MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION. by some tribunal the common superior of all, the Courts are certain to diverge in opinion, and there will be diversity of laws in every separate area of a Court of general sessions or of a County Court. The learned Judges below have no right, and this Board has no right, to set up practice or policy against clear enactments. But when the Legislature has spoken with two voices, it is very much to the purpose to shew which voice has in fact been listened to by suitors and by administrators of the law, and which must lead to confusion such as all statesmen desire to avoid. The most plausible argument in favour of the appellants is that which seeks to qualify section 139 of No. 1105 by saying that it does not apply to rating appeals at all; by which process one of the discordant voices is silenced, while the other speaks. It is urged that the obligation of stating a Case is laid upon the Court of general sessions in substitution for the writ of certiorari which is taken away. The section is mainly directed to criminal cases, and is at all events satisfied by confining it to matters within the ordinary jurisdiction of the Court of general sessions derived from common law. This reasoning, however, cuts down the generality of the words used not only in the latter part of the section, "any case of appeal," but in the former part, which includes "any other matter or thing done or transacted in or relative to the execution of any Act"; and its departure from the literal meaning of the words is hardly, if at all, less than that which is made by imposing a qualification on the provisions for finality. Then it is suggested that rate appeals are the creation of the Local Government Acts, which require finality; whereas the duty of stating Cases is found in the Justices Acts, which are mainly directed to other matters; and that in case of conflict the directions which relate to the more specific matter should prevail. But there is too much blending of rate appeals with other appeals for the successful use of this argument. It is not the case that a series of Local Government Acts lays down one set of rules for rate appeals, and a series of Justices Acts another set for other appeals. Rate appeals are dealt with expressly by the Justices Acts, sometimes being separately mentioned and sometimes included under the general term of "appeals." In the Justices Act of 1876 (No. 565) sections 23 to 33 lay down rules relating to appeals, which must include rate appeals, because here and there the latter are excepted and made subject to a separate provision. Then section 34 speaking of appeals generally gives to the parties, by mutual consent and by order of the Supreme Court, power to state a Case for the Supreme Court without requiring any decision by the Court of sessions. Section 36 is the same with section 139 of No. 1105 in all respects except that it confers a power, instead of laying a duty, on the Court of sessions to state a Case. It would be a very forced construction of No. 565 to hold that section 36 differs as to its subject-matter from the group of which it forms part, and when it speaks of "any case of appeal" does not include rate appeals. Why then should not the same words be held to include them when transferred to section 139 of No. 1105? Moreover, section 36 itself is taken from section 11 of the English Quarter Sessions Act, 1849 (12 & 13 Vict. c. 45), which provides for stating a Case on appeal against any "judgment order rate or other matter." The Victorian Legislature does not enumerate these particulars, but it uses general terms of a nature and in a context adapted to embrace them all. As for the other parts of section 139, the model of it is to be found in the English Highway Act of 1835. That Act gives an appeal in rate cases to quarter sessions, and makes the decision on appeal binding and conclusive on all parties to all intents and purposes whatsoever-section 105. Afterwards come sections 107 and 108, which take away the general right of certiorari, but give power to the quarter sessions to state a Case "in any case of appeal," and on that a writ of certiorari may issue. It is true that the subject-matter of the English statute puts it beyond doubt that rate appeals are included. Still the mode of drafting adopted is to provide in the most MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION. emphatic and unqualified terms for finality; and afterwards to introduce a provision the effect of which is to qualify the finality. And unless the Victorian Legislature intended to bring about the same result, it is strange that in these two simultaneous statutes they should have used forms of words corresponding with the English model. All these lines of enquiry lead up to the conclusion that in section 139" any cases of appeal" includes rating appeals; and so the appellants fail to shew that the statutes speak in their favour without contradiction. Their Lordships feel, as every Judge who has addressed himself to the subject has felt, the difficulty of the question. It is one of those difficulties in the face of which this Board would hesitate to disturb the decision of the Supreme Court on a point intimately connected with its own practice, even if their Lordships' minds had been more hardly pressed by the arguments for the appeal than they have been. On the best opinion they can form, the learned Judges below have reached the most reasonable conclusion of which these unskilfully drawn Acts admit-namely, that the expressions of finality in No. 1243 must be taken as limited and qualified by the provisions of No. 1105, and that the Supreme Court had jurisdiction to grant the mandamus of May, 1898. On the hearing of the special Case, the legal position of the parties appeared to be as follows: The appellant company was incorporated in 1864, and obtained. powers to construct tramways in various municipalities. In 1883 an Act was passed part of which is an instrument contained in its Fourth Schedule and called the scheduled agreement. By it the municipalities affected received power to establish a new corporation composed of members selected from themselves. This was called the Tramways Trust. It was vested with the powers of the company, and was placed under obligation to construct the contemplated tramways within five years, and to grant to the company a lease of them for thirty years from the time when interest should begin to run upon the loan which the trust was to raise. The 14th paragraph of the scheduled agreement lays down the principal provisions of the lease. The company is to pay to the Trust interest on the capital borrowed by the Trust (sub-section 1). It is also to pay to the Trust annual instalments to form a sinking fund in reduction of the loan-namely, during the first ten years of the lease 1 per cent. on the borrowed capital, during the next ten years 2 per cent., and during the last ten 3 per cent. (sub-section 2). cent. (sub-section 2). It is to maintain the roadway on which the rails are laid to the satisfaction of the Trust (subsection 3). Sub-sections 4 and 5 are as follows: "(4) In consideration of the payments aforesaid the Trust shall give to the company possession of the several tramway lines according as such shall be completed and shall be available for the running of carriages thereon and the Company shall during the currency of the lease have the sole right of use of the tramway with carriages having flange wheels, or other wheels suitable only to run on the rails of the tramway and also of demanding and taking the tolls and charges authorised by the Act. Provided always that the Company shall not be entitled to exact fares or tolls exceeding those specified in the Act. And the Company shall be liable to no other payment to the Trust or to the several corporations represented thereon for proportion of profits or otherwise howsoever except for municipal rates." "(5) Each corporation within the limits of whose municipality any portion of the tramway shall be, shall during the currency of the lease be entitled to rate the Company in respect of its use of the tramway and to receive and recover from the Company all rates due in respect thereof." Section 45 of the Act provides that— "Notwithstanding anything in this Act contained the Company shall not acquire or be deemed to acquire any right other than that of user of any road along or across which it shall lay any tramway." Some variations were afterwards made as to the number and duration of the leases, but they do not affect the question of rating. On June 30, 1888, before which time the tramways now in question were completed by the Trust, a consolidated MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION. lease was granted by the Trust to the company, running for thirty-two years from July 1, 1884. In it the company covenants to pay interest on the loans raised by the Trust, then amounting to 1,200,000l., and the statutory payments to the sinking fund. Those payments are to continue to July 1, 1916, unless that fund shall previously be sufficient to meet the whole debt and expenses of the Trust. If the payments are insufficient for that purpose the company is to make up the deficiency. All those annual payments are to be chargeable as rent, with the usual remedies for the recovery of rent. The company further covenants to pay salaries to the officers of the Trust to the extent of 1,000l. per annum, and to pay to the municipalities all such rates, taxes, and assessments as shall be lawfully levied or payable to them respectively, in respect of the tramways passing through their municipal districts. The statutes of Victoria have followed the English statutes in defining the principles on which property is to be rated. By Act No. 1112, s. 246, it is enacted: "All land shall be rateable property within the meaning of this Act and of the Acts relating to the incorporation of the City of Melbourne and Town of Geelong, save as is next hereinafter excepted (that is to say):-Land the property of Her Majesty which is unoccupied or used for public purposes. . . land vested in or in the occupation of or held in trust for the Municipality or the Council thereof." And by section 248 of the same Act, amended by section 55 of the Act No. 1243, the property rateable is to be computed "at its net annual value, that is to say, at the rent at which the same might reasonably be expected to let from year to year free of all usual tenants' rates and taxes and deducting therefrom the probable annual average cost of insurance and other expenses (if any) necessary to maintain such property in a state to command such rent." No mention is made of any deduction for interest or money borrowed for, or employed in the construction or creation of the property which is the subject of valuation. It is not necessary to state the figures which have been worked out by the The first two questions resolve themselves into the prior question whether the rate levied is the ordinary occupation rate or one of a peculiar kind. It is contended that ordinary rates do not fall on the company because it falls within the exceptions of section 246 of No. 1112. But though the ownership of land used for public roads is vested in the Crown, the land now in question is not unoccupied, nor used for public purposes except in the sense that the public may use it for payment. It is occupied by the company and used for the profit of its members. Nor is there any trust for the municipality. The object of the argument just dealt with is not to deny the liability to rates, which is affirmed by the express terms of the scheduled agreement and of the lease, but to help the further contention that the ordinary mode of finding the value of the property rated is not to be followed, but some other mode more favourable to the company. Accordingly arguments of some subtlety have been addressed to their Lordships on the wording of sub MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION. sections 4 and 5 of the scheduled agreement. The drift of these arguments is, that rating the company in respect of its use of the tramway is not the same thing as a simple occupation rate; that the use of the tramway must have regard to the profit derived from it; that profit cannot be made till expenses have been met; that payments required by the scheduled agreement and lease are the necessary conditions of making any profit at all; that even admitting that the rent obtainable from a hypothetical tenant is the true test of value, nobody would offer any rent until he had allowed for the payments in question. On careful consideration of these arguments their Lordships cannot admit their validity. Nothing is clearer than that the company is laid under the obligation of paying municipal rates. Nothing is more unlikely than that the Legislature should have intended to impose a new and peculiar kind of rate, without any indication of the principles to govern it, or of the methods to be followed in assessing it. It is true that the company has not acquired any right other than that of user of the roads on which it lays its tramway, and that the rate is leviable on nothing but the use of the tramway. But their Lordships do not find in these provisions any indication of a departure from the principles of municipal rating established alike in England and in Victoria. The use of the tramway is the occupation of the tramway. The position of the Pimlico &c. Tramway Co. v. Greenwich Union [1873] 2 resembles that of the present appellant. The enactments defining the position of the two companies are almost identical. The Pimlico Co. was held to be an occupier, rateable as such, and not the less so because its occupation was restricted to a particular purpose, nor because the public also had rights over the same ground. Their Lordships agree with the Supreme Court that this company is subject to ordinary municipal rates. It is quite true that there are difficulties in applying the test of the hypothetical tenant to property which is not subject to the competition of the market. (2) 43 L. J. M.C. 29; L. R. 9 Q.B. 9. But that is the test which the Acts of Parliament do apply; nor is it easy to see what better principle there is to apply, though in the case of unmarketable property a larger amount of conjecture is necessary than in ordinary cases. It is true also that in valuing a property of this kind, there comes in another element of uncertainty which does not usually exist in the case of houses and land-namely, that of profit. Nobody would take the occupation and use of a tramway except for the single purpose of making profit. This difficulty, however, has been met by the somewhat inexact and rough, but essentially just, method of making an allowance for the supposed profits of the supposed tenant. Both Courts have allowed the company on this account to deduct from their gross profits the amount of 10 per cent. on their capital outlay. But, whatever the difficulties may be, they hardly affect the present question. The city claims contribution to its expenses from every occupier of land within its area according to the value of his occupation. That value is what the thing is worth to use, whether it be ascertained by the hypothesis of a tenant's rent or otherwise. Its worth to use cannot be affected by the bargains which the actual occupant has made in order to acquire the occupation. They may be profitable to him or the reverse, but they do not enter into the question between him and the rating authority. In the ordinary case of houses the municipality does not, except as a possible help to get at the value, enquire what purchase money or rent the occupier has paid or is bound to pay; either of which may be much above or much below the actual value, which is the object of enquiry. In this case the company has in effect undertaken to make good to the Trust all its expenditure in constructing the tramways, receiving for that consideration the beneficial use of the tramways for thirtytwo years. If it had paid down the 1,200,000l. owing by the Trust at the date of the lease, it could not have claimed that sum or interest upon it as so much deduction from the value of the occupation. The mode of payment actually MELBOURNE TRAMWAY AND OMNIBUS Co. v. FITZROY CORPORATION. the rating value of the whole concern the Within the city of Fitzroy the company possesses three engine-houses, and a controversy has arisen how they should be rated. The company contend for what is called the mileage principle, which means that the houses shall be taken as one item in the whole concern, and that the aggregate rate shall be shared among the different municipalities according to the length of tramway in each. The city contend for what is called the parochial principle, by which separate buildings belonging to a single concern whose operations extend over a number of rating areas are rated separately to the area in which they stand. It is obvious that the mileage principle may work unfairly as between the several areas. In this case it works to the disadvantage of Fitzroy, because the mileage within that city is about one-twelfth of the whole, whereas the value of the engine-houses within it is more than onesixth of the value of all the engine-houses of the company. Chief Justice Madden lays it down that the parochial principle should be applied wherever reasonably practicable. Judge Casey applied the mileage principle, for reasons not stated in the special Case. The Supreme Court found in the Case materials for applying the parochial principle and saw practical difficulty in doing it. no What they have done is to deduct from There is yet another question which arises on the proceedings for obtaining leave to appeal. On October 4, 1899, the Supreme Court made an order which was corrected on December 21, 1899. It then took the form of a declaration that if within three months from October 4, security should be given by the company in a bond or mortgage or personal recognisance of the value of 400l. for the prosecution of an appeal and payment of all such costs as may be awarded to the respondents, the appeal shall be allowed. On January 4, 1900, the Court passed an order which, after referring to certain bonds of the company and others, allowed the appeal. On February 1, 1900, the Prothonotary certified the transcript, and further certified that the appellants had given security to the value of 4001. for the prosecution of the appeal and payment of costs. On February 9 the City of Fitzroy appealed from the order of January 4, and on the same day the Court passed an order by which, after declaring that the conditions prescribed by the Order in Council of June 9, 1860, had not been performed by the company, they discharged the order of January 4, 1900, and refused with costs the company's motion. on which that order was made. proceeding prevented the company from prosecuting their appeal except by special leave of the Queen in Council. That was obtained without difficulty, and at the same time the company asked and obtained leave to appeal from the order of February 9. This The conditions required by the Order in Council are as follows: "And in all cases security shall also be given by the party or parties Appellant in a bond or mortgage or personal |