Retrospective Church-rate. 183 a burden at any indefinite period on their suc cessors. "These obvious purposes of the Act, so necessary to prevent abuses of the power given by it, can only be secured by an adherence to the general rule stated above, in all particulars not specially provided for by the clause. We are, therefore, of opinion, that the rate now sought to be imposed would not be authorized by the statute, and of course the present rule must be discharged" (n). These observations are equally applicable to the case of money borrowed under stat. 58 Geo.3, c.45. If the rate be in fact retrospective, the objection to its validity will equally prevail, although it may not appear to be retrospective upon the face of it, for on principle there is no real distinction between the case of a rate on the face of it retrospective and a rate intended to cover debts or parts of a debt previously incurred. It cannot be maintained that the court is bound to set aside a church-rate when the party making it had avowed an illegal object on the face of it, and to give force and effect to a rate when the object, though not avowed, was equally clear and illegal. The consequence would be absurd; it would be in the power of any vestry, by shaping the heading of the rate to suit their own purposes, to violate the law to any extent (o). (n) See also Pigott v. Bearblock and Newman, 3 N. E. C. 85. 4 Moore, 399, S. C., in which the authority of R. v. The Churchwardens of Dursley was expressly recognized and acted upon by the Judicial Committee of the Privy Council. (0) Chesterton and Hutchins v. Farlar, 1 Curt. 345. 184 Rate for current year good. In this latter case, however, the objection to the rate more properly falls under the third ground of resistance, namely, "that the rate is unnecessary" (p). Although a retrospective rate in whole or in part is bad, yet when the sums objected to on this account are trivial, as compared with the whole amount of the rate, the court will be justified in leaving them entirely out of consideration, and enforcing the rate (q). This observation is of course equally applicable to cases where the objectionable items are illegal upon any other ground (r). It must be remembered here, that by a retrospective rate is to be understood a rate for defraying the expenses of a past year. A rate for the expenses of the current year, whether incurred before or after the making of the rate, is perfectly legal, and cannot be objected to as a retrospective rate (s). (p) Farlar v. Chesterton and Hutchins, 2 Moore, P. C. 330. See post, p. 189. (q) Chesterton and Hutchins v. Farlar, 1 Curt. 435. But see the observations on Pigott v. Bearblock, post, note (r). (r) See the observations of Sir H. J. Fust, in Pigott v. Bearblock and Newman, 3 N. E. C. 85, supra. In the report of this case, indeed, on appeal to the Judicial Committee of the Privy Council, as given in the Jurist, (see 8 Jurist, 479,) Lord Brougham, in delivering the judgment of the court, is made to say, that an illegal payment of any amount, how ever small, will vitiate the rate; but nothing of this kind appears in the report of the same case before the Privy Council, in Moore, (see 4 Moore, 399,) or in the Notes of Ecclesiastical Cases, (see 3 N. E. C. 85), and it is apprehended that the case cannot be considered an authority for any such position. Possibly a distinction may be made in this respect between those cases where the illegality does, and those in which it does not, appear upon the face of the rate. See the observations of Lord Denman in R. v. Sillifant, 4 A. & E. 354; 5 N. & M. 640. (s) Farlar V. Chesterton And it would seem that the costs of a suit may lawfully be provided for by a rate made in the year in which the suit terminated, although it may have been commenced in a previous year, for they cannot properly be taken into an estimate till the suit is over, as it often depends on the event whether the suitor will have to pay or receive costs (t). It has indeed been decided by the House of Lords in a case (u) which recently came before them, as to the validity of a retrospective rate made under the authority of an Act of parliament for draining the lands of Holderness in the East Riding of the County of York (v), that there is no rule of law which prohibits a retrospective rate. They said that in every case of rating the question was whether the Acts under which a rate was made either expressly or impliedly prohibited such rate from being retrospective, and as the Act in question did not do so, they held the rate to be good. The counsel who argued in support of the rate distinguished the case under consideration from that of parish rates, and did not deny that parish rates must not be retrospective; nor does there seem to be any thing in the judgment of the House of Lords which militates against this position, as a general rule. At the same time and Hutchins, 2 Moore, P. C. 330. Butt v. Fellowes, 3 Curt. 680. (t) See R. v. Read and others, 18 L. J. (M. C.) 164. That law expenses properly incurred may lawfully be charged upon a rate, see Ibid, and see also R. v. Inhabitants of Essex, 4 T. R. 594. (u) Harrison v. Stickney. 2 House of Lords Cases, 108. (v) 2 Will. 4, c. 50, (Local and Public.) it certainly does seem to support the view taken by Sir Herbert Jenner Fust in Chesterton and Hutchins v. Farlar, and to show that that learned Civilian was right when he said that a retrospective church-rate was not necessarily bad (w). As to the third ground of objection,―That the rate is unnecessary. It is absolutely essential to the validity of a church-rate, that it be necessary for the purposes for which it is made (x). If, therefore, the churchwardens are in the actual possession of funds, clearly applicable to church-rate, and sufficient, if so applied, to render the rate unnecessary, the court will be bound to pronounce against the validity of the rate (y) In like manner, if there be an uncollected rate, such uncollected rate being sufficient, and the churchwardens able by their own exertions to collect it, the court will refuse to recognize the validity of the new rate (z). But if the churchwardens have done all they can to recover the rate, but there still remains a large sum uncollected, which the parties are unable to pay in consequence of their poverty, (w) See Chesterton and Hutchins v. Farlar, 1 Curt. 345, and see the observations of Cresswell, J., on the case of Lord Maynard v. Brand, 3 Phill. 501, in his judgment in Gosling v. Veley and Joslin, (in error), 19 L. J. (Q. B.) 111. See also the observations of Lord Langdale, M. R., in The Attorney-General v. The Corporation of Lichfield, 11 Beav. 120, 17 L.J. Chan. 472, which, though made with reference to borough-rates, are, it is sub mitted, equally applicable to church-rates. (x) Smith and Willis v Dixon, 2 Curt. 264. Varty and Mopsey v. Nunn, 2 Curt. 877; 1 N. E. C. 191, S. C. Nunn v. Varty and Mopsey, 3 Curt. 352; 2 N. E. C. 108 S. C. (y) Varty and Mopsey v. Nunn, 2 Curt. 877; 1 N. E. C. 191, S. C. Nunn v. Varty and Mopsey, 3 Curt. 352; 2 N. E. C. 108. (z) Ibid. Excessive Rate illegal. 187 they may, as it seems, in such case, lawfully enforce the payment of a subsequent rate (a). But if the outstanding funds relied upon as invalidating the rate be not matter of ecclesiastical jurisdiction, but consist of monies belonging to an estate, given for the benefit of the church, or in aid of church-rate, the court will not, on this ground, decree against the rate, as it cannot deal with the churchwardens, or other persons, in whom these funds may be vested, in their character of trustees, and has no power to compel the collecting of the money (b) And it seems that in all cases of doubt or difficulty with respect to the outstanding fund, (whether such fund be matter of ecclesiastical jurisdiction or not), the court will decide in favour of the rate; for the church must not fall down, or necessaries for divine service be wanting, until difficult questions of law are decided (c). It is upon the principle that it is essential to the validity of a church-rate, that it be necessary for the purposes for which it is made, that an excessive rate, that is, a rate for a much larger sum than is required, has always been held to be illegal (d); for an excessive rate is unnecessary to (a) Ibid. (b) Ibid. It was upon this principle that Dr. Phillimore, as chancellor of the Consistory Court of Gloucester, laid it down in Hopton and Quarrell, Churchwardens of Kemerton, v. The Minister and Parishioners of Kemerton, 6 N. E. C. 74, that no agreement entered into amongst the parishioners as to the repair of their church, could bar the ordinary from the exercise of the un doubted right and power he (d) See Brettell v. Wilmot and King, 2 Lee, 548. Smith and Willis v. Dixon, 2 Curt. 264. Farlar v. Chesterton and Hutchins, 2 Moore, P. C. 330. See also the observations of Sir S. Lushington, in White and Jackson v. Beard, 2 Curt. 501. |