Scottish Court of Session Decisions

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Cite as: [1867] ScotLR 3_262_1, [1867] SLR 3_262_1

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Judgment:

Lord Curriehill Lord Deas Lord Ardmillan

3 SLR 262_1

Carstairs and Other.

v.

Kilmarnock Police Commissioners

Subject_1Statute Construction.

Facts:

Terms of a local statute which held to authorise the magistrates of a burgh to compel proprietors of buildings in a street to form a foot pavement in front thereof.

Headnote:

By the Kilmarnock Police Act, 10 and 11 Vict., cap. 207, sec. 33, it is enacted “That the owners and proprietors of all houses and buildings, or of gardens or grounds adjoining to or fronting any street. square. or public or lane or passage already formed or to be formed within the 1imits of the said burgh, shall, at his, her, or their expense, and in proportion to the extent of the fronts of their respective properties, or of the rents of their houses as after mentioned, cause the whole of the said streets, squares, or other public places, lanes, and footpaths, and passages, to be well and sufficiently paved, causewayed, or macadamised with whin or other material, of such breadth and in such manner and form as the commissioners, after visiting the grounds and hearing the parties, shall direct and appoint, and shall thereafter, from time to time as occasion may require, re air and uphold and maintain in repair the said streets, squares, public places, law, and passages. ” The next section of the Act (section34) provides for the mode of enforcing the obligation upon owners and proprietors, and for the recovery by the commissioners of any expense they might incur in paving or repairing streets, in case of the owner's failure to do so.

By section 124 of the said Act it is enacted—“And whereas the personal performance of statute service has not been required for many years in the county of Ayr, a reasonable composition in money in lieu thereof having been found more useful and expedient, and it will farther be more convenient
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that the said commissioners have the power of levying the composition or conversion hereby authorised within the bounds of this Act; be it therefore enacted, That from and after the passing of this Act, all persons, corporations, or companies, in the natural poseession whether as owners, leasees, or occupiers of lands, iron works, factories, and manufacturing establishments, houses, buildings, and other heritages of every description within the said bounds, shall pay yearly, on or before the 11th day of November in each year, as a money composition, or conversion in lieu of statute service, a sum not exceeding one pound for every hundred pounds of the real rent or value of such lands and heritages, and a proportionate sum for smaller rents or values, in conformity with the provisions and exceptions of the Actor Acts regulating, or that may be passed during the resent session of Parliament to regulate, the collection of the statute labour of the remainder of the said county of Ayr; which statute labour conversion-money shall, from and after the passing of this Act, be payable to and leviable by the said commissioners and their collector within the bounds of this Act, as far as may be in the same manner as is provided in regard to the collections of the other assessments hereby granted, and the same shall be applied by the said commissioners in upholding and keeping in repair the various thoroughfares within the said limits, with the exception of the following portions thereof— videlicet, the part of the road from Glasgow to Kilmarnock lying betwixt Beansburn at a point 84 yards north, and distant from the centre of Henderson's Free Church, in Wellington Street of Kilmarnock; the parts of the road from Stewarton to Kilmarnock, lying betwixt Wellington Street and the boundary of said burgh, and betwixt Garden Street and said boundary; the part of the road from Ayr to Kilmarnock, lying betwixt Riccarton Bridge and a point 54 yards south and distant from the centre of the Relief Church in King Street; the part of the road from Kilmarnock to Mauchline lying betwixt Green Street and the extremity of the bounds of said burgh; the parts of the road in said burgh leading from Grange Street towards Irvine and Troon respectively; and the part of the road within said burgh leading from the east side of St Marilock's Bridge, near Kin Street, towards Irvine; which shall be held and kept in repair by the trustees of the turnpike roads of the said county of Ayr: Provided always, that in case of there being any surplus of the said conversion-money, after properly upholding said thorough fares, the same shall be laid out upon the other streets of Kilmarnock, under the direction of the said commissioners, and an account of the receipts and disbursements of said conversion-money shall be kept in a separate book, which shall be open or all reasonable occasions to the inspection of the road trustees, and every person paying the said Conversion-money.”

The suspenders are proprietors of the villa of Halkett Park, situated in Hill Street, Kilmarnock. When the Act was assed, Hill Street was one of the roads referred to in section 124, but it is now one of the streets of Kilmarnock. The commissioners having called upon the suspenders under section 33 to repair the footpath opposite their property in Hill Street, they failed to do so, and the footpath was formed by the commissioners at an expense of 223, 16s. 4d. This sum the suspenders refused to pay, and accordingly a complaint was of payment was thereafter given, and the present suspension was then brought.

The suspenders that the “authorities of the burgh were not entitled to require the complainers to pave the footpath opposite their property under sec. 33 of the statute, in respect that said footpath is part of the thoroughfare mentioned in sec. 124, and in terms thereof falls to be held and kept in repair by the Trustees of the Turnpike Roads of the county of Ayr.”

The respondents pleaded—“Hill Street being one of the streets within the limits of the burgh of Kilmarnock, the proprietors of property therein fall within the provisions of the 33d section of the Act, and in virtue thereof the present suspenders were bound to repair and causeway the footpath in front of their property. The obligation imposed on proprietors by sec. 33 is not taken away, discharged, or in any way affected by the provisions of sec. 124, which continues a different kind of burden or obligation upon the County Road Trustees.” They also pleaded that by Sec. 134 of the act, the only competent court of review was the Court of Justiciary, and that the suspension was therefore incompetent. To this it was answered that this limitation of review was only applicable to case in which the magistrates acted within their powers under the act, and that in this case, it was alleged, they had exceeded them.

The Lord Ordinary (Jerviswoode) sustained the above plea in law for the suspenders, and suspended the charge with expenses. The following is his Note.—It appears to the Lord Ordinary that the complainers here have shown sufficient grounds to obtain the remedy for which they pray

Had the matter rested solely on the provisions of the 33d section of the Locial Police and Improvement Ad, as quoted in the 6th reason of suspension, there could have been little doubt, looking to the admissions contained in the answers to the 7th and 8th reasons, that the complainers would have been liable to pave and uphold the footpath and roadway adjoining their property in Hill Street of Kilmarnock

But the real difficulty in the way of the respondents, and that which, as it appears to the Lord Ordinary, is fatal to their case, arises under the application of the special exceptions from the general provisions of the 124th section of the statute. It will be seen that that section (the 124th) authorises the collection of the composition or conversion-money leviable in lieu of statute-labour within the bounds of the burgh by the commissioners thereof, to be applied “by the said commissioners in upholding and keeping in repair the various thoroughfares within the said limits. ” There follow certain exceptions, which include, inter alia, “the arts of the road from Stewarton to Kilmarnock, lying betwixt Wellington Street and the boundary of the said burgh, and betwixt Garden Street and said boundary, ” which it is declared shall be held and kept in repair by the trustees of the turnpike roads of the said county of Ayr.

It is not, as the Lord Ordinary understands, made matter of dispute that the subjects belonging to the complainers here have in fact their frontage to the road thus mentioned, which, 111 terms of the provision just quoted, is to be held and kept in repair by the county trustees; nor will it, as the Lord ordinary presumes, be doubted that as a consequence of this obligation the road trustees must, in terms of the 82d section of the General Turpike Act, 1 and 2 Will. IV., cap. 43, make
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and maintain a footpath at the locality in question. If this be so, can it be reasonably held that the proprietors of tenements fronting these excepted thoroughfares are also to make and maintain foot-paths, under the provisions of the local Act, in the identical localities which lie within the bounds, and are under the charge of the turnpike trustees?

The Lord Ordinary thinks otherwise, and that the only just and consistent interpretation of the local statute is to read it so that the exception shall be held to include the whole roadway and footpath thereof which is within the control and management of the road trustees. And this construction appears to be the more just and reasonable if it be further borne in mind, as the Lord Ordinary thinks is clear, that while the commissioners of the burgh are entitled to levy statute-labour conversion money over the whole district within their bounds, and to expend the same upon the thoroughfares within the bounds of the burgh other than those in the position of the road here in question, the complainers, according to the contention of the respondents, are to be compelled to pay statute-labour conversion money for the sole benefit of the rest of the community, and to remain under obligation to pave their own frontage, towards the expense of which that conversion money cannot, in any circumstances, if the respondent be right, be applied at all.

If the view which the Lord Ordinary thus takes be sound in relation to the true intent and effect of the statute, it, it is thought, suffices to dispose of the present question on its merits.

It it true it is also maintained, under the first plea for the respondent, that this action is excluded by force of the provisions of the 134th section of the statute, but the Lord Ordinary has been unable to bring himself to the conclusion that the proceedings here complained of fall within that special enactment, which, taken as a whole, seems to apply to matters of a criminal character only. C. B.

The commissioners reclaimed

Young and Gifford were heard for them.

Rutherfurd Clark and F. W. Clark for the suspenders.

The Court to-day unanimously recalled the Lord Ordinary's interlocutor, and refused the suspension with expenses.

Judgment:

Lord Curriehill—This is a question as to the construction of the two sections of the statute founded on, and does not appear to me to be attended with difficulty. The 33d section is very comprehensive in its scope; and if there is nothing else in the subsequent clauses limiting its operation, the only matter for inquiry is, whether this property is comprehended in the description of “houses, buildings, gardens, or grounds, ” &c., contained in sect. 33. Now, I don't doubt that this description comprehends the suspenders' property, which is a house fronting a street admittedly within the limits of the burgh. The question comes then, Is there any exception in the 124th section? As I read it, that section has no application whatever to the 33d. What it provides for is the districts to which the statute labour composition-money is to be applied, and what it does by way of exception is merely to point out the districts on which the commissioners are not entitled to expend the funds. But that is no exception to the burden imposed by sect. 33, and that appears to me to be the whole question. Therefore I think the commissioners have not exceeded their powers, and that the reasons of suspension are not well founded.

Lord Deas concurred. The first question was as to the 33d section of the Act, and the second was whether the 124th impeded its operation. There was in sect. 33 a description of the properties which were liable, and added to it the places to which they must be adjacent, to insure that liability. Houses, gardens, or grounds must adjoin a street, a square, a public place, lane, or a passage. It was contended For the commissioners that this power applied to every part of the excepted ground, and that whatever its condition, even were it a road, it was a street in the sense of the statute. He was of opinion that that was not the true interpetration of the Ad. The ground must adjoin a street, &c. I, therefore, it had been disputed that the suspenders' ground was adjacent to a street, he thought the magistrates would have been without their jurisdiction, and that their judgment would have been bad; but here it was not disputed that the subject was adjacent to a street. It did not matter whether it was then built, or now built. It was said in the opening argument of Mr Clark that this Hill Street was excepted, because it was not then built on, and that this was changed now; but it being admitted that Hill Street adjoined, it came within the very description in the 33d section. The commissioners were entitled to exercise their discretion, and unless they went egregiously wrong the Court could not interfere with them. If it had been disputed that Hill Street was a street, in the sense of the statute, it would have raised a different question. The whole question, therefore, was this-Hill Street being a street, was it taken out of the category by section 124? He thought with Lord Curriehill it was quite clear that the 124th section did not in the least interfere with the 33d section, and that therefore the judgment of the magistrates was right and final.

Lord Ardmillan said that the 33d section sufficiently supported the whole claim made by the commissioners. The words were wide and comprehensive. The suspenders' property adjoined one of the streets of the town, land was therefore liable, unless section 124 had the effect of relieving the proprietors in that street. He did not think it had. That section was intended to affect not the incidence but the application of the revenue. It left untouched the whole matters of the Act except the fund which, when collected by the commissioners, was separated in its application. The whole fund was to be payable to and leviable by the commissioners, and they, having collected it, were to apply it in keeping in repair the thoroughfares, excepting, among others, Hill Street; but the parts so excepted were not excepted from the incidence of the statute, nor excepted from the jurisdiction of the commissioners. Now, there could be no exception beyond what was the obligation of the road trustees. When a road became a street, in whatever way, the obligation of the trustees to maintain it as a road was seriously affected. Nothing could be plainer than that the road trustees had no liability to pave. Thus, when the commissioners called on the suspenders to pave, they were calling on them to do something which the road trustees were not bound to do, and therefore they were in the very position contemplated for enforcing the provisions of the 33d section. He was therefore quite clearly of opinion that the magistrates were right in their decision.

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Counsel:

Agent for Suspenders— Andrew Fleming, S.S.C.

Agents for Commissioners of Police— M'Ewen & Carment, W.S.
1867