Duke of Bedford v. Overseers of St. Paul, Covent Garden. or franchise tolls, are not rateable, but tolls taken in respect of some use or enjoyment of the soil, being in the nature of stallage, are rateable. Does section 21 make the tolls payable in respect of a use of or convenience in the soil or not? I think that it does. Before the Act the tolls were taken for exposing for sale in any part of the market. The public had equal rights indiscriminately. Section 21 converted them into tolls for the use of soil specially appropriated, and they became in the nature of stallage tolls. It is not necessary to refer to the decided cases. With regard to the unappropriated parts I think there are not sufficient facts. BOWEN, J.-I am of the same opinion. The whole point lies in section 21 of the Act. Is the effect of that section to change the toll, or whatever it may have been before, and make it a toll or sum of money payable in respect of some user of the soil beyond the mere entry into the market, which the person paying the toll would otherwise have the right to enjoy in common with the rest of the public? The case at common law would stand thus: The market would be a definite place created by the king's grant for the purpose of selling goods or chattels. The market, unless anything else is said in the king's grant, is free from toll. It was in the king's power to grant a reasonable toll to the lord of the market. For what? Why in respect of the convenience he supplied for the witnessing of contracts made in the market. For, be it remembered, a market was a very important place. It was a place in which a sale changed the property not merely as between the parties, but as against all persons in the world, and a witness of a sale in market overt was of importance to the public, and to the parties concerned in the transaction. Accordingly an officer appointed by the lord took his fee. The grant, however, of the toll in the market which refers to the witnessing of the sale must be special, otherwise no toll could be exacted for goods sold. But besides this toll, which my learned brothers have called a franchise toll, there was another kind of toll which might be payable to the lord. It was a toll payable for or in respect not merely of some user of the soil (because it may be said that in one way every body who goes into a market uses the soil), 66 or Stallage and pickage, or the like, is the second kind of toll, and we have really to consider whether the toll in question is a mere toll payable upon the sale of goods within the market, or a toll for the bringing of goods within the market, as by certain ancient custom in special markets; or whether, on the other hand, these sums of money, be they called in the Act of Parliament rents or what not, are in effect payments directed by statute in respect of some use of the soil beyond that mere use of the market which the rest of the public and the other vendors enjoy. The test is occupation or use of the market beyond that which the general public have some standing room in it distinct from an entrance into it. I will not go through the cases which illustrate the way in which that test may be applied. I point out simply that the case of The Mayor of Great Yarmouth v. Groom (1) is one which shews most clearly how a case may fall on one side or the other of the line. It had been held in The King v. Bell (7) that a person who brings a sack of corn into a market and lays it down is not liable to stallage, provided all he does is simply to use the ground of the market as, so to speak, an assistance for the sale of his goods without any exclusive occupation of the soil, as contrasted with that Duke of Bedford v. Overseers of St. Paul, Covent Garden. which the rest of the public enjoy. On the other hand, in the case of The Mayor of Great Yarmouth v. Groom (1), it was held that a woman who brought a basket into the market with goods in it became liable to stallage when it was found out that the basket was one which had flaps, which fell down and converted it into a table. In a case reported in Willes (10), to which there is a note by the learned editor, it is pointed out clearly that the right of bringing a table into a market and standing the table in it, gives rise to stallage toll. It seems to me that this is also consistent with what is said in the case of The Mayor of Yarmouth v. Groom (1). It may be very important when you come to deal with the question of the waggons and the unappropriated part of the market. I can quite conceive that in any markets by ancient custom a waggon may perambulate the market without exposing itself to toll at all, but I am not by any means certain if a waggon took up a definite place in the market, and had that definite place allotted to it, that the owner of the waggon might not be bound to pay stallage. Because, after all, there really is no difference between a thing which has got wheels and a thing which has not got wheels, as soon as you convert it into a table for the sale of merchandise. As soon as a thing is converted into a table, and used for the sale of merchandise, I conceive a toll will be payable. Then, with regard to the particular Act of Parliament, what is the nature of the payments which are created by the Act and arise under the Act? They are not exactly tolls in the nature of franchise tolls, because a previous statute has done something with them since they were tolls in the nature of franchise tolls. They are not stallage tolls in the sense of common law stallage, because they are statutory payments, and not common law payments. The question really is, whether the statute has not so operated as to create payments in respect of the duke's title to the soil, although they are not exactly stallage tolls. I agree with my brothers Grove and Lopes that one has only to read section 21 of the Act to find out what was done under the old Act before any change was made in the (10 The Mayor of Nottingham v. Lambert, Willes 116. old original tolls of this market except so section a discretion as to the mode of rating, but that if it rates the owner for such premises whether occupied or unoccupied, then the assessment must be upon one-half the rateable value. Appeal from the Queen's Bench Division. Duke of Bedford v. Overseers of St. Paul, Covent Garden. tolls received from these waggons were rateable, because it seems to me that it might very well be, and probably is the case, that they have standing room allotted to them according to the practice and regulation of this market, and that as soon as they take up their places, there they stop, and enjoy their places as long as they like. If that is so it seems to me the waggon might be considered as simply a table; but, on the other hand, I quite agree with what my brother Grove has said, that it would be far more convenient, before deciding on the law with respect to this particular item, to see what the particular facts are as to the previous customs in the market. Public Health Act, 1875 (38 & 39 Vict. c. 55), 8. 211—Assessment of Premises let on Short Tenancies—Assessment of Owner instead of Occupier-Rateable Value where Owner assessed for Tenements whether Occupied or Unoccupied. The Public Health Act, 1875, empowers, by section 211, the rating authority to assess to the rates the owner instead of the occupier of premises where the rateable value does not exceed ten pounds, or where the premises are let to weekly or monthly tenants, and provides that in such cases the owner shall be assessed on a reduced estimate, not being less than two-thirds nor more than four-fifths of the net annual value, and where such reduced estimate is in respect of tenements whether occupied or unoccupied, "then such assessment may be made on one-half of the amount at which the tenements would be liable to be rated" if they were occupied and the rate were levied on the occupiers:-Held (affirming the judgment of the Queen's Bench Division), that the rating authority has under this * Coram Coleridge, L.C.J.; Brett, L.J.; Holker, L.J. The case is reported Ante, p. 27. The East Ham Local Board made a general district rate under the Public Health Act, 1875 (1), and passed a resolution that the owners of property let on monthly or weekly tenancies should be rated instead of the occupiers, that they should be rated whether the tenements were occupied or unoccupied; and the board rated them at two-thirds of the net annual value of the tenements. A rate was accordingly levied on R. Weaver, in respect of twenty-seven cottages belonging to him which were let upon weekly tenancies. Twenty of these cottages (1) 38 & 39 Vict. c. 55, s. 211:-"With respect to the assessment and levying of general district rates under this Act, the following provisions shall have effect: namely, 1. General district rates shall be made and levied on the occupier of all kinds of property for the time being by law assessable to any rate for the relief of the poor, and shall be assessed on the full net annual value of such property, ascertained by the valuation list for the time being in force, or if there is none, by the rate for the relief of the poor made next before the making of the assessment under this Act, subject to the following exceptions, regulations and conditions; namely, (a) The owner, instead of the occupier, may at the option of the urban authority, be rated in cases Where the rateable value of any premises, liable to assessment under this Act, does not exceed the sum of ten pounds; or, Where any premises so liable are let to weekly or monthly tenants; or, Where any premises so liable are let in separate apartments, or where the rents become payable or are collected at any shorter period than quarterly. Provided, that in cases where the owner is rated instead of the occupier, he shall be assessed on such reduced estimate, as the urban authority deem reasonable, of the net annual value, not being less than two-thirds nor more than four-fifths of the net annual value; and where such reduced estimate is in respect of tenements whether occupied or unoccupied, then such assessment may be made on onehalf of the amount at which such tenements would be liable to be rated if the same were occupied and the rate were levied on the occupiers." The Queen v. Barclay, App. were unoccupied, and the local board rated him upon all of them at two-thirds of their annual value. R. Weaver declined to pay the rate in respect of the cottages which were unoccupied, and a summons was taken out by the board, calling on him to shew cause why a distress warrant should not issue. The Justices declined to issue a distress warrant, in respect of the rate assessed upon the unoccupied premises, and a rule was then obtained by the local board for a mandamus to compel them to do so, which was afterwards discharged. The local board appealed. Day, Q.C., and H. Atkinson, for the appellant. The contention of the owner of these tenements is that if he is assessed on property whether occupied or unoccupied, he cannot be assessed on more than onehalf the net annual value, and the judgment of the Court below supports that view; but it is submitted that the section (1) which applies says distinctly that the board may make the assessment at onehalf, not that it must do so; the first and the second parts of the proviso must be construed together, and the result is to give the board a discretion as to the amount. (BRETT, L.J.-Is it not rather that the board may, at its option, rate the owner, but that if it does so in respect of unoccupied premises then the rate must be assessed on one-half the net annual value?] It is submitted that the effect of the latter part of the proviso is to substitute the limit one-half for the limit two-thirds given in the earlier part, so that the higher limit of four-fifths still remains, although the lower limit is altered. The respondent did not appear. LORD COLERIDGE, C.J.—I am of opinion that this judgment should be affirmed. The case appears to me to be reasonably clear. Section 211 of the Public Health Act, 1875 (1) gives to an urban authority power at its option to rate in certain cases the owner instead of the occupiers of premises of a certain kind. The statute first gives a general power, and the portion of the statute immediately following upon this general power has reference to places in which the tenements rated are occupied, and to such cases the first half of the section applies. Then comes the case of a number of small tenements occupied by fluctuating tenants, and with respect to these power is given to rate the owner of such tenements whether they are occupied or unoccupied. Now in such a case, as the owner may be receiving no rent for a portion of the premises for which he is nevertheless rated, it has been provided, on what may be called a rough scale of justice, that he is to be rated on only half the rateable value. On the one side the urban authority secures the payment of the rate by a substantial person, while on the other hand the owner is in such a case protected from being called on to pay upon more than half the rateable value. The words will allow of this construction, which seems to me reasonable and just. I think that the earlier part of the proviso applies to cases in which the premises are occupied, while the latter part, which is introduced by the word "and," a word which has here, as it seems to me, the same meaning as "but," applies to the case of premises which are rated even though they may be unoccupied. It appears to me that this construction is intelligible, and that the provisions of section 4 of 32 & 33 Vict. c. 41 assist the view which this construction supports, for by that statute a reduction of fifteen per cent. on the amount of the rate is allowed to owners compulsorily rated under that statute. BRETT, L.J.-I think that reason and the expressions in the statute both support the judgment of the Queen's Bench Division. In the first place it is to be observed that the owner has no option, his consent is not required to what is done under this section. I am of opinion that the earlier part of the section applies only to cases in which there is both an owner and occupier. The use of the word "instead" shews that this must be so. It is also to be noted that the question whether an owner is to be rated or not is discretionary, and not imperative, that this is so the use of the word "may" shews. But when once the urban authority has exercised the discretion thus given, then there comes a limitation as to value, and The Queen v. Barclay, App. this limitation is imperative within the limits fixed by the section. The Legislature having imposed an imperative limitation uses the word "shall." Now if the section stopped there the result would be that an owner would not be rated whenever there was no occupier; but the section goes on and gives an urban authority power without the consent of the owner to rate an owner in respect of tenements of a certain kind whether occupied or unoccupied. Now one would expect to find this question also left in the discretion of the rating authority, and so it is for the word "may" is left in this part of the proviso, so that in this matter the urban authority has a discretion; then we again find a limitation, and although different words are used from those which are placed in the earlier part of the section, that is because there is, as is so often the case in the English language, an elliptical form of expression, the words" shall be " being left out; but the reasonable meaning is the same, and it is that the assessment may be made as the urban authority shall determine, but that if made in a certain way it shall be made subject to an imperative limitation; and thus the latter part of this proviso, though differing in form, has in reality the same force as the earlier partthe limit is fixed, and the rate must be on half the amount of the rateable value. This appeal cannot be sustained. HOLKER, L.J.-I have little to add, agreeing as I do with what has been already said. The proviso appears to me to be reasonable and just. It is reasonable that in certain cases the owner should be rated instead of the occupier; but it would not be reasonable that in this case the rate should be on as high a rateable value. This distinction is clearly marked out in the section before us, and it appears to me to be based on an intelligible principle. Appeal dismissed. Solicitors-Wilson & Son, for appellant; defendant in person. VOL. 51.-M.C. CASE stated by magistrates under 20 & 21 Vict. c. 43. The appellants, the authority for the repair of highways, had incurred extraordinary expenses in repairing a highway within their district, by reason of damage caused by excessive weight and extraordinary traffic thereon, conducted by the respondents, owners of a mine in the neighbourhood. The damage was caused by locomotive engines, trains and trucks, conveying minerals from the respondents' mine, from the 29th of September, 1878, to the 25th of March, 1879. On the 19th of May, 1879, the appellants' surveyor made his certificate to the above effect, in accordance with section 23 of the Highways and Locomotives Act, 1878 (1). (1) Highways and Locomotives Amendment Act, 1878 (41 & 42 Vict. c. 77), s. 23: " Where, by a certificate of their surveyor, it appears to the authority which is liable or has undertaken to repair any highway, whether a main road or not, that, having regard to the average expenses of repairing highways in the neighbourhood, extraordinary expenses have been incurred by such authority in repairing such highway by reason of the damage caused by excessive weight passing along the same, or extraordinary traffic thereon, such authority may recover in a summary manner from any person by whose order such weight or traffic has been conducted the amount of such expenses as may be proved to the satisfaction of the Court having cognisance of the case to have been incurred by such authority, by reason of the damage arising from such weight or traffic as aforesaid: Provided that any person against H |