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But section 5 of the Act is as follows : " This Act shall not affect any enactment
in any private or local Act of Parliament, under the authority of which Church
Rates may be made or levied iu lieu of, or in consideration of, the extinguishment,
or of the appropriation to any other purpose of any tithes, customary
payments, or other property, or charge upon property, which tithes, payments,
property, or charge, previously to the passing of such Act, had been appropriated
by law to ecclesiastical purposes, as defined by this Act, or in consideration of
the abolition of tithes in any place or upon any contract made, or for good or
valuable consideration given ; and every such enactment shall continue in force
in the same manner as if this Act had not passed."
I think this shows that the Legislature thought that there might be rates
wholly or partly for ecclesiastical purposes created by private or local Acta of
Parliament, under such circumstances that it might be unfair to abolish them,
at least except on terms. And as it seems to me the intention of the Legislature
was that whenever an enactment in a private or local Act, authorising the
levying of Church Rates, came within the categories which are enumerated in
that section, it was not to be affected by this Act; but if those enactments are
to be affected, it is to be so by legislation, which would give an opportunity for
imposing such terms as were just. The enactments in 8 and 9 Victoria, chapter
180, are those under which the Composition Rate is for the first time authorised
to be levied, and are, I think, enactments in a local Act under the authority of
which that rate may be levied. And as that rate is in express terms to be inter alia
for "making up any deficiency in the rates and duties for maintaining Divine
Worship in the said Church of St. Matthew, and for repairing and keeping in
repair the said Church and the Churchyard belonging to the same," they are, I
think, enactments under the authority of which a Church Rate may be levied.
The question, therefore, I think, is this: Are they such enactments as to
bring the case within that class of enactments which the Legislature intended
by 31 and 32 Victoria, chapter 109, section 5, to exempt from the operation of
that Act ? The judges below have all thought that they were, and I think that
if this case came before me without any authority I should probably have come
to the same conclusion. I certainly cannot now say that they are wrong. I
would wish that the Legislature had more clearly and distinctly expressed what
were the class of local enactments that they intended to exempt from the operation
of the 31 and 32 Victoria, chapter 109 ; more particularly I would wish that
it had more clearly been explained what was intended by the last clause—
" Upon any contract made or for good or valuable consideration given." I
shall not, however, attempt to do what the legislature have not done, and to
put in different words a more clear definition. I agree with Lord Justice Cotton
that the true construction of the 8th and 9th Victoria, chapter 180, was to
authorise the levying of the Composition Rate in part, in lieu of the garden
pennies which were abolished by that Act. I have not myself any doubt
so far.