Scottish Court of Session Decisions

One of the local taxes of the city of Edinburgh is generally known by the name of the Annuity. In reference to that tax it was enacted by 1661, c. 6, that a “yearly imposition and annuity” of six per cent on the maill and rents of the inhabited houses in Edinburgh should be levied “for providing and paying the stipends of six of the ministers of the burgh;” and “that the said annuity and imposition shall be laid upon all the inhabitants, tennentis, and occupiers of the saids houses within the said burgh, after exact survey by four sworn men in every parochine, who shall survey and value the house-mails aforesaid, Whairof two shall be citizens to be chosen and sworn by the Town-Counsell, and other two shall be nominate, choysen, and sworn be the College of Justice, or such as they shall appoint, and the roll of the rentis being subscribed be the saidis four surveyoris in every paroch shall be the unalterable rule of collecting for that year.” It was also provided, that if the College of Justice refused or delayed, then “the magistrates and council of Edinburgh are to have power to nominate, choice, and swear such of the College of Justice as they shall think fit for surveying and valuing the house-maills:” and if the parties so chosen should not accept, “the remanent of these persones choisen and sworn by the town-councill, shall have power to go on in the said employment and act be themselffs, without the members of the College of Justice not accepting.” The act provided “that the magistrates of the said burgh see this whole act and ordinance obeyed and put to due execution, according to the tenor thereof, and to do all things necessary for that effect; and letters of horning and all other executorials necessary, are ordained to be directed upon this public act in form as effeirs.”

By 7 G. III. c. 27; 25 G. III. c. 28; and 26 G. III. c. 113, several districts adjoining to the old royalty of Edinburgh were annexed to it, and declared to be within the extended royalty. And in reference to the district thus annexed, each of these statutes contained a clause similar to an enactment of 7 G. III. c. 27, which was in these terms, “that the said magistrates and town-council of the city of Edinburgh shall have full power to appoint stent-masters to levy from the proprietors and possessors of all such houses as are built, or shall hereafter be built upon the foresaid ground, hereby annexed to, and comprehended within, the said royalty, an equal portion of the cess, annuity, poors-money, and watehing-money, payable by the city of Edinburgh, in the same way and manner as the same are now levied within the present royalty.” The statute 49 G. III. c. 21, was passed for various objects; and, inter alia, extending the royalty so as to include an additional district, and “for farther regulating the revenues of the said city, applicable to the payment of ministers' stipends.” This statute enacted (§ 2) as to the district annexed by it, “That from thenceforth the said Lord Provost, Magistrates, and Council of the city of Edinburgh, and their successors in office, shall be, and they are hereby, authorized and empowered to stent or assess and levy from the proprietors and occupiers of all such houses as are at present built and erected, or shall be hereafter built and erected upon the foresaid grounds hereby annexed to, and incorporated in the said royalty, an equal proportion of the cess, annuity, and poors-money, and other duties with those stented or assessed and levied, or that may be stented or assessed and levied by the said Lord Provost, Magistrates, and Council, from the proprietors and occupiers of houses in the extended royalty, in the same way and manner, and with such and the same remedies at law, in case of non-payment, as are practised and competent by any law, statute, or custom within the said extended royalty.” And it was enacted (§ 17) that the Lord Provost, Magistrates, and Council, were not only authorized “to levy, as they have hitherto been in use to levy, the said annuity of 6 per centum upon the yearly rents of all inhabited houses, shops, &c.” within the city and royalty, and to apply the same along with certain other funds “for the payment of the stipends of all the ministers of the present churches of the said city and royalty,” but also to apply an equal proportion of the annuity, &c. for the payment of the stipends of such ministers as might be appointed to the churches which were required to be built by the act; the patronage of which was vested in the Magistrates and Council.

Another of the local taxes of the city of Edinburgh is generally known by the name of the Impost. It is a tax of one per cent upon the rental of houses, &c. given in lieu of a previous impost, which had been levied on wines, spirits, &c. whether used by vintners or private families within the city. This tax was established by 25 G. III. c. 28, § 62, in these terms:—“And whereas the revenue of the city of Edinburgh will be diminished by the aforesaid abolition of the impost on wines, foreign spirits, and foreign ale and beer consumed in private families; Be it enacted by the authority aforesaid, that at the said term of Martinmas next, the city of Edinburgh, and the Lord Provost, Magistrates, and Town-Council thereof, and their successors, for themselves, and on behalf of the community thereof, in aid of the common good and patrimony of the burgh, shall have full power and authority to assess, tax, levy, and collect from all and sundry the inhabitants of the ancient royalty of the city of Edinburgh, and the inhabitants of the New Town in the extended royalty, who at present are or might have been subjected to the aforesaid imposts, the sum of one pound per centum of the valued rent of their houses and possessions, and that yearly and each year; and it is hereby directed and declared, that such execution shall be directed at their instance for payment of the aforesaid sum of £1 per centum of the valued rent of the foresaid houses and possessions as they are in use to direct against such as are liable in payment of any part of their common good.” By § 65 of this statute the Magistrates and Council were authorized to appoint stent-masters for the purpose of levying the whole taxes, including the annuity tax, “in the same way and manner as the same are now levied within the present royalty.” The old impost, prior to this statute, had been stented by stent-masters appointed by the Town-Council.

At a very early period, the College of Justice, having established its freedom from liability for the annuity, ceased to take any concern in the appointment of stent-masters. According to a uniform system which, prevailed till 1818, stent-masters were chosen by the Town-Council, who were duly sworn, and who made a survey of the houses in the burgh, stenting the rent of each. According to the roll of rents thus made up, the annuity was levied; and also the impost, after it was authorized by 49 G. III. c. 21. But in 1818, two vacancies occurred in the office of stent-master, and in both cases the Council records bore a minute that “the Magistrates and Council remitted to the Magistrates, as Commissioners of Supply, to fill up the vacancy.” A stent-master was then appointed by the Magistrates. Numerous similar remits and appointments were subsequently made. In most instances the stent-masters thus appointed were not sworn: and in particular this was the case with the stent-master, appointed in the district where the premises of Robert Winter, jeweller, were situated, and in which the stent-masters were appointed by the Magistrates in the manner just mentioned. That district was part of the old royalty of the city. In making up the stent-roll, the collector or chamberlain appointed by the Magistrates and Council delivered a book to each pair of the stent-masters, containing the whole property within their several districts, and ruled with different columns, for the various taxes, local and public, including the annuity and impost, as well as cess and land-tax. The stent-masters fixed the value of each house, and returned the book to the collector, who allocated the rateable proportion of each tax, on the respective houses, according to the stent. From time immemorial, only one stent-roll was made up, containing the whole of these taxes. The stent-masters received salaries for the discharge of their office, the payment of which was annually sanctioned and ordered by the Council.

In 1837 Robert Winter, being in arrear for the amount of annuity and impost, to which he had been assessed for the years 1834 and 1835, was charged by the magistrates for these arrears, and he presented a bill of suspension, without caution or consignation, alleging that the assessment had not been legally imposed. He pleaded (1) That the power of levying the annuity was wholly created by statute, and unless the tax was imposed in terms of the statute, it was necessarily illegal. The statute had directed that the stent-masters, for valuing the house-rents, should be chosen by the Magistrates and Council, who represented the community, and were therefore the proper body for choosing the persons who were to be instrumental in taxing the community. In reference to the obsolete power or privilege, conferred on the College of Justice, that two stent-masters in each parish, should be chosen by the College, “or such as they shall appoint,” the power of delegation was limited to the College of Justice alone, to whom it was properly given, as they were not a mere representative body, like the Town-Council, and might find it convenient to delegate a power of choice to a committee of their number. But no such loose power of delegation was conferred on the Town-Council, as would have authorized any persons whatever whom “they should appoint,” to exercise the delicate and important duty of stenting. Accordingly the appointment of stent-masters had been regularly made by the Town-Council, in terms of the statute, until the year 1818, when the Town-Council, in place of themselves choosing the stent-masters, began the course, which had since been followed, of remitting to the Magistrates, as Commissioners of Supply, to choose them. This was altogether ultra vires; as much so, as if the Council had remitted to any third party whatever, because the statute had not given the power of choice to the Magistrates, and the Town-Council could not do more than the statute had done. ¹ Besides this, the stent-masters so chosen had not been duly sworn, which was a separate ground, rendering the stent made up by them illegal, as it was made up without the check which had been provided by the legislature for securing the fair and honest exercise of the discretion entrusted to the stent-masters in performing their duties. The stent for the years in question, 1834 and 1835, in the district where the suspender's premises were situated, was therefore illegally made up; and there being no statutory stent, there was no basis on which the annuity of six per cent could be charged. It was irrelevant to enquire whether the amount of stent imposed on the suspender was exorbitant or not; as his objection was that the imposition was funditus illegal whether exorbitant or not. (2.) The whole series of statutes annexing new districts to the old royalty, might be laid out of view in this question, because the power of levying the annuity, granted in each of these statutes, referred only to the new district annexed by the statutes respectively. The suspender's premises were within the old royalty, to which the statute 1661, c. 6, applied. But even if the later statutes, including that of 49 Geo. III. c. 21, could be regarded, they made no change whatever on the statute 1661, c. 6, except that of allowing the annuity to be applied generally in payment of the whole city ministers, in place of being limited, as originally, to six of their number. The mode of imposing and levying the amount was always enjoined to be “in the same way and manner” as previously practised or competent, (3.) As plain deviations from the statute had been committed, it was irrelevant to enquire whether these deviations had been homologated by the council, in respect of their paying salaries to the stent-masters or otherwise. Because, even if the town-council had passed an express act approving of the deviations from the statute, they could not thereby have superseded the statute, or acquired powers, in relation to this matter, greater than those which the statute had conferred on them. And the statute afforded no means of imposing a legal stent, except by a strict compliance with its provisions. (4.) The

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¹ 3 Ersk. 8, 33; Note by Ivory, and authorities there referred to; Farrell, 5 Brown's Parly. Cases, 438; Dictum, per Wilmot, C. J.; 2 Wilson, 351; Elliot, Feb. 9, 1826 (ante, IV. 429, or new ed. 435), Dictum, per L. President, Magtes. of Dumbarton, Nov. 19, 1771; Hailes, 446; Houstoun, July 15, 1708 (3107); Murray, Dec. 15, 1824 (ante, III. 401, or new ed. 282); Dictum, per Lord Eldon, Arbuckle, July 10, 1815; 3 Dow, 183; Dundas v. Miller, Wight on elect. 384; Bell on elect. 495; Dictum, per Lord Mansfield, Rex v. Croke; 1 Cowper, 26.

levying of the impost was, in terms of the statute, and in reference to the practice following on it, always on the same footing as the annuity; and if the charge was illegal as to the annuity it was equally so as to the impost.

The magistrates answered. (1.) The statute 1661, c. 6, directed the stent to be made by four sworn men in every parish, “whereof two shall be citizens to be chosen and sworn by the town-council, and other two shall be nominate, chosen, and sworn, by the College of Justice, or such as they shall appoint.” According to the fair construction of the sentence, the power of delegation conferred by these last words should be held applicable both to the town-council and to the College of Justice. But even were it not so, the bill of suspension should be refused. The suspender did not allege that an exorbitant amount of annuity had been imposed on him, or that the sum was not due, if the forms of the statute were duly complied with; but took an objection to a mere point of form, which objection must be rigorously dealt with, both in reference to its own nature, and to the consequences which it might involve. There was no specific method or form prescribed by statute according to which stent-masters were to be appointed, and the stent imposed. This was observable in all the statutes, and particularly in the last statute, 49 Geo. III. c. 21, which had express reference to the removing of certain doubts as to the annuity. It was therefore competent for the town-council, in place of directly making the choice themselves, to remit to the magistrates, who formed an important portion of the council, to do so in the first instance. When the magistrates, acting as a committee of the council, specially empowered, made the choice; and when this choice was afterwards ratified by the council, by their directing their collector to put the books into the hands of the stent-masters, for making up their valuations, and afterwards to levy according to the stent-roll, when made up; and also by paying salaries to the stent-masters; it followed that the selection and appointment of the stent-masters, no longer rested solely on the choice of the magistrates alone, but on that choice as deliberately ratified and confirmed by the council. ¹ And though the stent-masters were not always duly sworn, that was not enough to annul their whole proceedings; especially where no allegation was made that an unjust amount of stent was imposed. (2.) Although most of the later statutes referred only to the districts which they respectively annexed, yet the provisions of 49 Geo. III. c. 21, in many respects embraced the entire city; and the whole statutes were important as showing how much latitude was left as to the precise form of appointing stent-masters, and levying the annuity. (3.) Though the town-council could not, by their homologation, validate a proceeding if in violation of a statute; yet, where the alleged violation consisted, as in

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¹ Earl of Wemyss, February 25, 1824. 2 Sh. App. Ca. 8.

this case, of the appointment of stent-masters by a part of the body, without the concurrence of the rest, it was competent to refer to their acts of homologation, as removing the existence of the alleged violation of the statute. (4.) In regard to the impost, it appeared from the statute 49 Geo. III. c. 21, authorizing it, that more latitude was allowed as to the mode of levying it, than the annuity; and, therefore, even if the irregularities alleged were fatal to the charge for the annuity, they were not so to the charge for the impost.

The Lord Ordinary reported the cause on cases.