Scottish Court of Session Decisions

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The Commissioners of Police for the Burgh of Leith, acting under “The General Police and Improvement (Scotland) Act, 1862,” gave notice in terms of that statute to the effect that North Junction Street, North Leith, being a private street in the meaning of the Act, and not being properly paved and levelled, it was their intention to have this done at the expense of the owners of the property fronting or abutting on the street, and, after a conference with the proprietors, they issued an order to that effect. Against this order certain of the proprietors appealed to the Sheriff, who held that the street was not a private one, and the above order was therefore annulled.

The Commissioners thereafter brought the present action of declarator and reduction against the owners of lands fronting or abutting on North Junction Street for the purpose of having it found and declared that it was a private street in the sense of the Act; that it was not sufficiently levelled, &c.; that it should be lawful to the pursuers to have it so levelled, &c., as a private street; and further, that the interlocutors of the Sheriff should be reduced, in so far as they could be pleaded as a defence to the other conclusions.

Under the General Police Act, public streets are repaired, &c., at the expense of the community; whereas private streets are provided for in these respects by the contribution of the proprietors of tenements fronting or abutting on them.

The appeal to the Sheriff is provided for by sections 396 and 397 of the Act, and in reference thereto it is declared by the latter section that appeals are to be “disposed of summarily, and the decision of the Sheriff shall in all cases be final and conclusive, and not subject to review by suspension, reduction, or advocation, or in any manner of way.”

By section 197 similar provisions are made with regard to the finality of the Sheriffs judgments, and by section 437 it is provided that all decisions declared by the Act to be final “shall not be subject to be set aside or reviewed or affected by any Court or judicature, upon any ground or in any manner of way whatever.”

The present action was brought upon the grounds that the Sheriff had exceeded his powers in not sisting process to allow of a declarator being brought to determine the question whether Junction Street was a private street; that he had pronounced his judgment without allowing a proof or making due inquiry, and that he had not applied his mind to the matter.

The defenders pleaded preliminarily against satisfying the production, res judicata, and want of jurisdiction. These pleas were, however, repelled so far as preliminary, and a record, under which the pleas of parties were repeated, having been made up, and, parties having been heard, Lord Ormidale (Ordinary) upon 15th February 1866 found that the action as laid was not competent or maintainable in this Court, and to that effect dismissed the action, and found the pursuers liable in expenses. In a note his Lordship said:—

“The summons in this case contains both declaratory and reductive conclusions. The latter, however, from the manner in which they are libelled, are contingent upon and insisted in merely in aid of the former. If, therefore, the declaratory conclusions cannot be maintained-and the Lord Ordinary thinks the cannot, either with or without the aid of the reductive conclusions-it follows that the action is not maintainable as regards either set of conclusions. The Lord Ordinary is also of opinion that the reductive conclusions of the action, even if they could be dealt with apart and independently of the declaratory conclusions, could not be maintained.

The first declaratory conclusion appears to the Lord Ordinary to be manifestly nothing more than a declarator in the abstract, separate from, and independent of any consequent right in the pursuers, or any practical object or purpose, as to the meaning of a public statute. But such a declarator has been repeatedly held to be incompetent—Todd and Higginbotham v. Burnet, 7th March 1854. 16 D. 794; Gifford v. Traill, 8th July 1829, 7 S., 854; and Lyle, &c., v. Balfour, 17th Nov. 1830, 9 S., 22.

The second declaratory conclusion is substantially to the same effect, and exposed to the same objection. Supposing, however, that it could be held that there are imported into it elements of a practical nature not in the first conclusion, the incompetency is not thereby obviated. For, if it he true that the street in question ‘is not, together with the footways thereof, sufficiently levelled, paved, or causewayed and flagged, to the satisfaction of the pursuers, as Commissioners of Police foresaid,' the question at once occurs—Why do they not proceed to discharge their statutory duty in the way and manner provided by the Act? which is certainly not by raising an action of declarator in this Court— Thomas v. Keating & Co., 18th July 1855, 17 D. 1133. A declarator to the effect that a street ‘is not levelled, paved, or causewayed and flagged to the satisfaction of the pursuers,’ seems to be not only a very anomalous, but a very absurd proceeding.

The third or remaining declaratory conclusion is, in the view of the Lord Ordinary, equally incompetent as the others, and his remarks in reference to the second conclusion, are applicable alike to this third conclusion.

It is plain, indeed, that the pursuers have resorted to the present action of declarator, in order, if possible, to get over the barrier interposed by the Sheriff's judgment, which stands against them. But, as the Sheriffs judgment is by the statute declared to be final, and not reviewable in any way or on any ground whatever, the pursuers cannot be allowed to do covertly and indirectly what they could not do avowedly and directly by any of the ordinary and recognised modes of review. Nor can it avail the pursuers to argue that, because the Sheriff has stated, in the form of a declaratory finding, the ground on which he proceeded, his judgment is in excess of his powers, and therefore reducible— Hall v. Grant, 19th May 1831, 9 Sh. 612. And, at any rate, the present is not a proper action brought for the purpose of setting aside a judgment of the Sheriff, irregularly or illegally pronounced, leaving it open to him to give judgment of new in due ant correct form. It is, on the contrary, an action of declarator in this Court, of matters competent, as the Lord Ordinary thinks, to the Sheriff alone, and, as has been heady remarked, the reductive conclusions applicable to the Sheriffs judgment are introduced merely to clear the way in the event of that being thought necessary for the exercise of the jurisdiction of this Court under the declaratory conclusions.

It would be a singular result of the General Police Act in question, if, as was contended for by the pursuers, it were to be held necessary or competent, in reference to streets or any other of the numerous subjects to which it relates, to precede its enforcement by a declarator in the Supreme Court of its meaning and application. The Lord

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Ordinary cannot think that such a course, leading, it might be, to great oppression, is either necessary or competent. It appears to him, on the contrary, to be opposed alike to the policy and provisions of the Police Act in question, and to authority— Balfour v. Malcolm, 4th March 1842, 1 Bell's Appeal Cases, p. 153; and Smeaton v. Commissioners of Police of Burgh of St Andrews, 17th May 1865, 3 Macpherson, 816. The latter of these cases arose under and in reference to the General Police Act here in question; and the circumstance that it related to drainage while the present case relates to streets, cannot affect the principle of decision.

The Lord Ordinary is not, however, to be understood as holding that, in no circumstances, can a Sheriffs judgment, in reference to such matters as those now in dispute, be reviewed and set aside by this court on the ground, for example, amongst others that might be suggested, of excess of power. But, in the present instance, neither excess of power, nor any other sufficient ground of reduction, is averred. All that the pursuers say against the Sheriff's judgment is—(1) That he pronounced it without allowing a proof, or making due inquiry; (2) that he did not ‘apply his mind to the matter.’ What the latter, as a reason of reduction, precisely means, the Lord Ordinary does not profess to understand, and it was not explained to him. So far, however, as he can judge, it is nothing but a vague expression likely enough to be used by every party dissatisfied with an adverse judgment, and is, in no view that can be taken of it, an allegation that could be sent to probation, or otherwise sustained as a relevant challenge of a decree which is declared by statute not to So also, of the very general statement, that the Sheriff pronounced his judgment without formally allowing a Having regard to the fact that the pursuers do not say that they asked for a poof, and the further fact that they do not state what materials and information the Sheriff had before him, or that these were not amply sufficient to enable him to advise the case, the Lord Ordinary cannot think that the allegation that he had not allowed a poof, especially when it is not said that any was asked, in any view of the case, be sustained as a of reduction. The sheriff, it must be presumed, had the benefit of all the materials and information which the pursuers themselves possessed, when they, in the first instance, and before the appeal to the Sheriff was taken, disposed of the matter without any formal allowance of proof.

The cases of the Edinburgh and Glasgow Railway Company v. Lord Hopetoun, 1st July 1840, 2 D. 1255, and Erskine v. Kerr, 15th December 1857, 20 D. 277, cited and relied on by the pursuers, do not appear to the Lord Ordinary to be applicable to the circumstances of the present case.”

The Commissioners reclaimed, but to-day the Court held that they had no jurisdiction to entertain the action, and dismissed it.