C. A. 1904 ALIANZA COMPANY v. BELL. ever, does not stand alone. The same view was taken by the Court of Session in Scotland in a series of cases-namely, Addie v. Solicitor of Inland Revenue (1); Coltness Iron Co. v. Black (2), which was affirmed in the House of Lords (3); Inland Revenue v. Farie. (4) It is true that in all these cases the assessment was made under Sched. A, to which the rules Stirling L.J. under Sched. D were made applicable by 29 & 30 Vict. c. 36, s. 8, only "so far as such rules are consistent with " Sched. A. It is also true that Lord Blackburn, in advising the House of Lords in Coltness Iron Co. v. Black (5), held that recourse ought not to have been had in Addie's Case (1) to the third rule under the first case in Sched. D; but neither he nor any of the other noble Lords who took part in the decision cast any doubt on the construction placed on that rule by the judges in Scotland. The only authority in the appellants' favour is Knowles v. McAdam (6); but this case was overruled by the House of Lords in Coltness Iron Co. v. Black (5), no doubt on the ground that an erroneous construction had been placed by the Exchequer Division on the statute 29 & 30 Vict. c. 36, s. 8, already referred to: but at the same time I am unable to see that anything was said which lends support to the argument on behalf of the present appellants. It was said that the Alianza Company is entitled to apply capital in payment of dividends, and the case of Lee v. Neuchatel Asphalte Co. (7) was referred to. I do not think it necessary to discuss the vexed question whether capital can be lawfully applied in payment of dividends, and, if so, in what circumstances. It is sufficient to say that I am not satisfied that such capital (if any) as may be lawfully paid away by a company to its shareholders in the shape of dividends would be regarded by the Legislature as an unfit subject for assessment to income tax, or would not fall within the prohibited deductions in respect of "capital withdrawn" or sums "employed or intended to be employed as capital." For these reasons I think that the appeal fails and ought to be dismissed. (1) 2 R. 431; 1 Tax Cases, 1. 311. (4) (1878) 16 Sc. L. R. 189. (6) 3 Ex. D. 23. (7) (1887) 41 Ch. D. 1. C. A. 1904 ALIANZA COMPANY V. BELL. MATHEW L.J. I am of the same opinion. The objections raised on behalf of the appellants to the assessment have been successfully disposed of in the judgment of my brother Channell, and I cannot usefully add anything to the reasons given by my Lord and my brother Stirling for dismissing the appeal. Appeal dismissed. Solicitors for appellants: Ashurst, Morris, Crisp & Co. A. M. 1904 Nov. 4. CHEPSTOW ELECTRIC LIGHT AND POWER COM- Justices-Complaint-Limitation of Time-Laying Electric Lines near Gas Mains-Arbitration-Award of Compensation-Conviction-Penalties— By the Electric Lighting (Clauses) Act, 1899, schedule, s. 18, undertakers who lay new electric lines (other than service lines) near the mains of any gas company shall conform with the reasonable requirements of the gas company for protecting their mains from injury, and for securing access thereto, and repair any damage done thereto, any question or difference which may arise under that section to be determined by arbitration; and if the undertakers make default in complying with any of the requirements of the section, they shall make full compensation to the gas company for loss or damage incurred by reason thereof," and in addition thereto they shall be liable for each default to a penalty not exceeding 107., and to a daily penalty not exceeding 51." By s. 1, "the expression 'daily penalty' means a penalty for each day on which any offence is continued after conviction therefor." In October, 1903, an electric light company were laying in the streets of a town new electric lines (other than service lines) near the mains of a gas company. On October 2, 1903, the gas company by letter to the electric light company complained that the lines were being laid in a manner which was injurious to the gas mains, and required the lines to be relaid in a proper manner. Correspondence then ensued between the two companies, in the course of which the gas company, by letters of October 27 and November 2, 1903, respectively, specified their requirements with 1904 CHEPSTOW POWER COMPANY v. CHEPSTOW GAS AND COKE CONSUMERS' COMPANY. respect to the laying of the electric lines. Throughout the correspondence the electric light company, who completed the work of laying their lines on or before October 31, 1903, disputed the reasonableness of the gas company's requirements, and they did not at any time comply with them. LIGHT AND The questions and differences which had arisen between the two companies were, shortly after November 2, 1903, referred to arbitration under s. 18 of the schedule to the Act of 1899, and on February 12, 1904, the arbitrator made his award, finding in effect that the electric light company had not conformed with the requirements of the gas company, and awarding to the latter a sum as full compensation for the loss and injury they had thereby sustained. On April 29, 1904, the gas company's solicitors wrote to the electric light company's solicitors pointing out that the electric light company had made no attempt to comply with the gas company's requirements, and threatening proceedings for penalties under s. 18 unless an undertaking were given that those requirements would be fully complied with. On May 31, 1904, a complaint was made on behalf of the gas company alleging that "on and since October 2, 1903," the electric light company had made default in complying with certain requirements of s. 18; that they had laid their new electric lines too near the gas company's mains, and did not conform and had not conformed with the gas company's requirements for protecting from injury their mains, and for securing access thereto. On the hearing of the complaint before justices they convicted the electric light company of the offence alleged in it, and adjudged that they should "forfeit and pay to the clerk of the Court the sum of 17., and the further sum of 11. for every day during default": Held, that the complaint and conviction sufficiently alleged an offence completed within six months before the time when the complaint was made, and were, therefore, not bad on the face of them under s. 11 of the Summary Jurisdiction Act, 1848; nor did the facts proved before the justices and above stated shew a completed offence before the statutory period of limitation began to run. [Semble, that, whether the complaint was or was not made within the statutory period, the offence was a continuing offence, so that s. 11 did not apply.] Held, also, that the reference to arbitration and the award did not bar the right of the electric company to proceed for penalties under s. 18 of the schedule to the Electric Lighting (Clauses) Act, 1899: Held, further, that the conviction so far as it imposed the additional daily penalties was bad, but that it could be dealt with either by an amendment striking out the part which related to those daily penalties, or by directing that no effect be given to that part in the event of an attempt being made to enforce them, and that the other part of the conviction was good, and could be enforced. CASE stated under the Summary Jurisdiction Acts by two justices of the peace of the county of Monmouth. The appellants, an electric light company, were summoned LIGHT AND POWER COMPANY V. CHEPSTOW GAS AND CORE CONSUMERS' 1904 before the justices to answer a complaint made on behalf of the CHEPSTOW respondents, a gas company. The complaint alleged that the ELECTRIC electric light company" on and since the second day of October, 1903, at the parish of Chepstow . . . . did make and have made default in complying with certain requirements of s. 18, sub-s. 1, of the Electric Lighting (Clauses) Act, 1899 (1), in that the said electric light company have laid down and conCOMPANY. structed new electric lines and other works in certain portions of the following streets, viz." [the various streets were here described] "in undue proximity to the mains or pipes belonging to the said gas company, and did not conform and have not conformed with such requirements as were made by or on behalf of the said gas company for protecting from injury their said main pipes and other works and, for securing access thereto, (1) 62 & 63 Vict. c. 19, s. 1, enacts that "the provisions contained in the schedule to this Act shall be incorporated with and form part of every provisional order made by the Board of Trade after the commencement of this Act under the Electric Lighting Acts, save so far as they are expressly varied or excepted by the order, and shall, subject to any such variations or exceptions, apply, so far as applicable, to the undertaking authorized by the order." 66 Schedule, s. 18: (1.) Where the undertakers require to dig or sink any trench for laying down or constructing any new electric lines (other than service lines) or other works near to which any. . . . main, pipe. . . . or other work belonging to any gas... company has been lawfully placed... the undertakers . . . . in this section referred to as the 'operators' shall, unless it is otherwise agreed between the parties interested, or in case of sudden emergency, give to the . . . . gas.... company . . in this section referred to (amongst other bodies and companies) as the owners,' not less than three days' notice before .... commencing to dig or sink such trench as aforesaid, and those owners shall be entitled by their officer to superintend the work, and the operators shall conform with such reasonable requirements as may be made by the owners or the officer for protecting from injury every such . . . . main, pipe, .... .. or work, and for securing access thereto, and they shall also, if required by the owners thereof, repair any damage that may be done thereto." "(4.) Any question or difference which may arise under this section shall be determined by arbitration. "(5.) If the operators make default in complying with any of the requirements of this section they shall make full compensation to all owners affected thereby for any loss, damage, penalty, or costs which they may incur by reason thereof; and in addition thereto they shall be liable for each default to a penalty not exceeding ten pounds, and to a daily penalty not exceeding five pounds. . . .” By s. 1 of the schedule, " the expression 'daily penalty' means a penalty for each day on which any offence is continued after conviction therefor." contrary to the form of the statute in such case made and provided." At the hearing before the justices the following material facts were proved or admitted : The gas company were incorporated by Act of Parliament in the year 1856, and under their statutory powers had, some years before the matter of the complaint arose, laid down gas mains in the streets in question. The electric light company were incorporated in 1902, and in the same year obtained a provisional order, subsequently confirmed by Act of Parliament, from the Board of Trade under the Electric Lighting Acts, 1882 and 1888, which provisional order incorporated the provisions contained in the schedule to the Electric Lighting (Clauses) Act, 1899. In the latter part of the year 1903 the electric light company began to lay new lines (other than service lines) for the purposes of their undertaking in the streets of the town of Chepstow, including the streets named in the complaint. On October 2, 1903, the gas company, by letter of that date written by their manager to the electric light company, complained that the latter were laying their electric lines in some parts of the town in a manner which was injurious to the gas company's mains, and prevented the gas company having free access thereto. After giving some particulars of the matters complained of, the letter proceeded: "I am therefore instructed to give you notice that this company require you to relay your lines in a proper manner, and to give them the statutory three days' notice of the work, so that they may have the opportunity afforded to them of sending an officer to superintend the work and to point out to you the requirements of this company. In default of your complying with this request this company hereby give you notice that they will not be responsible for any damage which may be caused to your lines when this company require to have access to their mains, and they reserve the right to take such proceedings against your company as they may be advised." Correspondence then ensued between the parties, and on October 27, 1903, the gas company gave 1904 CHEPSTOW ELECTRIC LIGHT AND POWER COMPANY v. CHEPSTOW GAS AND СОКЕ CONSUMERS' COMPANY. |