Scottish Court of Session Decisions

This was an action at the instance of J. Pullar &Sons, dyers, North British Dye Works, Perth, against William Macleish, solicitor in Perth, clerk to and as representing the Police Commissioners of Perth. The summons concluded (1) for declarator “that the said Commissioners are bound, in terms of the ‘Police and Improvement (Scotland) Act, 1862,’ to collect from the pursuers' said works the whole dust, dung, ashes, rubbish, and filth (excepting always stable and byre dung) produced in the pursuers' said works called the North British Dye Works, in the city of Perth, including the ashes of the coal or other fuel consumed in the furnaces of said works, and to remove the same from the said works at such convenient hours and times as the said Commissioners shall think proper;” (2) for decree ordaining the defenders henceforth to collect and remove the whole dust, dung, ashes, rubbish, and filth (except stable and byre dung) produced in the pursuers' works; and (3) for payment of, first, the sum of “£43, 16s. 2d., with interest thereon at the rate of 5 per centum per annum from 31st December 1873 until payment; second, the sum of £68, 11s. 3d., with interest thereon at the foresaid rate from 31st December 1864 until payment; and third, the sum of £31, 15s. 11d., with interest thereon at the foresaid rate from 1st June 1875 until payment, and also of such further sums of money as the pursuers may have expended or may yet expend for removing said ashes on and after said last-mentioned date, as the same may be ascertained in the process to follow hereon, aye and until the said Commissioners shall remove said ashes themselves, or at their expense.”

The Police and Improvement (Scotland) Act 1862 was adopted by the inhabitants of Perth in 1865, and the pursuers were assessed by the Commissioners under the Act in respect of their works. By sec. 132 of the Act it is enacted—“The dust, dung, ashes, rubbish, and filth (excepting always stable and byre dung), within the burgh shall be and the same are hereby vested in the Commissioners, who shall have power to sell and dispose of the same as they think proper, and the money arising therefrom shall be applied to the police purposes of this Act; and the Commissioners shall cause all the streets, public or private, together with the foot pavement, from time to time to be properly swept and cleansed, and all the dust, dung, ashes, rubbish, and filth to be collected from such

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streets, privies, sewers, cesspools, houses or premises, and to be removed at such convenient hours and times as they shall consider proper.”

By sec. 134 the Commissioners are empowered to cause dust-boxes to be placed in such of the public and private streets as they shall judge necessary, and to require the occupiers of premises within such streets to deposit their dust and ashes therein in order that it may be carried away. Sec. 137 enacts that the Commissioners shall appoint scavengers for the purpose of cleansing and watering such streets, and for removing all dust, ashes, rubbish, and filth therefrom. By sec. 142 it is provided “that all private courts, yards, areas, and other places which are not cleansed by scavengers appointed under this Act, shall be kept clean, and shall at least, three times in every week, or when required by the superintendent of police or inspector of cleansing, be cleansed out by or at the expense of the occupiers of such courts, yards, areas, or other places respectively; and if such courts, yards, areas, or other places shall not be so kept and cleansed, the occupiers thereof shall be liable to a penalty not exceeding ten shillings for every such offence.”

For some years prior to November 1872 the Commissioners had been in the habit of collecting and removing from the pursuers' works the ashes of the fuel consumed in their furnaces. At that time they discontinued doing so, and since then the pursuers have been obliged to remove the ashes from their furnaces at their own expense. The pursuers averred that in addition to their works they occupy as workshops certain premises opposite, the ashes from which are daily removed by the Commissioners, and that the ashes from woollen manufactories, spinning-mills, breweries, foundries, and other works within the burgh, are also daily removed by them.

The defender stated that within the last ten years the pursuers' works have been greatly enlarged, and the number of furnaces used has been much increased. That in the old works there were common privies for the work-people which were regularly cleaned out by the scavengers appointed by the Commissioners, and that the ashes were used for the purpose of making the removal of the contents of those privies as inoffensive as possible. That in the new works of the pursuers there are water-closets which are connected with and emptied into the common sewer of the town, and that since the erection of the new buildings the commissioners have not removed the dust and ashes. He further stated that the substances which the pursuers call “the ashes of the fuel consumed in the furnaces in operation in their works,” are not manurial, and are of no saleable value, and that they are not truly ashes at all. That the principle on which the pursuers' furnaces are constructed is such as to completely exhaust the coal, and leave behind nothing but a flinty substance called “clinkers” or danders, useless for any purpose except the bottoming of roads. And that on a proper construction of the statute the Commissioners are not bound to remove worthless articles produced in the course of the operations necessary in carrying on dye-works, tan-works, stone yards, &c., for the interest of private individuals, and thus to relieve them of an expense connected with their private business in order to lay it upon the public.

Lord Young, after a proof, pronounced an interlocutor assoilzieing the defender, for the reasons stated in the following opinion:—

“I have had considerable difficulty in arriving at a conclusion in this case, as I have been unable to find any precedent or principle or rule of law to guide me. On the whole matter I have come to be of opinion that, subject to the qualifications which I shall state, the defenders' second plea in law is well founded. It is ‘that on a true construction of the Act founded on they are not bound to collect and remove ashes or other refuse from within private premises.’ That plea, however, must be read as meaning from within the premises now in question, or others of substantially the same character, for I mean my decision to apply to these premises only, and not to lay down any rule larger than this, that in such a manufactory as the present, having regard to its character and size, the Police Commissioners are not under the Act of Parliament bound to lift and remove the refuse clinkers, and ashes produced by the furnaces of the engine houses. I do not mean to lay down any such proposition as this, that they are not bound to remove the cinders from any manufactory whatsoever. There may be manufactories of such a domestic character that the fires therein, and the ashes and cinders falling therefrom, are not, for the purposes of such a question as the present and, so far as regards the duties of the Commissioners, distinguishable from the fires and ashes of ordinary dwelling-houses. But here there is an extensive dye-work, carried on in premises erected for the purpose, and there are no less than twenty-six engine furnaces now going there. My opinion is that such a manufactory, looking to its character and size, is not, for the purposes of collecting and removing the clinkers and ashes falling from these numerous furnaces, within the operation of clause 132 of the Act of Parliament. I cannot in terms sustain the second plea in law as it stands, and it need hardly be altered, for I can simply pronounce absolvitor from the conclusions of the action, without any particular findings, explaining, as I have done sufficiently, that I mean only to decide the particular case, without laying down any larger principle than I have announced as necessary to cover it. Of course, as the defenders are to have absolvitor, that will carry expenses.”

At advising—