Magor and St. Mellons R D. C. v Newport Corporation
| Jurisdiction | UK Non-devolved |
| Judge | Lord Simonds,Lord Morton of Henryton,Lord Radcliffe,Lord Tucker |
| Judgment Date | 25 October 1951 |
| Judgment citation (vLex) | [1951] UKHL J1025-2 |
| Court | House of Lords |
| Date | 25 October 1951 |
[1951] UKHL J1025-2
Lord Simonds
Lord Goddard
Lord Morton of Henryton
Lord Radcliffe
Lord Tucker
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Rural District Council of Magor and Saint Mellons against Mayor, etc., of County Borough of Newport, that the Committee had heard Counsel, as well on Wednesday the 4th, as on Thursday the 5th, days of July last, upon the Petition and Appeal of the Rural District Council of Magor and Saint Mellons, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 27th of November 1950, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Mayor, Aldermen and Burgesses of the County Borough of Newport, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, in the name of the House of Lords, by the Lords of Appeal sitting in the House of Lords during the Dissolution of Parliament, by virtue of a Writing by Her Majesty the Queen and Her Royal Highness the Princess Elizabeth as Counsellors of State on behalf of His Majesty, dated the 5th day of October 1951, pursuant to the provisions of the Appellate Jurisdiction Act, 1876, That the said Order of His Majesty's Court of Appeal, of the 27th day of November 1950, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
I have had the advantage of reading the opinion which my noble and learned friend Lord Morton of Henryton is about to deliver and I fully concur in his reasons and conclusion, as I do in those of Parker, J., and the majority of the Court of Appeal. Nor should I have thought it necessary to add any observations of my own were it not that the dissenting opinion of Denning, L.J., appears to invite some comment.
My Lords, the criticism which I venture to make of the judgment of the learned Lord Justice is not directed at the conclusion that he reached. It is after all a trite saying that upon questions of construction different minds may come to different conclusions and I am content to say that I agree with my noble and learned friend. But it is upon the approach of the Lord Justice to what is a question of construction and nothing else that I think it desirable to make some comment; for at a time when so large a proportion of the cases that are brought before the Courts depend on the construction of modern statutes it would not be right for this House to pass unnoticed the propositions which the learned Lord Justice lays down for the guidance of himself and, presumably, of others.
"We sit here", he says, "to find out the intention of Parliament and of Ministers and carry it out: and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis". The first part of this passage appears to be an echo of what was said in Heydon's case 300 years ago and, so regarded, is not objectionable. But the way in which the learned Lord Justice summarises the broad rules laid down by Sir Edward Coke in that case may well induce grave misconception of the function of the Court. The part which is played in the judicial interpretation of a statute by reference to the circumstances of its passing is too well known to need restatement: it is sufficient to say that the general proposition that it is the duty of the Court to find out the intention of Parliament—and not only of Parliament but of Ministers also—cannot by any means be supported. The duty of the Court is to interpret the words that the Legislature has used : those words may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited : see, for instance, Assam Railways and Trading Company v. Commissioners of Inland Revenue [1935] A.C. 445, and particularly the observations of Lord Wright at p. 458.
The second part of the passage that I have cited from the judgment of the learned Lord Justice is no doubt the logical sequel of the first. The Court, having discovered the intention of Parliament and of Ministers too, must proceed to fill in the gaps. What the Legislature has not written, the Court must write. This proposition, which restates in a new form the view expressed by the Lord Justice in the earlier case of Seaford Court Estates Ltd. v. Asher [1949] 2 K.B. 481 (to which the Lord Justice himself refers), cannot be supported. It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation. And it is the less justifiable when it is guesswork with what material the Legislature would, if it had discovered the gap, have filled it in. If a gap is disclosed, the remedy lies in an amending Act.
For the reasons to be given by my noble and learned friend I am of opinion that this appeal should be dismissed with costs.
My Lords,
My noble and learned friend Lord Goddard has asked me to say that he entirely agrees with the Opinion which I am about to deliver.
The matters in issue between the parties in this Appeal arise out of a claim for a financial adjustment made by the Appellants against the Respondents in respect of an alteration of boundaries effected by the Newport Extension Act, 1934 (hereafter called "the Act of 1934"). They involve the interpretation of the Act of 1934, Sections 151 and 152 of and the Fifth Schedule to the Local Government Act, 1933 (hereafter called "the Act of 1933") and the County of Monmouth Review Order, 1935 (hereafter called "the Order of 1935"). It is convenient to set out the relevant portions of these Acts and of the Order before stating the questions which fall to be decided by your Lordships' House.
By Section 4 of the Act of 1934, which came into operation on the 1st April, 1935, the boundary of the County Borough of Newport was altered so as to include, in addition to the then existing borough, the Parish of Saint Woollos and parts of the Parishes of Bettws and Malpas in the then rural district of St. Mellons, and part of the Parish of Christchurch in the then rural district of Magor, all of which were, until the coming into operation of the Act of 1934, part of the administrative County of Monmouth.
By Section 58 of the Act of 1934 it is (inter alia) provided that:—
"(1) Where in consequence of this Act any adjustment of any property income debts liabilities or expenses or of any financial relations is required an adjustment shall be made between the councils or other authorities affected under and in accordance with Sections 151 and 152 of the Act of 1933 as if this Act were an order made under Part VI of the Act of 1933."
By Section 151 of the Act of 1933 it is (inter alia) provided that:—
"(1) Any public bodies affected by any alteration of areas or authorities made by an order under this Part of this Act" (namely—Part VI) "may from time to time make agreements for the purpose of adjusting any property, income, debts, liabilities and expenses (so far as affected by the alteration) of, and any financial relations between, the parties to the agreement.
(2) The agreement may provide for the transfer or retention of any property, debts, and liabilities, with or without any conditions, and for the joint use of any property, and for the transfer of any functions, and for payment by either party to the agreement in respect of property, debts, functions, and liabilities so transferred or retained, or of such joint user, and in respect of the remuneration or compensation payable to any officer or person, and that either by way of a capital sum or of a terminable annuity for a period not exceeding that allowed by the Minister.
(3) In default of an agreement as to any matter requiring adjustment, such adjustment shall be referred to the arbitration of a single arbitrator agreed upon by the parties, or in default of agreement appointed by the Minister, and the award of the arbitrator may provide for any matter for which an agreement might have provided."
By Section 152 of the Act of 1933 it is (inter alia) provided that:—
"(1) On an adjustment under the last preceding section the following provisions shall have effect:—
( a) .…
( b) Provision shall, unless otherwise agreed, be made for the payment to a local authority of such sum as seems equitable, in accordance with the rules contained in the Fifth Schedule to this Act, in respect of any increase of burden which, as a consequence of any alteration of boundaries or other change in relation to which the adjustment takes place, will properly be thrown on the ratepayers of the area of that local authority in meeting the cost incurred by that local authority in the discharge of any of their functions.
(2) This section shall also extend to an adjustment made under section thirty-two or section sixty-two of the Local Government Act, 1888, whether as originally enacted or as applied in England or Wales by any other enactment or statutory order, and consequent on an alteration of boundaries or other change effected after the thirty-first day of March, nineteen hundred and thirty."
Section 305 of the...
To continue reading
Request your trial
- Affin Credit (M'sia) Sdn Bhd v Yap Yuen Fui
- Wong Ah Hee @ Wong Ah Mooi and Another v Low Tuck Hoong
- Government of Malaysia v Mohamed Amin bin Hassan
- Muhammed b Hassan v Pendakwa Raya
-
Preliminary Sections
...Estates Ltd. v. Asher (1949) 2 K.B 481 at p.499 ...... 93 Secretary of State for Defence v. Warn (1968) 3 W.L.R. 609 at 614. 153 See (1952) AC 189; (1951) 2 All E.R. 839 at p.841 .......93 Seldon v. Davidson (1968) 1 W.L.R. 1083 .........1 Sele Eyorokoromo & Anor. v. The State (1979) 6-9 S ......
-
Courts 2
...interpretation of statutes and application of them to the case being tried. See: Magor and St. Mellous R.D.C. v. New Port Corporation (1952) A.C. 189-191. Besides, appellant has not offered any suggestion as to how the provisions of the Land Instruments Registration Law are to be interprete......
-
Interpretation Of Statutes
...(1949) 2 K.B. 481 which was rejected by the House of Lords in Magor and St. Mellons Rural District Council v. New Port Corporation (1951) 2 All E.R. 839 that the filling of the gap was “A naked usurpation of the legislative function” which was also condemned by Bairamian J.S.C. in D.E. Okum......
-
Montesquieu and pepper (inspector of taxes) v. Hart
...that what "the legislature has not written, the court must write" is 44 [1949] 2 K.B. 481. 45 [1950] 2 All E.R. 1226 at p. 1236 . 46 [1952] A.C. 189 at p.l91. "a naked usurpation of the legislative function under the thin guise of interpretation. And it is the less justifiable when it is gu......