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Smith & Son v. Assessment Committee for Lambeth, App. the tenants were to obey all the reasonable orders of the station-master. The tenants covenanted to pay a certain " rent or sum by monthly payments, which were to be "recoverable by the company, in addition to any other remedies, by distress, as in the case of rent in arrear." Power was reserved to the company to regulate the places where the bookstalls should be fixed. Messrs. Smith & Son accordingly erected at Waterloo Station four bookstalls.

The Queen's Bench Division gave judgment that Messrs. Smith were not liable to be rated in respect of the bookstalls.

The assessment committee appealed.

Clarke, Q.C., and Archibald, for the appellants. The most satisfactory test to apply to these cases is to examine whether there is or is not a permanent continuous occupation; and the contention is that there is such an occupation here, so that the occupiers of these stalls are liable to be rated, for their occupation satisfies all the conditions laid down by Lush, J., in The Queen v. The St. Pancras Assessment Committee (1).

[BRETT, L.J. The occupiers of the stalls cannot go to them at night.]

That may well be; yet there may be a demise of a space, with an agreement limiting the time for using it. The thing occupied is attached to the freehold, and there is permanent occupation, and that is sufficient.

Reliance is placed by the respondents on The London and North Western Railway Company v. Buckmaster (2), in which, the Exchequer Chamber being equally divided, the judgment of the Queen's Bench remained unaffected; but there the character of the occupation was different. So in The Queen v. Morrish (3) the property remained in the commissioners, a space was let which the commissioners could enter at pleasure; whereas here Messrs. Smith have the keys of these stalls. In The Electric Telegraph Company v. The Overseers of Salford (4) it (1) 46 Law J. Rep. M.C. 243; Law Rep. 2 Q.B. D. 581.

(2) 44, Law J. Rep. M.C. 180; Law Rep. 10 Q.B. 444.

(3) 32 Law J. Rep. M.C. 245.

(4) 11 Exch. Rep. 181; 24 Law J. Rep. M.C.


was held that the fact that the company could be compelled to move its posts made no difference in the liability to assessment; and so with regard to pipes laid in the ground. A tramway company, which has no other right than that of a user of a road, is yet rateable-The Pimlico Tramway Company v. The Greenwich Union (5); and in Cory v. Bristow (6), a derrick and hulk, which could be removed at a week's notice, was held liable to assessment. Even if it should be held that there is no rent issuing out of the property demised, the liability to assessment is not affected, for in The Electric Telegraph Company v. The Overseers of Salford (4) no rent at all was paid; and here, if the indenture be examined, there will be found to be a demise such as gives the tenants an occupation which satisfies all the conditions required to render the premises in question liable to assessment.

M'Intyre, Q.C. (D. Kingsford with him), for Messrs. Smith & Son, was not called on.

BAGGALLAY, L.J.-This case comes before us on appeal from the judgment of the Queen's Bench Division, by which it was decided that Messrs. Smith & Son are not liable to be rated in respect of certain bookstalls at the Waterloo Station of the London and South Western Railway. No question arises whether the stalls so used by Messrs. Smith & Son are rateable in the sense that a rate levied on them must be

paid by some one. The question which is raised is, whether the railway company ought to be rated, or whether Messrs. Smith & Son are liable. It is admitted that the property on which the bookstalls stand is rated, and that the rates are paid by the company. It is, however, urged that Messrs. Smith & Son are liable to be rated. I think that Mr. Justice Field stated the real question when he said, "The company have granted something. What was it? Was it exclusive occupation or exclusive enjoyment?" And the learned Judge then adds, "From the beginning to the end of this document the parties care

(5) 43 Law J. Rep. M.C. 29; Law Rep. 9 Q.B. 9.

(6) 46 Law J. Rep. M.C. 273; Law Rep. 2 App. Cas. 262.

Smith & Son v. Assessment Committee for Lambeth, App. fully avoid all expression of intention to create a tenancy." I am of the same opinion, and concur in that view. This being so, the learned Judge, following certain decisions of Judges of great experience in rating cases, held that Messrs. Smith were not liable. It is true that in certain parts of the indenture of agreement Messrs. Smith & Son are for convenience referred to as "tenants," but only in that way does the agreement in any way indicate a tenancy. I do not think it necessary to go through the indenture, for I agree with the opinion of Mr. Justice Field, that "it is quite clear that the company in this case did not part with the exclusive possession or occupation of any portion of their railway premises to Messrs. Smith & Son, but merely gave them such an exclusive enjoyment of their bookstands, and liberty to use the walls, &c., as was necessary to enable them to carry on their trade at the several stations;" and I agree with the conclusion to which he came, that, as a consequence, Messrs. Smith & Son are not rateable in respect of these stalls. The railway company have here granted an easement, or licence, or privilege, and nothing more. In the cases to which reference has been made, but which I do not think it necessary to discuss in detail, the Judges held that where there was exclusive occupation there was a liability to assessment; but that where there was no exclusive occupation, but only a licence for certain enjoyment, then there was no liability to assessment. am, therefore, of opinion that this appeal must be dismissed.


BRETT, L.J.-The question in these cases is not always whether there has or has not been a demise; but in this case the question is, whether the indenture does amount to a demise, or whether it is really merely a licence to sell books and the other articles mentioned therein at different positions in the stations of the company, with a subsidiary auxiliary necessary leave to keep and store books and other articles at different parts of the stations. The question must be decided on the construction of the whole indenture. Certain parts taken by themselves might give the impression that there was a demise; but then there are other parts

which are wholly inconsistent with that view. It is an ordinary fallacy to take each part of an agreement by itself alone, and to argue that that part will tell in favour of the contention of the person arguing, supposing that all the other parts are also in favour of that argument; and so on with the remainder, each being taken by itself, and the assumption being that there is in the rest of the agreement nothing that tells against the argument. Here a particular clause is taken, and it is argued that that by itself points to a demise. But when it is found that the persons who are supposed to be tenants can only go at particular times for limited purposes; when it is found that there is undoubtedly a licence, and that the money payment which is charged is paid, not for the occupation of a particular place, but for what is entirely a licence; and when it is found that that which is supposed to be demised is to be removed at the will of the person who is supposed to demise; all these things taken together shew that there has been here no demise, but only a licence to sell goods of the specified kind. There is no occupation of any special place by Messrs. Smith within the rating Acts, and the only way in which this property can be rated is, when the rate is made in respect of the station, to levy a rate on the value of the station as increased by the licence given to Messrs. Smith & Son. As to the cases which have been cited we need not give any opinion as to any of them; but if it were necessary I should desire to say that I reserve my opinion on the case of The Electric Telegraph Company v. The Overseers of Salford (4).

LINDLEY, L.J.-I think that it is impossible to hold that this indenture creates a demise. It is a grant of a certain right or privilege. There is no reddendum, which is always a material part, and although the word "tenant "is used, still the agreement carefully avoids the creation of a tenancy at will, as distinguished from the granting of an easement. There may well be a right to enter and occupy, in a certain sense, a portion of the station. The analogy of a seatholder at a theatre may illustrate this, for in that case, omitting those

Smith & Son v. Assessment Committee for Lambeth, App. questions which were discussed in Wood v. Leadbitter (7), the ticket gives a right to enter the theatre and to occupy for a certain time a seat therein; but no one would suggest that there was, in such a case, a rateable occupation of the seat so occupied.

In this case the company are careful to make the managers of these bookstalls subject to the orders of the representatives of the company, and the company does not grant to Messrs. Smith & Son any exclusive right in any particular portion of any particular station. There is then a grant of an easement, and of nothing else. argument on behalf of the rating authority therefore fails. The cases referred to are distinguishable, as in every case in which it was held there was liability the Courts held also that there was some kind of tenancy. I agree that the appeal must be dismissed.


Appeal dismissed.

Solicitors-Harvey, Oliver & Capron, for appellants; G. W. Barnard, for respondents.

THE QUEEN (on the prosecu-
tion of the Penarth Local
Board) v. THE LOCAL

1882. Nov. 3, 4, 6.


Public Health Act, 1875 (38 & 39 Vict. c. 55), 88. 150, 257 and 268-Paving Streets-Apportionment of Expenses Notice of Demand of Payment-Decision of Local Authority-Appeal by Party Aggrieved-Time for Appeal-Memorial to Local Government Board-Grounds of Appeal-Prohibition.

Under section 150 of the Public Health Act, 1875, the Local Board of Penarth, on the 4th of May, 1881, gave notice to T. to pave certain streets fronting premises of which he was the owner. T. failed to comply with the notice, and thereupon the

(7) 13 Mee. & W. 838; 14 Law J. Rep. Exch. 161.

* Coram Baggallay. L.J., and Brett, L.J.

board executed the work. On the 21st of September notice of apportionment of the expenses payable by T. was served upon him by the surveyor to the board, and on the 20th of December, 1881, a demand of payment of the amount apportioned was made upon T. by the collector of the board. T. did not dispute the apportionment within the period of three months allowed by section 257, but within twenty-one days from the service of the demand of payment he addressed a memorial by way of appeal to the Local Government Board, in which the grounds of his complaint were stated :— Held, that the demand of payment was the only decision of the local board, within the meaning of section 268, in respect of which T. was aggrieved, and from which a memorial by way of appeal could be addressed to the Local Government Board.

Semble (per BRETT, L.J.), that prohibition will lie against the Local Government Board where they exceed the powers given to them by statute.

Appeal by the prosecutors from a decision of the Queen's Bench Division (reported 51 Law J. Rep. M.C. 121), discharging a rule, calling upon the Local Government Board and G. Taylor to shew cause why a writ of prohibition should not issue directed to them to prohibit them from proceeding in the matter of a certain appeal brought by G. Taylor against the demand made upon him by the Penarth Local Board for the payment of several sums, amounting in the aggregate to 2527. 10s. 9d., alleged to be due from him for private improvement works in respect of premises in Kymin Lane and certain other streets within the parish of Penarth, Glamorganshire.

The facts, which are stated at length in the report of the case in the Court below, are as follows:

On the 4th of May, 1881, the Penarth Local Board, being the urban sanitary authority for the district of Penarth, gave notice to Taylor and others to pave certain

streets fronting, adjoining or abutting on

premises of which they were the owners or occupiers within twenty-one days from the date of the notice. Taylor failed to comply with the notice; and thereupon the Penarth Local Board executed the works under the

The Queen v. The Local Government Board, App. powers given by section 150 of the Public Health Act, 1875 (1).

(1) 38 & 39 Vict. c. 55. s. 150: "Where any street within any urban district . . . . is not sewered, levelled, paved, metalled, flagged, channelled and made good. . . . to the satisfaction of the urban authority, such authority may by notice addressed to the respective owners or occupiers of the premises fronting, adjoining or abutting on such parts thereof as may require to be sewered, levelled, paved, metalled, flagged or channelled. . . . require them to sewer, level, pave, metal, flag, channel, or make good the same within a time to be specified in such notice. If such notice is not complied with the urban authority may, if they think fit, execute the works mentioned or referred to therein; and may recover in a summary manner the expenses incurred by them in so doing from the owners in default according to the frontage of their respective premises, and in such proportion as is settled by the surveyor of the urban authority, or (in case of dispute) by arbitration in manner provided by this Act; or the urban authority may by order declare the expenses so incurred to be private improvement expenses."

Section 257: "Where any local authority have incurred expenses, for the repayment whereof the owner of the premises for or in respect of which the same are incurred is made liable under this Act or by any agreement with the local authority, such expenses may be recovered, together with interest at a rate not exceeding five pounds per centum per annum, from the date of service of a demand for the same till payment thereof, from any person who is the owner of such premises when the works are completed for which such expenses have been incurred; and until recovery of such expenses and interest the same shall be a charge on the premises in respect of which they were incurred. In all summary proceedings by a local authority for the recovery of expenses incurred by them in works of private improvement, the time within which such proceedings may be taken shall be reckoned from the date of the service of notice of demand. Where such expenses have been settled and apportioned by the surveyor of the local authority as payable by such owner, such apportionment shall be binding and conclusive on such owner, unless within three months from service of notice on him by the local authority or their surveyor of the amount settled by the surveyor to be due from such owner, he shall by written notice dispute the same. The local authority may by order declare any such expenses to be payable by annual instalments within a period not exceeding thirty years, with interest at a rate not exceeding five pounds per centum per annum, until the whole amount is paid. . . . ."

Section 268: "Where any person deems himself aggrieved by the decision of the local authority in any case in which the local autho

On the 21st of September, 1881, a notice, dated the 19th of September, and signed by the surveyor of the local board, was served on Taylor, in which it was stated that the urban sanitary authority had executed the works in question, and that Taylor's apportionment amounted in the aggregate to 252l. 10s. 9d. The notice further stated that the apportionment would be binding upon Taylor, unless the same was disputed by written notice to the urban sanitary authority before the expiration of three months from the date of the notice.

On the 20th of December, 1881, a written notice was served upon Taylor by the collector to the Penarth Local Board, demanding payment of the total sum apportioned as payable by Taylor.

On the 10th of January, 1882, and within twenty-one days from the date of the notice demanding payment of the sums apportioned, Taylor addressed a memorial to the Local Government Board, under section 268 of the Public Health Act, 1875 (1). The memorial in effect appealed against the amount apportioned to Taylor, and complained that a considerable portion of the works in respect of which the demand was made was not required, and that the cost of executing the whole works was excessive.

The Queen's Bench Division (Grove, J., and North, J.) discharged the rule for a prohibition, and the Penarth Local Board now appealed.

A. Charles, Q.C., and A. T. Lawrence, for the appellants.-The Local Government Board had jurisdiction under section 268 (1) to entertain an appeal only as to the mode of payment-namely, whether the expenses incurred should be spread over a term of years or should be recovered in

rity are empowered to recover in a summary manner any expenses incurred by them, or to declare such expenses to be private improvement expenses, he may, within twenty-one days after notice of such decision, address a memorial to the Local Government Board stating the grounds of his complaint, and shall deliver a copy thereof to the local authority; the Local Government Board may make such order in the matter as to the said board may seem equitable, and the order so made shall be binding and conclusive on all parties."

ment Board, because there is a statutory condition precedent as to the time of appeal which has not been complied with; so that the board have no jurisdiction to entertain the appeal. The proceeding is a judicial one, and the orders of the Local Government Board can be brought up by certiorari and quashed, in the same way as orders of the Poor Law Board, who were the predecessors of the Local Government Board, could have been brought up and quashed.

The Queen v. The Local Government Board, App. a summary manner. The appeal to the Local Government Board was in fact an appeal with respect to the initial propriety of the work done. The last clause of section 268 does not shew that the "loss, damage or grievance" sustained by the appellant may be considered by the central authority, but refers only to acts by which the local authority may have affected the premises of the owner. The section, therefore, does not apply. But assuming that it does apply, then the appeal to the central authority is out of time. No appeal now lies on the question whether the works ought or ought not to have been executed; but even if there were an appeal on that question, it ought to have been brought within twenty-one days from the date of the notice to execute the work. Again, if the appellant desires to dispute the apportionment, he must do so within three months from service of notice on him by the local authority-section 257 (1); and if he desires to appeal against the cost of the works he must do so within twenty-one days.

[BRETT, L.J.-The contention is that there is no decision against which an appeal will lie until an order for the payment of money has been made.]

It is true that in Cook v. The Ipswich Local Board of Health (2) it was stated by Blackburn, J., and Lush, J., that, under section 120 of the Public Health Act, 1848 (11 & 12 Vict. c. 63), which is to the same effect as the section now under consideration, a person aggrieved could appeal by memorial to the Secretary of State; but these amount to mere dicta, incorrect in themselves and not binding on the Court of Appeal. Hesketh v. The Atherton Local Board (3), Dryden v. The Overseers of Putney (4), The Attorney-General v. The Wandsworth District Board of Works (5) and The Tunbridge Wells Local Board v. Akroyd (6) were also referred to.

Prohibition will lie to the Local Govern

(2) 40 Law J. Rep. M.C. 169; Law Rep. 6 Q.B. 451.

(3) 43 Law J. Rep. M.C. 37; Law Rep. 9 Q.B. 4.

(4) Law Rep. 1 Ex. D. 223.

(5) 46 Law J. Rep. Chanc. 771; Law Rep. 6 Ch. D. 539.

(6) 49 Law J. Rep. Exch. 403; Law Rep. 5 Ex. D. 199.

The Solicitor-General (Sir F. Herschell, Q.C.), (with him Channell), for the Local Government Board.-Prohibition will not lie to the central board, for it is not a body which acts judicially. The word "appeal" is not to be found in section. 268, whereas it does appear in section 269. The act of the local authority is purely administrative, and the central authority acts in an administrative capacity in controlling the local authority. In Comyn's Digest, tit. "Prohibition," the general proposition is laid down that prohibition is the remedy where Courts exceed their jurisdiction. But that remedy is only applicable where the Court in question has been exercising judicial functions as an appeal Court. The nearest authority in point is Breedon v. Gill (7); but the commissioners there were unquestionably exercising judicial functions. This is not an appeal from a judicial decision, but from an administrative act. The power given to the central board is to review the acts of an administrative body; the question before them is not, therefore, whether the lower body has rightly decided the rights of an individual.

[BRETT, L.J., referred to The Hammersmith Railway Company v. Brand (8)].

Even if a right of appeal is given to the controlling body against an administrative act of the lower body, that of itself would not make the lower body a Court. Where

a body acts ultra vires, a remedy is given; but the present case is one of the improper exercise of discretion; and, assuming that the body acted within its powers, there is no remedy.

(7) 5 Mod. 271.

(8) 38 Law J. Rep. Q.B. 265; Law Rep. 4 H.L. Cas. 171.

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