CT. OF APP.]

required for sewage purposes. It is not necessary to go through the formalities of the steps that were taken which led up to an order which was made by the Local Government Board. It recited the application to them under sect. 175, on the ground that the land which formed part of the land required by the Hanwell Urban District Council for the purpose of sewage disposal, but which was not required for such purposes, should be retained by them as a site for the erection of a hospital for infectious diseases. The Local Government Board then directed that that land should be retained by the council as a site for the erection of a hospital for infectious diseases other than small-pox. I ought to say that in my opinion no special weight and no special authority can be given to the words that are added there-namely, the words directing the land to be retained by the council as a site for the erection of a hospital for infectious diseases other than small-pox. It could not be, nor is it suggested that, by virtue of any implied or expressed authority by the Local Government Board, they had any powers to enforce against an unwilling person or persons who could otherwise have objected to it the establishment of a hospital for infectious diseases. But what is said, and it is a point that gave me considerable difficulty, is that the order is an order that must be taken to be made under sect. 175, and on its face it purports to be so; that that being so, it is a direction that the Hanwell Urban District Council-the defendants -may retain the land as their own; and that, retaining the land, they are entitled to use the land for any purposes for which they can lawfully use the land which belongs to them. If one was able to see that that was the intention of the Act of Parliament to be gathered from the sections which prescribe the way in which the land shall be compulsorily acquired and subsequently used, there would appear to be at first sight a good deal to be said for that argument. In my opinion, however, the language of sect. 175 is not sufficient to enable the urban district council to apply the land to a permanent purpose-for a purpose which is different from that for which the land was originally acquired. I think that the provisions of sect. 176 and the scheme of the Act referring to the acquisition of land are very important. The urban district council have a limited authority. They possess powers which are given them by Act of Parliament, or it may be by orders that the Local Government Board have made pursuant to the provisions of the Act of Parliament. Their power to acquire land compulsorily is to acquire it for specific purposes; and I think so long as they hold it without fresh statutory authority they can only hold it for those purposes. I think that the doctrine and principle in the Southampton case (1 Giff. 363) would apply, and I do not know that this was seriously disputed by the appellants. I think that with regard to the land as to which statutory power has been given to the urban sanitary authority, to apply it for sewage or other purposes-I will take sewage purposes in this instance the whole of the negotiation and contract for compensation proceeding upon that basis, they hold the land subject to that restriction. I do not in any way base my judgment upon anything in the conveyance, because it has not been seriously pressed upon us, nor do I

understand that it was pressed in the court below. I think that the real rights depend upon and are governed by the statute. That being so, we must consider what is the meaning of the words and what is the position when, setting aside all the special directions about a hospital, the Local Government Board have directed that the land shall not be sold. As I ventured to point out in the course of the argument, I can imagine many reasons why it is desirable that the land should be in the hands of the local authority, even though they can only use it permanently for purposes consistent with the purposes for which they originally acquired the land. It might be very undesirable to have a third owner coming in or an adverse owner coming in and building houses and getting control of or acquiring rights against some particular mode of user of the land. And I can well conceive, quite apart from the night to use it for any purposes for which the local authority are entitled to use the land, that there might be many cases in which it would be right-and when the Local Government Board might in their discretion think it would be right -that the land should not be sold. But at any rate it seems to me that it is too strong to suggest that under a provision which is merely intended to control the question of whether the land shall or shall not be sold you can import into that the power of the local authority-the purchasing body-to use it for a purpose wholly inconsistent with the purpose for which it was originally acquired. I think that there still remains, affecting the rights of both parties, the restriction which was put upon a body with limited authority to buy under the provisions of sect. 176 for certain special purposes. I think that we cannot say when there has once been given a direction that they need not sell the land, that they hold it absolutely unfettered and free, so that they can use it as though it were any other piece of land that they had acquired not under compulsory powers or that they had acquired by agreement with some person who was willing to sell them land. I am not of course to be supposed to be dealing at all with a case of some temporary user of the land-beneficial user of the land-either by letting or otherwise, or temporary user in the hands of the defendants. I am dealing with the case before us, which is the intention properly explained of the defendants to permanently turn two acres of this land to a purpose to which it was not intended to be turned, and to which they had no power to turn it apart from this direction of the Local Government Board. I think that it would be giving powers to the Local Government Board to affect and control the rights of parties who have never been heard, and have had no statutory opportunity of being heard on the matter, and to a greater extent than ought to be given. In any event I think that it would require much stronger words than that simple direction that the land shall not be sold to enable the defendants to exercise a power over this plot of land for the purpose which they desire. For these reasons I think that the appeal should be dismissed, and dismissed with

costs.

RIGBY, L.J.-I am of the same opinion. What is weighing with me-not that I suppose that there is anything other than bona fides in the conduct of the defendants-is that the course

CT. OF APP.]

66

which they wish to pursue would, if permitted, give such an opening for manipulating these sections of the Act for unjustifiable purposes. People might say, We will obtain land for a sewage farm; we had better take more than we want or something that we do not want, in order that we may erect a hospital." I do not for a moment suggest that that was in the minds of this local authority. But if it is lawful, why should not it be carried out? They say: "Some objection might be taken to the hospital, but we should be free to do that when we have the land and get liberty to retain it, and then we can apply it to any purpose for which we are authorised by Act of Parliament to apply land." I think, for the reasons that have been given by the Master of the Rolls, and having regard to those considerations, that the appeal ought to be dismissed.

COLLINS, L.J.-I am also of the same opinion. I think that any other decision would defeat the scheme of the Public Health Act 1875. Now, it is clear that this land was acquired in the first instance for the particular purpose of usernamely, for the purpose of a sewage farm. It is also clear law that, having been acquired for those purposes, the land could not have been diverted to any other purposes. It seems to me that the scheme of the Public Health Act 1875, in sects. 175 and 176, is that when land has to be purchased under compulsory powers it can only be so purchased after full notice has been given by advertisement apprising the persons interested about what is intended to be done, and in particular apprising the person from whom the land is to be taken as it does in sub-sect. 3-of the purposes for which the local authority are acquiring the land. It seems to me that the scheme involves that there can be no compulsory purchase of land unless the person from whom the land is to be taken has full information as to the purposes for which it is required. Obviously that becomes one of the most important, if not the most important, factor in the question as to what compensation is to be paid to him on such a purchase. Now, those are the conditions which the Legislature has imposed for the acquisition of land compulsorily. It would be an extraordinary thing if they permitted, in the same code, land to be acquired with all those formalities and with distinct information as to the purposes for which it is required to be used for another purpose on a sudden change arising, of which I could easily give an instance, which renders it no longer required for that purpose. It would be an extraordinary thing to say that, notwithstanding these formalities which the Legislature has interposed to protect the vendor, the purpose may be wholly changed, and that one may be substituted which is much more injurious to the vendor and which would have led possibly to his getting double the compensation he did receive. It would be an extraordinary thing to say that it is competent for the local authority without any further evidence and without any further notice and without any further inquiry to do that. Take this instance, which is not at

all an uncommon one. Supposing that they acquired land compulsorily with all the proper formalities under the 175th section for the purpose of a public recreation ground; supposing that within a year afterwards some neighbouring MAG. CAS.-VOL. XIX.

owner made them a free gift of land in some other place equally or more convenient for the purposes of a recreation ground, and they . accepted it, with the result that the land originally purchased for the recreation ground is no longer required for the purpose, so that the provisions of the 175th section obliged them to sell it, subject to the clause which Mr. Warrington so much relied on-" unless otherwise directed by the Local Government Board." Is it to be suggested that the Local Government Board, by intervening and relieving them from the obligation of selling, shall enable them to turn that land into a sewage farm which was bought for the purpose of a recreation ground? To hold that would be to hold that the subsidiary clause in the parenthesis in sect. 175 defeats the whole of the scheme of the code contained in the 176th section. It seems to me that due effect can be given to the words in that paragraph, consistent with the main scheme; and that it is not necessary to say that by a parenthesis the Legislature has enabled the local authority itself to defeat the purpose of the Act. It seems to me, as the Master of the Rolls has pointed out, that these words, "unless otherwise directed by the Local Government Board," are simply words introduced to qualify the exigency of the section compelling a sale there and then. There may be instances where the local authority, for instance, may be absolutely assured that they do not require the land in question for the purpose for which it was acquired. Nevertheless, the Local Government Board may not be absolutely of the same opinion and, without formulating an opinion that it is not so required they may think it necessary to interpose some delay before a sale takes place. That is a perfectly conceivable instance in which they might fairly and properly exercise that power, and a case for which it would be quite reasonable for the Legislature to provide something to mitigate the absolute exigency of the obligation to sell. Now, in the case before us it seems to me that the local authority have, by introducing the condition upon which these lands are to be held, attempted to do something that is entirely outside their powers under this Act, and that there is no provision in this Act for their not merely suspending the right to sell, but of their designating the purpose for which that right to sell should be suspended. If that order were tried by the condition appended to it-namely, the condition that it should be applied for a hospital-it seems, in my judgment, speaking for myself, that that order would be ultra vires. Mr Warrington does not contend that it takes, at all events, any further right by the added condition as to the purpose to which it was to be applied. He divests the order of that condition appended to it, and says that he stands simply upon their general rights as a local authority in possession of land unfettered. But it seems to me that they cannot possess themselves of land through this machinery without going through the process indicated by the 176th section of the Act. To hold otherwise would, I think, be to defeat the object of the Act. I therefore agree that this appeal must be dismissed.

Appeal dismissed. Solicitor for the appellants, P. J. Dennis. Solicitors for the respondents, Freshfields and Williams.

4 I

HIGH COURT OF JUSTICE.

QUEEN'S BENCH DIVISION.

Monday, May 14, 1900.

(Before RIDLEY and BIGHAM, JJ.)

CRAIG (app.) v. NICHOLAS (resp.). (a) Toll-Private carriage of officer on duty-Exemp tion-Army Act 1881 (44 & 45 Vict. c. 58), s. 143. A private carriage used by an officer on duty, in respect of which he is in receipt of no allowance, is not a carriage employed in Her Majesty's military service so as to be exempt from tolls within sect. 143 of the Army Act 1881. CASE STATED.

The respondent was charged on an information for unlawfully demanding and receiving from the appellant, he then being an officer of Her Majesty's forces on duty, a certain toll of 4d. for passing along a turnpike road.

The appellant was a major in the Royal Artillery stationed at Fort Bovisand, about six miles from Plymouth. He resided in Plymouth, and his duties frequently necessitated his attendance at the headquarters office at Devonport.

On the 10th July 1899 he proceeded in his own private carriage from his residence, in uniform, to the headquarters at Devonport, where he transacted official business. He left the headquarters office in the same carriage, accompanied by his soldier servant. The servant was not in uniform. He drove through the Modbury-road toll-gate to Fort Bovisand, a distance of nine miles, in order to discharge official duty. The toll collector demanded and received the toll of 4d. authorised by a local Act of Parliament in respect of the carriage, notwithstanding that the appellant informed him that he was on duty.

The carriage was the private property of the appellant, for which he took out an excise licence, and was used by him partly for his own private purposes and partly for carrying out his military duties.

The appellant was in receipt of allowances from the Government for a horse in connection with his duties as a major in Her Majesty's army, but he was not in receipt of nor entitled to any allowance in respect of a private carriage, nor would he have been at liberty to hire a private carriage at the cost of the Government to convey him from Plymouth to Fort Bovisand for the purpose of discharging his duty at the fort.

It was contended on the part of the appellant that he was on duty while driving in the carriage from Devonport along the turnpike road and through the toll-gate to Fort Bovisand, and that for the time being the carriage was a carriage employed in Her Majesty's military service conveying an officer of Her Majesty's regular forces on duty, and as such was exempt from payment of the toll by virtue of sect. 143 of the Army Act 1881 (44 & 45 Vict. c. 58).

It was contended on the part of the respondent that, inasmuch as the carriage was the private carriage of the appellant, for which he personally paid the excise licence and received no allowance from the Government, it could not be said to be employed in Her Majesty's military service within the meaning of sect. 143 of the Army Act 1881.

(a) Reported by W. DE B. HERBERT. Esq., Barrister-at-Law.

[Q.B. DIV.

After hearing each of the parties, and having referred to the General Turnpike Act 1823 (3 Geo. 4, c. 123, s. 33), the Volunteer Act 1863 (26 & 27 Vict. c. 65, s. 45), the Mutiny Act 1876 (39 Vict. c. 8, s. 86), the Army Act 1881 (44 & 45 Vict. c. 58, s. 143), and the cases of Humphrey v. Bethell (30 J. P. 231) and Hinds v. Thring (41 J. P. 265), the justices came to the conclusion that the private carriage of the appellant while carrying him from Mount Wise to Fort Bovisand was not exempt from payment of toll at the toll-gate, and could not be regarded as being then employed on Her Majesty's military service within the meaning of the Army Act, 1881, the carriage not having been requisitioned for mili tary service under the Mutiny Act or otherwise so appropriated for Her Majesty's military service as to come within the exemption, and therefore they dismissed the information.

By the Army Act 1881 (44 & 45 Vict. c. 58), s. 143:

All officers and soldiers of Her Majesty's regular forces on duty or on the march, and their horses and baggage and all carriages and horses belonging to Her Majesty or employed in her military service, when conveying any such persons as above in this section mentioned, or baggage, or stores, or returning from conveying the same shall be exempt from the payment of any duties or tolls in passing along or over any turnpike, or other road or bridge, otherwise demandable by virtue of any Act of Parliament.

mean

Yarborough Anderson for the appellant.-The words "employed in Her Majesty's service" must "used in Her Majesty's service." This carriage was being so "used," and therefore is exempt from tolls under the Army Act 1881. Humphrey v. Bethell (13 L. T. Rep. 797; L. Rep. 1 C. P. 215), it is true, decided that a yeomanry officer was not exempt when driving, but that was because he was not a volunteer within the Volunteer Act 1863 (26 & 27 Vict. c. 65). Again, in Hinds v. Thring (36 L. T. Rep. 216; 41 J. P. 265), the exemption under sect. 86 of the Mutiny Act 1876 (39 & 40 Vict. c. 8) was held only to exempt carriages employed by virtue of sect. 68 of the same statute, which only extended to carriages provided by justices, and not to a carriage hired by the officer himself. Here the words of the Act exempt a carriage acquired by the officer for his duties.

Duke, Q.C. (Bodilly with him) for the respondent. The justices were right in dismissing the information, as the statute cannot apply to a vehicle hired by the officer when no allowance is made by the Crown. It is the same as if the officer had used his own bicycle. "Use" by the officer cannot amount to "employment" in Her Majesty's service.

RIDLEY, J.-I think that the matter has been made quite clear. There might have been some doubts in the minds of people who had not fully considered the matter, but it seems to me certain that the words" employed in her military service" in this section cannot be read in the wide sensewhich is contended for by Mr. Yarborough Anderson, and which would include a carriage like the present, merely because it was used in the military service of Her Majesty. It seems to me evident upon considering the other words of the section, and the fact that allowances are made by the army authorities to officers in respect of

horses or carriages or what not, in respect of their services, that the words "employed in her military service" means employed by authority of those who are in command. They are used and put in in that way because there are carriages and horses belonging to Her Majesty as a part of the army equipment, and there are others which are requisitioned either under sect. 112 or cognate sections of this Act, but which do not belong to Her Majesty. Those are intended also to be exempt as being employed in her military service when they are on duty or on the march. There is yet a third class of carriages and horses which are employed in her military service, in respect of which no requisition has been made, but in respect of which allowances are made, and which are employed by the officer on duty or upon the march by the consent and authority of those in command. That, I think, is the meaning of the words, and it does not seem to me to include carriages used merely because it is the pleasure of the officer on duty so to use them. If that was the proper meaning it would lead to considerable difficulty which I do not think was contemplated by the Act of Parliament. I therefore think the toll was rightly demanded.

BIGHAM, J.-I am clearly of the same opinion. I do not think this carriage was within the meaning of the word "employed" at all.

Appeal dismissed.

Solicitor for the appellant, The Solicitor to the Treasury, for Watts, Ward, and Anthony, Plymouth.

Solicitors for the respondent, Sharpe, Parker, and Co., for J. H. Ellis, Plymouth.

Monday, May 14, 1900.

(Before RIDLEY and BIGHAM, JJ.) RAYNER (app.) v. DREWITT (resp.) (a) Rating-Drill hall-Not used exclusively as such -Validity of objection to assessment on summons to enforce rate-Volunteer Act 1863 (26 & 27 Vict. c. 65), s. 26.

A volunteer drill hall, besides being used for the purposes of the battalion, was let for concerts and other entertainments. It was assessed in the valuation list, and district rates were levied in respect of it. There had been no appeal against such assessment.

·On a complaint to recover the amount of the district rates:

Held, that the justices were bound to issue process for the recovery of such rates, as the premises were not exempt as being solely used by the Crown for the purposes of the Crown, nor were they exempt under sect. 26 of the Volunteer Act 1863, for they were not solely used as a storehouse.

Held, further, that the justices could not go into the question of the amount of the assessment. CASE stated by justices of the peace for the borough of Reigate on a complaint under sect. 256 of the Public Health Act 1875 charging the respondent with the nonpayment of rates, being a person duly rated and assessed, within the (a) Reported by W. DE B. HERBERT, Esq.. Barrister-at-Law.

[Q.B. DIV.

space of fourteen days after the same were law. fuly demanded in writing.

Upon the hearing of the complaint the following facts were admitted or proved :

The respondent is the commanding officer of the 2nd Battalion Royal West Surrey Regiment of Volunteers, and as such is the owner and occupier of certain premises situate in the borough of Reigate, the same having been conveyed to him in Feb. 1896.

These premises consist of two separate buildings-viz., a drill hall and an armoury. The armoury was not assessed to the district rates.

During the whole of the period for which the rates were made-viz., from the 1st Nov. 1896 to the 1st May 1899-the drill hall was used as a storehouse by and for other purposes of the battalion. During such portion of that period as was prior to the 13th Nov. 1897 it was used solely for such purposes, but during the remainder of the period, besides being used for such purposes, it was also let on various occasions to different persons or bodies of persons for concerts or other entertainments. The receipts for such lettings amounted to 131. 11s. 2d, averaging about 91. per

annum.

Both prior to the year 1896 and since (including the period for which the rates were made) the drill hall was assessed at the sum of 451. rateable value.

On the 25th Jan. 1897 the corporation, purporting to act under the power conferred upon them by the Public Health Act 1875, levied a general district rate upon the drill hall.

The corporation levied upon the drill hall similar rates (except that the amount thereof in the pound varied) on other dates.

Payment of each of the rates was lawfully demanded in writing, but the respondent failed to pay the same for the space of fourteen days after such respective demands. The respondent had not appealed against any of the rates.

On the part of the respondent it was contended that the assessment of the drill hall was incorrect; that it should have been assessed only in respect of its occupation for other than volunteer purposes-that is to say, in respect of the lettings before mentioned; and that it was not assessable in respect of its occupation for volunteer

purposes.

This contention was based on the grounds that the premises were a storehouse within sect. 26 of 26 & 27 Vict. c. 65, or that they were in the occupation of the Crown for the purposes of the Crown.

It was further contended that it was competent for the justices to hear objections to the mode of assessment.

On the part of the appellant it was contended that it was not competent for the justices to hear any such objections, and that on the facts proved or admitted they were bound to make an order for payment of the rates.

The justices were of opinion that under the circumstances of the case it was competent for them to hear objections to the mode of assessment. In support of this opinion they relied on what was said by Cave, J. in his judgment in the case of Reg. v. Barclay (46 L. T. Rep. 102; 8 Q. B. Div. 306), and also on the suggestion made by Bowen, L.J. in his judgment in Reg. v. Hannam

Q.B. Div.]

(34 W. R. 355) that, where the exemption from rating is enacted by a public Act of Parliament, the justices may refuse to enforce the rate; also on the case of Williams v. London and NorthWestern Railway Company (80 L. T. Rep. 803; (1899) 2 Q. B. 197).

They were further of opinion that the premises were exempt from assessment on their full annual value, on the ground either that they were a storehouse within sect. 26 of 26 & 27 Vict. c. 65, or that they were in the occupation of the Crown for the purposes of the Crown, and that at the most they were liable to be assessed in respect of the lettings aforesaid, and that therefore the mode of assessment was wrong. They were of opinion that sufficient cause for nonpayment of the rates had been shown by the respondent, and they therefore dismissed the summons.

Alex. Glen for the appellant.-The justices should not have entertained any of the objections. The district rate is to be made on the poor law valuation list, and there has been no appeal against the valuation on that list. The case of Reg. v. Barclay (46 L. T. Rep. 355; 8 Q. B. Div. 306, 486) was an instance of an objection where the rate was bad on its face. He also referred to Reg. v. Hannam, 34 W. R. 355;

Lambeth Overseers v. London County Council, 76
L. T. Rep. 795; (1897) A. C. 625.

The section of the Volunteer Act 1863 (26 & 27 Vict. c. 65) which is referred to in the case is sect. 26, but that does not apply here. He referred to

Rex v. Terrott, 3 East, 506;

Worcestershire County Council v. Worcester Union, 76 L. T. Rep. 138; (1897) 1 Q. B. 480. The premises, in order to be exempt, must be exclusively used for Crown purposes.

St. Gerrans for the respondent. The justices were quite right. There is a difference between recovering district rates and poor rates. He referred to

Public Health Act 1875, 38 & 39 Vict. c. 55, s. 211;

Sheffield Waterworks Company v. Mayor of Sheffield, 54 L. T. Rep. 179.

The exemption we claim is under a public Actviz., the Volunteer Act 1863-and therefore the words of Bowen, L.J. in Reg. v. Hannam (ubi sup.) support my contention.

RIDLEY, J.-The question here seems to us clear. This is not a case which comes within the class of cases where the justices are entitled to hold their hands and refrain from making an order for the payment of the rates. If the rate had been shown to be bad on its face, or a clear case of general exemption had been established, the justices might have said that they would not enforce it, and that the appellant was not entitled to the payment of the rates, for the words of sect. 256 of the Public Health Act 1875 had received that interpretation in the case of Reg. v. Hannam. But this has not been shown in the present case. Here the exemption is claimed by virtue of either the statute or the common law. If under the common law, it is clear from the facts as stated that the drill hall was not solely used by the Crown for the purposes of the Crown. But if the exemption is claimed under the statute, it is clear it was not used solely as a

[Q.B. DIV. storehouse. That is sufficient to disestablish the claim to exemption. That being so, the appellant has adopted the wrong course. No doubt there may be something questionable about the rate. If the appellant is aggrieved by it, his proper course is to appeal from the assessment to the assessment committee, and, if he is dissatisfied with the decision of the assessment committee, to the quarter sessions. It is probable that so far as the building was used as a storehouse it was not rateable, but so far as it was used for other

purposes it was rateable. That is a question which can only be dealt with under an appeal to the assessment committee, and afterwards to the quarter sessions. The justices ought to have made an order for the payment of the rates.

BIGHAM, J.-I agree. It may be that the appellant probably has a real grievance, which is the entry in the valuation list of the rateable value of the building at too high a figure. The appellant could have appealed from that entry to the assessment committee and from them to the quarter sessions. That was his only way to appeal in regard to the amount of the valuation. If he could have shown that the building was wholly exempt from rates either by common law or by statute the justices would have been bound to refuse to issue their warrant for the payment of the rates. But it does not appear that the building was wholly exempt from the rates, and, it not being for the justices to inquire into the amount, it became their duty to issue the process for the recovery of the rates. Their duty was only ministerial. Appeal allowed.

Solicitors for the appellant, Nicol, Son, and Jones, for C. J. Grece, Redhill.

Solicitor for the respondent, C. Attersoll Smith, Reigate.

Saturday, May 19, 1900.

(Before RIDLEY and PHILLIMORE, JJ.) BATT (app.) v. MATTINSON (resp.). (a) Food and Drugs-Procedure-Offence under Sale of Food and Drugs Act 1879-Repeal of procedure section-Power of amendment-Interpretation Act 1889 (52 & 53 Vict. c. 63), s. 38 (2) -Sale of Food and Drugs Act 1899 (62 & 63Vict. c. 51), s. 19.

Where an Act creating an offence is kept in force, and the section providing procedure is only repealed, and other procedure is provided by the repealing Act, although an offence is committed while the repealed section is in force, if proceedings are not taken until after the repeal takes effect, they are governed by the requirements of the repealing Act.

In such a case the old form of procedure is not kept alive by sect. 38 (2) of the Interpretation Act 1889 as to offences committed under the earlier Act.

The non-fulfilment of the requirements of sect. 19 of the Sale of Food and Drugs Act 1899 is not a matter capable of amendment under Jervis' Act.