occupation of the Crown property. But in Lord Amherst v. Lord Somers, 2 T. R. 372, the colonel of a regiment rented stables by order of the Crown for the use of the regiment, but did not put his own horses there; and he was held not to be rateable. There Mr. Justice Ashhurst said, that "neither the possessions of the Crown nor of the public are liable to be rated to the poor." That case occurred four years before the Salter's Load Sluice Case, and consequently it cannot be truly said that the marginal note in the latter case created the doctrine as to the non-liability of property used for the purposes of the public.

It was the fact of an actual occupation, and a fact, too, that the occupation was a profitable one, which explains the decision in The Governors of the Poor of Bristol v. Wait, 5 Ad. & E. 1 (E. C. L. R. vol. 31). The King v. Hurdis, 3 T. R. 497, did not decide any point of law, but proceeded on the actual finding of the sessions, which had not been impeached, that there was a beneficial occupation. In Eckersall v. Briggs, 4 T. R. 6, the distinction before referred to was again established; the owner of certain stables used by the colonel of a regiment for his men, was held to be rateable, but this was under the words of a particular Act of Parliament. The discussion in The King v. The Mayor of London, 4 T. R. 21, shows that what is supposed to have been established by the Taunton Market Case, The Queen v. Badcock, 6 Q. B. 787, namely, that it must be a general public purpose, and not one of a limited kind, was established long before then. What was the Salter's Load Sluice Case, 4 T. R. 730? The tolls there collected were ordered to be applied to public purposes; at that time it was thought that tolls were subject to rate, but there was held to be no such occupation in that case as to create liability to rate. Nor is there any such occupation here. And therefore it is that the liability to rate in this case is not to be sustained.

In The King v. Parrott, 5 T. R. 593, the occupier of a coal-mine was held rateable, though the mine was actually at that time worked at a loss, for it was a beneficial occupation, and might often be profitable, and such an occupation was declared to be the proper test of liability. But in Holford v. Copeland, 3 Bos. & Pul. 129, the chambers of a Master in Chancery were held not rateable, because he had not a beneficial occupation of them. The same rule has been applied with, of course, a different result, to apartments in barracks, where the occupation has not been that which an officer was compelled to have for the performance of his duty, but has been one of a beneficial kind: The King v. Terrott, 3 East 506. So the case of The King v. The Governor and Company of the New River, 1 Mau. & Sel. 503, was held to be one of beneficial occupation, on account of the profits derived therefrom, and the rate was good,

It has been asserted that the case of The King v. The Inhabitants of Liverpool in 1827, 7 B. & C. 61 (E. C. L. R. vol. 14), had created surprise in the profession, but that observation is hardly justifiable, for it is in exact accordance with, and was followed some time afterwards by the decision in The Queen v. The Mayor and Aldermen of Liverpool, 9 Ad. & E. 435 (E. C. L. R. vol. 36), where it was held that as the Municipal Corporation Act had, by section 92, appropriated all the corporate funds to purposes of a public nature, the rateability of

the corporation in respect of town and anchorage dues had ceased. And though Mr. Justice Crompton, in The Tyne Commissioners v. Chirton, 28 Law J. M. C. 131, 1 E. & E. 516, said that The King v. Liverpool had created surprise in the profession, he distinctly added that it had been adopted as law, and showed that in the Birkenhead Case, 2 E. & B. 148 (E. C. L. R. vol. 75), it was not controverted. The case of The Weaver Navigation Trustees, 7 B. & C. 70 n. (E. C. L. R. vol. 14), was another instance where property applied to public purposes was treated as not liable to be rated.

The present case is identical with that of the Salter's Load Sluice Case, 4 T. R. 730; there tolls were in question which were deemed rateable; but there was no beneficial occupation. There can be no doubt that for a very long period it has been well established, that property occupied for public purposes alone, and from the occupation of which no individual derives a profit, is not rateable. In The King v. Harrogate, 15 Q. B. 1012 (E. C. L. R. vol. 69), Lord Campbell, who was supposed to have brought this principle into doubt, never said. anything in opposition to the Salter's Load Case, nor to the Liverpool Case of 1827, but actually confirmed them by saying, "You have to show that all the purposes to which the money was applied are public;" which was itself a recognition of the preceding cases, and of the principle, that if the purposes were public there was no rateability. In The Queen v. The Commissioners for Lighting Beverley, 6 Ad. & E. 645 (E. C. L. R. vol. 33), the Commissioners were held not to be beneficial occupiers of the gasworks, because all the profits were to be applied as the Act directed; in other words, to public

purposes.

The Birkenhead Dock Case, 2 E. & B. 148 (E. C. L. R. vol. 75), cannot be supported. It rests entirely on the assumption that all occupation must be beneficial, and that the whole doctrine of public purposes arose from an error in the marginal note of the Salter's Load Sluice Case. In both respects that is wrong. If the Birkenhead Case cannot be supported, the two cases Trustees of the River Lea, 19 Just. of Peace 310, and Tyne Commissioners v. Chirton, which followed it, must fall with it. As to the Clyde Case (not reported), it depended on the words of a Scotch Act, and the Judges found that in fact the trustees of the navigation were owners of the property, and as such liable in the very words of the Act. But there the general doctrine of non-liability on account of public property could not be denied; and though in the Birkenhead Dock Case Lord Campbell had seemed to disregard that doctrine, he did not disregard it when he came to the case of buildings connected with the adminis tration of justice: The Justices of Lancashire v. The Overseers of Stretford, E. B. & E. 225 (E. C. L. R. vol. 96), where buildings provided by the county justices for a police station, were held not rateable.

This is property held by trustees appointed under Acts of Parliament who are under an obligation to do certain acts which are essentially of a public nature. The trustees derive no profit from the occupation of this property; all the profits are applicable to universal public purposes, and consequently there is no liability to rate. Mr. Mellish replied.

The Lord Chancellor (Lord Westbury) moved that the following questions be put to the Judges:

1. Are the Mersey Docks and Harbour Board "occupiers" of the docks vested in them, within the true meaning of the word "occupier" in the statute of 43 Eliz.?

2. If they are occupiers within the statute, are they exempted from liability to be rated for relief of the poor by the operation or effect of the statutes 4 Vict. c. xxx., 9 & 10 Vict. c. cxix., 11 Vict. c. x., 18 & 19 Vict. c. clxxiv., and 21 & 22 Vict. c. xcii., or any of them, or by reason of the purposes for which they occupy the same, or on any other ground appearing in the special case?

3. Does the Act of 20 & 21 Vict. c. clxii. (the Act of 1857), impose upon the board a liability to poor-rate in respect of the docks' estate and property vested in the board, or any and what part thereof, by virtue of the 26 and 27th sections of the last-mentioned Act?

Lord Chief Baron Pollock, in the name of the Judges, requested time to consider these questions.

July 7. Mr. Justice BLACKBURN read the opinion of the majority of the Judges. He said :-My Lords, the opinion which, with your Lordships' permission, I am about to read, contains the joint answers to your Lordships' questions of the Lord Chief Baron, Mr. Justice Williams, Mr. Justice Mellor, Mr. Baron Pigott, and myself.

To the first question put to us by your Lordships in these causes, we answer, that in our opinion the trustees constituting the Mersey Docks and Harbour Board are occupiers of the docks in question, within the true meaning of that word as used in the statute of 43 Eliz. c. 2.

Our reasons for that opinion are as follows:-Statute 43 Eliz. c. 2, s. 1, requires the overseers of every parish to raise by "taxation of every inhabitant, parson, vicar, and other, and of every occupier of" various kinds of real property, and inter alia of "lands in the parish, in such competent sum as they shall think fit," a stock for setting the poor of the parish to work, and for the relief of the poor of the parish.

Though the words of this enactment might seem to give the overseers a discretion to tax each inhabitant in such arbitrary sum as they might think fit, it has long been settled that the taxation of the different persons must be equal and in proportion to the value of their respective means. It would appear, from the passages cited at your Lordships' bar from Dalton's Country Justice, that this was determined very shortly after the statute was passed. It has always been so held, and the Legislature, by the Parochial Assessment Act (6 & 7 Will. 4, c. 96), has affirmed this principle, by enacting that no rate shall be valid unless made "upon an estimate of the net annual value of the several hereditaments rated thereunto; that is to say, of 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 tithe commutation rent-charge, if any, and deducting therefrom the probable average annual cost of the repairs, insurance, and other expenses, if any, necessary to maintain them in a state to command such rent.

In order, therefore, that a valid rate may be imposed, it is essential that the occupation should be of value beyond what is required to

maintain the property; for if the occupation be of so little value that the hypothetical tenant (under the Parochial Assessment Act), would either give no rent, or a rent which, after deducting the average annual expense of the maintenance would leave no overplus, there is nothing to rate.

The question whether replevin lies has been waived, and therefore it is not necessary farther to consider whether in such a case the more proper expression would be that the person in possession of the property was not an occupier at all within the meaning of the Statute of Elizabeth, so that the overseer had no jurisdiction to make the rate, and consequently that the levying of it might be resisted in replevin or trespass; or whether, as seems to have been the opinion of the Court of Queen's Bench in The Overseers of Birmingham v. Shaw, 10 Q. B. Rep. 868 (E. C. L. R. vol. 59), and The Queen v. Bradshaw, 29 Law J., M. C. 176, he is an occupier whom, as such, the overseers have jurisdiction to tax, though on appeal the rate must be reduced to nothing.

Whichever may be the true mode of enunciating the position, it is clear that there can be no valid rate unless the occupation be such as to be of value; and if the words "beneficial occupation" are to be understood as merely signifying that the occupation is of value (which is obviously the sense in which the phrase is used in many of the cases cited at the bar), it is clear that a beneficial occupation is essential as the foundation of the rate; but it is equally clear that, if the phrase is to be understood in this limited sense, the trustees have a beneficial occupation, for they actually occupy land as docks, and in virtue of that occupation receive payments from the shipping using the docks; at present greatly in excess of what is necessary to maintain the docks. Hereafter the charges on shipping may be reduced so as greatly to diminish the revenue derived from this occupation; possibly at some future time to render it no greater than the sum requisite to maintain the docks; but whilst the dues on shipping are maintained at their present rate, it is clear that the hypothetical tenant would give for the occupancy of the docks as at present enjoyed by the trustees a rent greatly in excess of what would be necessary to maintain the docks in a state to command that rent.

Where there is an actual demise of property to an occupier who pays rent to the owners of the property, the tenant, if a subject, is rateable, without any regard to the purpose to which the rent is applied. It is immaterial whether the landlord enjoys the rent himself, or is obliged to pay it away as interest to mortgagees, or even (as is the case with the tenants of Crown property) pays it into the consolidated fund or the privy purse of the Sovereign. The occupier in each case is rateable. And if the matter were now for the first time to be determined without reference to decisions, it would seem that where the owners of the property are themselves in occupation and receive the value, the amount of which is measured by the rent which the hypothetical tenant would give, the purposes to which that amount is applied ought to be as immaterial as if there had been a real demise at that rent; and the occupiers, if subjects, ought to be rated, whatever be the object for which the property is occupied, unless some special enactment exempted them. But decisions have now settled that there is an exemption; and the important question

in the present case is, what is the nature of the occupation and of the purposes which bring the occupier's case within that exemption. And on this question the decisions are to some extent inconsistent, and it is necessary to examine them.

The Crown, not being named in the Statute of Elizabeth, is not bound by it: and consequently the overseers cannot impose a rate on the Sovereign in respect of lands occupied by Her Majesty, nor on those occupied by her servants for Her Majesty.

The exemption depends entirely on the occupier and not on the title to the property. The tenants of Crown property, paying rent for it, are rateable like all other occupiers; and it has even been determined that where apartments in Hampton Court, a royal palace, were gratuitously assigned to a subject, who occupied them by the permission of the Sovereign but for the subject's benefit, the subject was rateable in respect of her occupation of this royal property: The Queen v. Lady E. Ponsonby, 3 Q. B. 14 (E. C. L. R. vol. 43). On the other hand, where a lease of private property is taken in the name of a subject, but the occupation is by the Sovereign or her servants on her behalf, the occupation being that of Her Majesty no rate can be imposed: Lord Amherst v. Lord Somers, 2 T. R. 372.

So far the ground of exemption is perfectly intelligible, but it has been carried a good deal farther, and applied to many cases in which it can scarcely be said that the Sovereign or the servants of the Sovereign are in occupation. Long series of cases have established that where property is occupied for the purposes of the government of the country, including under that head the police, and the administration of justice, no one is rateable in respect of such occupation. And this applies not only to property occupied for such purposes by the servants of the great departments of state, such as the Post-Office, Smith v. Birmingham, 7 E. & B. 483 (E. C. L. R. vol. 90), the Horse Guards, Lord Amherst v. Lord Somers, or the Admiralty, The Queen v. Stewart, 8 E. & B. 360 (E. C. L. R. vol. 92), in all which cases the occupiers might strictly be called the servants of the Crown; but also to property occupied by local police. Justices of Lancashire v. Shelford, E. B. & E. 225 (E. C. L. R. vol. 96); to county buildings occupied for the assizes, and for the Judges' lodgings, Hodgson v. Local Board of Carlisle, 8 E. & B. 116 (E. C. L. R. vol. 92); or occupied as a County Court, The Queen v. Manchester, 3 E. & B. 336 (E. C. L. R. vol. 77); or for a jail, The Queen v. Shepherd, 1 Q. B. 170 (E. C. L. R. vol. 41). In these latter cases it is difficult to maintain that the occupants are, strictly speaking, servants of the Sovereign, so as to make the occupation that of Her Majesty; but the purposes are all public purposes, of that kind which, by the constitution of this country, fall within the province of government, and are committed to the Sovereign, so that the occupiers, though not perhaps strictly servants of the Sovereign, might be considered in consimili casu. And the decisions are uniform, and were not disputed at the bar, that the exemption applies so far; but there is a conflict between the decisions as to whether the exemption goes farther.

There are several cases relating to charities which were mentioned at your Lordships' bar, but were not much pressed, nor, as it seems to us, need they be considered now; for, whatever may be the law as