Chief Justice Anglin.-

The Melbourne and Metropolitan Board of Works (respondents) brought this action in the Melbourne County Court to recover a sum of £65-19s. claimed as a balance due for water supplied by it to the defendants (appellants), who, by their defence, asserted a right to exemption from water rates as a charitable institution" within the meaning of S. 94 of the Melborne and Metropolitan Board of Works Act, 1915. That section reads as follows :

94. In all the pipes to which any fire plug is fixed the Board shall provide and keep constantly laid on for use without charge, unless prevented by unusual drought or other unavoidable accident or during necessary repairs a sufficient supply of water for the following purposes (that is to say) : for cleansing the sewers and drains, for cleansing and watering the streets, and for supplying any public hospital or charitable institutions or any public pumps, baths and wash-houses that may be established for the use of the inhabitants and paid for out of any city town or borough rates ; and such supply shall be provided in such quantities and upon such terms and conditions as may be agreed upon by the council of the city, town or, borough to which such water is supplied and the Board : Provided that no baths or wash-houses shall be entitled to be supplied with water under the provisions of this section unless the charges for the use thereof by the inhabitants shall be approved of and shall not exceed the amounts fixed by the Board."

In the County Court this defence was upheld ; but, on appeal, the full Court of the Supreme Court of Victoria reversed that judgment and held the defendants liable. The sole issue is whether or not "The Lost Dogs' Home," conducted by the defendants as trustees, is a "charitable institution" within S. 94.

This legislation, it was stated by counsel, was introduced in the Colony of Victoria in 1853 by the Statute 16 V., Cap. 39, which referentially incorporated (amongst other sections) S. 37 of the Imperial Statute known as "The Water-Works Clauses Act, 1847." The section of the Imperial Statute contains no reference to "charities." By "The Municipal Institutions Act, 1863," S. 365, Municipal Council were first empowered to appropriate public moneys :

"for erecting, establishing, maintaining or otherwise aiding any hospital or other institution or society . . . for the relief of such poor persons as though age, sickness, infirmity or accident are unable to help themselves ......."

In 1865, the Statute of 1853 was repealed and an Act was passed (The Public Works Statute, 1865) to amend and consolidate the laws relating to public works. This Statute contains, as S. 216, provisions in all material respects identical with the provisions of S. 94, above quoted, and, in particular and for the first time, included in the subjects of exemption any public hospital or charitable institutions." Some other modification, not now material to be considered, were made in adapting the Imperial Statute to the local conditions of the Colony.

The learned County Court Judge took the view that, when that, when introducing the words "any public hospital or charitable institutions" into S. 216, the legislature had probably failed to notice "certain qualifying words contained in the rest of the section," and that, having regard to local conditions, if the words so introduced were to be given any substantial application they must be read as extending to hospitals and charitable institutions not maintained by or subject to the control of, municipal authorities. Otherwise, he says :

"the amendment must be regarded as almost useless and very insignificant . . . because there is certainly not more than one hospital under the control of the municipality and, so far as counsel could inform me, not one single charitable institution, and this fine sounding amendment would be a very feeble contribution in the aid of charity."

He accordingly read the Words "established for the use of the inhabit