K.B. Div.] EAST POOL & Agar Lim. v. Redruth Assessment CommITTEE, &C. [K.B. Div. Friday, April 13. (Before Lord HEWART, C.J., AVORY and ROCHE, JJ.). 66 EAST POOL AND AGAR LIMITED v. REDRUTH ASSESSMENT COMMITTEE AND OTHERS. (a) Rating Tin mines-Assessment-Payment of dues Unremunerative conditions-Stoppage of working-Flooding Partial abandonment -Rating Act 1874 (37 & 38 Vict. c. 54), s. 7. The appellants, who were lessees of tin mines under leases providing that the appellants should pay dues based upon the output, with a minimum rent merging into dues, found early in 1921 that owing to trade conditions the working of the mines had become unremunerative and they discharged all their employees with the exception of some superior officials and of the men engaged in keeping the machinery in order and in working the pumping engine. As the result of an accident, pumping had afterwards to be stopped and consequent flooding caused the abandonment of one of the mines. The appellants were assesed to rates on the basis of the dues in pursuance of the Rating Act 1874, s. 7, which provides: Where a tin, lead or copper mine is occupied under a lease or leases granted without fine on a reservation wholly or partly of dues or rent, the gross value of the mine shall be taken to be the annual amount of the whole of the dues payable in respect thereof during the year ending on the 31st day of December preceding the date at which the valuation list is made, in addition to the annual amount of any fixed rent reserved for the same which may not be paid or satisfied by such dues. The rateable annual value of such mine shall be the same as the gross value thereof, except that where the person receiving the dues or rent is liable for repairs, insurance, or other expenses necessary to maintain the mine in a state to command the annual amount of dues or rent, the average annual cost of the repairs, insurance, and other expenses for which he is so liable shall be deducted from the gross value for the purpose of calculating the rateable value. The appellants contended that they were not liable to be assessed under the above section and that under the ordinary principles of rating they should be assessed only upon the value of the mines as a storehouse for the machinery and plant and that the gross and rateable values should be reduced by reason of the abandonment of one of the mines. Held, that the section applied, since, in order to take the case out of it the appellants would require to show that the mines either had ceased to exist as such or had become so exhausted that the subject of profit had entirely gone, and no reduction was to be made in respect of the partial abandonment. THIS was a case stated by agreement under sect. 11 of the Quarter Sessions Act 1849. (1) In a poor rate made by the overseers of the parish of Illogan on the 1st April 1921, the appellants were rated in one entry as occupiers (a) Reported by J. F. WALKER, Esq.. Barrister-at-Law. of certain hereditaments (consisting of the two tin mines hereinafter referred to) at a gross estimated rental of 5858l. 18s. 2d., and a rateable value of 58581. 15s. (2) The appellants duly made objection to the valuation list of the said parish before the respondents, but failed to obtain any relief and consequently gave notice, on the 19th Aug. 1921, of their intention to appeal against the said rate to the Court of Quarter Sessions for the county of Cornwall. The appellants and the respondents thereupon agreed to state this case for the opinion of the High Court. (3) The appellants were a limited company incorporated on the 11th Jan. 1913, for the purpose of working certain tin mines known as East Pool and the Agar Mines respectively, East Pool Mine being held under a lease from one A. F. Basset, and Agar Mine being held under a lease from Viscount Clifden. The leases in both cases provided for payment by the appellants of dues with a minimum rent merging into dues, such dues being calculated on a sliding scale in accordance with the output of ore. (4) In 1919 the appellants purchased from the said A. F. Basset the freehold of the said East Pool Mine, including the mineral rights therein, and the same were conveyed by a deed of the 7th July 1920. In such conveyance there was a declaration that the subsisting estate created by the lease was not to merge in the fee simple, but the appellants had not since the date of the said purchase paid any dues to the said A. F. Basset. (5) Notwithstanding the matters referred to in the preceding paragraph, the basis upon which the said East Pool Mine was assessed for rating was not changed, not did the appellants appeal against the assessment of their said mines until the year 1921, as set out in par. (2) hereof. The assessment of 58581. 18s. 2d. was made up of a sum of 4113l. 13s. 10d., being dues paid and payable by the appellants for the year 1920 in respect of their lease of the said Agar Mine, this portion of the said assessment having been made in pursuance of the Rating Act 1874, and a sum of 1745l. 4s. 4d., being dues which, but for the matters referred to in the preceding paragraph hereof, would have been payable in respect of the East Pool Mine. At the end of 1920 the appellants had, in accordance with their usual practice, made a return of these two sums to the respondents. (6) Early in the year 1921, by reason of general trade conditions and the rise in the price of materials and labour and the fall in the price of tin, it became unremunerative for the appellants to work the said mines or either of them, and on the 12th Feb. 1921 all underground working for the extraction of ore from the said mines had ceased. Upon the said date 580 persons were in the employment of the appellants, of whom 550 were discharged from the said employment before the end of February. During the currency of the rate appealed against the appellants had not worked the said mines or either of them for profit, and K.B. Div.] EAST POOL & AGAR LIM. v. REDRUTH ASSESSMENT COMMITTEE, &c. [K.B. Div. had not carried out any work in the said mines save and except as set out in the next succeeding paragraph hereof. (7) Between the 1st April and the 12th July 1921 thirty men were retained in employment, including the superintendent, the underground manager, the secretary, the watchmen on the different shifts, and men engaged in keeping the machinery and plant in good order and in working the pumping engine. During the said period the pumping engine was worked for the purpose of preventing the said mines from being flooded, but pumping was discontinued from the 12th July 1921 onwards, owing to an accident to the plant caused, on the 18th May 1921, by a fall of ground. The men engaged on pumping were then discharged, and since the said date some twenty men had been employed on part wages for the purposes set out above other than pumping. Since the aforesaid accident a portion of the East Pool mine had been entirely abandoned owing to the fact that it was flooded, although with regard to the remaining portions of the said mines the plant and machinery had been kept intact with a view to resuming mining operations as and when commercially remunerative, and arrangements were made, in or about the month of Jan. 1922, for sinking a new shaft. (8) The appellants contended : (a) That neither the said mines nor any part of them were in law subject to an assessment based on sect. 7 of the Rating Act 1874, but that the ordinary principles of rating applied thereto. (b) That, if the appellants were correct in their contention (a), the said mines should be assessed only at their value as a storehouse for the machinery and plant stored thereon. (c) That in any event the gross estimated rental and rateable value of the said mines should be reduced by reason of the abandonment of a part of the East Pool mine, as set out in par. (7) hereof. (9) The respondents contended : (a) That the whole of the said mines were in law subject to an assessment based on sect. 7 of the Rating Act 1874. (b) That, if the said mines were not in law subject to an assessment based on sect. 7 of the Rating Act 1874, the basis set forth in the appellants' contention contained in par. (8) (b) was not correct, but the said mines should be assessed as a hereditament fully equipped as mines and capable of being let as such to a tenant. (c) That the appellants were not entitled to any reduction in value as claimed in their contention set out in par. (8) (c). (d) That on the facts of the case and the law applicable thereto the assessments were correct. The Rating Act 1874, s. 7: Where a tin, lead or copper mine is occupied under a lease or leases granted without fine on a reservation wholly or partly of dues or rent, the gross value of the mine shall be taken to be the annual amount of the whole of the dues payable in respect thereof during the year ending on the 31st day of December preceding the date at which the valuation list is made, in addition to the annual amount of any fixed rent reserved for the same which may not be paid or satisfied by such dues. The rateable annual value of such mine shall be the same as the gross value thereof, except that where the person receiving the dues or rent is liable for repairs, insurance, or other expenses necessary to maintain the mine in a state to command the annual amount of dues or rent, the average annual cost of the repairs, insurance, and other expenses for which he is so liable shall be deducted from the gross value for the purpose of calculating the rateable value. Konstam, K.C. and E. H. Tindal Atkinson for the appellants. Hawke, K.C. and Wm. Allen for the respondents. Lord HEWART, C.J.-The question which has been argued, and the only question, is whether sect. 7 in these circumstances applied and governed the matter. Under the Poor Relief Act 1601, though coal mines were specifically mentioned, other mines were not, and they were consequently held to be excluded from rateability under that Act. The Rating Act 1874, which was passed to remedy that state of affairs, did not refer to all mines other than coal mines, but it did refer to certain mines including tin mines. It has been indicated more than once in argument that it would be a serious hardship if a mine which was not being worked were to be rateable on the whole of the dues payable in the preceding year. I am not sure that any argument on hardship properly arises on the construction of a statute, but, if so, there is something to be said on both sides. The hereditament might escape rating altogether in the first year of working; and if the appellants' contention were right a series of blank years might reduce rating in the district to a chaotic condition. Prima facie sect. 7 applies, but it is said that if this were a coal mine the Sect. 7 contains no such provision, and in order to accede to the appellants' contention it would be necessary to say that these mines have ceased to exist, or have become exhausted, or have become something to which the Act is not applicable. The Act has laid down a rule for ascertaining the assessment; any rule might be the subject of observation on the ground that it worked hardly in certain cases. But it cannot be contended that these mines are exhausted; a certain amount of work is being done, a new shaft is being sunk, and the K.B. Div.] REX v. SPICER AND OTHERS; Ex parte THOMPSON. Insurance (Unemployment) — Contributions Failure to pay—Information-Conduct of prosecution-Right of inspector who did not lay information-Summary Jurisdiction Act 1848 (11 & 12 Vict. c. 43), s. 12-Unemployment Insurance Act 1920 (10 & 11 Geo. 5, c. 30), s. 23 (1). The applicant, who was an inspector under the Unemployment Insurance Act 1920, and who acted as assistant to another inspector under the Act, laid an information, on the instructions of that other inspector, against a person for failure to pay a contribution under the Unemployment Insurance Acts. A summons was issued, and the inspector on whose instructions the information had been laid appeared to conduct the prosecution. The justices held that sect. 23 (1) of the Unemployment Insurance Act 1920 did not authorise an inspector who had not instituted the proceedings to conduct the case, and they dismissed the information. That sub-section provides: "Proceedings for an offence under this Act shall not be instituted except by an inspector authorised in that behalf and any such inspector may, although not a counsel or solicitor prosecute or conduct before a court of summary jurisdiction any such proceedings under this Act." On a rule nisi for a mandamus to the justices to hear and determine the information according to law, Held, that since, under sect. 12 of the Summary Jurisdiction Act 1848, the inspector who laid the information was already entitled to conduct the case, sect. 23 (1) of the Act of 1920 was to be construed as entitling any duly authorised inspector to conduct the case, and the rule must be made absolute. RULE nisi for a mandamus to justices for Northumberland to hear and determine according to law an information laid on the 23rd Jan. (a) Reported by J F. WALKER, Esq., Barrister-at-Law. [K.B. Div. 1923 by Elizabeth Thompson, the applicant for the rule, a duly appointed inspector for the purposes of the Unemployment Insurance Act 1920, acting as assistant to Ethel Margaret Cohen, another duly appointed inspector for the purposes of the Act. The information was laid on Miss Cohen's instructions against one Alice Spoor, and it charged her with having failed to pay a contribution which she was liable to pay under the Unemployment Insurance Acts 1920 and 1921. A summons was issued upon the information, and at the adjourned hearing on the 7th March 1923 Miss Cohen appeared for the purpose of conducting the prosecution. The justices held that, as she had not instituted the proceedings, she could not conduct the prosecution, and they dismissed the information. The Summary Jurisdiction Act 1848, s. 12: Every such complaint and information shall be heard, tried, determined, and adjudged by one or two or more justice or justices of the peace, as shall be directed by the Act of Parliament upon which such complaint or information shall be framed, or such other Act or Acts of Parliament as there may be in that behalf; and if there be no such direction in any such Act of Parliament, then such complaint or information may be heard, tried, determined, and adjudged by any one justice of the peace for the county, riding, division, liberty, city, borough, or place where the matter of such information shall have arisen; and the room or place in which such justice or justices shall sit to hear and try any such complaint or information shall be deemed an open and public court, to which the public generally may have access, so far as the same can conveniently contain them; and the party against whom such complaint is made or information laid shall be admitted to make his full answer and defence thereto, and to have the witnesses examined and crossexamined by counsel or attorney on his behalf; and every complainant or informant in any such case shall be at liberty to conduct such complaint or information respectively, and to have the witnesses examined and cross-examined by counsel or attorney on his behalf. The Unemployment Insurance Act 1920, s. 23 (1): Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Minister or by an inspector or other officer appointed for the purpose of this Act and authorised in that behalf by special or general directions of the Minister, or in Scotland except by the Minister, the procurator-fiscal, or any such inspector or officer so authorised as aforesaid, and any such inspector or other officer may, although not a counsel or solicitor or law agent, prosecute or conduct before a court of summary jurisdiction any such proceedings under this Act. K.B. Div.] REX v. SPICER AND OTHERS; Ex parte THOMPSON. prosecutor, against Alice Spoor under the Unemployment Insurance Acts 1920 and 1921. That information came before the justices, and they dismissed it. The grounds upon which the rule was granted were, first, that on the 7th March 1923 the justices refused to hear or determine certain proceedings instituted against Alice Spoor for an offence under the Unemployment Insurance Act 1920, on the ground that one Ethel Margaret Cohen, the person then appearing to prosecute and conduct the said proceedings, was not entitled to prosecute and conduct them; and, secondly, that, on the said date, the said Ethel Margaret Cohen was an inspector appointed for the purposes of the Unemployment Insurance Act 1920 and authorised to institute proceedings for an offence thereunder by general direction of the Minister of Labour, and, as such, was entitled to prosecute and conduct the proceedings by virtue of sect. 23, sub-sect. 1, of the Act. 666 Shortly, the material facts are: Elizabeth Thompson, inspector as she is, is an assistant of Ethel Margaret Cohen, who, in her turn, is a duly appointed inspector for the purposes of the Unemployment Insurance Act 1920. It was as an assistant to Miss Cohen, and under her instructions, that Miss Thompson laid the information referred to. The information having been laid, Miss Cohen herself appeared to conduct the proceedings; whereupon, as she says in her affidavit, the clerk to the justices said to her : "Have you instituted these proceedings?' and I replied, I did not lay the information, but my assistant, Miss Thompson, did so on my behalf'"; and Miss Cohen a little later requested a definite ruling from the court upon her right to conduct the proceedings; and the decision of the court was conveyed to her through the clerk in the following terms: 'On behalf of the Bench I state that the ruling of the Court is that these proceedings be dismissed, as Miss Cohen cannot conduct the case not having herself instituted the proceedings.' "It appears to me, from the affidavit of Mr. Spicer, one of the justices referred to, that the justices on that occasion were advised by their clerk, and with that advice they agreed "that the said Ethel Margaret Cohen had not instituted the proceedings within the meaning of sect. 23 of the Act of 1920, and that her authority, if any, from the Minister of Health was not sufficient to entitle her to conduct the proceedings, in view of the fact that the information had been laid by another inspector also authorised to take proceedings in the same matter, who was the person who had instituted the proceedings under sect. 23, sub-sect. 1, and was entitled to appear and conduct the proceedings relating to the said offence," and, accordingly, for those reasons, the justices declined to hear Miss Cohen, being advised that the word "institute "meant to set up, originate, and establish. In that state of circumstances, the question is the simple and concise question whether, under the provisions of this Act, a duly authorised inspector is entitled not merely to prosecute and conduct proceedings instituted by him or her, but is also [K.B. Div. 66 entitled to prosecute and conduct proceedings instituted by any other authorised inspector. The answer to that question turns upon the construction of sect. 23, sub-sect. 1, of the Unemployment Insurance Act 1920; and for the sake of clearness in reading the sub-section I leave out the middle part, which clearly is concerned only with Scotland. As it uses the words, " Any such inspector," it may easily introduce a little confusion if it is read. I therefore leave out those words entirely. The sub-section so regarded provides as follows: "Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Minister or by an inspector or other officer appointed for the purpose of this Act and authorised in that behalf by special or general directions of the Minister, and any such inspector or other officer may, although not a counsel or solicitor or law agent, prosecute or conduct, before a court of summary jurisdiction, any such proceedings under this Act." The first part of that sub-section deals obviously with the question, Who may institute proceedings? and the answer is that, among others, a duly appointed inspector may institute proceedings. The closing part of the subsection has to do with the power of the duly appointed inspector, or other officer, to conduct proceedings. Now, before one looks at that subsection, it becomes material to ask what, in the case of proceedings instituted by that inspector himself or herself, was the power already enjoyed? and the answer to that question is to be found in sect. 12 of the Summary Jurisdiction Act 1848, which makes it plain that the complainant, the informant, shall be at liberty to conduct the complaint or information and to have the witnesses examined and crossexamined. Therefore, already, under the preexisting law, the duly appointed inspector who himself or herself instituted proceedings under this Act could himself or herself prosecute those proceedings. Was the Legislature then, in the closing words of this sub-section, directing its attention, ex abundanti cautela, to the position of such an inspector, so as to make it plain without enlarging it? I think not; and I think not for at least two reasons. In the first place, the context in which the operative words of the second limb of this sub-section occur is a context referring to the position of counsel or solicitor or law agent. Now, what is the mark which distinguishes those gentlemen from the very complainant or the very informant ? Is it not this, that by their profession they are entitled to conduct, to prosecute, proceedings which have been instituted by others? Those words, being inserted in that place, seem to me to raise the presumption that the Legislature, in this part of the sub-section, is going to do with these duly appointed inspectors something which will make their position, for this particular and limited purpose, analogous to, though it remains different from, the position of a counsel or solicitor or law agent. secondly (and this confirms the view which I have formed), when one looks at the closing words of that part of the sub-section they are And, K.B. Div.] 66 TAYLOR v. TAYLOR AND HOOPER. Any such proceedings under this Act"; if the meaning had been no more than this, that the inspector might prosecute or conduct the very proceedings which he or she had instituted, that word " any" would not only be surplusage, but, I think, misleading; and it would have been enough to say "such proceedings"; and, indeed, it would have been enough to put the framework of that part of the sub-section in a much simpler form and to say, plainly, Proceedings instituted by him or her." The Legislature has not done So. It has used the general words “Any such proceedings," and it has used them in a context which shows that it evidently thought that in the absence of some express provision dealing with the matter, a contrast might be drawn, and usefully drawn, between the position of an inspector acting in this way and the position of a counsel, solicitor or law agent. For these reasons I think that this rule must be made absolute. 66 SHEARMAN, J.-I am of the same opinion. I do not think the question is by any means clear, but I think the more reasonable interpretation to put upon this section is the one which has been contended for in support of the rule. I think that, for the purposes of England and this class of prosecution, the words of the section can be reduced even a little more than they have been by my Lord; they would then run as follows: "Proceedings for an offence under this Act shall not be instituted except with the consent of the Minister or by an inspector appointed for the purpose of this Act and authorised in that behalf, and any such inspector "-and I emphasise the word "such "—" may, although not a counsel or solicitor, prosecute or conduct before a court of Summary Jurisdiction any such proceedings under this Act"-and I emphasise again the word " any." The former word which I have emphasised, "such," may mean two things. It may mean the instituting inspector, or it may mean, generically, any inspector appointed under the scheme of the Act for the purpose of the Act. I should have thought, if the words had been different at the end of the section, that it would have been confined to the instituting inspector, in bringing proceedings under this Act, under the general scheme under which an informant, although not counsel or solicitor, may appear in court. But when one looks at the other part of the section, I think it makes the other interpretation of the words "such inspector" more plausible, because the section does not go on to say any such inspector, although not a solicitor, may prosecute or conduct proceedings," which means the later stages of the proceedings after they have been instituted; it does not say may prosecute or conduct the case or even prosecute such proceedings," meaning the instituted proceedings; but "may prosecute or conduct any such proceedings under this Act "; and those words are so general that I think one cannot put a reasonable interpretation upon them, unless such inspector in the earlier part means an inspector appointed for the general purposes of 66 66 [Div. the Act." I think, therefore, that the scheme of the Act is to allow any inspector who has been generally appointed for the purposes of the Act to prosecute and conduct any prosecution under the Act if he has been appointed for the purposes of the Act and is authorised in that behalf under the terms of sect. 23. I think, therefore, this rule must be made absolute. BRANSON, J.-I agree. My view of the meaning of the section has been so completely expressed by the judgment of my Lord, that it is unnecessary for me to add anything further. Rule absolute. Solicitors against the rule, Milner and Bickford, for G. W. Steele Mason, Gateshead. Solicitor in support, The Solicitor to the Ministry of Health. PROBATE, DIVORCE, AND ADMIRALTY DIVISION. DIVORCE BUSINESS. Monday, Feb. 19. (Before HILL, J.). TAYLOR U. TAYLOR AND HOOPER. (a) Practice-Evidence-Colonial marriage and registration of birth-Evidence (Colonial Statutes) Act 1907 (7 Edw. 7, c. 16), s. 1 (1)—Bermuda Marriage Act 1905 (No. 27), s. 30-Bermuda Evidence (Consolidation and Amendment) Act 1905 (No. 20), s. 42 (1)—Colonial Regulations, s. 186. Omission of the imprint of the Government printer from copies of colonial statutes supplemented by evidence that the copies in question had been sent to the Bar Library in accordance with official regulations. THIS was a husband's petition for dissolution of marriage on the ground of the wife's adultery, and was undefended. The marriage had been celebrated at the parish church of St. George, Somers Islands, in Bermuda, on the 26th Oct. 1904, and the fact relied on as proving adultery was the birth of a child to the respondent in Bermuda on the 23rd May 1920, of which the petitioner could not have been the father. Armstrong White for the petitioner.—To prove the marriage in Bermuda and the birth of the child by the certificates which I have in court I rely on the Evidence (Colonial Statutes) Act 1907, s. 1 (1), and on the Bermuda Marriage Act 1905, s. 30, and the Bermuda Evidence (Consolidation and Amendment) Act 1905 (No. 20), s. 42 (1), as making such certificates prima facie evidence of the facts stated in them : Bonhote v. Bonhote, 123 L. T. Rep. 174; L. v. B. (otherwise L.), 36 Times L. Rep. 148. It is right, however, that I should draw attention to the fact that the Evidence (Colonial Statutes) Act 1907, s. 1 (1), allows copies of the Acts of colonial Legislatures to be given in (a) Reported by J. A. C. SKINNER, Esq.. Barrister-at-Law. |