pany in fact receive from the occupation so devoted to such carrying trade. Another question was undoubtedly raised, as to the mode of measuring the rate-on which of two principles it was to be calculated-whether it was to be measured according to the proportion which the mileage of the railway in the respondent parish bears to the whole length of the way, assuming the profit to arise equally through the whole, or according to the actual earnings in the parish. This question, however, was not much argued, it being conceded ultimately, that the latter was the proper mode, and the result was agreed to be, that the rate ought to be on 3,8037., if the parish be right; on 1,2931., if the company can limit their liability to a rate, in fact, on tolls only. The railway has been formed, and is regulated under the authority of several statutes. By the first of these, the 4 & 5 Will. 4, the proprietors were incorporated, and were authorized to purchase lands in fee simple, subject to certain qualifications not material to be noticed. On the land so purchased, they are to make and maintain a railway, with warehouses, stations, and landingplaces, for the purpose of locomotive engines, carriages, &c., and for loading, unloading, and landing of goods, and the approach and departure of passengers for conveyance. For the tonnage of goods, and in respect of passengers, beasts, cattle, and animals, conveyed in carriages on the railway, and also for carriages conveyed on it, they may demand certain tolls, of which the maximum is fixed, and not the minimum; and further, they may themselves provide power for propelling persons and things, or they may themselves convey such persons or things on their railway; for which, in addition to the before-mentioned tolls, they may charge such sums as they may from time to time think fit. The company, may, therefore, be simply the owners of the way, on which others may place steam power and carriages, and convey persons and goods, and these two parties would then stand much in the same relation to each other as the trustees of a turnpike road, and the coach and postmasters conveying passengers on it. In this case, they would receive the tolls only-the owner of the steam power and carriages the fares or remuneration for conveyance; and it would be of course the interest of the

company to raise the tolls to the maximum, or as near to it as the competition of the ordinary mode of travelling would allow. On the other hand, the company may avail themselves of the latter clause, and unite both the characters of owners of the way and carriers on it-they will then receive both the tolls and fares. In both cases, the persons or owners of goods conveyed must pay both the tolls and the fares; but in the latter, the company would be the first and last receivers of both; they would be charged as well as paid in one undistinguished sum; there could be no division; and supposing the company to be the only carriers, there could be no necessity for fixing any rate of toll at all; the whole payment might just as well be considered as fare. This appears, in fact, to be the existing state of things. But the statute (section 157,) has provided, that when the proprietors shall convey for their own profit, a separate account shall still be kept, shewing the amount of tolls which would have been received by them, merely for the use of the railway, if such conveyance had been by other parties, to which account the overseers of the parish shall have access during the first fourteen days in July and January in every year; but the act makes no provision for such an account being kept, and open to the same inspection, when other parties do, in fact, convey on the railway, where it would be equally necessary. It may be thought, that the framers of the act did not seriously contemplate, what, in truth, has not happened, and probably never will happen, that any parties but the company would ever become carriers on the railway. By the second act, which passed in 1837, this 157th section is referred to, as if it directed that the separate accounts should be kept in both cases and be open to inspection; and the neglect to keep it, or the refusal to permit its inspection, is subjected to the very heavy penalty of 300l., and 50l. per diem for its continuance. The effect of this clause on the argument, we must consider in the sequel. By the 172nd section of the first act, all persons have free liberty to use the railway with carriages properly constructed, on payment only of the rates, tolls, and sums demanded by the company, and subject to the rules and regulations which they shall from time to time make; the construction of such

carriages must also be agreeable to the order of the company, and approved by their engineer or agent: but although the railway itself is thus under certain qualifications thrown open to the public as a highway, no corresponding provision appears to have been made with regard to warehouses, wharfs, stations, or landing-places. Both of the statutes before mentioned contain powers for the purchase of forty additional acres, eighty in the whole, for the erection of additional stations, yards, wharfs, warehouses, and other similar erections and conveniences for receiving, depositing, loading, and unloading goods, and other purposes connected with the undertaking. But as to these lands, neither statute gives the public any right of access, or user, adverse to the company, and the use, for anything that appears, might be denied to any individual desiring to become a carrier on the railway.

These are the material facts and provisions which the case states, and to these we are now to apply the rule of rating prescribed by the 6 & 7 Will. 4. c. 96. The 3 & 4 Vict. c. 89, was referred to in the argument; but it has in truth little or no bearing on this question. It prohibits the rating of any inhabitant as such inhabitant, in respect of his ability derived from the profit of stock in trade, or any other property, to the relief of the poor; but it expressly leaves unaffected the liability of any occupier of lands or houses to be taxed under the provisions of the 43 Eliz. and the 13 & 14 Car. 2. Under the 6 & 7 Will. 4. c. 96, the rate must be made on an estimate of the "net annual value," and that value is declared to be "the rent at which the hereditaments might reasonably be expected to let from year to year, free of all usual tenant's rates and taxes, and tithe commutation rent-charges, if any, and deducting the probable annual amount of repairs, &c., if any, necessary to maintain them in a state to command such rent." To this enactment is added a proviso, that nothing in effect shall be construed to alter or affect the principle, according to which different kinds of hereditaments were at the time of its passing by law rateable.

The argument for the company may be stated shortly; it is clear, and, if it be applicable to the circumstances, convincing. It is, that in order to apply the statute, it is always necessary to suppose the property in

The

respect of which the rate is imposed, let from year to year. The portion of the railway in the respondent parish, must, therefore, be supposed to be so let; and in order to estimate the rent, it must be asked, what the tenant would take by the demise? The answer to which would be, the portion of the railway itself, and the perception of the tolls as before fixed by the company. He would have a right to place his own carriages on the railway, not by virtue of the demise, but in common with all the world. gross rent, therefore, would be something less than the amount of the tolls, by the allowance of a tenant's profits; and after making from these the statutable deductions, the residue will be the net annual value on which the rate is to be imposed. If, because the lessee in occupation should place carriages on the railway, and derive therefrom a profit, you are to rate him in respect of that profit, you would equally rate any other carrier using the railway, but having no interest in it; for the share in the case of the lessee is not referable to his occupation under his demise that, therefore, would be in violation of the statute. We forbear to notice at present the subsidiary parts of the argument. It is obvious, that the case here supposed, which is that of a lessee in exclusive perception of the tolls on a railway, practically open to rival carriers, is one very different in fact from the case before us-one, moreover, which not only has not occurred, but, from the nature of things, it may be safely said never can occur. The supposition of a lease of a portion of a railway, without any demise of the stations, warehouses, approaches to it, or any provision for the use of them, is merely absurd. Such a lessee would be a mere toll-collector for the company, without even, as it should seem, any convenient mode of collecting toll. The supposition, again, of a fair competition of carriers on the same railway, is practically absurd. If all difficulties were removed as to stations, warehouses, &c., and all these were supposed as much laid open to the public as the railway itself, the very nature of the mode of conveyance forbids a fair competition of rival carriers. But how can we suppose this competition possible with the company, now the carriers; or, indeed, any free use of the railway, even by a private carriage, the company retaining the independent occu

pation and controul over all the existing approaches? Nay, a lease which should include the stations, warehouses, and approaches, and place the lessee, as to the extent of occupation, in the same position exactly in which the company now are, would not be without its difficulty, for the act is framed, whether quite effectually or not, with some regard to the interests of the public as well as of the company. The travelling and conveyance by carriages, drawn or propelled by locomotive engines, are attended with peculiar and very alarming risks, and many regulations of police, therefore, are enacted, which the company are charged to enforce: and it is very questionable whether the lessee could be by them delegated as to this trust, while it is certain that the company out of possession could not discharge the duties so conveniently or perfectly as they now can. These are considerations which make us pause in giving our assent to the arguments which suggest them.

The proviso in the 6 & 7 Will. 4. declares, that the principles of rating are not to be altered or affected by it. It is, therefore, important to consider, how, under the circumstances stated in the case, the company would have been rated if that act had not passed. They would then have been found occupying buildings and lands on an entire line of railway, and carrying on a trade, not merely therein and thereon, but thereby,—a trade inseparably connected with such buildings and such lands,-a trade which could have no existence without the buildings and lands, and but for which, the buildings would not have been erected or occupied; and for the using of which, in a great measure, the lands themselves are occupied in a particular manner. The profits of this trade would be included in the fares received for the conveyance of goods and passengers; and the question would be, whether that profit ought, in any or in what degree, to affect the rateable value of the lands. There is a class of cases often cited, which have established the principle on which this question is to be answered: we allude, among others, to The King v. St. Nicholas Gloucester (14), and The King v. Bradford (15). In the first, a steelyard, part of a

(14) Cald. S.C. 262. (15) 4 Mau. & Selw. 317.

machine, in a street leading by a house, was in the house; sums were paid by persons for weighing their waggons and carts, but those persons were not compellable to weigh them. Without this profit, the house was worth 51. a year; this profit was worth about 401., and this, after due deductions, was included in the rate, as embracing the rateable value of the house; and the Court thought rightly so. Lord Mansfield con

sidered the house and machine as an entire thing:-"The principal purpose of the house," said he, " is for the weighing,-the steelyard is the most valuable part of the house." "If," said Willes, J., " a billiard table stands in a house, and the house should, in respect of such table, let at a higher sum, it is rateable, while the table continues there and it is so let, at the advanced rent." Buller, J. said, "There is an extraordinary profit arising from the modification of the enjoyment. The only question, therefore, is, whether a man shall be rated for the property he has. If a house to-day is let for 30l. a year, and to-morrow, if turned into a shop, would let for 50%., when it is turned into a shop it shall be rated at 501." The Court clearly regarded neither the nature of the source of profit, nor its permanence. They looked only to the existing value of the subject-matter of the rate-the house, and rated it according to that value.

This principle became so well established by the time The King v. Bradford came before the Court, that it was then sought not to deny it, but to evade it, by demising the canteen, and privilege of using it as such, and selling liquors therein, at two distinct rents, in the hope of successfully contending that the rate should be on the rent of the house only. The Court, however, looked to the substance and not to the form, and held both sums to be parts of one entire rent, paid for the occupation of the house and enjoyment of the advantages which for the time belonged to it, and for the time enhanced its value. As in the former case, people might cease to weigh at the engine, or the engine might be removed, so in this, the barrack might cease to be occupied, the customers be all removed, the licence to sell liquors might be withheld or forfeited; still, while these remained, and so the additional value was sustained, that value, it was held,

must come into the rate. And as Le Blanc, Justice, expressly said, this was not rating the canteen man "in respect of the property of his trade, but only in respect of the rent which he paid." The occupation of the house was, indeed, necessary for the earning of the profits of the trade, but the house became more valuable because it enabled the profit to be earned. How it became valuable the overseer was not bound to inquire finding it so, he was to rate the occupier according to that value.

We are now to consider a case on which much reliance was placed by the appellants; it has always been considered a leading one, and we think will not, on examination, be found to conflict with the preceding, the case of The King v. the Trustees of the Duke of Bridgewater. The question there, was simply this: - whether, when the other occupiers of land in the parish were rated on four-fifths, not of the actual value, but of their rents taken as the value, the appellants ought, being the owners as well as the occupiers of land covered by water and used as a canal, from which the case found that they derived no profit, except from the tonnage of goods carried on it, to be rated at four-fifths of the gross receipts of such tonnage. The Court determined, as might have been expected, that equal allowance must be made in both cases. The rent, or sum at which the land will let, is the proper criterion; but the rent, they said, is not supposed here to be the value of the land, or of its produce, minus the expense of producing it, but the value after deducting the expense of cultivation and the farmer's subsistence. And on this supposition it is clear, that the rate was unequal. This was all that was decided. The trustees were also rated as the occupiers of warehouses, &c. adjacent to the canal; but as to these, by arrangement, no question came before the Court. They were also carriers on their own canal, and received freight as such for goods carried, of which the tonnage was included in the rate on the canal. question being thus confined to the canal, and the trustees, as carriers, merely using it as any other person might have done

and

The

did their characters of occupiers of land, and of carriers were quite distinct. The tonnage strictly represented their profit in the one, the freight their

profit in the other. This last was unconnected with the land, and did not add to its value, and was therefore properly excluded from the rate.

us.

Now, let the principle which these cases establish be applied to the facts before If we wish to know whether the fares would have been properly included in the rate before the Assessment Act passed, we apprehend that, according to that principle, the only question to be asked would be, do they increase actually the value of the buildings and the lands on which the rate is to be made? If they do, and to whatever extent they do, to that extent, due allowance being always supposed, they must, directly or indirectly, be included. It would be no answer to say, that by law the railway is a highway-that all the world may carry goods and passengers on it; that it is an accident that the company alone monopolize all the trade, and that their monopoly may cease to-morrow. These circumstances, so far as they lessen the value of the buildings and land, would be proper to be taken into account as to the quantum of rate, but they would not affect the principle. But do the fares increase the value of the buildings and lands? No one can doubt it. Indeed, the case has answered that they do; that a higher rent for the buildings and lands would only be obtained in consequence of the facility afforded by the occupation of them to the carrying on of a lucrative trade, and earning the profit on those fares. The case thus supposed, would be exactly the same in principle as that of the house and engine, the house and billiard table, the house converted into a shop, the canteen; and it would be distinguished from the canal case, because there, by agreement, the warehouses, &c. were left out of consideration. The trustees were, in fact, only carriers in common with all the world, and, to the extent by which their trade on the canal did augment the value of the canal, it was brought into account. But it may be observed, that so far we have supposed the lands and buildings, the railway and the stations, &c., all in one parish and included in one rate. Will it make any difference in the principle, that the railway is necessarily in more parishes than one, and that we are now dealing with a parish in which, so far as appears, there is

no station-house or other appendage to a railway? We think not. The subjectmatter of rate in each particular parish is, no doubt, the beneficial occupation of the land there, and you cannot draw into the rate the value of the occupation of buildings elsewhere; yet, as you are to rate on the value in the parish, however occasioned, you cannot strike off any portion, because it would not have existed but for the occupation of buildings in another parish: still it exists, and in the parish, and therefore cannot escape the rate there. Suppose A. B. occupying an entire tenement, as an inn, in two parishes, C. and D; the lodging part of the building in C, and the tap and stables in D. There would be two rates; but could the owner say in C, "true it is that which I occupy here is de facto more valuable than a mere dwelling or boarding-house; but that is in a great measure because it is connected with the tap and stables in D; you must reject what is referable to that connexion, and rate me here as if I occupied an inn, without a tap or stables; you must suppose a demise only of the parts in C. and rate on the rent to be given only for what that demise would pass to me." The answer would be, if the occupation of the part is, in fact, of a certain increased value, whether that increase be derived in part, or in the whole, from the other, is immaterial; but wherever the valuable occupation is, there the occupier must be rated in respect of it. Then, in the present case, it would become a question of fact is the land occupied in the respondent parish, by the railway, more valuable in fact to the occupier by reason of its occupation, together with the stations, &c. elsewhere, and the general purposes to which they, altogether, are applied? We suppose that, without doubt, this would be answered in the affirmative." Sever it from them, and three or four miles of railway, without approaches, leading from and to no place having no connexion with any termini, one would be absolutely useless and unproductive; give them the connexion, which in fact exists, you give them a value increased indirectly from the stations, warehouses, and portions of the entire line in other parishes, and directly by the general traffic, to the profit derived from which every where they

NEW SERIES, XI.-MAG. CAS.

are indispensable contributors, and through one part of which they directly pass.

any

We are thus led to the conclusion, that if this case had been to be considered before the passing of the Parochial Assessment Act, the principle of rating on which the respondents have proceeded, would have been found the true one. Has, then, the statute made difference in this respect? Now, without having recourse to the express language of the proviso, it is clear, that the enacting part introduced no new principle of rating. From the time of the decision in the case of The King v. the Trustees of the Duke of Bridgewater, before referred to, it has been understood generally, that, fraud apart, the rent, whether the occupier was the owner or only the tenant, in the former case supposed, in the latter real, was to be the criterion of rateable value. Both parties in the present case appeal equally to this criterion. The difference between them is, there being no real demise, what is to be brought into the supposed demise? and as to this, it is obvious that the statute can make no difference, the only question between the parties being, as to the proper mode of applying the admitted principle. In cases upon rating, in which the great object is to procure equality, and to bring every thing into contribution which ought to share the public burthen, it is essential, as Lord Ellenborough says in The King v. Bradford, to regard the substance and not the form. We must judge of things as they really are, and not as they appear to be; and, therefore, we are to consider here, whether this be not substantially one entire rent in respect of one entire subject, "although artificially divided into several payments.' with this case in the same sensible and just way, we shall be at no loss to see, that to break up this entire line into parochial portions, and then, in imagination, sever all and each from the buildings which the occupiers occupy together with it, de facto exclusively and under the authority of the same statutes passed in furtherance of one great scheme, and then again, in imagination, to sever both from the traffic which the occupiers carry on, in, by, and throughout the whole, de facto exclusively, and for the using of which they have made, built, and occupied the whole, is to apply the princi

P

If we deal