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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Parochial Board of the Parish of Borthwick v. The Parochial Board of the Parish of Temple [1891] ScotLR 28_897 (17 July 1891) URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0897.html Cite as: [1891] SLR 28_897, [1891] ScotLR 28_897 |
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Page: 897↓
By sub-section 3 of section 50 of the Local Government (Scotland) Act 1889, the Boundary Commissioners are empowered, when making an adjustment under that Act, to state a special case for the opinion of the Court on any question of law arising.
The Boundary Commissioners for Scotland, acting under their statutory powers, detached an outlying portion of the parish of T, and annexed it to the parish of B. When the liabilities of the two parishes came to be adjusted, a question arose as to which parish would be bound to support persons who had at the date of the transference a settlement by birth or residence in the detached portion of T, and might thereafter require parochial relief.
Held that no question of law had been submitted, and case dismissed.
Opinions ( per Lord M'Laren and Lord Kinnear) that the questions submitted to the Court were just those which the statute intended the Commissioners to deal with and to dispose of.
By order dated 24th November 1890, the Boundary Commissioners for Scotland declared that a detached portion of the parish of Temple, containing 228 acres or thereby, situated at or near Gorebridge, should cease to be a part of the parish of Temple, and should form part of the parish of Borthwick. The order came into operation on 15th May 1891. Before the transfer the population of Borthwick was 1902, and of Temple 1646. The population of the
Page: 898↓
portion detached from Temple and added to Borthwick is 1191, making the present population of Borthwick 3093 and of Temple 455. The Parochial Boards of the two parishes failed to agree as to an adjustment of liabilities consequent upon the transfer of the detached portion, and applied to the Boundary Commissioners to make such adjustment.
Thereafter the present case was stated for the opinion of the Court by the Boundary Commissioners, at the desire of the Parochial Boards of Borthwick and Temple.
It was stated in the case that before the Commissioners could adjust the liabilities of the parishes, it was necessary to settle the questions of law as to the settlement of those persons who, residing in the said detached portion, possessed at the date of the transfer on 15th May 1891 a settlement by birth or residence in the parish of Temple, and who might thereafter become chargeable; that the Parochial Board of Borthwick maintained that the settlement of such persons continued to be in Temple, while the Parochial Board of Temple contended that it was transferred to Borthwick; that since the date of the transfer on 15th May 1891, Alexander Wyllie, who immediately preceding that date possessed a settlement in the parish of Temple by residence in the said detached portion, had made application to the parish of Borthwick for relief, and had been temporarily relieved, pending the settlement of the questions between the two parishes.
The opinion of the Court was craved on the following questions—“(1) Whether the settlement of the said Alexander Wyllie is still in Temple, or has been transferred to Borthwick? (2) If it be held that his settlement is in Temple, will residence by him for four years and a day in the said detached portion after the date of the transfer destroy his residential settlement in Temple? (3) Will a person born in the said detached portion prior to 15th May 1891, and becoming chargeable to the parish of his birth subsequent to that date, fall to be supported by the parish of Temple or by the parish of Borthwick?”
The Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50), sec. 49, provides, inter alia—“When an order under this Act has taken effect, the Boundary Commissioners may provide for the adjustment and disposal of the property, debts, and liabilities of the various authorities affected by the order, and for the settlement of differences arising out of the order.” Section 50, sub-section (2), provides—“In default of an agreement as to any matter requiring adjustment for the purposes of this Act, then if no other mode of making such adjustment is provided by this Act, such adjustment may be made or determined by the Commissioners;” and sub-section (3) provides—“The Commissioners, when making an adjustment under this Act, shall be deemed to be a single arbiter within the meaning of the Lands Clauses Consolidation (Scotland) Act 1845, and the Acts amending the same, and the provisions of those Acts with respect to an arbitration shall apply accordingly; and further, the Commissioners may state a special case on any question of law for the opinion of either Division of the Inner House of the Court of Session, who are hereby authorised finally to determine the same, along with any question of expenses.”
Argued for Borthwick Parish — The pauper had no settlement by residence in Borthwick, therefore there was no obligation on Borthwick to relieve him. At the date of the transfer any pauper who had a residential settlement in Temple retained it for four years and one day, and anyone who had a birth settlement retained it for five years. The two questions of law for the Court were—(1) Whether in transferring a pauper from one parish to another his settlement was transferred with him? (2) whether the transferred paupers were paupers of the new parish or merely of the transferred area?
Argued for Temple Parish—With the transfer of a portion of the area of the parish the liabilities were also transferred. The parish of Borthwick could assess the transferred portion, and must therefore be liable for the paupers transferred, as the right to assess and the liability for relief are co-extensive.
At advising—
I do not see that we have much to do with the interests of either of these two bodies; what we are more concerned with is the competency of the present proceedings. The application is by means of a special case in order to obtain our decision upon certain questions which have been submitted to us, in order that we may assist the Commissioners to adjust the liabilities which have arisen between the Parochial Boards of these two parishes.
The Court fully recognises the duty which lies upon it to aid the Commissioners in the determination of any question of law which may arise in the discharge of the duty that has been imposed upon them; but the question which first presents itself for determination in this case is, whether there is here any question of law at all upon which the opinion of the Court can be obtained, and upon that matter I am very clearly of opinion that there is not.
The effect of what the Commissioners have done is simply this—to detach an outlying portion of the parish of Temple and to annex it to the parish of Borthwick. So long as the boundaries of these two parishes remained unadjusted, questions might have arisen between them involving principles of law upon which our opinion and judgment might competently have been obtained, but the order of the Commissioners here, out of which these questions have arisen, was pronounced so long ago as November 1890, and so it is not a
Page: 899↓
The law of settlement is entirely statutory, and I do not find in the statutes any guide or assistance in answering the questions which have been submitted to us. What we are asked is this—[His Lordship then referred to the questions]. Now, these are either questions depending for their answer upon the statute, or they are not questions of law at all. For my own part, I may say that I can find nothing in the long list of statutes between 1579 and 1848 that can in any way aid us in the determination of these questions, and 1 therefore come to the conclusion that there is no question of law here at all.
The Legislature has placed these parishes in an anomalous and not very intelligible position. When they altered the law, so far as the division of parishes was concerned, they did not consider what would be the effect of the alteration upon residential settlements. The difficulty is one entirely created by the Legislature, and the Legislature must remove it. I am therefore of opinion that there is no question of law here at all.
There is no question of common law, because there is no common law upon the subject. The question is one of statute law, and we look in vain to the statute for any light on the subject.
If there is any question of liability arising between the two parishes in consequence of the detachment of one portion and its junction with another parish, that looks like a question of liability which the Commissioners might decide. At all events, I am clear that the Commissioners have not presented to the Court any question of law which they can ask us to decide or which we are able to decide.
The Court dismissed the case.
Counsel for the Parish of Borthwick— Wallace— C. K. Mackenzie. Agent— A. J. Napier, W.S.
Counsel for the Parish of Temple— J. A. Reid. Agents— J. & F. Anderson, W.S.