Edgar, & Aitken

17,

Judges who took part in the decision in that case expressly reserved their opinions on this point.

In my opinion there is nothing in sections 31 or 32 to exclude the operation of section 28 except in so far as it is expressly enacted that the final judgment in a case tried by a jury is only competent on one of four specified grounds. It is true that the interlocutor remitting a case for trial by jury cannot be appealed, because the Sheriff in pronouncing such an interlocutor is only acting in his administrative and not in his judicial capacity; for if the cause be one to which the section relates he must, as soon as proof has been allowed and a motion is made by either party within six days thereafter that the cause be tried before a jury, pronounce an interlocutor to that effect. When, however, he proceeds under section 32 to settle the question or questions of fact to be at the trial proponed to the jury he is acting judicially; and although he is vested with a discretion to refuse a motion for leave to appeal at this stage, when he does grant it (as he did in the present case) I see no reason why section 28 should not apply. It would be highly inconvenient if it were otherwise; because difficult points of law may arise as to the proper questions to be proponed, and these cannot be dealt with as such after a verdict has been returned. This was very forcibly pointed out by the Judges of the Second Division who took part in the decision of the case of Adamson -1909, S.C. p. 580-and I agree with the views expressed by them.

The second objection was to the effect that this appeal falls under the proviso of sub-section (c) of section 28, which is thus expressed-"Provided that any exclusion or allowance of appeal competent under any Act of Parliament in force for the time being shall not be affected by this or the preceding section." The pursuer argued that under the Workmen's Compensation Act 1906, section 14, in the case of an action under the Employers' Liability Act or alternately at common law, raised by a man against his employer in the Sheriff Court, no appeal is competent except on a question of law, and "for the purposes of such appeal the provisions of the second schedule to this Act in regard to an appeal from the decision of the Sheriff on any question of law determined by him as arbitrator under this Act shall apply." Now the second schedule, as is well known, provides for the only competent appeal being in the form of a stated case. On the other hand, it was forcibly contended on behalf of the defenders that the Workmen's Compensation Act does not exclude appeal on questions of law-which are the only ones that they can competently raise, and that there is no provision in the Sheriff Courts Acts that where an appeal is not excluded the form of appeal shall be regulated by any particular Act. In my opinion the defenders are right here. The Sheriff-Substitute in granting leave to appeal has in effect stated a case for determination of a point of law, and no facts having as yet been ascertained, he could not have stated the

case otherwise than by narrating the record and setting forth the questions which he proponed for the trial. It would * be useless to insist on the formality that the print presented to us should be titled "a Stated Case" instead of "a Record" in an appeal. The questions of law which the defenders desired to raise are (1) the relevancy of the action, and (2) the appropriate questions which, assuming its relevancy, ought to be proponed to the jury. On these matters we have all the materials before us; and we have, what is equivalent to the Sheriff stating a case, leave given by him to appeal. Had a case been stated there would only have been added two formal questions--(first) whether the record disclosed a relevant ground of action, and (second) whether the questions proponed to the jury were appropriate to the matters disclosed on record. The latter question is expressly raised by the leave which the Sheriff-Substitute has given; and the former may be dealt with under the proviso contained in section 29 of the Sheriff Courts Act 1907. While, therefore, section 14 of the Workmen's Compensation Act 1906 undoubtedly creates in my opinion a formal difficulty, I see no reason why we should not, while giving substantial effect to the section, entertain the appeal in the form in which it has been brought.

LORD MACKENZIE-I agree in the results arrived at by your Lordships, and on the grounds which have been stated by Lord Salvesen.

LORD JUSTICE-CLERK — LORD KINNEAR instructs me to say that having considered this case he is in some dubiety, but that he does not dissent from the judgment we are pronouncing.

The Court sustained the competency of the appeal, and appointed the cause to be put to the Summar Roll.

Counsel for the Pursuer Christie Fenton. Agents Weir & Macgregor,

S.S.C.

-

Counsel for the Defenders Sol. - Gen. Hunter, K.C.-J. A. T. Robertson. Agent -A. C. D. Vert, S.S.C.

VALUATION APPEAL COURT.

Friday, March 17.

(Before Lord Johnston, Lord Salvesen, and Lord Cullen.).

GLASGOW AND GOVAN PARISH COUNCILS v. GLASGOW ASSESSOR. Valuation Cases--Public Museums and Galleries-Museums and Galleries Situated in Public Parks-Dedication by Statute to Public Use - Lands and Heritages Yielding No Profit.

Held that the museums and art galleries situated in the public parks

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authorities therein recited, the said parks, and the said art galleries, museums, winter gardens, waiting rooms, bowling greens and bowl houses, superintendent's dwellinghouse, and other buildings therein, should, as regards each park, be entered in the said roll as a unum quid at a nominal yearly rent or value; that the said parks and the said museums, art galleries, and others, being at present appropriated to the use of the public for the purposes of instruction, exercise, and recreation, fall to be valued on that footing, and subject to the restrictions affecting the same; that the cost of maintaining each of the said parks and the said art galleries, museums, and others, for the use of the public, being in excess of the revenue which could be obtained therefrom, no tenant would give any rent for the subjects if he had to take the same under burden of the said restrictions; and that therefore the nominal sum of £1 each for the said parks, including the said art galleries, museums, and others therein, represented the maximum rent at which the same could be let in their present condition, subject to the said restrictions, and on the footing of the public having the use thereof as at present for the purposes of instruction, exercise, and recreation.

The Valuation Committee were also of opinion that the legal ownership of the Corporation of the said parks, and the said art galleries, museums and others, is a bare trusteeship for the public, and that therefore the public" and not "the Corporation" are the beneficial occupiers of the

same..

The Valuation Committee accordingly sustained the Assessor's valuations of the said parks, including the museums, art galleries, and others therein, and the entry in the said roll of "the public" as the occupiers of the same, and dismissed the complaints.

The provisions of the private Acts of Parliament under which the Corporation of Glasgow hold and administer the subjects in question in the case are set forth infra.

The Parish Councils appealed, but confined their appeal to the separate description and the value and occupancy of the municipal art galleries, museums, and winter gardens, and the superintendent's house in Bellahouston Park.

The Case stated-"The following facts were admitted, or held by the Valuation Committee to be proved:-1. The first Act of Parliament obtained by the Corporation authorising them to lay out and maintain public parks, gardens, recreation grounds, and open spaces, in and adjacent to the city, was The Glasgow Public Parks Act 1859 (22 Vict. cap. xvii). This Act, however, was repealed and superseded by The Glasgow Public Parks Act 1878 (41 Vict. cap. 1x); and it is under the authority of the last-mentioned Act, and subsequent Acts altering or amending the same (hereinafter referred to as The Parks Acts), that the Corporation have acquired, provided, laid out, and maintain the public

parks with the art galleries and museums and collections of natural history, science and art therein, and also the bowling greens, bowl houses or pavilions, waitingrooms,dwelling-houses for parks employees, and other buildings therein.

"2. The only lands and heritages dealt with in this case are those where the Assessor has entered and valued as a unum quid parks and the buildings and others therein, viz., art galleries, museums, winter gardens and the superintendent's house in Bellahouston Park, which are all situated within the parks.

"3. The parks in question and art galleries and museums and winter gardens and other buildings therein (except the superintendent's house after referred to and the gardeners' houses) are all open to and used by the inhabitants for the purposes of instruction, recreation, and exercise, subject to the bye-laws and rules made by the Corporation in terms of the Acts of Parlia ment relating thereto and to the provisions of said Acts. The superintendent's house, which is the old Bellahouston Mansion House and situated in Bellahouston Park, is occupied by the general superintendent of all the Glasgow public parks, 16 in number, which are situated in several different parishes. The other houses are occupied by gardeners, rangers and others employed in the particular park where each resides.

"4. Said galleries and museums and winter gardens are under the control of the Corporation, and no pictures, objects of art, or museum specimens may be exhibited therein without the consent of the Corporation. In addition to the permanent collections in the said galleries and museums, the Corporation arrange for the loan of, and exhibit from time to time therein sundry special collections of paintings and objects of art belonging to other public bodies or to private collectors. The Corporation occasionally also use the said galleries and museums for receptions and conversaziones, for which invitations are issued. The Corporation have at present no accommodation for the housing and exhibition of their permanent collections other than the galleries and museums in the various parks.

"5. The Corporation have statutory powers to levy charges for admission to the galleries, museums, and winter gardens and others containing collections of natural history, science and art, but do not exercise these powers.

"6. By section 25 of the said Act of 1878, the Corporation are authorised, for the purposes thereof, to assess and levy upon and from the occupiers of all heritages situated within the city of a rental or annual value of £4 and upwards, an annual assessment not exceeding twopence per pound on the rental or annual value of such heritages. By subsequent Actsamending the said Act of 1878, this assessment has been increased to 44d. per pound on the rental or annual value of all such heritages. The assessment imposed and levied by the Corporation for the purposes

66

7. No change in the character, area, use, or occupancy of the said respective parks, or the galleries, museums, and winter gardens, has occurred for many years.

"8. It is agreed between the parties that the value of £1 for each park is a fair valuation in the event of the Assessor's contentions being upheld, and that the values claimed by the complainers are fair in the event of their contentions being upheld."

The appellants' contentions were:"For the Parish of Glasgow. - 1. The art galleries and museum in Kelvingrove Park, the mansion-house used as a museum in Springburn Park, and the art galleries and museum and winter gardens known as 'The People's Palace' in Glasgow Green, are principal and independent lands and heritages which ought, on a true construction of the said Act, to be entered and valued in the said roll separately from the said parks. 2. The said art galleries and museums are not occupied by the public but by the Corporation of Glasgow through their servants, and their collections of natural history, science, and art, being controlled by the Corporation, or separatim any occupancy of said art galleries and museums by the public, is not incompatible with or exclusive of the occupancy thereof by the proprietors or others in their right. Accordingly, on a true construction of said Valuation Acts, the Corporation and not 'the public,' or separatim the Corporation as well as the public, ought to be entered as occupiers thereof in the occupier column of said roll, and these buildings should be valued on the basis of such occupation by the Corporation. 3. The said art galleries and museums being independent lands and heritages owned and occupied by the Corporation, or separatim the Corporation's Occupancy thereof being concurrent and not incompatible with the use of the same by the public for purposes of recreation, are or may be beneficially occupied by the Corporation, and the true annual value thereof is capable of being ascertained and ought to be entered in the valuation column of said roll, at the respective values of said subjects claimed to be entered by the complainers therein, and that irrespective of the question whether the Corporation are liable to assessment to the poor rate in respect thereof or whether they are entitled to exemption from rating thereon by virtue of statute, common law, or otherwise. 4. The principle to be applied in valuing said art galleries and museums ought to be the same as that which is applied in valuing the lands and heritages of other statutory undertakings where the expenditure exceeding the revenue is defrayed out of rates, such as, e.g., docks, poor-houses, or public libraries, or by a percentage on cost, or some combination of these methods, because it is irrelevant

17

that the charges of maintenance exceed the revenue, or that there is no revenue (and here charges can be made), and because in a question of valuation of such subjects it is not permissible to deduct from the value to be entered in the roll the allowances provided for in a question of rating under the 37th section of the Poor Law Act 1845.

"For the Parish of Govan - 1. Bellahouston House being exclusively occupied by the general superintendent of all the Glasgow parks, and its free occupancy being part of his remuneration, should be entered and valued in the roll separately from the park, and his name or that of the Corporation and not 'the public' should be entered in the occupier column of the roll, and the house should be valued on the basis of such occupation. 2. The house being let to the superintendent of the parks at an annual rent of £50 as a private residence (without which his salary would be increased by the Corporation to that amount), ought to be entered in the roll at the value of £50, in which it has been hitherto entered as a separate heritage occupied by him at that value."

The Assessor's answers were-"1. The parks in question and all the buildings therein contained must be dealt with as a unum quid. 2. The parks in question and all the buildings therein contained are dedicated under legislative authority to the use and recreation of the public, and are therefore rightly entered at the annual value of £1. 3. The parks in question having been put extra commercium with legislative authority, rightly appear in the valuation roll at the yearly value of £1. 4. The complaint, so far as it concerns any question other than the assessor's valuations, is incompetent. 5. In addition to the superintendent's house in Bellahouston Park, there are a number of houses in the parks which are occupied by gardeners, rangers, and others employed in the particular park. These houses are included in the description 'Public Park,' at the value of £1, and against this part of the entry the Parish Councils do not appeal."

The arguments of parties sufficiently appear from the contentions and answers.

The following authorities were cited:By the appellants-London County Council v. Churchwardens of Erith, &c., L.R. 1893, App. Cas. 562; Local Authority of Dalbeattie v. Assessor for Kirkcudbright, March 1, 1882, 10 R. 23, 19 S. L.R. 568. By the respondent Manchester Corporation v. Chorlton Union Assessment Committee, April 22, 1899, 15 T.L.R. 327.

At advising

LORD JOHNSTON - The Corporation of Glasgow are the proprietors of certain public parks in Glasgow, and also of certain museums, art galleries, and other erections which occupy portions of these public parks. These public parks are situated in the parishes of Glasgow and Govan. The Assessor, who last year entered the parks for the first time as of a nominal value, has this year slumped the buildings above

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mentioned with the parks and entered the whole as of a nominal value. He is supported by the Valuation Committee, from whom an appeal is taken.

It was decided last year by this Court that, as matter of principle, parks acquired and held by statutory authority and held under such conditions as attach to these parks are of no value for the purposes of the valuation roll, and that though they must be entered in the roll they are rightly entered at a nominal value. It is maintained by the Corporation that the same principle applies to the buildings in question, which the Corporation have, under statutory powers, erected in these parks, and that they also are of no value for the purposes of the valuation roll, and therefore ought to be entered at a nominal value. The parochial authorities do not challenge the judgment in the Edinburgh and Glasgow cases-1910 S.C. 823-as regards the parks to which it applied. But they dispute its applicability to the buildings now sought to be reduced to the same platform. The question may at first sight appear to be merely academic, but it was made clear that owing to the incidence of the burgh rates and the poor rates being somewhat different, and the areas involved also different, there is a substantial, though not pecuniarily a very important question, in dispute. I cannot say that I am sorry that we are not called upon to reconsider the question of the parks. I do not disguise that I regard the judgment of last year with some suspicion, for I cannot help feeling that the result arrived at, largely in deference to decision of the English courts under different statutes, even if it be a necessary result, is contrary to the intention of the Scottish Valuation Acts, and was not in the contemplation of the Legislature when passing the Corporation's empowering statutes. I am certainly not disposed to extend the scope of the decision in the Edinburgh and Glasgow cases (supra). And the matter in dispute here falls, I think, to be simply distinguished. The Glasgow Corporation and Police Act 1895, section 22 (4), empowers the Corporation to levy reasonable charges for admission into the museums, galleries, etc., under their control. If so, it cannot be maintained that these buildings are of no value for the purposes of the valuation roll, in which they must be entered. And if this be found, it is agreed between the parties that the valua tion proposed by the parochial authorities is a proper valuation.

This disposes of the two most important items in dispute, viz., those on Glasgow Green and in Kelvingrove Park. The facts as to those in Springburn Park, so far as disclosed, hardly bring them within the same category. As regards the house in Bellahouston Park, I am not satisfied that on more complete information I should not also hold that it ought to have a value attached to it. But in the present state of my information I do not feel justified in differing from your Lordships as regards that subject.

LORD SALVESEN-In this case the Valuation Committee have professed to apply the principles laid down in the Glasgow Parish Council v. The Glasgow Assessor (1910, S. C. 823), and have in effect exempted not merely the public parks of Glasgow but the museums, art galleries, and certain other subjects from taxation by entering each public park, with all the buildings erected within its area, at a yearly rent or value of £1. It was expressly decided in the case referred to that public parks with certain erections-such as bandstands, refreshment rooms, and gardeners' lodgeswhich were held to be mere adjuncts of the parks themselves, fell to be entered in the valuation roll at a nominal value; and this decision is not challenged here. The appellants, however, contend that the decision does not cover the museum, art galleries, and winter palace erected in Glasgow Green, the art galleries and museum situated in Kelvingrove Park, the museum and house in Springburn Park, and the mansion-house in Bellahouston Park, occupied by the superintendent of all the public parks in Glasgow, on the ground that these buildings cannot be treated as mere adjuncts of the parks. On the other hand, it was maintained for the Assessor that the buildings in question are just as much dedicated to the use and recreation of the public under statutory authority as the parks themselves, and that the principles recognised in the case decided last year apply.

There is nothing exceptional in the private Acts obtained by the Glasgow Corporation. They simply authorise the Corporation to erect and fit up such new and additional buildings for museums and art galleries as they may consider expedient for the recreation of the inhabitants; and the Corporation are empowered to levy reasonable charges for admission to such buildings under their control. For the purposes of the various Acts they are also authorised to levy an assessment to an extent not exceeding 2d. per £1 on the rental of all occupiers of heritage in the city. So far as their powers are concerned, they appear to be substantially the same as those which they have with regard to the public parks, with this exception, that while they may set aside portions of a park for certain forms of recreation and charge the public for admission to these, there does not seem to be any general power to exact an admission fee to the parks generally.

The decision pronounced last year by the Valuation Appeal Court does not in terms apply to such subjects as are now in question. It is said that the principles then laid down cover museums and galleries, as these subjects are legally indistinguishable from parks; and as the point raised is one of general importance and, if the Assessor's view is well founded, may be far-reaching in its consequences, it is necessary to scrutinise the decision with great care; and especially to consider how far the English decisions upon which it proceeded in overruling the earlier case of Ferrier