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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Commissioners of Police of Kirriemuir v. Reid's Trustees [1876] ScotLR 13_644 (7 July 1876) URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0644.html Cite as: [1876] ScotLR 13_644, [1876] SLR 13_644 |
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Page: 644↓
Sheriff of Forfarshire.
The 35th section of the Police and Improvement (Scotland) Act 1862 provides, in the event of its adoption by a burgh, for the repeal of any general or local Police Act inconsistent with it and in operation within the burgh.— Held that a County Road Act, proceeding upon the principle of transferring all the roads in the county situated in a burgh to the Commissioners of that burgh, was not a local Act repealed by the adoption of the Police Act.
On 27th October 1875 the pursuers served a notice under the 149th clause of the Police Act of 1862 on the defenders, as proprietors of the “footway in front of the property in High Street, Kirriemuir, belonging to you,” requiring them to have the footing in front of their property relaid in a certain specified manner.
Against this order the defenders appealed to the Sheriff, on the grounds that the footways of the burgh were regulated by the Forfarshire Roads Act of 1874, and not by the Police Act under which the notice proceeded; and that by the Forfarshire Roads Act the expense of repairing or relaying such footways must be met by the Police Commissioners out of the funds which they were thereby empowered to raise by assessment. The ground on which the Police Commissioners made their demand under the Police Act of 1862 was, that it had been adopted subsequently to the passing of the Forfarshire Roads Act, and must be held therefore to be the ruling Act.
The Sheriff-Substitute ( Robertson) recalled the order, and found the Commissioners liable in expenses, adding to his judgment the following note.
“ Note.—In 1874 the streets and footways in the burgh of Kirriemuir which are parts of statute-labour roads were handed over to the Police Commissioners, who are empowered to assess the inhabitants for the maintenance of said streets and footways, and for certain other purposes. This was all done under the Act of Parliament called the Forfarshire Statute-Labour Roads Act.
The Police Commissioners have availed themselves of their powers of assessment, and have levied the full maximum assessment allowed by the Act. They must apply the money in carrying out the purposes of the Act, and in no other way. After carefully considering the order complained against, the Sheriff-Substitute
Page: 645↓
has come to be of opinion that the appellants are not bound to obey it, and that the Police Commissioners must themselves, out of the assessment they have levied, perform the work referred to in the order. The footway in front of the appellants' property was paved with dressed flagged pavement many years ago. The order complained against is to relay this existing footway with new pavement stones, according to specifications of the Police Commissioners. But the 22d section of the Forfarshire Roads Act specially exempts proprietors in the position of the appellants from the obligation to relay existing footways. It throws the onus of doing this on the Police Commissioners, who are to pay the cost of doing so out of the assessment levied. In other words, one of the purposes of the Act is to provide money for doing what the appellants are now ordered to do at their own cost by the order complained of. The money has been raised, and if the Police Commissioners do not themselves defray the cost of relaying this footway, they are not applying the money they have raised for one of the purposes for which they raised it. All this appears so clear that it is difficult to understand why the Police Commissioners have issued the order complained against. But they adopted the Lindsay Act in 1875, and they now fall back upon the 149th section of that Act, under which they argue that the appellants are bound to execute the work at their own cost. That section provides for the formation of foot pavements at the cost of proprietors whenever they are called upon by the Commissioners to do so. It is argued that this clause, being one of a General Police Act for Scotland, overrides the provisions of any local Act. In other words, the Police Commissioners avail themselves of the Roads Act to get the appellants' money, and then avail themselves of the Lindsay Act to avoid spending it. They collect an assessment, and refuse to do the work for which they collected it.
The Sheriff-Substitute holds that the Commissioners having exacted the maximum assessment under the Roads Act, are barred by equity and common law from pleading the Lindsay Act as overriding the statutory claims on this assessment.”
To this interlocutor the Sheriff ( Maitland Heriot) adhered.
The Police Commissioners appealed to the First Division of the Court.
A question of competency was raised but not insisted in.
Argued for the appellants—On the adoption in 1875 of the General Police Act of 1862 it at once repealed by virtue of the 35th clause any prior police Acts, and the clauses of any local or general Acts dealing with police matters that might be in force in the burgh. Accordingly the liability here fell upon the owners of adjoining property, for paving is by the Act of 1862 declared to be a police purpose.
Authority— Campbell v. Leith Police Commissioners, June 29, 1865, 3 Macph. 1035.
Argued for the respondents—It is perfectly clear that the Forfarshire Roads Act is intended to stand along with any Police Act that may be in force or that may be adopted in the burgh, and there is a constant reference to the Police Act of 1862 implied in this local Roads Act, which shows that they were intended to be read together.
At advising—
I do not think it is capable of dispute, and indeed it was not disputed, that at the time of the passing of this Act the Police Commissioners could not have made the charge that they have done against the present respondents, because the Act of 1874, being an enactment subsequent to that of 1833, was of course the governing Act in reference to these footways. But it seems that in 1875 the burgh of Kirriemuir adopted the Police Act of 1862, and the effect of that, no doubt, was to put an end to the provisions of the
Page: 646↓
But it will perhaps hardly do to say that any one is barred from pleading an Act of Parliament; we must go a little further. Now, I think it is extremely doubtful if the Road Act of 1874 is a local Police Act at all. The meaning of the repealing clause in the General Police Act of 1862 is—if you adopt this Act, then any local Police Act or any previous General Act under which the burgh may have been acting is repealed. The effect, therefore, of its adoption in Kirriemuir was to repeal the General Police Act of 1833, under which its police matters had previously been regulated. The 1st section provides that certain previous police Acts are repealed “except only as regards any burgh in which the provisions of the said Acts or any parts thereof have, on or before 1st August 1862, been adopted,” and therefore they are not repealed by the passing of this Act; but then, by sec. 35, if these burghs go on to adopt the Act of 1862 the old Acts are repealed; the two sections read together plainly have that meaning. But while I am of opinion that the Road Act of 1874 is not a local Police Act, and is for that reason not repealed by the adoption of the Police Act of 1862, I am further of opinion that even if it were such an Act, it is plainly intended to be permanent. This Act is intended to have effect whatever may be the existing Acts regulating police matters, and is to stand alongside of any such Acts as may be in force in the burgh. In this very 22d section you have this express declaration—“for carrying into effect the provisions contained in this section, such Commissioners shall have and may exercise and enforce all the powers and authorities conferred on them by the Police Act in force within such burgh at the time for carrying into effect the provisions of that Act in reference to footways on the streets of such burgh.” Now, that is to my mind conclusive evidence that this Act was intended to stand with any General Police Act that might be already in force, and to be read with it. There are other clauses in the Act of 1874 which go to the same effect, e.g., the 38th, referred to by the Sheriff. Now, here is an express provision that this Act shall not prevent other Acts from receiving full effect in the burghs of Dundee and Broughty Ferry. Kirriemuir is purposely missed out, and very plainly because it was understood that if the Act of 1862 was afterwards adopted in Kirriemuir it should not interfere with the operation of this Road Act. In addition to this, I am not sure that the 149th section of the Act of 1862 applies to this case at all. That clause is found in part iv. sec. 3, of the Act called Paving and Maintaining Streets. There is a series of clauses, beginning with the 146th and going down to the 157th, on that subject. While the 149th provides that the owners whose property abuts on the footways shall be liable, there is another section, viz., the 156th, providing that “no liability attaching in law to the trustees of any turnpike or other road, or other persons liable to make, pave, causeway, maintain, or cleanse streets or the footways thereof, shall be affected thereby.” Now, it seems to me that the Police Commissioners of Kirriemuir are within the description of persons so liable, and therefore the 149th section is not to affect their liability and transfer it to the owners of adjoining property. It is certainly satisfactory to come to this conclusion, for otherwise there would be a gross injustice done here. The Police Commissioners are levying money under their powers of assessment for the purpose of doing this very work, and at the same time they are trying to impose liability on the owner. I am clearly of opinion that the Sheriff and Sheriff-Substitute are right.
The appeal was dismissed.
Counsel for Appellants—Dean of Faculty (Watson)— Kinnear— Harper. Agents— Irons & Roberts, S.S.C.
Counsel for Respondents— Balfour— J. P. B. Robertson. Agents— Webster & Will, S.S.C.