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Smith f. Son v. Assessment Committee for Lambeth, App. the tenants were to obey all the reasonable was held that the fact that the

company orders of the station-master. The tenants could be compelled to move its posts covenanted to pay a certain “rent or sum made no difference in the liability to asby monthly payments, which were to be sessment; and so with regard to pipes “recoverable by the company, in addition to laid in the ground. A tramway comany other remedies, by distress, as in the pany, which has no other right than that case of rent in arrear.” Power was re- of a user of a road, is yet rateable—The served to the company to regulate the Pimlico Tramway Company v. The Greenplaces where the bookstalls should be fixed. wich Union (5); and in Cory v. Bristow

Messrs. Smith & Son accordingly erected (6), a derrick and hulk, which could be at Waterloo Station four bookstalls. removed at a week's notice, was held

The Queen's Bench Division gave judg- liable to assessment. Even if it should ment that Messrs. Smith were not liable be held that there is no rent issuing out to be rated in respect of the bookstalls. of the property demised, the liability to The assessment committee appealed. assessment is not affected, for in The

Electric Telegraph Company v. The OverClarke, Q.C., and Archibald, for the ap- seers of Salford (4) no rent at all was pellants.—The most satisfactory test to paid; and here, if the indenture be exaapply to these cases is to examine whether

mined, there will be found to be a demise there is or is not a permanent continuous such as gives the tenants an occupation occupation; and the contention is that which satisfies all the conditions required there is such an occupation here, so that to render the premises in question liable the occupiers of these stalls are liable to to assessment. be rated, for their occupation satisfies all M'Intyre, Q.C. (D. Kingsford with him), the conditions laid down by Lush, J., in for Messrs. Smith & Son, was not called on. The Queen v. The St. Pancras Assessment Committee (1).

BAGGALLAY, L.J.—This case comes before (BRETT, L.J. - The occupiers of the us on appeal from the judgment of the stalls cannot go to them at night.] Queen's Bench Division, by which it was That may well be; yet there may

decided that Messrs. Smith & Son are not demise of a space, with an agreement liable to be rated in respect of certain booklimiting the time for using it. The thing stalls at the Waterloo Station of the Lonoccupied is attached to the freehold, and don and South Western Railway. No questhere is permanent occupation, and that is tion arises whether the stalls so used by sufficient.

Messrs. Smith & Son are rateable in the Reliance is placed by the respondents sense that a rate levied on them must be on The London anl North Western Railway paid by some one. The question which Company v. Buckmaster (2), in which, the is raised is, whether the railway company Exchequer Chamber being equally die ought to be rated, or whether Messrs. vided, the judgment of the Queen's Bench

Smith & Son are liable. It is admitted remained unaffected; but there the cha- that the property on which the bookstalls racter of the occupation was different. So stand is rated, and that the rates are paid in The Queen v. Morrish (3) the pro- by the company. It is, however, urged perty remained in the commissioners, a that Messrs. Smith & Son are liable to space was let which the commissioners be rated. I think that Mr. Justice Field could enter at pleasure; whereas here stated the real question when he said, Messrs. Smith have the keys of these "The company have granted something. stalls. In The Electric Telegraph Com- What was it ? Was it exclusive occupation pany v. The Overseers of Salford (4) it or exclusive enjoyment ?" And the learned

(1) 46 Law J. Rep. M.C. 243; Law Rep. 2 Judge then adds, “From the beginning to Q.B. D. 581.

the end of this document the parties care(2) 44, Law J. Rep. M.C. 180; Law Rep. 10 Q.B. 441.

(5) 43 Law J. Rep. M.C. 29; Law Rep. 9 (3) 32 Law J. Rep. M.C. 215.

Q.B. 9. (+) 11 Exch. Rep. 181; 24 Law J. Rep. M.C. (6) 46 Law J. Rep. M.C. 273 ; Law Rep. 2 146,

App. Cas. 262.

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Smith $ Son v. Assessment Committee for Lambeth, App. fully avoid all expression of intention to which are wholly inconsistent with that create a tenancy." I am of the same opi- view. It is an ordinary fallacy to take nion, and concur in that view. This being so, each part of an agreement by itself alone, the learned Judge, following certain deci- and to argue that that part will tell in sions of Judges of great experience in rating favour of the contention of the person cases, held that Messrs. Smith were not arguing, supposing that all the other parts liable. It is true that in certain parts of the are also in favour of that argument; and indenture of agreement Messrs. Smith & Son so on with the remainder, each being taken are for convenience referred to as “tenants,” by itself, and the assumption being that but only in that way does the agreement there is in the rest of the agreement noin any way indicate a tenancy. I do not thing that tells against the argument. think it necessary to go through the in- Here a particular clause is taken, and it is denture, for I agree with the opinion of argued that that by itself points to a Mr. Justice Field, that “it is quite clear demise. But when it is found that the that the company in this did not part persons who are supposed to be tenants with the exclusive possession or occupa- can only go at particular times for limited tion of any portion of their railway pre- purposes; when it is found that there is mises to Messrs. Smith & Son, but merely undoubtedly a licence, and that the money gave them such an exclusive enjoyment payment which is charged is paid, not for of their bookstands, and liberty to use the the occupation of a particular place, but walls, &c., as was necessary to enable them to for what is entirely a licence; and when carry on their trade at the several stations;" it is found that that which is supposed to and I agree with the conclusion to which be demised is to be removed at the will of he came, that, as a consequence, Messrs. the person who is supposed to demise; all Smith & Son are not rateable in respect of these things taken together shew that these stalls. The railway company have there has been here no demise, but only a here granted an easement, or licence, or licence to sell goods of the specified kind. privilege, and nothing more. In the cases There is no occupation of any special to which reference has been made, but place by Messrs. Smith within the rating which I do not think it necessary to dis- Acts, and the only way in which this procuss in detail, the Judges held that where perty can be rated is, when the rate is there was exclusive occupation there was made in respect of the station, to levy a a liability to assessment; but that where rate on the value of the station as increased there was no exclusive occupation, but by the licence given to Messrs. Smith & only a licence for certain enjoyment, then Son. As to the cases which have been there was no liability to assessment. I cited we need not give any opinion as to am, therefore, of opinion that this appeal any of them;

but if it were necessary I must be dismissed.

should desire to say that I reserve my

opinion on the case of The Electric TeleBRETT, L.J.—The question in these graph Company v. The Overseers of Salcases is not always whether there has or ford (4). has not been a demise; but in this case the question is, whether the indenture LINDLEY, L.J.-I think that it is imdoes amount to a demise, or whether it is possible to hold that this indenture creates really merely a licence to sell books and a demise. It is a grant of a certain right or the other articles mentioned therein at privilege. There is no reddendum, which different positions in the stations of the is always a material part, and although company, with a subsidiary auxiliary ne- the word “ tenant " is used, still the agreecessary leave to keep and store books and ment carefully avoids the creation of a other articles at different parts of the tenancy at will, as distinguished from the stations. The question must be decided granting of an easement. There may well on the construction of the whole indenture. be a right to enter and occupy, in a certain Certain parts taken by themselves might sense, a portion of the station. The anagive the impression that there was a de- logy of a seatholder at a theatre may illusmise; but then there are other parts trate this, for in that case, omitting those


Smith & Son v. A 8888sment Committee for Lambeth, App. questions which were discussed in Wood v. board executed the work. On the 21st of Leadbitter (7), the ticket gives a right to September notice of apportionment of the enter the theatre and to occupy for a cer- expenses payable by T. vas served upon tain time a seat therein ; but no one would him by the surveyor to the board, and on suggest that there was, in such a case, a the 20th of December, 1881, a demand of rateable occupation of the seat so occupied. payment of the amount apportioned was

In this case the company are careful to made upon T. by the collector of the board. make the managers of these bookstalls T. did not dispute the apportionment subject to the orders of the representatives within the period of three months allowed of the company, and the company does not by section 257, but within twenty-one days grant to Messrs. Smith & Son any exclu- from the service of the demand of payment sive right in any particular portion of any he addressed a memorial by way of appeal to particular station. There is then a grant the Local Government Board, in which the of an easement, and of nothing else. The grounds of his complaint were stated :argument on behalf of the rating au- Held, that the demand of payment was the thority therefore fails. The cases referred only decision of the local board, within the to are distinguishable, as in every case in meaning of section 268, in respect of which which it was held there was liability the T. was aggrieved, and from which a meCourts held also that there was some kind morial by way of appeal could be addressed of tenancy. I agree that the appeal must to the Local Government Board. be dismissed.

Semble (per BRETT, L.J.), that prohiAppeal dismissed. bition will lie against the Local Government

Board where they exceed the powers given Solicitors-Harvey, Oliver & Capron, for ap- to them by statute. pellants; G. W. Barnard, for respondents.

Appeal by the prosecutors from a de. cision 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 [IN THE COURT OF APPEAL.]

cause why a writ of prohibition should

not issue directed to them to prohibit them THE QUEEN (on the prosecu

from proceeding in the matter of a certain 1882. tion of the Penarth Local

appeal brought by G. Taylor against the Board) Nov. 3,

demand made upon him by the Penarth GOVERNMENT

Local Board for the payment of several

sums, amounting in the aggregate to Public Health Act, 1875 (38 d: 39 Vict. 2521. 10s. 9d., alleged to be due from him c. 55), 88. 150, 257 and 268Paving for private improvement works in respect Streets- Apportionment of Expenses- of premises in Kymin Lane and certain Notice of Demand of PaymentDecision other streets within the parish of Penarth, of Local Authority-Appeal by Party Glamorganshire. AggrievedTime for Appeal-emorial The facts, which are stated at length in to Local Government BoardGrounds of the report of the case in the Court below, Appeal-Prohibition.

are as follows:Under section 150 of the Public Health

On the 4th of May, 1881, the Penarth Act, 1875, the Local Board of Penarth, on

Local Board, being the urban sanitary the 4th of May, 1881, gave notice to T. to

authority for the district of Penarth, gave pave certain streets fronting premises of streets fronting, adjoining or abutting on

notice to Taylor and others to pave certain which he was the owner. s'. failed to comply with the notice, and therćupon the

premises of which they were the owners or

occupiers within twenty-one days from the (7) 13 Mee. & W. 838; 14 Law J. Rep. Exch.

date of the notice. Taylor failed to comply 161.

with the notice; and thereupon the Penarth * Coram Baggallay, L.J., and Brett, L.J. Local Board executed the works under the




4, 6.






The Queen v. The Local Government Board, App. powers given by section 150 of the Public On the 21st of September, 1881, a noHealth Act, 1875 (1).

tice, dated the 19th of September, and

signed by the surveyor of the local board, (1) 38 & 39 Vict. c. 55. s. 150: “Where any street within any urban district

is not

was served on Taylor, in which it was sewered, levelled, paved, metalled, flagged,

stated that the urban sanitary authority channelled and made good . . ., to the satis. had executed the works in question, and faction of the urban authority, such authority that Taylor's apportionment amounted in may by notice addressed to the respective owners or occupiers of the premises fronting,

the aggregate to 2521. 10s. 9d. The notice adjoining or abutting on such parts thereof as

further stated that the apportionment may require to be sewered, levelled, paved,

would be binding upon Taylor, unless the metalled, flagged or channelled . . require same was disputed by written notice to them to sewer, level, pave, metal, flag, channel,

the urban sanitary authority before the or make good .... the same within a time to be specified in such notice. ... If such notice

expiration of three months from the date is not complied with the urban authority may,

of the notice. if they think fit, execute the works mentioned On the 20th of December, 1881, a or referred to therein; and may recover in a written uotice was served upon Taylor by summary manner the expenses incurred by them

the collector to the Penarth Local Board, in so doing from the owners in default accord

demanding payment of the total sum aping to the frontage of their respective premises, and in such proportion as is settled by the sur

portioned as payable by Taylor. veyor of the urban authority, or (in case of dis. On the 10th of January, 1882, and pute) by arbitration in manner provided by this within twenty-one days from the date of Act; or the urban authority may by order the notice demanding payment of the declare the expenses so incurred to be private improvement expenses."

sums apportioned, Taylor addressed a Section 257 : “Where any local authority have

memorial to the Local Government Board, incurred expenses, for the repayment whereof under section 268 of the Public Health the owner of the premises for or in respect of Act, 1875 (1). The memorial in effect apwhich the same are incurred is made liable under

pealed against the amount apportioned to this Act or by any agreement with the local authority, such expenses may be recovered, to

Taylor, and complained that a considerable gether with interest at a rate not exceeding portion of the works in respect of which five pounds per centum per annum, from the the demand was made was not required, date of service of a demand for the same till and that the cost of executing the whole payment thereof, from any person who is the

works was excessive. owner of such premises when the works are completed for which such expenses have been

The Queen's Bench Division (Grove, J., incurred; and until recovery of such expenses

and North, J.) discharged the rule for a and interest the same shall be a charge on the prohibition, and the Penarth Local Board premises in respect of which they were in.

now appealed. curred. In all summary proceedings by a local authority for the recovery of expenses incurred

A. Charles, Q.C., and A. T. Lawrence, by them in works of private improvement, the time within which such proceedings may be

for the appellants.—The Local Govern. taken shall be reckoned from the date of the ment Board had jurisdiction under section service of notice of demand. Where such

268 (1) to entertain an appeal only as to the expenses have been settled and apportioned by mode of payment-namely, whether the the surveyor of the local authority as payable by such owner, such apportionment shall be

expenses incurred should be spread over binding and conclusive on such owner, unless a term of years or should be recovered in within three months from service of notice on him by the local authority or their surveyor of rity are empowered to recover in a summary the amount settled by the surveyor to be due manner any expenses incurred by them, or to from such owner, he shall by written notice dis. declare such expenses to be private improvement pute the same. The local authority may by expenses, he may, within twenty-one days after order declare any such expenses to be payable notice of such decision, address a memorial to by annual instalments within a period not the Local Government Board stating the grounds exceeding thirty years, with interest at a rate of his complaint, and shall deliver a copy not exceeding five pounds per centum per an- thereof to the local authority; the Local num, until the whole amount is paid. . . . Government Board may make such order in the

Section 268: “Where any person deems him- matter as to the said board may seem equitable, self aggrieved by the decision of the local and the order sy made shall be binding and authority in any case in which the local autho- conclusive on all parties."


The Queen v. The Local Government Board, App. a summary manner. The appeal to the ment Board, because there is a statutory Local Government Board was in fact an condition precedent as to the time of apappeal with respect to the initial propriety peal which has not been complied with; of the work done. The last clause of so that the board have no jurisdiction to section 268 does not shew that the “ loss, entertain the appeal. The proceeding is a damage or grievance" sustained by the judicial one, and the orders of the Local appellant may be considered by the central Government Board can be brought up by authority, but refers only to acts by which certiorari and quashed, in the same way the local authority may have affected the as orders of the Poor Law Board, who premises of the owner. The section, there- were the predecessors of the Local Governfore, does not apply. But assuming that it ment Board, could have been brought up does apply, then the appeal to the central and quashed. authority is out of time. No appeal now The Solicitor-General (Sir F. Herschell, lies on the question whether the works Q.C.), (with him Channell), for the Local ought or ought not to have been executed ; Government Board.—Prohibition will not but even if there were an appeal on that lie to the central board, for it is not a question, it ought to have been brought body which acts judicially. The word within twenty-one days from the date of “appeal ” is not to be found in section the notice to execute the work. Again, if 268, whereas it does appear in section 269. the appellant desires to dispute the ap- The act of the local authority is purely portionment, he must do so within three administrative, and the central authority months from service of notice on him by acts in an administrative capacity in conthe local authority-section 257 (1); and if trolling the local authority. In Comyn's he desires to appeal against the cost of Digest, tit. “Prohibition,” the general the works he must do so within twenty-one proposition is laid down that prohibition days.

is the remedy where Courts exceed their (BRETT, L.J.— The contention is that jurisdiction. But that remedy is only there is no decision against which an ap- applicable where the Court in question peal will lie until an order for the pay- has been exercising judicial functions as ment money has been made.]

an appeal Court. The nearest authority It is true that in Cook v. The Ipswich in point is Breedon v. Gill (7); but the Local Board of Health (2) it was stated by commissioners there were unquestionably Blackburn, J., and Lush, J., that, under exercising judicial functions. This is not section 120 of the Public Health Act, an appeal from a judicial decision, but 1848 (11 & 12 Vict. c. 63), which is to the from an administrative act. The power same effect as the section now under con- given to the central Loard is to review the sideration, a person aggrieved could appeal acts of an administrative body; the quesby memorial to the Secretary of State ; tion before them is not, therefore, whether but these amount to mere dicta, incorrect

the lower body has rightly decided the in themselves and not binding on the rights of an individual. Court of Appeal. Hesketh v. The Atherton

[BRETT, L.J., referred to The HammerLocal Board (3), Dryden v. The Overseers smith Railway Company v. Brand (8)]. of Putney (4), The Attorney-General v. Even if a right of appeal is given to the The Wandsworth District Board of Works controlling body against an administrative (5) and The Tunbridge Wells Local Board act of the lower body, that of itself would v. Akroyd (6) were also referred to.

not make the lower body a Court. Where Prohibition will lie to the Local Govern- a body acts ultra vires, a remedy is given; (2) 40 Law J. Rep. M.C. 169; Law Rep. 6

but the present case is one of the improper Q.B. 451.

exercise of discretion; and, assuming that (3) 43 Law J. Rep. M.C. 37 ; Law Rep. 9 the body acted within its powers, there is Q.B. 4.

no remedy. (4) Law Rep. 1 Ex. D. 223.

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

(7) 5 Mod. 271. (6) 49 Law J. Rep. Exch. 403; Law Rep. 5 (8) 38 Law J. Rep. Q.B. 265; Law Rep. 4 Ex. D. 199.

H.L. Cas. 171.


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