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The Times
Tuesday April 10 1894
Supreme Court of Judicature
Court of Appeal
(Before Lord Justice Lopes and Lord Justice Davey.)
THURSBY AND OTHER, APPELLANTS V. CHURCHWARDENS AND OVERSEERS OF BRIERCLIFFE-WITH-EXTWISTLE, RESPONDENTS.

This was a special case stated upon an appeal against a rate made under the Lighting and Watching Act 1833 (3 and 4 Will., c.90), section 67. On March 19 1892, the ratepayers of Briercliffe-with-Extwistle adopted the provisions of the Lighting and Watching Act, 1833, with respect to lighting, and on February 6, 1893, the respondents made a rate of 2d. in the pound for the purposes of the Act of 1833 on the owners and occupiers of property in the respondents' township. The appellants are colliery proprietors working coal mines on the repsondents' township, and as such are rateable to the relief of the poor. The appellants were rated in respect of their coal mines on the higher scale, at which under section 33 of the Act of 1833 the owners and occupiers of "houses, buildings, and property, other than land," were rated. The appellants' rated premises consisted entirely of underground coal mines. 500ft. at least below the surface, and having no shaft or opening to the surface within the respondents township and no buildings in connexion with the mines in the township. The coal was taken by underground ways or passages into the adjoining township of Burnley, and these underground workings and ways were not lighted in any way by the lighting of the respondents' township. The question was whether the coal mines were liable to be rated on the higher rate. By section 33 of 3 and 4 Will. 4, c. 90, the overseers of every parish to which the Act applies shall have the same powers for levying rates for the purposes of the Act as for levying rates for the relief of the poor, "provided always that owners and occupiers of houses, buildings, and property (other than land) rateable to the relief of the poor in any such parish shall be rated at and pay a rate in the pound three times greater than that at which the owners and occupiers of land shall be rated at and pay for the purposes of this Act." The Divisional Court (Mr. Justice Mathew and Mr. Justice Collins) dismissed the appeal, holding that trhe coal mines were liable to be rated at the higher rate. The appellants appealed to the Court of Appeal. Mr. Balfour Brown, Q.C., and Mr. W. Graham appeared for the appellants; Mr. Castle, Q.C., and Mr. W Mackenzie appeared for the respondents.
The COURT, having taken time to consider their judgment, this morning dismissed the appeal.
LORD JUSTICE LOPES read the following judgment;- This is a special case raising an important question, viz.-whether the appellants' coal mines are liable to be rated on the higher rate chargeable by section 33 of 3 and 4 Will. 4, c. 90, the Lighting and Watching Act, 1833. [His Lordship read the section.] The appellants' coal mines have been rated at the higher rate. The facts so far as material are as follows:-Hi Lordship read the facts as stated in the special case. The Divisional Court has held that the appellants are liable to be rated at the higher rate as "owners and occupiers of houses, buildings, and property, other than land." The reasoning of the learned Judges in the Court below appears to be that because coal mines are specifically mentioned in the statute to Elizabeth in addition to lands therefore they cannot be regarded as land under the Lighting and Watching Act, but must be included in the general words "property (other than land) rateable to the relief of the poor" which follow the words "houses, buildings," and therefore subject to the higher rate. The early part of section 33 is mere procedure, and affords no assistance in determining what property is subject to the higher and what to the lower rate. Then come these words of the proviso:- "Provided always that owners and occupiers of houses, buildings, and property (other than land) rateable to the relief of the poor shall be rated at and pay a rate in the pound three times greater than that at which the owners and occupiers of land shall be rated at and pay for the purpose of this Act." Who are to pay the higher rate? Why, the owners and occupiers of property (other than land) rateable to the relief of the poor under the statute of Elizabeth, which is not described therein as land, but as tithes, coal mines, and saleable underwoods, which are placed in the same category with houses and lands, and together form the five subject matters to which the poor rate attaches under that statute. The statute 14 and 15 Vict., c.50 affords a very strong argument that this is the proper construction to be placed on the word "property" in this section. This statute assumes distinctly that tithes, being property other than land, were rateable under the Lighting and Watching Act at the higher rate and, recognizing this injustice, the Legislature places them on the same footing as land. If the Legislature regards tithes as coming within the word property, and rateable under the Lighting and Watching Act on the higher scale, how can coal mines, which are under the statute of Elizabeth in the same predicament as tithes, be relieved? They are both specifically mentioned and are both specifically rateable under that Act, and coal mines are not, like tithes, within the relief afforded by this Act. It is to be observed the language of the old Lighting and Watching Act II. Geo. 4, c. 27, section 25, is different from that of section 33 of the Act we are now
considering. The words there are "owners and occupiers of houses, buildings, and other property rateable to the relief of the poor." The words "other than land" are omitted. The language of this Act would clearly make coal mines rateable at the higher scale. Mr. Justice Mathew places some reliance upon this, but I do not think much reliance is to be placed on the language of a repealed statute when we have to construe the language of a statute by which it is repealed. We have been much pressed by certain decisions which have placed a construction upon the words in question, and especially the case of "Reg. v. Overseers of Neath" (L.R.6,Q.B.,707), where it was held that "property" meant things ejusdem generis with houses and buildings, and did not include a canal and towing path, and also by "Reg. v. Midland Railway Company" (L.R.10,Q.B.389), where it was held that a line of railway was land within the meaning of the section, and was therefore only rateable at the lower rate. Mr. Justice Blackburn says in the latter case:-"I cannot come to the conclusion that in considering section 33 of the Lighting and Watching Act we can say that in the words 'houses, buildings, and property other than land,' and 'land,' the antithesis is between land in its natural state, or in an agricultural state, and land in which any money has been invested for commercial purposes; I think the distinction is between land, which is the general word, and land which has been built upon. Such property is either a house or building, or something which for any reason is not a building-a house or things ejudem generis; and I think neither a railway nor a canal could be considered as a building in that sense." I feel the force of this reasoning; but the Court in the first case was dealing with a canal, and in the second case with a railway, subject matters not specifically dealt with by the statute of Elizabeth, and only rateable as land in the ordinary acceptation of that description. For the purposes of the decision of those cases it was only necessary to hold that the railway and the canal were not houses or buildings, but land. The Court was not embarrassed with something which was treated by the statute of Elizabeth as rateable independently of being land, and which came within the description of being property specifically mentioned as being rateable to the relief of the poor. All they had to decide was whether something which was capable of being designated as land and was not distinguished from land in the statute of Elizabeth was to be regarded as land or as a house or building. These decisions for some time created grave doubts in my mind, but I have come to the conclusion that if the Judges in those cases had been called upon to decide whether a coal mine which is specifically mentioned in the statute of Elizabeth, and made rateable as a coal mine, independently of its being land, came within the words "property (other than land) rateable to the relief of the poor," they would have decided that question in the affirmative. A coal mine is not a house, it is not a building, it is not regarded as land or made rateable as land under the statute of Elizabeth; but it is property rateable to the relief of the poor under that statute, and therefore, in my judgement, to be rated at the higher scale. I am of opinion that the appeal fails, and the judgement of the Court below must be afformed.
Lord Justice Davey delivered judgement as follows:- I do not disagree with the judgement of the Lord Justice which has just been read concurring with the judgements of the learned Judges in the Divisional Court. Apart from any decision on the statute, I should say that the words in question included all property of every description rateable under the Act of Elizabeth or any subsequent Act, and that it is a reasonable construction of the words "other than land" to construe them with reference to the Rating Acts, and to hold that what is intended to be expected is property rateable as land. Coal mines being expressly mentioned are separately rated, and not rated as land, although, like salable underwoods, they are in fact land. But I cannot help seeing that, although the decisions in the Queen's Bench cases which have been referred to do not touch this case, yet we are, in fact, differing from the construction of the proviso adopted and laid down with some variation by Judges of so great eminence as Lord Campbell, Mr. Justice Erle, and Lord Blackburn. Nor do I think that the effect of that observation is altogether got rid of by saying that they might have come to the same conclusion on the cases before them without adopting that construction. And I feel some hesitation in differing from those Judges. As, however, my learned brother agrees with the Divisional Court, my hesitation will have no effect, and it is of the less importance because my experience in such cases as this is not, of course, to be compared with that of the Judges in the Court below and my learned brother.

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Mel

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