Donegal County Council v McCrossan

• Jurisdiction: Ireland
• Judgment Date: 01 January 1919
• Date: 01 January 1919
• Court: King's Bench Division (Ireland)

Donegal Co. Council v. M'Crossan.

COUNTY COUNCIL OF DONEGAL AND PATRICK DOHERTY

and

MARGARET M'CROSSAN AND ELIZABETH M'CROSSAN (1)

K. B. Div.

Poor-rate - Person rated not in occupation - Liability of person in occupation, but not rated - 1 & 2 Vict. c. 56, ss. 61, 71.

At a time when a poor-rate was made in respect of certain lands, the person rated was not in occupation of the premises, but when the rate was made, and during the whole of the period for which it was made, the defendants were in occupation.

Held, that the defendants were not liable for the rate.

Case Stated by Mr. Justice Gibson on the hearing of a Civil Bill Appeal at the Summer Assizes for the county of Donegal, 1918.

By the civil bill the County Council of Donegal and Patrick Doherty, their rate-collector, sued for £12 3s. 4d. poor-rate, payable for the years 1907-1908 to 1916-1917, in respect of certain lands, the property of the defendants. During the period prior to the year 1914-1915 Mary Breslin, the sister of a former tenant of the defendants, was in possession and occupation of the lands in question, and was rated as the occupier thereof.

The defendants admitted liability for the poor-rate for the subsequent years, and tendered the amount due in respect thereof.

The question for decision was whether the defendants were liable to pay the poor-rate for the period during which Mary Breslin was rated as the occupier of the lands.

Dodd J.:—

This is a case stated by Mr. Justice Gibson at the Summer Assizes for Co. Donegal, 1918. The civil bill was for rates. The County Court Judge gave a decree. The question for our determination is—Were the defendants liable to pay rates for the period before 1915, during which Mrs. Breslin was rated occupier? Mrs. Breslin was rated, but was not in occupation. The defendants were in occupation, but were not rated. The question is a simple one, but the discussion has ranged over a wide area, commencing with the 43 Eliz. c. 2, and touching a case still under adjudication in the Court of Appeal.

It is becoming more and more important for a Court of construction to indicate clearly what is not decided, as well as what is decided; and without any discourtesy to the counsel who urged many considerations from old authorities, I content myself with endeavouring to apply so much of the law, and so much only, as bears upon the plain facts of this case.

I accept the principle contended for by Mr. Wylie that a poor rate is a tax payable by a person in respect of land. If houses are to be contradistinguished from land, as for some purposes they are, in the striking of a rate, it may be well to add, "and in respect of houses and buildings." The words "in respect of land"may be more accurately put—"in respect of the occupation of land." Thus interpreted, his definition is accepted.

In this case a lady was rated who was not in occupation of either the land or buildings in respect of which this rate was made at the time it was made. No doubt, she might have appealed— (a) to the Commissioner of Valuation against his inserting her

name as occupier in the valuation list, and (b) from his adjudication to the County Court judge—15 & 16 Vict. c. 63, ss. 18-23. His decision is final, and it is upon such list that the county council are to make the poor-rate (sect. 27).

Notwithstanding these sections, it is clear law, that cannot be challenged, that Mrs. Breslin, if sued, whether she had appealed or had not appealed, could impeach the validity of the rate on the ground that she was not in occupation when the rate was made. The reason of the law is this: unless she were "occupier," there was no jurisdiction to assess her. I quote from Mr. Justice Gibson,New Ross Union v. Byrne(1):—"Where a rate is made in respect of premises of which the person rated is not occupier, the rate is made without jurisdiction, and the person rated, notwithstanding that he has appealed, and appealed unsuccessfully, can set up the invalidity of the rate by way of defence to any proceeding to recover it. This proposition is established by a chain of authorities which it would require a statute to overrule."

If the rate-making authority strike a rate on a person who is not an occupier at the time the rate was made, can they have resort to the person who was in actual occupation, and say the rate must be taken to be made on him as occupier? I do not know that it was contended in the argument that, apart from express statutory authority, such a rate would be valid. I have in so many words, in the North Dublin Rural District Council v. Walsh(2),stated that it would be invalid. I treated that statement of mine during the argument as having been merely an obiter dictum, not binding even upon myself; but it was something more than that. The contest in that case was whether what was called a water-rate was, or was not, a part of the poor-rate, and to be levied as such. If it were, the rate assessed was invalid, because the three requirements of the law applicable to poor-rate, viz., the names of the parties rated, the valuation, and the amount assessed upon them, were not set out; and for that proposition, Rex v. Undertakers of the Aire and Calder Navigation(3) was cited. The water-rate was to be paid by such occupiers within the district as should apply for and get a supply of water to their premises.

In the Rathdrum Rural District Council v. Saul(1) this Court decided that such a water rate was part of the poor-rate, and to be included as such by the county council. But the Court of Appeal held that as no named occupier could be inserted in the rate, unless the maker of the rate were a prophet, and knew beforehand the names of such occupiers as should take advantage of the water-supply, it wanted an essential quality of a poor-rate, and was, therefor, a rate to be assessed by the rural district council for special advantages conferred upon such occupiers as should avail themselves of them. "I am at a loss," said Holmes L. J., "to see how such a rate can be added to the poor-rate." Though there was some sanction, therefore, for my decision, it was not absolutely essential, and, in any event, I spoke only for myself, and it is open to me now to reconsider that statement. But after full consideration, and in a case where it does form part of my decision, I hold that, apart from statutory provision, a person, though in occupation, who is not named or described as occupier in the rate, is not liable. He is not rated. He is not a "rated occupier." I add the word "described,"though it is not quite...