 was the Greenock Police Act 1877.

By section 60 of that Act it was provided that the assessment authorised by the Act should not be imposed, inter alia, upon ‘piers and harbours.’

That being so, the question is narrowed to this—Whether the assessment authorised by the Act, and from which piers and harbours were exempted, was an assessment ‘corresponding’ to the General Improvement Assessment of the Act of 1892.

Now, the assessing clause in the Act of 1877 is the 49th, and the authority thereby given is to levy ‘on occupiers’ the assessment for police purposes authorised by the 84th section of the General Police and Improvement (Scotland) Act 1862. That section authorised the levying of an assessment to be called the ‘Police Assessment,’ and which corresponded to the Burgh General Assessment authorised to be levied by the 340th section of the Burgh Police Act of 1892. The Act of 1862 also contained a section—the 102nd—which authorised a General Improvement Assessment corresponding to that authorised by the 359th section of the Act of 1892. The 102nd section was not, however, incorporated into the Greenock Act of 1877, but only the 84th section. Therefore prima facie of the assessing clause in the Greenock Act, there was no assessment authorised corresponding to the General Improvement Assessment of the Act of 1892.

The pursuers, however, say that they find a corresponding assessment by the combined operation of the 42nd, 43rd, and 74th sections of the Greenock Act. The 74th section provides that ‘the Police

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Assessment shall, subject to the provisions of this Act, be applied for carrying into execution the whole objects and purposes of this Act,’ and the 42nd and 43rd sections authorise the altering, widening, and improving of certain streets, and the acquisition of lands for that purpose.

The pursuers' argument is, that in so far as the Police Assessment might be applied to improving streets, it was an assessment corresponding to the General Improvement Assessment of the Act of 1892. I think that there would have been a good deal of force in that argument if the 42nd and 43rd sections of the Greenock Act had given general powers of improvement at all comparable to those conferred by the Act of 1892 (section 154), and to defray which the General Improvement Assessment was authorised. But that was not the case, because the 42nd and 43rd sections did not confer any general power of improvement, but only the very limited power of making certain specified improvements upon two or three streets, I am not sure which.

I am therefore of opinion that at the commencement of the Act of 1892 there was no assessment in Greenock corresponding to the General Improvement Assessment, and that accordingly if the latter assessment had been levied in Greenock piers and harbours would not have been exempted.

The pursuers argued, finally, that as piers and harbours were exempted from assessment under the Public Health Act 1867, the presumption was that the exemption (not having been in terms withdrawn) was continued as regarded the corresponding assessment under the Act of 1897.

I cannot assent to that argument, even assuming that piers and harbours were exempt from the Public Health Assessment under the Act of 1867.

The Act of 1867 has been repealed, and a new Act, fitted to meet more modern sanitary requirements, has been enacted in its place. There is, therefore, a new Act and a new rate. Further, the Act of 1897 specially provides that the Public Health General Assessment is to be imposed upon ‘all lands and heritages within the district,’ while the Act of 1867 contained no such provision; and the Public Health Rate under the old Act was, so far at all events as Greenock was concerned, imposed upon occupiers only, whereas the new rate is imposed upon owners and occupiers.

In these circumstances I do not think that there is room for any presumption at all. The question is simply one of the construction of the Act of 1897, and for the reasons which I have given I am unable to construe it as exempting the property of the pursuers from the Public Health Assessment.

I shall therefore assoilzie the defenders.”

The pursuers reclaimed, and argued—By section 136 of the Act of 1897 the incidence of the Public Health General Assessment authorised by that Act was assimilated to the incidence of the General Improvement Rate under the Burgh Police Act of 1892. In Greenock, which was one of the burghs excepted from the operation of the Burgh Police Act, and where consequently no general improvement rate under that Act was leviable, the Public Health General Assessment fell to be levied on the model of a hypothetical general improvement rate. But if section 359 of the Burgh Police Act, which authorises the levying of a general improvement rate, were to be adopted in Greenock, then section 15 of the Act necessitated the adoption at the same time of section 373. Under the last named section the General Improvement Rate could not be imposed in Greenock on any lands exempt by statute at the commencement of the Burgh Police Act from any corresponding assessment authorised to be imposed by the local Police Acts. The local Police Act in force in Greenock at the commencement of the Burgh Police Act was the Greenock Police Act 1877 (40 and 41 Vict. c. cxciii.) That Act authorised the imposition of one assessment only in Greenock, viz., the police assessment, which was the only local assessment levied in Greenock, and which by section 74 of the Act fell to be applied to carrying into execution the whole objects of the Act. Among the objects of the Act were to be found precisely those purposes to which under the Burgh Police Act the general improvement rate was applicable. Sections 161 and 162 of the General Police and Improvement (Scotland) Act 1862 (25 and 26 Vict. c. 101), incorporated by section 372 of the Greenock Police Act 1877, corresponded with sections 154 and 158 of the Burgh Police Act 1892, and section 53 of the Commissioners Clauses Act 1847 (10 Vict. c. 16), adopted by section 41 of the Greenock Police Act 1877, corresponded with section 315 of the Burgh Police Act 1892. The result was that at the commencement of the Burgh Police Act 1892 there was in Greenock an assessment corresponding to the General Improvement Rate authorised by that Act, viz., the Greenock Local Police Assessment, which was applicable, inter alia, to practically the same purposes as those to which the General Improvement Rate was applicable. But the harbours of Greenock were by section 60 of the local Act of 1877 exempt from the police assessment authorised by that Act. The Greenock harbours would thus have been exempt from the General Improvement Rate under the Burgh Police Act had such a rate been levied in Greenock, and they equally fell to be exempted from the Public Health General Assessment which was modelled in its incidence on the General Improvement Rate.

The argument now submitted differed from that which had been addressed to the Lord Ordinary, in respect that sections 41 and 372 of the Greenock Police Act, with the sections which they incorporated, had not been quoted to the Lord Ordinary.

Argued for the respondents—The Public Health Act was a general Act applicable to

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the whole of Scotland, including Greenock, and harbours were an important area for public health administration in the interest of the whole community. There were obvious reasons why the pursuers should be exempt from police assessment under the local Acts; they did their own policing, lighting, and cleansing. The Act in question imposed on the burgh of Greenock duties which they had to perform as much in the interest of ships resorting to the harbours as of anybody else. Statutory exemption from taxation would not be extended by implication— Hogg v. Parochial Board of Auchtermuchty, June 22, 1880, 7 R. 986, 17 S.L.R. 687.

At advising—